civil procedure first quiz

claim 7(a)

request for remedy by the claimaint

Rule 7 claims

complaint, counterclaim, crossclaim, third party complaint

rule 7 responses to claims

answer to claim, answer to counterclaim, answer to crossclaim, answer to tp claim

response to a response to a claim

reply

primary functions of pleading

1. put court on notice of claims and defenses 

2. provide a mechanism for testing whether the claim or defense is sufficient under substantive law

how does a motion differ from pleading

a motion is a request for a court order. claim is not request for the court to do something

does rule 8(a) apply to all pleadings?

no. only pleadings that state a claim for relief

What are the required components under 8(a) of federal court pleadings stating claims? 8(a)(2)

1. identification of plaintiff and defendant and their relationship

2. defendants unlawful conduct

   1. consequences to plaintiff

How does defendant ask the court to decide the claimants claim is legally insufficient?

12(b)(6) motion to dismiss for failure to state a claim

may a federal court consider any facts or other material outside the complaint in ruling on a 12(b)(6) motion?

NO 

Analytic steps for considering whether a claim is factually sufficient under FRCP 8(a)(2)

1. ignore and identify and unsupported legal conclusions

2. assume for purposes of 12(b)(6) motion that remaining allegations are true

3. determine whether remaining factual allegations show a plausible claim for relief under the substantive law

unsupported legal conclusion

Threadbare recitals of the elements of the cause of action, supported by mere conclusory statements, do not suffice (twombly)

plausible claim 

do the allegations plausibly suggest the defendant acted illegally? (not just possible)

what happens if claim is not sufficient under FRCP 8(a)(2)

dismissed under 12(b)(6)

if plaintiff has brought a multi claim complaint, and the court determines one claim to be insufficient, what happens?

only the insufficient claim is dismissed.

how to determine a factual allegation from an ULC

allegations about what happened or what likely will happen (historic or predictive allegations) typically will be considered factual allegations

conclusory or factual?: “Ashcroft approved merger of the two lists”

factual (allegation of historic fact)

conclusory or factual?: “Ashcroft was the principal architect of the policy”

conclusory characterization

does failure to cite the legal authority for a claim make the claim insufficient under 8(a)(2)?

No (Johnson v. City of Shelby)

do twombly/iqbal factual sufficiency rules apply to state procedual rules that are identical to FRCP 8(a)(2)?

no, these cases interpret federal rules

do twombly/iqbal factual sufficieny rules apply to defenses?

no

Why did the plaintiff’s claims against Ashcroft and Muller go forward in Turkmen v. Hasty, but not Iqbal’s?

plaintiffs alleged more facts supporting plausible claim of purposeful discrimination

a neurologist, librarian, and engineer are involved in a skiing accident. do the FRCP permit the neurologist in a single lawsuit to assert a negligence claim against the librarian and a negligence claim against the engineer?

yes, because FRCP 8(d)(2) allows it

An art collector contract with an art gallery to purchase a painting by a famou artist. the gallery receives a higher purchase price from a different buyer. do the FRCP allow the art collector to seek both an order of specific performance to get the painting and compensation measure by the different between the original contract price and the higher new price the different buyer is willing to pay?

Yes, because FRCP 8(d)(3) allows it.

in a breach of contract case, do the FRCP allow the defendant in good faith to deny that a contract was formed (because there was a question as to whether it was legally formed) and also assert a counterclaim against the plaintiff for breaching contract?

Yes, because FRCP 8(d)(3) allows it

may a court grant only the relief that the claimant sought in the complaint?

No, rule 54(C)

requirements for a preliminary injunction

1. he is likely to succeed on the merits

2. he is likely to suffer irreparable harm in the absence of preliminary relief

3. balance of equities tips in his favor

4. an injunction is in the public interest

Who uses a notice of dismissal?

the plaintiffqhe

when can a notice of dismissal be used?

before an opposing party serves either an answer or a motion for summary judgment

what is the effect of the court ordered dismissal?

w/out prejudice unless notice states otherwise (exception in 41(a)(1)(b)

whic party uses a stipulation of dismissal?

both parties w

when is a stipulation of dismissal used?

anytime

What if the effect of a stipulation?

w/out prejudice unless states otherwise

which party uses a court order of dismissal?

plaintiffw

when is a court order of dismissal used?

circumstances not covered by 41(a)(1)(A)

what is the effect of a court order of dismissal?q

without prejudice unless otherwise statedw

why would a defendant want a stipulation of dismissal to be with prejudice?

so that the plaintiff does not bring the claim back to court

Which party uses an involuntary dismissal?

the defendant

when is an involuntary dismissal used?

when plaintiff fails to prosecute or comply with FRCP OR when plaintiff fails to comply with court order

What is the effect of an involuntary dismissal?

Operates as an adjudication on the merits unless otherwise states

timing of an answer changes if a party makes a motion under rule ____

12

how does rule 12 motion change the timing?

responsive pleading must be filed 14 days after notice of courts action

Why would a defendant assert a motion under rule 12 before serving an answer?

to avoid having to serve an answer 

defense

injects a new issue that exculpates the defendant or reduces the defendants liability; avoids the implications of opposing parties claim

denial

contests the truth of factual allegation made by the claimant

Defendant believes he has facts showing another person owns the land. should defendant’s attorney assert a denial or a defense in the defendant’s answer?

denial to contradict allegation that pl owns land

Defendant believes he had been given permission from plaintiff to use land. should defendant’s attorney assert a denial or defense in defendant’s answer?

Defense to avoid effect

may defendant deny the alegation of plaintiffs ownership and also assert the affirmative defense that plaintiff gave the defendant permission to use land?

yes as allowed by FRCP 8(d)(3)

general damages

alleging past pain and suffering

specific damages

hospital bills, future pain and lost wages