Civil Procedure Flashcards

Flashcards on Civil Procedure

Pleading

Informative documents filed in court.

Serving

Giving a complaint to the defendant.

Filing

Giving a complaint to the court.

Motions

Documents requesting the court to issue an order.

FRCP Rule 8(a)

A short and plain statement of the grounds for the court’s jurisdiction, a short and plain statement of the claim showing the pleader is entitled to relief, and a demand for the relief sought.

FRCP Rule 11(b)

Making representations to the court that the document is not being filed for an improper purpose, that the party has done competent legal research, that the party has done a reasonable inquiry into the facts of the case, and that the denial of factual contentions are reasonable.

Safe Harbor

Once a Rule 11 motion is served to the opposing party, the receiving party has 21 days to rectify the error.

Notice Pleading Jdx

Requires less factual specificity compared to code pleading; all federal courts use this.

Code Pleading Jdx

Requires greater factual specificity compared to notice pleading; used by some state courts, including CA.

Ultimate Facts

Facts that describe in adequate detail, but without legal argument, the circumstances that P believes entitles them to a remedy.

Alternative or Inconsistent Pleading – FRCP 8(d)(2)

A party may set out two or more statements of a claim or defense alternatively or hypothetically, and a party may state as many separate claims or defenses as it has, regardless of consistency.

Do Nothing (Responding to Complaint)

If the defendant does not respond, the plaintiff will get a default judgment against the defendant

Attacks permissible in Pre-Answer Motion

Motion for More Definite Statement and Motion to Strike.

Timing – Serving Responses – 12(a)

Defendant must serve an answer within 21 days after being served with the summons and complaint.

Rule 12 Motions

Lack of SMJ, lack of personal jdx, improper venue, insufficient process, insufficient service of process, failure to state a claim upon which relief can be granted, failure to join a party under Rule 19.

Motion to Dismiss/Failure to State a Claim upon which Relief Can Be Granted - 12(b)(6) Motion - Demurrer before Answer

Demurrer does two things: Admits all the facts alleged in the complaint and says even if everything you allege is true, the law affords you no relief.

With Prejudice

The party cannot re-file the claim.

Without Prejudice

The party can re-file the claim.

Twiqbal Two-Step Plausibility Rule

Disregard Conclusory Allegations and Determine whether remaining allegations plausibly suggest entitlement to relief

Motion for more Definite Statement – FRCP 12(e)

Must be made when the allegations in the claim are so vague, indefinite, unintelligible, that D cannot properly frame a response to those allegations.

Motion for Judgement on the Pleadings - FRCP 12(C) – Demurrer after Answer

Complaint must state enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary element; Made after an answer.

General Denial

A blanket denial to every allegation in the complaint; ineffective if some of the claims denied are true and not at issue.

Specific Denial

A party does not intend to deny all the allegations; must either specifically deny designated allegations or generally deny all except those specifically admitted.

Affirmative Defenses

A defense that absolves D of liability; must be pled in Answer; otherwise, they are considered waived.

Reply – 7(a)

P responds to a counterclaim; general rule is that it is not allowed unless Court asks the party to respond to an answer.

Foman Test

Requires asking: Is the moving party blameworthy for making the motion at the time they are? Would the opposing party be unfairly prejudiced?

Joinder of Claims – Rule 18

Combining separate lawsuits together; a party is able to join any and all claims they have against a single defendant.

Compulsory Counterclaim – 13(a)

A claim brought by the defendant that comes out of the same transaction or occurrence as plaintiffs claim against defendant; must be filed with the answer or it will be waived.

Crossclaim – Rule 13(g)

Must be based on the same transaction or occurrence as the original claim; are not compulsory.

Permissive Joinder of Plaintiffs/Defendants – Rule 20 – Multiple parties being in one lawsuit

Multiple plaintiffs can be in one lawsuit if each have claims coming out of the same transaction or occurrence, or same series of transactions or occurrences; Must be a common series of facts or laws that bring Ps together.

Third-Party Claims – Rule 14

A defendant may assert a claim against a third party only when the defendant is trying to pass all or part of the liability onto that third party.

Implead

To bring into a lawsuit.

Class Action Lawsuits General Info

The class representative of the class action is the named Plaintiff; Members of the class are not named as plaintiff.

Identifiability (aka ascertainability)

The members of a certified class must be sufficiently definite; can be easily ascertained or determined using objective criteria.

Numerosity 23(a)(1)

The class must be so numerous that joinder of all members is impractical; if there are over 40 members, numerosity is presumptively satisfied.

Commonality – Rule 23(a)(2)

There has to be common questions of law or fact that binds the class together; the common question has to be capable of class-wide resolution in one stroke.

Typicality – Rule 23(a)(3)

Is the class rep’s claim typical of that of the average class members claim?

Adequacy

Whether the class rep and class counsel are adequate to represent the class; constitutional right protecting absent class members.

Prejudice Class action – 23(b)(1)

If individual lawsuits would lead to an unfair litigation disadvantage, then the case can be classified as a 23(b)(1) class action lawsuit.

Injunction Class Action – 23(b)(2)

A class action where the relief sought is either injunctive relief or primarily injunctive relief.

Damages Class Action – 23(b)(3)

Class is seeking monetary relief; well-suited for small claim class action lawsuits

Predominance (super-commonality)

The common contention that has been identified in commonality must predominate over individual issues that arise in the lawsuit.

CAFA – “Must Decline” Rule

If applicable, court must decline jurisdiction when 2/3 or more of class members AND the defendant are citizens of the forum state.

Fairness hearings - Required to make sure settlement is fair

Court will entertain the pros and cons of approving the proposed settlement to ensure that the proposed settlement is fair to absent class members; the fund from which distribution of awards are given to class members.

Motion to Compel

Only when parties are disputing a discovery request and cannot resolve the dispute between themselves that a court can enter the fray.

26(f) Conference

Attorneys meet to talk about the case and try to resolve the case; formal discovery devices may not be used prior to this conference.

16(b) Conference

Court puts together a scheduling order to set dates for discovery cut-off, trial dates, etc; parties often file MSJ’s after discovery cut-off.

Required Initial Disclosures – Rule 26(a)(1)

Parties must disclose certain information to each other.

Formal Discovery Requests

Request for production of documents, Deposition, Interrogatories.

Consequence for failing to disclose

Failure to disclose information that should have been disclosed, may mean that party waives its right to use that individual or document as evidence in the litigation.

Duty to supplement = 26(e)

All parties have a duty to provide additional information or correcting information that was already given.

Requests for Production – Rules 34(a)(1)(A) and 45

Involves requests for production of documents; Requesting from non-parties - Rule 45(a)

Interrogatories – Rule 33

A list of written questions where every written question is an interrogatory; can only be served on another party in the lawsuit.

Requests for Admission – Rule 36

Eliminates undisputed issues or authenticates items of evidence.

Depositions – Rule 30

A party can ask questions of the deponent and the deponent answers those questions under penalty of perjury.

Physical and Mental Examinations – Rule 35

Parties to the action, or the person in custody/legal control of the parties can be required to submit to a physical or mental examination.

Privilege

Even if the discovery request is relevant, but the response includes privileged information, then an objection can be made on the basis of privilege.

No Waiver of the Privilege

Disclosure of information to a 3rd party is considered a waiver; Client holds the privilege.

Work Product Doctrine aka Trial Preparation Materials

Documents or Tangible Things Prepared in Anticipation of Litigation or Trial Prepared by or for another party by or for that other party’s representative.

Opinion Work Product

Qualified immunity; immunity can be overcome; Contains the mental impressions, conclusions, opinions, legal theories, or strategies of a party’s attorney or other representative concerning litigation.

Experts

A person with specialized knowledge that may be helpful to the trier of fact as to a relevant issue.

Fact Witness Experts

An expert who can prove or disprove a certain fact involving the claim; someone who was there; someone that was involved with something in the case; Performed some kind of role in the underlying facts that led to the lawsuit.

Retained Experts

Hired experts that may testify at trial; had no role in the underlying facts, wasn’t actually there; reviews the relevant facts/information of the case to give opinions based on their knowledge.

Protective Orders – FRCP Rule 26(c)

Forbidding the disclosure or discovery; Specifying terms, including time and place, for the disclosure or discovery; Prescribing a discovery method other than the one selected by the party seeking discovery.

Entry of Default – Rule 55(a)

Default will include a declaration by the party certifying that the defendant has been served with the lawsuit, that the time allowed to respond has expired, and that the defendant has failed to file a pleading/motion or response to the complaint; Cuts off D’s right to appear.

Entry of Default Judgement

Makes the case reach the final judgement; Cuts off defendant’s right to respond to the complaint; Defendant would have to make a motion to set aside the default.

Default judgment issued by court clerk – Rule 55(b)(1)

Issued by court clerk, applies to narrow situations (like breach of contract).

Involuntary Dismissal – Rule 41(b)

Plaintiff may have their lawsuits involuntarily dismissed for plaintiff’s “failure to prosecute” their lawsuits; Operates as an “Adjudication on the Merits”.

Voluntary Dismissal – Rule 41(a)

Plaintiff may voluntarily dismiss lawsuit without court order by filing a Notice of dismissal before opposing party serves either an answer or motion for summary judgement.

Motion for Summary Judgement – Rule 56

Motion for Summary Judgement should be granted when: No genuine dispute as to a material fact and Moving Party Entitled to Judgement as a Matter of Law.

Burden of Pleading

A party who makes a claim in a lawsuit seeking a remedy has the burden of pleading the claim sufficiently.

Burden of Production

It’s the plaintiff’s obligation by going first in trial to establish every element of plaintiff’s claim with evidence.

Burden of Persuasion

In civil cases: P must prove every element by a Preponderance of the Evidence (more likely than not standard).

Proactive Method (aka Affirmative Method)

Affirmatively produces facts in support of its motion for SJ, that negate plaintiff’s claim.

Reactive Method

Introduces facts showing that there is no genuine dispute as to a material fact

Motion for Judgement as a Matter of Law (FRCP 50(a))

Made before case goes to jury.

Renewed Motion for Judgement as a Matter of Law FRCP 50(b)

Made after the verdict has been rendered by jury; Could a reasonable jury have entered that verdict?

Motion for New Trial (FRCP 59)

Should be granted if the verdict goes against the great weight of the evidence.

Claim Preclusion (also known as res judicata)

Knocks out entire claims.

Issue Preclusion (collateral estoppel)

Knocks out an issue being litigated in a current lawsuit.

Claim Preclusion – Res Judicata

Forbids a party from re-litigating a claim that should have been raised in a former litigation.

Majority (Federal Rule) - STO test

Lawsuit 1 is the same claim as the same claim in lawsuit 2.

After a Final Judgment / Valid Final Judgement

A judgement is valid when the rendering court was able to hear the case in the first place.

Relationship Between Lawsuits

Between (Same Parties or Their Privies)

Issue Preclusion – Collateral Estoppel

Lawsuits involve the concept of same issue, rather than same claim.

Applicable when the issue

Applies when the issue in the present litigation is the same as the one litigated in a past lawsuit.

Special Verdict

Requires trier of fact to answer specific questions.