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court held that notice pleading does not but higher burden on plaintiff. enforces rule 8a "short and plain"
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| service of process. there is no hierarchy under rule 4, other methods need not be exhausted before |
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conley v. gibson
what rule |
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Definition
12 b 6 motion for failure to state a claim from which relief can be granted.
"unless it appears beyond doubt that the pleader cannot prove any set of facts to prove his claim" |
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| 12 b 6 retired conley by supreme court.... there was a strong dissent citing that they have always used it. "no set of facts" promotes fact that pleadings that have no facts |
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| what did bell atlantic promote, |
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Definition
| bell atlantic promoted the idea that pleading should be more than simply "legal conslusions that can prove no set of facts." |
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| Ashcroft. v. Iqbal , what rule |
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| even if well pleaded fact raise plausible interest it does NOT entitle the plaintiff to relief. |
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| what rule requires heighten pleading requirement as states in the rules |
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| fraud or mistake in rule 9 |
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| who has the burden of proof in civil complaints |
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| the defendant has the burden of proving. |
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| the defense must admit or deny. if there is a insufficient knowledge they should say so..... which acts as a denial. here, the defendant did not and the judge dimissed the case |
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| an affirmative defense has to be proven by the party that makes the affirmative defense. |
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| rule of affirmative defenses |
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| failure to plead an affirmative defense is waived unless it does not hurt the other party |
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| any responses that are required and are not denied are admitted |
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| the plaintiff can dismiss the complaint before the defendants answer, without prejudice |
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| if the P does not comply with the rule the judge can dismiss the complaint |
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| what is the rule in ohio dealing with plaintiffs ability to dismiss voluntarily |
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| P can dismiss all the way up the commencement of the trial |
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| party can amend a pleading at any time before the responsive pleading |
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tran v. alphonses Hotel corp
amended pleading is allowed if it arose out of the same actions.
court ruled that P did not orignially allege anything about bribery so it was not neccessary to relate back |
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| what is the rule dealing with parties trying to AMEND their complaint |
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| if the amendment adds a new claim based on an act that does not relate back NO! |
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| court held sua sponte because the D has affadavits that were known to be false |
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| Frantz v. U.S. powerlifting |
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| TC held that because the attorney's fees were so high the case must be complicated, so it did NOT impose sanctions. APPEAL -- if TC finds that attorney's fees are too high they can lower them, but still sanctions are imposed. |
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| what is the main theme of federal rules dealing with discovey |
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Definition
| to liberalize the process to minimize all forms of surprise. |
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| oral or written depositions --> any witness can be disposed. |
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| lawyers MUST object to other lawyers questions when they are deposed if the believe they are worng in (1) substance or (2) form |
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| what are the exceptions to when the party does not have to answer the questions when being disposed |
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Definition
| 1. attorney client priv 2. enforce limitation already given by court 3. bad faith -> unreasonable standrad (annoys, embarresses) |
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| what is malpratice for lawyers |
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Definition
| if the lawyers tell them what to say |
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| when can iteraggatory be issued? |
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Definition
| any actual or reasonably obtainable knowledge |
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| "request for production" -->documents are to be provided by the witness (tangible, obtainable). |
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| rule 35 physical / mental exam |
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| must show good cause and the moving party must pay |
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| initial disclosure of all relevant fact to encourage settlement |
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| parties are required to take part in discovery process |
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| parties may obtain discovery regarding (1) ANY matter not privileged and (2) relevant to the claim |
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| parties may obtain discovery regarding (1) ANY matter not privileged and (2) relevant to the claim |
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| it does not matter if the discoery sought is not relevent to the P's claims as long as it is relevant to the subject matter. |
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| 26 b relevent information |
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Definition
| must be reasonably calculated to LEAD to the discovery of certain admissable evidence (subject matter) |
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Definition
| burden of expenses of the discovey CANNot outweigh the benedit of the evidence. |
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| what is the rule when a party wants to discover something from the other party. what rule |
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Definition
| if the party could have gotten it himself, it is not discoverable. rule 26 |
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| The evidence that the P wants is highly relevant to the subject matter (emails) but the cost / burden of getting the emails outweighs the benefits will have on deciding the cases. Should the cost be shifted to the party that is trying to get the discovey? --> ONLY ONLY when there is undue burden / cost in granting. |
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| what methods can courts use to decide whether the evidence will outweigh its burden? |
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| issue a sample discovery to see what would it produce |
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| attorney work product. must show (1) substantial need (2) cannot get without substantial hardship |
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| info does not fall under attorney / client priv because the information could haev been obtained by the other party. |
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| mental imoressions of attorney |
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Definition
| cannot discover mental impressions of the parties |
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| what is not discoverable ... given protection |
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Definition
| mental impressions, opinions, legal theories |
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| what is an exception to the opinions in discovery |
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| 26 b 2 --> expert witness |
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| what is party resist providing discovery? what moving does the party move under? |
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| 26 b 1 -- court may order discovery of any matter that is "relevant to the subject matter" |
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| can you dicover info you are not going to use at trial |
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Definition
| yes. discovery is broad as long as it can lead to admissable evidence |
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| motion to compel.... person trying to get information |
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| does attorney client privelege fall under agents of the attorney |
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Definition
| yes. when they are prepared in preparation |
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Term
| w.e. aubuchon v. benefirst |
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Definition
| ESI! claims would have been burdensome if it was allwoed. it is relevant, but it is burdensome. here, it was readily available but not readily searchable. |
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| sanctions cannot be brought if the esi was lost in routine, good faith |
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Definition
| party may move for a motion to compel |
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| what is motion to compel does not bring up any useful information / it does bring up useful information |
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Definition
| whatever party loses this incurs expenses. |
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Definition
| sanctions for failure to comply with a granted motion to compel |
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Term
| what are the sanctions for not complying with court ordered motion to compel |
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Definition
| striking all or part of the pleading, contempt, dismissal, default judgement |
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Definition
| P failed to comply with court ordered motion to compel, so the trial court dimissess. the appeal of this was upheld |
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| what are the things the court uses to protect (protective order) |
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Definition
| embarressment , oppressions, undue buren, expense |
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| phillips v. general motors |
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Definition
| court has broad dsicretion when deciding whether to grant protective order or not |
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| gonslaves v. city of new bedford |
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| attorney fined monetarily when he did not correct facts of papers he turned in that he later found to be false or not completly accurate. here = was he in good health. papers said yes. he did not correct them even though he knew that his client had hiv later one. lots of evidence proving that he knew |
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| judge requires a dicovery order |
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| there is not standard for modifying a scheduling order |
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| final pre trial court order will be held as close to trial as possible |
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| when is final pre trial conference held |
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Definition
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| what is the final pre trial list - 6 |
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| 1. facts agreed upon 2. issues that will form basis 3. list of witnesses 4. deposition of experts 5. documents 6. objections |
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| designed to handle complex issues and potential burdens on the defendants |
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| 1983 claim. trial bifruicated |
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| judge motion to seperate trial on sperate claim. in ricutti, the court one trial = 1983 claim allowed, 2 = injuries allow. |
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| 16 c 13 bifuircation, when can be granted |
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| avoid prejudice, provide for convenience |
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| when does settlement have to be given |
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Definition
| 14 days before trial and the other party is given 14 days to answer the settlement offer |
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| what the the rules of settlement after liability is found |
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Definition
| 14 days before damages are issued, party given 14 days to decide |
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| what is settlement offer is rejected and the damages given is less that what the settlement offer was? |
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Definition
| the party has to pay the cost of the extra money minus the settlemnet offer |
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| is the judge allowed to discuss settlement with the parties.. if yes, when |
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| rule 16 allow the judge to talk about |
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| court can take actions neccessary to encourage settkement, WHEN AUTHOORIZED BY LOCAL OR STATE STATUTE |
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| what is the "american rule" concerning attorney's fees |
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Definition
| each party is responsible for their own fees |
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| what are the expceptions to fee shifting in attorney's fee's? |
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Definition
| bad faith. civil rights litigation. |
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Definition
| the plaintiff did not get as much in verdict as was offered in settlement. tried to get attorney's fees. RULE prevailing civil rights litigant is barred from getting attorney's fees when rejected settlement offer is more than verdict award. (some states allow fee's via statute). |
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| what is the huge draw back from the holding in marek v. cheney. |
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Definition
| if the civil rights litigant denies settlement that is slightly lower than the final settlement will allow the other party to escape losing attorney's fees. BIG arguement |
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Term
| what are the two types of adjudication |
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Definition
| 1. arbitration 2. private tribunals |
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| what adjudicative is binding |
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Definition
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| the parties pick a arbitrator that is the factual determiner and renders a decision |
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| "rent a judge" --> used to eliminate delay and exclude the public. judges ruling is a ruling on behald of the court |
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| third party (impartial) conducts negotiation process. does not impose solution to the problem |
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| begins as a mediation between the two and if that does not get anywhere it goes to binding arbitration. |
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| laywers give briefs to the jury to see what they will say |
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| court order a non-binding arbitration on parties and they disputed about who would pay for the cost. court has 1. power to order 2. power to say that the parties has to share cost even though they do not want the arbitration |
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| what are 4 judicial ways to order non-binding mediation |
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Definition
| 1. lcoal rules 2. statutes 3. rule 16 4. courts inherent powers (power to manage--> elemtns --. reasonable, orderly, cannot contradict law, procedural fairness |
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Term
| what matter does judge decide? jury? |
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Definition
| jury = matters of fact, judge = matters of law |
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Definition
| if a party wants a jury trial they must demand it at pleading. |
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Term
| when is the timing of demanding a jury trial? |
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Definition
| no later than 10 days after the last pleading |
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Term
| What determines the civil right to a jury |
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Definition
| seventh amendment guarentees right to a civil trial is the value of the controversy exceeds $20 |
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| two prong approach to the right to a jruy trial 1. historical test, remedies sough |
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| what damages claim does not allow a jury tiral |
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Definition
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| what year do courts look back on to decide whether a jruy trial is available |
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| what must courts do since the trial does not exist in modernity and it existed back then? |
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| in patent infringement case the judge did not allow a jury trial because of the lexical nature of the case. what is lexical? lexical is the vocabulary/ meaing of the words when compared to the knowledge of the parties that are making the decisions |
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| what does judge have to do when looking at the juries ability to take the trial |
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Definition
| judge measures the juries fucntional abilities. |
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Term
| what must be proven in order for an injunction to be granted |
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Definition
| 1. plain, adequate and complete remedy at law (stop doing that) 2. irreparable harm will result if an injunction is not granted |
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Term
| what must be proven in order for an injunction to be granted |
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Definition
| 1. plain, adequate and complete remedy at law (stop doing that) 2. irreparable harm will result if an injunction is not granted |
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Term
| who conducts voir dire in state courts? federal |
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Definition
| federal = judge, state = lawyers |
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| how many preemptory challenges are allowed |
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Definition
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Definition
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| what is the standard when pre emp is violation |
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Definition
| moving party must prove that they were. ex, he is black. the burden then shift to the other party to say why he did not make bad based on race / gender. Ex. he has a beard and no one else does. the judge decides, then. |
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| edmonston v. leesville construction |
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Definition
| racial preemptory challenge denied. reason is because it would amount ot governmental racism since the court is a function of the state |
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Term
| what was the edomonston dissen, who made it, what did they say |
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Definition
| it was scalia--> notes that it may work against the minority litigants who want to use minorities to mkae the jury more fair |
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Term
| how many "for cause" strikes are each party allowed? |
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Definition
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Definition
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Term
| what does summary judgement test the facts for? |
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Definition
| states that theere is no genuine issue of material fact. |
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Term
| what are issues of material fact |
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Definition
| those facts that will affect the outcome of the tiral |
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Term
| who has the burden of proving that there is not issue of material facts in the trial? |
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Definition
| moving party that wants summary judgement. if they make prima facie case, then the burden shifts to the other party to decide |
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Term
| can judge move for summary judgement himself? |
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Definition
| the judge can move sua sponte, moving for summary judgement without either party bringing up the issue |
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Definition
| asbestos. rule 56 motions do not have to be supported by affadavits to be made. |
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Term
| what does celotex tell us? |
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Definition
| a moving party for summary judgement does ot have to support its motion with affadavits |
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Term
| are pleadings enough for summary judgement support? |
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Definition
| no. pleadings are based on unsworn allegations |
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Definition
| appeal made on an issue during trial itself is concluded |
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Definition
| courts are to view the facts and draw reasonable inferences about most favorable to the party opposing the summary judgement. |
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Definition
| non-moving party must show GENUINE ISSUE, the prescense of a facutal discrepency will not sure a summary judgement claim |
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| rule 50 - what are the two elements to grant a judgement as a matter of law |
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Definition
| party has been fully heard; no sufficient evidenciary support to find an issue |
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Term
| what is the allocation of burden in discrimination cases |
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Definition
| P must establish prima facie (presumption of guilt), burden to defendant (presumption shifts, not pursuasion); shifts back to plaintiff--> prove by a proponderance of the evidence |
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| court upheld rule that party must move under 50(a)--> during trial before they can move for jnov after trial. |
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| what are the 3 kinds of verdicts |
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Definition
| general, special, general with interagatories |
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Definition
| new trial, may be made with for any reason for which rehearings have already been granted. |
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| what is the difference between rule 50 b and rule 60 |
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Definition
| rule 50 b wants a judgement on the matter changed from guilty to innocent, rule 60 wants a whole new trial, everything new. |
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Definition
| court gives the option to the P: either accept lower price or we will move for a new trial |
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Definition
| take greater amount or grant P's motion for new trial |
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Definition
| clerical mistakes may eb corrected by court at any time sua sponte or by motion |
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Definition
| court may relieve a party from final judgement. "catch all phrase allowing for any reaosn the judge may find" |
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Definition
| D did not appeal then moved under 60 b to relief. not accepted |
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