Term
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Definition
Complaint
Answer
Oregon: a reply to a counterclaim |
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Term
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Definition
| State facts supporting a plausible, not just possible, claim. |
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Term
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Definition
A plain and concise statement of the ultimate facts constituting a claim for relief without unnecessary repetition.
Ultimate facts = directly or ultimately satisfies element of a claim
Conclusions of law and of fact are improper |
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Term
| Statement of Claims for Relief |
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Definition
Under federal rules, such claims need not be seperately stated unless they arise from separate transactions or occurrences
Oregon: must be separately stated. (Strike)
Count: When the plaintiff is entitled to only one recovery but the recovery could be sustained under two different theories. |
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Term
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Definition
The law will imply general damages in absence of contrary evidence.
K. Loss of bargain
Tort: pain, suffering, disability
Special damages must be pled to be recovered.
K: additional losses
Tort: medical expenses
Punitive damages may not be pled w/ complaint |
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Term
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Definition
Must be filed within 30 days of service and contain denials and/or affirmative defenses.
In federal, file within 21 days or 60 days if Defendant waives service |
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Term
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Definition
| Any material allegation in the plaintiff's complaint that is not denied in answer is admitted. |
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Term
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Definition
A general denial is a statement denying whole complaint
Specific denials deny part of allegation
May deny sufficient knowledge or information or belief
Qualified general denials are preferred |
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Term
| Enumerated affirmative defenses in Oregon |
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Definition
| Accord and satisfaction, assumption of risk, comparative and contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illeagality, injury by fellow servant, laches, license, payment, release, res judicata, statute of fraud, statute of limitations, unconstitutionality, and waiver |
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Term
| Amendment of Pleadings by Right |
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Definition
Oregon: once as a matter of course before an opposing party serves a responsive pleading
No responsive pleading = 20 days of service
Federal court: Once within 21 days of service
Thereafter, amendment with consent of other party or leave of court |
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Term
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Definition
| If an amendment asserts a claim that arises out of the same transaction or occurrence as that set forth in the original pleading, the amendment relates back to the time the original pleading was filed |
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Term
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Definition
1. Defendant received such notice of the action and
2. Knew or should have known, that but for a mistake concerning the identity of the pat, the action would have been brought against him |
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Term
| Motion to Dismiss for Substantive Sufficiency |
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Definition
Federal: a motion to dismiss for failure to state a claim
Oregon: a motion to dismiss for failure to state ultimate facts sufficient to constitute a claim |
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Term
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Definition
An entire pleading or defense in an answer or al allegation in a pleading may be stricken if it is sham, frivolous, or redundant or is a legal conclusion.
FRCP 12; ORCP 21 |
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Term
| Motion to make more definite and certain |
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Definition
| "So indefinite or uncertain that the precise nature of the matter is not apparent" |
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Term
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Definition
Matters that merely postpone the plaintiff's right to proceed on merits until defect is cured.
ORCP: SMJ; PJ; Insufficiency of service; another action pending; incapacity to sue; not real party in interest; failure to join a party
FRCP: PJ; SMJ; Service; another matter mending |
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Term
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Definition
| General rules: all grounds for motion must be asserted |
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Term
| Consolidation and waiver: exceptions ORCP |
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Definition
Not waived: capacity to sue, real party in interest, statute of limitations has run
Pre fact finder: (1) failure to state a claim; (2) join a party
SMJ is never waived |
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Term
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Definition
1. Not presented for improper purpose
2. Legal contentions are warranted by law
3. Factual contentions have evidentiary support
4. denials of factual contentions are warranted
Serve motion for sanctions on other party for 21 days then file with court |
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Term
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Definition
| The person with the beneficial interest in the judgment being sought as opposed to someone who merely has a formal connection with claim |
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Term
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Definition
Basic: each have a claim arising from a single set of transactions or occurrences.
Pleadings give rise to a question of law or fact common to all parties. |
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Term
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Definition
If an unjoined party's absence from the action would result in prejudice to that party or
to a defendant in an action exposing him to a substantial risk of incurring double liability, party is necessary
Not joint and several obligors or tortfeasors |
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Term
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Definition
If a necessary party cannot be joined, on motion court must determine whether unjoined party is indispensable
Weight the degree and probability of prejudice that would be incurred, value of other forums |
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Term
| Joinder of Claims: Plaintiff |
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Definition
A plaintiff may join as many claims as he has against a defendant without restriction.
On motion, court has discretion to oder separate trials if risk of prejudice. |
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Term
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Definition
Oregon: always permissive
(BUT, WATCH OUT FOR RES JUDICATA)
Federal: compulsory when:
SAME TRANSACTION OR OCCURRENCE
SOL tolls after complaint is filed |
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Term
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Definition
| Both the FRCP and ORCP permit one party to sue a co-party when the claim arises out of the same transaction as plaintiff's claim. |
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Term
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Definition
If the defendant believes that if he were to be held liable to the plaintiff, he would be entitled to collect all or any part of the judgment from someone else, the defendant may join a claim against that person even though the latter is not presently a party.
Third party defendant liability depends on third party plaintiff |
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Term
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Definition
When a third person on his own motion becomes a party to an action between other persons.
Discretionary
The only requisite showing is common question of law or fact |
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Term
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Definition
A procedure whereby a person who holds property subject to conflicting claims by two or more claimants may bring those claimants into court to decide the matter.
Diversity jurisdiction: $500, minimal diversity |
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Term
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Definition
CANT
COMMON question of law or fact
ADEQUATE representation by parties
NUMEROUS, rendering joinder impossible
TYPICAL claims of class |
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Term
| Appealing a certification decision |
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Definition
| 14 days to appeal an order granting or denying class certification |
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Term
| Types of class law suits allowed |
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Definition
1. When individual suits could lead to inconsistency/injustice
2. When final injunctive relief or declaratory relief would necessarily apply to entire class
3. When the court finds that class issues predominate (notice is required) |
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Term
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Definition
1. Class action is pending (class issues predominate)
2. Class action is dismissed or settled |
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Term
| Class action and diversity jurisdiction |
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Definition
1. Court looks at named member of class
2. No named members can be from same state ad defendant
3. One class representative's claim must meet $75,000 |
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Term
| CAFA: Mandatory decline of jurisdiction |
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Definition
A district court must decline jurisdiction if:
1. More than 2/3 of members are citizens of state
2. a defendant from whom significant relief is sought is a citizen of that state
3. principal injuries were incurred in state in which action was filed
4. no similar class action has been filed w/ 3 yrs |
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Term
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Definition
1. More than 1/3 but less than 2/3 of the proposed plaintiffs are citizens of state where filed
2. Primary defendants are also citizens of that state |
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Term
| Effect of Judgment: class action |
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Definition
| Res judicata and collateral estoppel effects |
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Term
| Discovery: Irrelevant material |
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Definition
| Material is irrelevant only if it would not tend to lead to evidence admissible at trial. |
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Term
| Trial Preparation Material |
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Definition
Showing of substantial need of materials for trial AND
unable to acquire without undue hardship.
The intellectual work product of an attorney is not discoverable |
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Term
| Discovery of Experts: Federal Rule |
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Definition
Testifying expert: a party may depose experts who are expected to be called at trial (testifying experts)
Consulting experts: retained but not expected to testify. Not discoverable, except for substantial need for obtaining purely factual information |
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Term
| Discovery of Experts: Oregon |
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Definition
| Oregon contains no rule regulating discovery of expert witnesses |
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Term
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Definition
| May be curtailed in order to protect a party or witness from annoyance, embarrassment, or oppression |
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Term
| Federal: Initial Disclosures |
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Definition
Without request:
1. names and contact info for individuals that may testify
2. copies or descriptions of documents that support claim or defense
3. a computation of damages
4. copies of insurance agreement |
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Term
| Federal: Disclosure of expert testimony |
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Definition
A party must disclose to other parties the identities of expert witnesses expected to be used at trial.
Report prepared and signed by expert witness
At least 90 days before trial |
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Term
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Definition
Depositions are permitted before an action is filed when the person expects a suit to be brought
Depositions cannot be used to see if a suit exists |
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Term
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Definition
Usually no court order required
Cannot take more than 10 depositions or depose same person more than once without order |
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Term
| Depositions: Instruction not to answer |
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Definition
Limited to:
Privilege
Need to enforce a court's limitation on evidence
Questions in bad faith |
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Term
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Definition
Send corporation a letter
Letter must disclose person to be deposed |
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Term
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Definition
A subpoena is not needed for parties or their officers
Non parties should be subpoenaed |
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Term
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Definition
| If a party objects during the deposition, the object is recorded. If it is unanswered, interrogating party may obtain order to have question answered. |
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Term
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Definition
Party to interrogatories merely provide written sworn answers
Not available in Oregon |
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Term
| Discovery and Production of Documents |
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Definition
| Any party, whether or not adverse, may be required to produce and permit inspection by any other party of papers, photographs, objects, land, etc. |
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Term
| Physical, Mental, and Blood Exams |
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Definition
When in controversy, court may order an appropriate examination by a doctor.
Order is made on good cause |
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Term
| Exchange of Medical Information |
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Definition
An examined party has the right to a copy of the examining doctor's report.
By requesting a report, the party examined must respond to a request by the opposing side for reports of his own doctors re: condition |
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Term
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Definition
Party seeking discovery may obtain a court order requiring response.
Failure to comply with a discovery order may result in a variety of sanctions including contempt, dismissal, or judgment |
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Term
| Federal Rule 26(f) meetings |
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Definition
| Parties must meet to discuss their claims and defenses, possibility of settlement, initial disclosures, and a discovery plan |
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Term
| Adjudication without Trial |
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Definition
1. Demurrer / Judgment on pleadings
2. Voluntary / Involuntary Dismissal
3. Motion for summary judgment |
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Term
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Definition
| A plaintiff may sometimes dismiss without prejudice. A plaintiff has a right to voluntarily dismiss up to five days before trial. |
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Term
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Definition
| Dismissal may be granted when a party deliberately fails to comply with procedural rules or court orders. |
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Term
| Motion for summary judgment |
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Definition
1. Moving party must show that no genuine issue of material fact exists
2. Responding party must show a genuine issue of material fact does in fact exist
3. Partial summary judgment may be granted |
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