Term
| Things the Complaint must contain |
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Definition
1. a statement of subject matter jurisdiction
2. a short and plain statement of a claim showing the pleader is entitled to relief under any applicable law
3. the prayer for relief. |
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Term
| TWIGBAL Standard of pleading |
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Definition
1. Identify elements of underlying claim
2.Identify conclusory allegations
3.Determine whether allegations plausibly give rise to the claim for relief |
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Term
| How to determine whether actions give rise to claim for relief |
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Definition
a. common sense
b. judicial experience
c. context specific
d. must be plausible, not just conceivable. Also, alternative explanations must be considered. |
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Term
| Ways to respond to the complaint |
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Definition
a. Pre-answer motion (Rule 12)
b. Answer |
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Term
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Definition
Motion to dismiss for failure to state a claim.
1. Court must accept well-pleaded allegations as true
2. Merely conclusory allegations are not accepted for as true
3. A plaintiff in federal court is not required to plead factual allegations by the elements (but a good attorney should) |
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Term
| Rule 12(g)(2), the Omnibus rule |
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Definition
| When moving for a 12(b) dismissal before answering, a party must consolidate all its Rule 12 defenses into one motion or else he loses them |
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Term
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Definition
| If the defendant omits a 12(b)(2)-(5) in the first paper filed, he loses them |
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Term
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Definition
Admitting the truth of the allegation, but avoiding liability
Rule 8(c) |
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Term
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Definition
a. General denial – defendant denies all claims in the complaint
b. Specific denial – Defendant denies some claims specifically, and admits other
c. Lacking knowledge – a party that lacks knowledge sufficient to form a belief about the truth of an allegation must say so, and this statement has the effect of a denial. |
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Term
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Definition
| defines a form of legal malpractice based on objective negligence. |
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Term
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Definition
1. Facts must determine that there is evidentiary support or that it is likely that evidentiary support exist.
2. All papers must be submitted for a proper purpose
3. If a complaint has some support in the law, some underlying improper purpose does not always warrant rule 11 sanctions |
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Term
| Amending the pleadings (Rules) |
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Definition
1. A party can amend its pleading within 21 days of filing without permission of the court
2. In all other cases they must ask leave of the court. Court should grant "when justice so requires" |
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Term
| When is relation back required? |
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Definition
| When adding claims to a complaint that have expired due to statute of limitations after the original complaint was filed |
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Term
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Definition
| The original complaint must put the defendant on notice that he might have to defend the charges |
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Term
| Requirements in Relation Back |
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Definition
1. Claim arises out of the same transaction or occurrence as the original complaint (Rule 15(c)(1)(b))
2. The original complaint put the defendant on notice
3. The amendment is filed within 120 days (Rule 4m) |
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Term
| Adding a new party because of Mistaken Identity |
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Definition
1. Must arise out of the same conduct, transaction, occurrence
(rule 15(c)(1)(B))
2. If within 120 days of filing of the pleading
3. Defendant received notice of the action so there is no prejudice in defending
4. Defendant knew/should have known action would be brought against it but for mistaken identity |
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Term
| Joinder of claims by the plaintiff |
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Definition
Rule 18(a) states that you can add any claims you have against defendants.
If the claims create confusion, the court can sever the claims (Rule 21) or hold separate trials for each (Rule 42) |
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Term
| Compulsory counterclaim rule |
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Definition
1. Must be brought or they're waved
2. In Federal court, claims arising out of the same transactions that don't require adding another party are compulsory |
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Term
| Same transaction test (For compulsory counterclaims) |
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Definition
1. Are the issues of fact and law raised in the claim and the counterclaim largely the same?
2. Would claim preclusion bar the counterclaim absent the counterclaim rule?
3. Will substantially the same evidence support or refute the claim as the counter claim
4. Is there a logical relationship between the claim and the counter claim? |
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Term
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Definition
| No consequence for not bringing but MUST have independent basis for jurisdiction |
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Term
| Plaintiff can join parties to the lawsuit if... |
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Definition
1. The claims arise out of the same occurrence/transaction
2. Same question of law or fact |
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Term
| Impleading (Defendant brings in 3rd party) |
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Definition
1. Rule 14 requires some substantive basis for asserting derivative liability. It must be derivative of the original plaintiffs claim
2. The new 3rd party defendant must be liable to the original plaintiffs |
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Term
| Supplemental Jurisdiction |
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Definition
1. A court has jurisdiction over any joined defendants if joinder is proper
2. The cause of action is derived out of a common nucleus of fact |
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Term
| Exceptions to supplemental jurisdiction |
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Definition
1. The Court can deny jurisdiction for any logical reason
2.When in diversity cases
a. Joinder was brought by
plaintiff
b. under rules 14,19,20,24
d. inconsistent with 28 usc 1332 |
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Term
| A party can discover any matter... |
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Definition
1. Non-privileged
2. Relevant to a claim or defense
3. Whether or not its admissible, as long as it is reasonably calculated to lead to discovery of admissible evidence |
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Term
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Definition
1. Generally protected under 26(b)(3)
2. Expection if requesting party shows a substantial need for work product to prove its case, and that it suffered some undue hardship beyond ordinary cost of discovery |
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Term
| Motion for Summary Judgement rules |
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Definition
Rule 56
1. Must be no disputed issue of material fact
2. Moving party bears the burden of proof |
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Term
| 3 Types of Summary Judgement |
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Definition
1. Proof of elements
2. Disproof of an element
3. Absence of proof |
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Term
| Proof of elements summary judgment |
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Definition
1. Must be no disputed issue of material fact on each element of the claim
2. Just determines liability |
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Term
| Disproof of element summary judgment |
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Definition
| Moving party gives affirmative evidence negating an essential element |
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Term
| Absence of proof summary judgment |
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Definition
| There's no evidence to support an element of the complaint |
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Term
| Analyzing summary judgment |
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Definition
1. Find the rule of substantive law
2. Determine there's no dispute of material fact
3. Determine if the record is proper
4. Consider opposing party's specific facts that create a genuine dispute |
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Term
| Judgment as a matter of law |
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Definition
Rule 50(a)
1. After a party has been fully heard or
2. After the close of all evidence
c. There must be a legally sufficient evidentiary basis
d. Judge is precluded from making credibility determinations or weighing evidence |
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Term
| Renewed judgment as a matter of law |
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Definition
Rule 50(b)
1. After the verdict
2. Must have made a 50(a) motion earlier
(Must have made a rule 50(b) motion in order to appeal a denied 50(a)) |
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Term
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Definition
1. Verdict must be "seriously erroneous result" against the weight of the evidence
2. Judge is allowed to weigh evidence and make credibility determinations |
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Term
| Claim Preclusion Elements |
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Definition
1. Same Claim
2. Same Parties
3. Valid and final judgment
4. Judgment on the merits |
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Term
| Same claim tests (Claim preclusion) |
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Definition
1. Same transaction test
2. Same evidence test
3. Primary right test |
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Term
| Same Transaction test (claim preclusion) |
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Definition
| All claims arising out of the same set of operative fact |
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Term
| Same evidence test (claim preclusion) |
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Definition
| All claims proven with the same evidence |
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Term
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Definition
| If the rights asserted are the same |
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Term
| Non-parties are never bound by prior judgments unless... |
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Definition
1. The person agrees to be bound
2. Preexisting substantive legal relationship
3. Adequate representation by someone with the same interests
4. If she assumed control of the litigation
5. A party bound by judgment can't avoid it by litigating through a proxy
6. Statutory schemes that may expressly foreclose successive litigation by nonlitigants |
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Term
| Generally a judgment has preclusive effect if.... |
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Definition
| It is entered, despite opposing parties ability to appeal or overturn such a judgment |
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Term
| Exceptions to claim preclusion |
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Definition
1. Parties agreed plaintiff could split claim
2. The court in the first action expressly reserved a right to 2nd action
3. Limitations of subject matter jurisdiction limited plaintiff's theory of recovery in the first case
4. The judgment in the first action is plainly inconsistent with fair play substantial justice
5. Substantive policy gives plaintiff to sue once for total damages or repeatedly
6. Some extraordinary reason to overcome preclusion |
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Term
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Definition
1. Same issue
2. Same parties
(Mutuality exception)
3. Actually litigated and determined
4. Essential to
5. Valid final judgment |
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Term
| Non-mutual defensive preclusion |
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Definition
A defendant can assert a plaintiff is bound by a past judgment on an issue. Non-parties can never be bound
EX) A v. B, then A v. D, D can assert defense
A v. B, then C v. B, B can't assert defense |
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Term
| Non-mutual Offensive preclusion |
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Definition
1. Economy (Is the plaintiff a wait and see type)
2. Fairness
a. Was the issue fully/fairly litigated?
b. Are there inconsistent prior judgments
c. Are the procedural opportunities |
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