Term
|
Definition
| Counterclaim and Cross Claim |
|
|
Term
|
Definition
| Deals with compulsory counterclaim |
|
|
Term
| When does a counterclaim arise: |
|
Definition
Under Rule 13 (a) a counterclaim arises when:
1) The claim must already exist when the defendant is required to anwer the complain
2) The claim must arise out of the same transaction or occurence on which the complain is based.
3) Does not require adding a party over whom the court does not have jurisdiction |
|
|
Term
| Under rule 13(a) what are the exceptions to adding a counterclaim? |
|
Definition
| The counterclaim must not be subject of another pending action (even if all three requirements are satisfied) or if there was no personal judrisdiction attached on the counterclaimant based on the original complaint. |
|
|
Term
| Under rule 13(a) what happens if you fail to file a compulsory counterclaim when you answer the complaint? |
|
Definition
| Failure to file a compulsory counterclaim will thereafter bar the claim. |
|
|
Term
| Under rule 13(c), what kind of relief may be requested in a counterclaim? |
|
Definition
| The counterclaim may request releif that exceeds the relief sought i nthe original complain or if it is different to the relief sought in the plaintiff/counterclaim defendant's complaint (i.e. money vs. injunctive relief). |
|
|
Term
| Under Rule 13(b) what is a permissive counterclaim? |
|
Definition
A permissive counterclaim is one that may be, but does not have to be broght in the same action.
Thus any noncompulsory counterclaim is a permissive counterclaim.
A Permissive clain is not based on the underlying events at the heard of the main lawsuit |
|
|
Term
According rule 13(g) what is a crossclaim?
Who is what party in a cross claim? |
|
Definition
A complaint bourgh by one of the defendnats against a co-defendant.
The defednat who is suing the other defendant is known as the "crossclaimant" and the defednand who is being sued is called the crossdefendant."
|
|
|
Term
| Under Rule 13(g), out of what must a crossclaim arise? |
|
Definition
| A crossclaim must arise out of the transaction or occurren that is the subject matter of the original complaint of the cc, or if the claim is related to a property that is subject matter of the original claim. |
|
|
Term
| Under Rule 13(i), can there be a separate trial for the original complaint and counterclaim/crossclaim? |
|
Definition
| A court an order separate trials for original complaint and counterclaim/crossclaim |
|
|
Term
| Under Rule 13, are crossclaims compulsory? |
|
Definition
| No, crossclaims are not compulsory like CC, the moving party can chose to sue later. |
|
|
Term
|
Definition
|
|
Term
| Under Rule 14, can a third party be brought into a lawsuit? |
|
Definition
| Any defednant can bring another party into the lawsuit by filing a third-party complaing |
|
|
Term
Under Rule 14(a), when must a third party complaint be filed?
How must it be served?
How much of the law suit is the TPD responsible for?
|
|
Definition
A Third party complaint must be filed within 14 days of when the original defendnat files his original answer.
The thirdy party complaint must be served on all current parties to the lawsuit, including the new part, TPD/
The TPD is allegedly responsilbe for all or part of the original plaintiff's claim. |
|
|
Term
What kind of rights dow the third party defendnat have in a lawsuit?
May a plaintiff assert claims against the TPD? |
|
Definition
The third party defendnat ahs the same rights a a regulard defendant in a lawsuit.
The plaintiff may assert any claim against the TPD that is part of the subject matter of the claim against the defendant and arises out of the same transaction.
|
|
|
Term
|
Definition
|
|
Term
Under Rule 22- what is an interpleader?
What is the subject matter called?
and why is interpleader used used |
|
Definition
An interpleader is the proceudre under which a party comples other parties to litigate a dispute about a fund or poperty which is in their possesion, which is called "res" in order not to be sujected to double or multiple liability from claimants (defendants).
|
|
|
Term
| Under Rule 22, may a defendnat seek an interpleader? How? |
|
Definition
| A defendant in a lawsuit can seek interpleader through corssclaim or counterclaim |
|
|
Term
| Under Rule 22, how many stages does an interpleader have? |
|
Definition
The interpleader proceeding has two stages:
1) whether stakeholder (plaintiff normally) is entitled to an interpleade and if he should be discharged from liaiblity
2) which of the claimants is entitled to the "res"? |
|
|
Term
| Who normally files interpleader proceedings? |
|
Definition
Normally interpleader proceedings are filed from trustees, insurance companies, guardians, etc. These are called stakeholders and the other parties are claimants.
If the stakeholder deposits the res with the Court it is released from action and the case continues between the claimants. |
|
|
Term
| What is an interpleader entitled to? |
|
Definition
Interpleader is entitled to recover the costs and attorneys fees incurred in filing
the interpleader action. |
|
|
Term
|
Definition
|
|
Term
Under Rule 23, what is a class action law suit
|
|
Definition
| A class action is a lawsuit brought by individuals representing a large group of identifiable members. |
|
|
Term
Unde rule 23, what are the requirements for a class action lawsuit?
|
|
Definition
1) The class must be so "numerous that joiner of all members is impractible."
2) There must be "questions of law or fact common to the class"
3) The "claims or defenses of the representative parites" must be "typical of the claims or defenses of the class"
4) The representativ parties must "fairly and adequately protect the interests of the class." |
|
|
Term
|
Definition
|
|
Term
|
Definition
|
|
Term
Under Rule 24, who must intervene in a case?
|
|
Definition
Thow who have Legal claims to have an interest upon the action being litigated (property, transaction, etc.) which if not intervened can diminish this party’s interested, MUST intervene |
|
|
Term
How is the right to intervene exhausted? |
|
Definition
The Right to intervene is exhausted by fiing a motion based on Rule 5 of FRCP. |
|
|
Term
| What are the requirements of Permissive Intervention? |
|
Definition
Anyone who intervense under Permissive intervention must have been given an unconditional right to intervene by a federal statute
plus the party who intervenes
must share same common issues of facts and law with the main complaint. |
|
|
Term
Under Rule 25, when is subsitution of parties allowed?
Under Rule 25, what is the time limit for making such a substitution? |
|
Definition
Upon death of a party, the party may be subsituted if the claim is not extinguished.
The substitution must be filed within 90 days of statement of the notice of death. |
|
|
Term
| Under Rule 25, what happens to the case once a substitution is made? |
|
Definition
| The Case continues against the remaining parties |
|
|
Term
| Under Rule 25, what may the court do if a party is not competent. |
|
Definition
| When a party is not competent, the court can appoint a representative |
|
|
Term
| Under Rule 25, what will happen to a transfer of interest if a substitution occurs? |
|
Definition
| Transfer of interest will continue against the original parties unless the cour orders a transferee to replace the original party or join |
|
|
Term
|
Definition
|
|
Term
| Under Rule 15, may a pleading be amended before trial? |
|
Definition
A pleading may be amended before trial
A) Once as a matter of course
B) With the opposing party's writtend consent or court's leave |
|
|
Term
| Under Rule 15, when must a pleading amended as a matter of course before trial be amended |
|
Definition
| It must Filed 21 days after serving of the initial pleading and when a response is required, 21 days after the response or after the service of a motion under Rule 12(b) |
|
|
Term
| When an a pleading is amended, when is a response to the amended pleading due? |
|
Definition
Any response to amended pleadings must be made within the original time to
respond to the pleading served or within 14 days of the amended pleadings,
whichever is later |
|
|
Term
| Under Rule 15, may pleadings be amended during or after trial? |
|
Definition
During and After trial:
The court allows amendment when a party objects that evidence is not within the issues raised in the pleadings.
If Parties consent to issues raised but not included in the pleadings, they can be amended. They are part of the tiral record even if not amended. |
|
|
