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2006 Fall CivPro McGeveran UofM


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copy deck
Rule 10
Form of Pleadings - caption, names of parties, paragraphs - separate statements
Rule 35
Physical and Mental Examination of Persons
Rule 14
Impleading Third-Parties - by defendants, by plaintiffs
Rule 15
Amended and Supplemental Pleadings - Amendments; Relation Back of Amendments...
Rule 37
Failure to Make or Cooperate in Discovery; Sanctions
Rule 15(c)(2)
(c) Relation Back of Amendments. - (2) Adding new claim after statute of limitations expires
Brandon v. City of Chicago
Facts: comedy of errors (by court) in communications; PF's atty let case sit; by time realized, filed Rule 60 motion 3 days too late (wrong docket #); Ct: denied. Rule: Rule 60: clerical errors = having to do w/ judgment, not communications; 1 yr time limit is firm; "catch-all" also focused on errors affecting judgment, not literally "catch all".
Rule 15(c)(3)
(c) Relation Back of Amendments. - (3) Relation back
Can a plaintiff add together their multiple claims to meet $75,000 requirement?
Rule 37(c)(1)
Failure to disclose per 26(a) or 26(e)(1) or amend per 26(e)(2) = inadmissible.
Celotex v. Catrett
Asbestos case where there was no admissible evidence that the PF came in contact with motioners asbestos. Summary judgment was denied because there was SOME evidence, be it not a lot. The defendant just has to show that the plaintiff failed to produce evidence to create a genuine issue of material fact.
Rule 17
Parties: Plaintiff and Defendant; Capacity - Real party in interest; Capacity to Sue or be Sued; Infants or Incompetent Persons.
Hickman v. Taylor
Facts: sinking tugboat; PF sends interrogatory to DF demanding text of all stmts of members of crew; PF claimed atty-client privilege; Ct: part of atty's "work product", privileged. Rule: discovery rules: "mutual knowledge = essential for proper litigation"; but unless req'ing party makes case for exception, inquiry into atty's case-prep files = prejudicial.
Rule 18
Joinder of Claims and Remedies
US Constitution amendment dealing w/ right to a jury trial
Rule 39
Trial by Jury or by the Court
Rule 20
Permissive Joinder of Parties (a) Permissive Joinder. (b) Separate Trials.
Rule 23
Rule 23. Class Actions
Disadvantages of ADR
-Limited discovery and pleadings -Limited opportunity to present evidence -Limited appeal rights -Selection of arbitrator -Lack of diversity among mediators and arbitrators -No precedential value of awards
Rule 24
Intervention - Intervention of Right; Permissive Intervention; Procedure.
Rule 4(d)
-Service by mail -Defendant who waives service in person gets 60 days to answer rather than 20 -Defendant who refuses waiver is assessed the costs of service
What are the guidelines for relation back?
-New party must receive notice of the action within 120 days after the suit is filed. -New party will not be prejudiced by the delay in preparing its case. -Defendant knew or should have known that but for a mistake, the action would have been brought against it.
General verdict and interrogatories - inconsistencies
-The two can be inconsistent -Judge can enter judgment that is consistent with answers to interrogatories but not general verdict (only if answers are consistent with each other) -Judge can point out inconsistencies and send jury for further deliberations -Judge can order a new trial
Rule 50(b)
Renewing motion for judgment after trial
Rule 41
Dismissal of Actions - by plaintiff, by stipulation, by order of court...
Greenbaum v. United States
Facts: Postal wkr injured in parking lot of P.O., statute allows tort claims if "on duty"; picking up paycheck on day off: qualify?; if no, no jurisd; gov't brings jurisd 3.5 yrs into case⬦ Rule: a fact denied for "lack of knowledge" [8(b)] may be deemed admitted if the party does have the knowledge/info; gov't lack of resp to bus-invitee claim of ? = admission.
Rule 49
Special Verdicts and Interrogatories
Rule 26(b)
(b) Discovery Scope and Limits.
What are the reasons for a statute of limitations?
-Loss of evidence -Loss of memory -Witnesses gone -Assure defendant of repose after a certain amount of time
Rule 26(b)(1)
(b) Discovery Scope and Limits. - Parties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter.
What happens if alleged violator of Rule 11 withdraws or corrects the challenged pleading?
The motion goes no where and the court never even sees it
Is a defense based on federal law sufficient to establish federal question jurisdiction?
No, claim must be based on federal law
Rule 26(d)
(d) Timing and Sequence of Discovery.
Jenson v. Eveleth Mines
Facts: DF, in damages phase (bifurcated), sought med/personal records back to birth b/c arg'd that it (DF) had burden of proof re: prior mental defect. Rule: PF had burden of proof re: causation/damages; DF did have burden to prove (in defense) presumption of prior mental defect, which PF would then have to rebut.
Rule 26(e)
(e) Supplementation of Disclosures and Responses.
Rule 50
Judgment as a Matter of Law in Jury Trials; Alternative Motion for New Trial; Conditional Rulings
What rule deals with amendments?
Rule 15
Liberal test for compulsory counterclaims
Just looks at whether the counterclaim arises out of a logical sequence of events from the original claim
Rule 27
Depositions Before Action or Pending Appeal
Mathews v. Eldridge
Facts: disability benefits being term'd w/o hearing; challenge to 5th Amend due process. Rule: [Dist from Goldberg v. Kelly] Due process is flexible; requires procedural protections as situation demands. (No hearing prior to term of disability benefits -- not [yet] at bottom of financial ladder...)
Rule 28
Persons Before Whom Depositions May Be Taken
Rule 29
Stipulations Regarding Discovery Procedure
When and how many times can a complaint be amended?
Once before the answer is served -Otherwise need leave of the court -Leave should be liberally granted
Options for losing party:
-Motion for judgment as a matter of law (JMOL) -Appeal -Motion for a new trial
When can plaintiff voluntarily dismiss case without court permission?
-Plaintiff can dismiss case without court permission before defendant serves an answer or motion for summary judgment -Without court permission, parties can submit stipulation of dismissal signed by all
When must a Rule 12(b)(6) motion be filed?
Must be filed before the answer
Progress Federal Savings Bank v. National West Lenders Assn, Inc.
Facts: DF waited until all claims against it had been dismissed or S/J'd to motion for Rule 11 sanctions agst PF; Ct: nothing left to w/draw or retract. Rule: Due to Rule 11's 21-day safeharbor period, party can't wait until end of case to bring Rule 11 motion; safeharbor will push response time beyond case⬦
Rationale for Attorney-Client Privilege
-Attorney should know everything about client -Client should trust attorney -Client should have every incentive to be honest with lawyer
Rule 30
Deposition Upon Oral Examination
Rule 31
Depositions Upon Written Questions
Rule 32
Use of Depositions in Court Proceedings
Rule 33
Interrogatories to Parties
Rule 12
Defenses and Objections
Rule 34
Request for production of documents
Rule 12(e)
Motion for a more definite statement
Which 2 discovery mechanisms can be used to obtain information from a third party not a party to the suit?
depositions and document requests
Rule 12(h)(2)
Failure to state a claim upon which relief can be granted, failure to join an indispensable party, and failure to state a legal defense to a claim can be made in any pleading or by motion for judgment on the pleadings, or at trial on the merits.
Rule 12(h)(3)
Provides that lack of jurisdiction of the subject matter may be made at any time.
Which rule deals with default?
Rule 55
Rule 51
Instructions to Jury: Objection
Rule 55(a)
Entry of default
Rule 55(b)
Judgment by default - Judgment usually entered by the court after a hearing. In rare circumstances, if damages easily ascertainable, clerk may enter judgment.
Rule 56(f)
Court can order continuance of motion for summary judgment to allow further discovery
Rule 59
New Trials; Amendment of Judgments
Rule 59: New trial appropriate if:
-Serious error occurred during trial -Verdict was against the clear weight of the evidence -Motion made no later than 10 days after entry of judgment -Motion made by any party or by the judge sua sponte
Rule 60(b)
Relief from judgment or order - mistakes, inadvertence, excusable neglect, newly discovered evidence, fraud
Rule 65(b)
Injunctions - Temporary restraining order
Rule 7
Pleadings Allowed; Form of Motions
Rule 7(a)
Pleadings (Rule 7: Pleadings Allowed; Form of Motions)
Rule 7.1(a)
Rule 7.1 Disclosure Statement - (a) Who Must File: Nongovernmental Corporate Party
Rule 7.1(b)
Rule 7.1 Disclosure Statement - (b) Time for Filing; Supplemental Filing
Rule 8(d)
Rule 8: General Rules of Pleading - (d) Effect of failure to deny
Rule 8(f)
Rule 8: General Rules of Pleading - (f) Construction of Pleadings
Rule dealing w/ (basic) pleadings
Rule dealing w/ affirmative defenses
Rule dealing w/ amendments and supplemental pleadings
Rule dealing w/ computation of time
Rule dealing w/ demands to produce documents and entry upon land for inspection (discovery)
Rule dealing w/ depositions before action or pending appeal
Rule dealing w/ depositions upon oral examination
Rule dealing w/ depositions upon written questions
Rule dealing w/ disclosure of expert testimony during discovery
Rule dealing w/ disclosure stmt of corporation
Rule dealing w/ dismissals
Rule dealing w/ effect of voluntary and involuntary dismissals of actions
Rule dealing w/ failure to make or cooperate in discovery
Rule dealing w/ how to commence an action
Rule dealing w/ initial required disclosures
Rule dealing w/ interrogatories
Rule dealing w/ joinder of claims
Rule dealing w/ judgment as a matter of law (JMOL)
Rule dealing w/ jury instructions
Rule dealing w/ motion for judgment on the pleadings
Rule dealing w/ one form of action
Rule dealing w/ pleading special matters (heightened pleading)
Rule dealing w/ protective orders during discovery
Rule dealing w/ real party in interest, capacity to be sued
Rule dealing w/ relief from judgment or order ("do over")
Rule dealing w/ requests for, and effects of, admissions
Rule dealing w/ special verdicts and special jury interrogatories
Rule dealing w/ stipulations during discovery
Rule dealing w/ summons and service
4, 4.1, 5
Rule dealing w/ use of depositions in court proceedings
Rule dealing w/ when PF can implead 3d party
Rule dealing w/ who may be deposed
Same Evidence Test
-Used for compulsory counterclaims under Rule 13 -Not applicable to Rule 15 amendments --if the theory of liability is different, the evidence is probably also different
Seattle Times Co. v. Rhinehart
Facts: paper publ'd info re: cult leader; he sued f/defamation; do parties in civil litigation have 1st Amend right to disseminate info b/f trial gained through discovery⬦? Rule: Ct: protective order granted (members' names), but Ct says FRCP normally allows extensive intrusion in private affairs, does NOT dist b/w pub/priv details re: discovery⬦
Singletary v. PA Dept of Corrections
Facts: §1983 by mother of suicide prisoner; PF pleads "unknown corr officers", tries 15(c)(3) amend/relate-back to name psychologist; Ct: 15(c)(3) req's not met; aff'm S/J f/DFs. Rule: Re: notice reqmt of 15(c)(3); "identity of interest": one party deemed "notified" when other is notified b/c is so closely related to other party; Ct: NO ident of int betw psych & dept.
Rule 26(c)
(c) Protective Orders. - Discovery.
Rule 8(e)
Rule 8: General Rules of Pleading - (e) Pleading to be Concise and Direct; Consistency
Adams v. Kinder-Morgan, Inc.
Facts: Securities fraud complaint dismissed 12(b)(6) for not meeting Rule 9 heightened requirements (scienter; each stmt alleged as fraud); on appeal, 12(b)(6) reversed. Rule: PSLRA supersedes Rule 9(b); more stringent scienter; pleading must state facts giving rise to a strong inference; if "on info and belief", state ALL facts on which belief is based.
Rule 38
Jury Trial of Right
Galloway v. United States
Facts: Insane WWI soldier; directed verdict - insufficient evidence; was insane before and insane after, but fact gap of eight years in which no evid that was insane; Ct: dir verdict. Rule: A matter of law: whether there are enough facts for the jury to deliberate on the facts; here: fact gap of 8 yrs; too large.
Christopher v. Duffy
Facts: lead poisoning; PF has "John Doe" placeholder DF; later amends to fill in; 6 yrs later, PF 2d move to amend, adding new DFs (John Doe died by then); Ct: denied motion f/2d amend. Rule: 15(c)(3): party brought in by amend must rec'v notice such that won't be prejudiced in maintaining a defense on the merits; Ct: here - insufficient notice, substantial prejudice.
Rule 3
Commencement of Action - A civil action is commenced by filing a complaint with the court.
Rule 12(h)(1)
Defendant can waive objection to personal jurisdiction and venue.
When and how many times can an answer be amended?
Once within 20 days of service -Otherwise need leave of the court -Leave should be liberally granted
When can you add a claim after the statute of limitations expires?
The claim arose out of the conduct, transaction, or occurrence set forth in the original complaint
When is it acceptable to put contradictory allegations in a complaint?
-If the Plaintiff is genuinely unsure of what happened -It has to be reasonable
When should leave to amend be denied by the court?
-Amendment will result in undue prejudice to other side -Amendment unduly delayed
Rule dealing w/ permissive joinder of persons
Which rule deals with voluntary dismissal?
Non-testifying experts: Rule 26(b)(4)(B)
Opinions disclosable only in exceptional circumstances
Potential disadvantages of jury:
-Delay -Juror incompetence -Juror prejudice
Rule 8(b)
Rule 8: General Rules of Pleading - (b) Defenses; Form of Denials
Rule 9(b)
Rule 9: Pleading Special Matters - (b) Fraud, Mistake, Condition of the Mind
What kind of motion can you file if your opposing party refuses to cooperate in responding to your discovery requests?
-talk to opposing party and threaten to file a motion to compel -file motion to compel
Rule 48
Number of Jurors -- Participation in Verdict
Rule 84
Rule 9
Pleading Special Matters
Gomez v. Toledo
Facts: police officer fired after snitching on other officers [violation of procedural due process by term of employ (Sec 1983)]. Rule: DF entitled to qualified immunity. Dist Ct dismissed b/c PF didn't plead (show enough evidence) that DF was motivated by bad faith. US SupCt: Qual immun is a defense avail to official being accused, not a component of the PF's claim. Since is defense, burden of pleading is w/ DF. [Rule 8(c)]. No basis for imposing burden on PF; immun establ by facts w/in knowledge/control of DF.
Gross v. Hanover Ins. Co.
Facts: jewelry theft; DF claims conspiracy, impleads the Rizzo bros under Rule 14(a) b/c will be "pass through" liable for value of jewelry if DF is found liable; Ct: motion granted. Rule: Rule 14(a) - DF may implead 3d-party who is or may be liable to the 3d-party-PF for all or part of the PF's claim against the 3d-party-PF.
Hawthorne Land Co. v. Occidental Chem. Corp.
Facts: TX, leaking pipeline; PF, to estab pattern for punit dmgs, seeks vast discovery (NY/LA, vast time frame); DF counters that too expansive; Ct: TX only, per of alleged leaks. Rule: Rule 26(b)(2) limitations: unreas cumulative/burdensome; if had ample opp to discover via other means; burden/expense outweighs likely benefit.
How are facts in complaint dealt with in a 12(b)(6) motion?
All material facts well pleaded in complaint must be taken as true.
Rule dealing w/ compulsive joinder of persons
How many interrogatories is each party limited to under the current federal rules?
25 including subparts.
Rule dealing w/ consolidation and severance of trials
Rule dealing w/ counterclaims and cross-claims
Rule dealing w/ defenses and objections
Is a first time voluntary dismissal with or without prejudice?
Without prejudice. Second time is with prejudice.
Judgment as a matter of law
-used to be called motion for directed verdict -A party can make this motion after the opposing party has been fully heard on the issue -Make motion before submission of the case to the jury
Kedra v. City of Philadelphia
Suit filed for series of events where PFs were harassed by police. Issue was improper joinder of parties when sue all police. Court has to determine the nature of prejudice there might be to the DF parties. We are worried about prejudicing DFs who may not have committed worse crimes than others.
Markman v. Westview Instruments, Inc.
Facts: Patent claims have two parts: specifications and "claims"; question: is the construction of the "claim" a jury issue? Rule: No; Souter - judges more qualified than juries to construe documents; now: normally a "Markman hearing" early in patent disputes to estab boundaries of invention.
Mechanisms to take case away from the jury:
-Motion to dismiss -Summary judgment -Motion for judgment as a matter of law before case goes to jury -Motion for judgment as a matter of law after entry of judgment -Motions for new trial
Rule dealing w/ discovery planning conference [sub-rule]
-Neutral facilitator facilitates negotiation among parties -There is no judgment -If mediation fails, parties proceed to trial
Plaintiffs may join together in a lawsuit if:
-Right to relief arises out of same transactions or occurrences; AND -There is a question of law or fact common to all plaintiffs
Res judicata
Claim preclusion - prohibits relitigation of a claim that has already been litigated by the parties and gone to judgment
Rule dealing w/ form of pleadings: caption, signature, numbered paragraphs
Rule dealing w/ forms
Rule dealing w/ gen'l rules of pleading
Rodi v. Southern New England School of Law
Facts: student alleges fraud re: school's accreditation; DF motions for 12(b)(6), but includes tons of discovery evid; AppCt considers only pleading and std 12(b)(6) docs on review. Rule: AppCt: 12(b)(6) is de novo review; considered: (1) complaint, (2) documents annexed to it, and (3) other materials fairly incorporated within it; complaint fairly alleges fraud.
Goldberg v. Kelly
Facts: welfare benefit recipients challenge termination w/o hearing; viol of 14th Amend Due Process. Rule: Extent to which proced due proc is afforded to recip is influenced by extent to which they my be condemned to suffer great loss. "Welfare is the very means by which to live"; requires hearing BEFORE termination of benefit.
Rule 11
Signing of Pleadings & Motions; Representations to Court; Sanctions
Rule 12(b)
Motions to dismiss.
Rule 13
Counterclaim and Cross-Claim - Compulsory; Permissive
Rule dealing w/ limits of discovery
Rule dealing w/ methods for discovery
Rule 15(a)
(a) Amendments. - Adding a new claim if statute of limitations has not expired
Rule dealing w/ motion for new trial and amendment of judgments
Rule dealing w/ number of jurors
Rule 16
Pretrial Conferences; Scheduling; Management
Rule 19
Joinder of Persons Needed for Just Adjudication
Rule dealing w/ physical and mental examinations of persons
Rule 2
One Form of Action - There shall be one form of action to be known as "civil action."
Rule dealing w/ pretrial conferences
Rule 26
General Provisions Governing Discovery; Duty of Disclosure
Rule 26(a)
Required Disclosures; Methods to Discover Additional Matter. - **Initial Disclosures**
Rule 26(a)(1)(A-D)
Initial disclosures and what must be disclosed in them
Rule 26(f)
(f) Meeting of Parties; Planning for Discovery.
Rule dealing w/ right to jury trial
38, 39
Rule dealing w/ sanctions
Rule dealing w/ scope & purpose of rules
Rule 26(g)
(g) Signing of Disclosures, Discovery Requests, Responses, and Objections.
Rule 42
Consolidation; Separate Trials
Rule dealing w/ summary judgment (S/J)
Rule 42(b)
-Court may sever unrelated claims and conduct separate trials whenever it has good reason to do so
Rule 50(a)
Judgment as a matter of law
Rule dealing w/ when DF can implead 3d party
7th Amendment
Right to trial by jury
Judge will grant new trial unless defendant accepts specified increase in verdict
Advantages of ADR
-Cost -Speed -Preserving relationships among parties -No publicity -Expertise of arbitrator or mediator
Schlagenhauf v. Holder
Facts: bus accid, psycho driver; truck mfr cross-claims Schleg to make him adverse party, orders Rule 35 exam; Rule 35 req'd to show that ment cond was "in controversy"; failed. Rule: Rule 35: "When the mental or physical condition⬦is in controversy⬦"; failing to show this may doom request for exam; privacy concerns; no "fishing expeditions" w/ exams⬦
Advantages of juries:
-Common sense -Jurors nullify the injustice of the law -Jurors are most often serious and conscientious -Educate general citizenry
Are there any drawbacks to giving too much detail in the complaint?
-If some your details are wrong or harmful, you might get your case dismissed -You may give away some of your strategies or weaknesses to your opponent
Swierkiewicz v. Sorema N.A.
Facts: Hungarian empl fired on national/age discrim; Q: Must complaint in empl discr contain facts estab a prima facie case of discr under framewk in McDonnell Douglas Corp.? Rule: No - a "short, plain statement of the claim showing that the pleader is entitled to relief."
Rule 56
Summary judgment
Attorney-client privilege is absolute unless:
-Client waives it -Statements made in public place where can be overheard -Client puts the communication at issue in case --i.e. attorney malpractice
Under Rule 19(a), how do you determine who are necessary parties in compulsory joinder?
-Without joinder, can complete relief be accorded to those already in the lawsuit? -In the absence of the non-party, will a judgment impair the rights of the non-party? -Will those who are already parties be at risk of incurring inconsistent obligations in separate lawsuits?
United States v. Hall
Facts: segregation; ex parte order (fed ct); Hall violated; Hall arg's he's not party. Issue: does injunction apply to non-party (ex parte)? Rule: yes - injunctions can apply to non-parties. Relevance: chain of appeals, exception to rule 65(d).
Avista Management Inc. v. Wausau Underwriters Insurance Co.
Facts: discovery battle, taken one-too-many-times to the judge⬦ Rule: "Rock, paper, scissors"; winner determines location for depositions.
What are the purposes of the complaint?
-Notice to defendant -Notice to the court -Facilitate decision on the merits
Banque Indosuez v. Trifinery
Facts: pmt of promiss note; DF motions for partial S/J; PF attempts c-claim, DF: PF waived right to c-claim; PF: S/J not proper if value of c-claim is yet undetermined; Ct: dismisses. Rule: 4-part test to determine permissive or compulsory; wld be unfair to waive compulsory b/c PF loses opp to bring forever; but THIS one is permissive; waived, dismissed.
What does Rule 48 tell us about juries in civil cases?
Normally between 6 and 12 jurors --Unless parties otherwise agree to accept a verdict from less than 6 jurors. Verdict must be unanimous --Unless parties otherwise agree to accept a non-unanimous verdict
Rule 60
Relief from Judgment or Order
What is the only discovery tool for which advance court approval is routinely necessary?
Medical examination
Facts: PF sues asbestos company for failure to warn (strict prod liab); Ct negotiates bifurcation compromise: PF gives up negl and DF gives up assumption of the risk (for this phase). Rule: not real opinion; advisory opinion only to promote judge's docket-mgmt idea; goal: conduct-free trial, no "fiery element," just product identification, causation, and injury.
What must a Rule 12(b)(6) motion state?
State that complaint fails to allege a claim upon which relief can be granted
What rule deals with affirmative defenses?
Rule 8(c)
Celotex Corp. v. Catrett
Facts: asbestos; DistCt granted S/J f/Celotex (no evid PF was exposed to DF's asbestos); AppCt reverses S/J (DF didn't produce any evid of lack of GIMF). Rule: SupCt: remand for balancing; Adickes NOT that S/J mover must produce evid of lack of GIMF, but only "show" that is a lack of evid to support non-mover's case.
What rule deals with impleader?
Rule 14
What ways may you answer a complaint?
-Admit allegation -Deny allegation -DF lacks knowledge or information sufficient to form a belief as to the truth of the allegation (usually deemed a denial) -Can admit part of an allegation and deny another part -General denial of everything (rarely done)
Chauffeurs etc. v. Terry
Facts: truck drivers sue for injunction and monetary damages, request jury trial; DF moves to strike jury demand: no right to jury trial in "equity" suit (injunction); Ct: denies motion. Rule: Two-part test to determine whether is a question of LAW or EQUITY: (1) cause of action [nature of the "issue" (not nec claim)], and (2) remedy (gen'lly more important).
Compulsory joinder
-Sometimes joinder of parties is necessary if feasible -At other times joinder is indispensable
When can Rule 11 sanctions apply to an answer?
If you deny an allegation that you should have admitted - Rule 11(b)(4)
Conley v. Gibson
Facts: Negro Railroad Workers Union Grievance; Union not fairly/equally representing them; workers plead allegations but very little facts. Rule: complaint should not be dismissed for failure to state a claim unless it's beyond doubt that PF can prove no set of facts in support of claim which would entitle him to relief.
Controlled Envir. Sys. v. Sun Process Co.
Facts: party simply answers complaint blankly that it lacks "sufficient knowledge of the allegations⬦to admit or deny⬦and demands strict proof thereof"; Ct: strikes weak answer. Rule: boilerplate use of state rule, not fed; slap on wrist for using wrong rule; Rule 8(b) requires more specific/demanding representation to entitle party to a "denial" of knowledge.
Rule 8
General Rules of Pleading
When must a 12(b)(6) motion be denied?
If there is a contested issue of material fact.
Rule 8(a)
Rule 8: General Rules of Pleading - (a) Claims for Relief - short & plain statement...(1) court's jurisdiction, (2) claim, (3) demand for judgment.
DiMeo v. Max
Facts: PF sues (2 counts) re: defamation on DF's website; TrCt: dismiss w/ prejudice, deny req for leave to amend complaint; AppCt: affirm b/c leave to amend w/b "futile". Rule: Defamation fails b/c Max has statutory immunity; oth fails b/c is a crim statute (no private action); dismissed & leave denied b/c no way to make claims "legitimate".
Facts: Badly Drafted Complaint re Tonics; PF pleads passionately, but w/ little sophistication. Rule: Under FRCP: no req to "state facts sufficient to constitute a cause of action"; Rule 8(a): "short, plain statement of claim showing pleader is entitled to relief".
Which rule deals with answer?
Rule 8(b)
Due Process
-Requires that the court have personal jurisdiction over the defendant -Requires that the defendant have notice of the lawsuit
Dura Pharmaceuticals, Inc. v. Broudo
Facts: Pharma-co made misleading stmts re: products/profits; PFs alleged only that price was inflated b/c of misrep on date of purchase; no other allegations re: losses. Rule: SupCt: statute gives PF burden of proving that misrep caused loss; no special pleading required, but most basic will include cause; complaint fails to allege suff cause.
Work Product
Material prepared in anticipation of litigation or for trial by a party or its representatives -Rule 26(b)(3))
What are the differences between "Field Code" pleading and pleading under the FRCP?
Code: plead facts FRCP: notice pleading; suff to tell DF what claim & incident; suff to tell Ct whether is legally suff claim
3 elements of complaint
(1) juris; (2) stmt of claim; (3) relief
What type of review does the Ct conduct for 12(b)(6) motions against a complaint?
de novo
12(b)(6) motions must be based solely on the pleadings; if more evidence is brought in, it's treated as a _________.
S/J - Rule 56
If 12(b)(6) or 12(c) motion is treated as a S/J, can parties present std S/J materials as if the motion had been a Rule 56 S/J motion in the 1st place?
In the answer, any allegation not denied is deemed ________.
As DF, if you're going to raise an affirmative defense at trial, you must raise it 1st where?
The answer to the complaint.
Within how many days after filing the complaint must service on the DF be completed?
If DF doesn't waive service of summons, how many days does DF have to answer the complaint?
If DF waives service of summons, how many days does DF have to answer the complaint?
If a party is served with a cross-claim, how many days do they have to answer?
How many days does a PF have to "answer" a counterclaim?
PF serves DF w/ complaint/pleading... DF makes a Rule 12 motion before answering... Motion is denied by Ct... How long does DF have to answer the complaint?
10 days.
Must Rule 12 motions be made before further pleadings, i.e. before addressing the merits of the complaint in the answer?
After ____________ but within such time as not to delay the trial, _______ party may move for a judgment on the pleadings.
(1) [After] the pleadings are closed... (2) ... any [party] ...
If DF motions for a "more definite statement" against PF's pleading, how long does PF have to file another statement?
10 days.
What are the 7 defenses of Rule 12(b)?
1) subj matter jurisd 2) pers jurisd 3) improper venue 4) insuff process 5) insuff service of process 6) failure to state a claim... 7) failure to join a party under Rule 19
Which Rule 12 defenses are NOT waived if not brought before the answer?
(6) failure to state a claim... (7) failure to join a person under Rule 19
Within how many days of the Rule 16(f) conference must initial disclosures be made (Rule 26)?
14; unless diff time set by stipulation or court order.
For parties joined after the 26(f) conference, how long do they have to make initial discovery disclosures?
30 days; unless diff time set by stipulation or court order.
Expert testimony must be "initially disclosed" how many days before the trial date?
90; unless the testimony is serving only to rebut the opposing party's expert testimony on a topic they introduced, in which case the rebuttal expert testimony must be disclosed w/in 30 days after the testimony-to-be-rebutted is disclosed.
What are the 6 methods that information can be obtained during discovery?
1) depositions - oral or written 2) written interrogatories 3) requests for admissions 4) production of documents or "things" 5) permission to enter upon land for inspection 6) physical/mental examinations
Must evidence be admissible to be discoverable?
No, as long as it's reasonably calculated to lead to the discovery of admissible evidence.
What are the 3 conditions under which courts "shall" limit discovery?
1) unreasonable duplicicative or cumulative OR obtainable from less costly/burdensome source; OR 2) seeking party has had ample opp to obtain info; OR 3) burden/expense outweighs likely benefit.
Is the opposing party's atty work product discoverable? If so, by showing what (2 things)?
Yes; by showing "a substantial need" and an inability w/o undue hardship to obtain subst equivalent by other means.
Why the req'mt of "exceptional circumstances" for discovery of expert testimony from experts NOT expected to be called at trial?
B/c opposing party won't have opportunity to cross-examine.
A party has a duty to supplement its disclosures at what frequency?
"at appropriate intervals"
A party has a duty to amend its responses to interrogatories, requests for production, or requests for admission at what frequency?
The Rule 26(f) conference is for discussing __________ planning.
The 26(f) conference must be held at least ___ days before the 16(b) scheduling conference w/ the judge.

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