Dispositive Motions
What is the request for a court to decide a case based on the written pleadings called?
Motion for Judgment on the Pleadings
What are the other terms used to describe issue preclusion and claim preclusion?
Collateral Estoppel (issue preclusion)
Res judicata (claim preclusion)
What are the 2 ways a defendant can respond?
1) Motion
2) Answer
What is required for the joinder of plaintiffs or defendants? (Rule 20)
1) claims arise out of same transaction(s) or occurrence(s)
2) claims raise at least one common question
To depose a non-party, that individual needs to be served with notice and?
issued a subpoena
What must a plaintiff typically show to persuade a court to enter a default judgment against a defendant?
1.) Plaintiff must show defendant was properly served; and
2.) failed to respond in time
What is the term used to describe the jury selection process?
"Voir dire"
How much time does a defendant have to respond after being served with process?
21 days
What three circumstances deem an absentee a required party? (Rule 19)
1) Without absent party, the court cannot accord complete relief among parties
2) absent party's interest may be harmed if not joined
3) absent party's interest may subject the defendant to multiple or inconsistent obligations
What is the purpose of the work-product doctrine?
1.) There is no genuine dispute of material fact
2.) The moving party is entitled to judgment as a matter of law
What are the requirements for claim preclusion?
- Valid and final judgment on the merits
- Involves same claim
- Involves the same parties, or parties in privity
Under Rule 9, what 3 claims hold a heightened pleading requirement?
1) fraud
2) mistake
3) special damages
What 2 factors should be considered when analyzing whether joinder is proper?
1) Joinder Rule
2) SMJ disruption
What must be shown for a court to order a medical exam?
The requesting party must show that the condition is in controversy and good cause
A party may file a motion for summary judgment at any time until 30 days after the close of discovery.
How many "for cause" challenges are allowed?
How many peremptory challenges are allowed?
1. Unlimited
2. 3 per side
Which 12(b) defenses are waived if they are not asserted in first response?
12(b)(2), (3), (4), and (5)
-PJ
- Improper venue
- Improper process
- improper service of process
C.A.N.T.
1) Commonality
2) Adequacy
3) Numerosity
4) Typicality
This discovery tool is a set of written questions that are to be answered in writing under oath, and these can only be sent to parties (not non-parties).
On August 30, a plaintiff filed a trademark infringement action in federal court against a foreign defendant. The defendant was properly served with the complaint on August 31. As of October 1, the defendant has not filed an answer to the plaintiff's complaint.
How should the plaintiff proceed in order to recover from the defendant?
The plaintiff should first seek to have the clerk enter the defendant's default on the docket and then request a default judgment from the judge.
A buyer sued a seller for breach of a sales contract, alleging the seller did not deliver any of the goods specified in the contract. The seller did not answer the complaint, resulting in the entry of a default judgment against it. Thereafter, the buyer sued the seller for fraudulent misrepresentation, alleging that when the seller entered into the sales contract with the buyer, the seller never intended to provide the goods specified in the contract. The seller’s defense to the second lawsuit was that the parties did not have a valid contract.
Is the issue of whether the parties had a valid contract precluded from litigation in the fraudulent-misrepresentation action?
No, because the issue did not receive a judgment on the merits.
Rule 15(c) allows an amended pleading to relate back to the date of the original pleading if:
(Digestion Relation Back Doctrine)
1) the claim against the new defendant involves the same conduct, transaction, or occurrence set forth in the original complaint
2) the new defendant received notice of the lawsuit such that it would not be prejudiced by being named
3) the new defendant knew or should have known that it would have been sued but for the plaintiff's mistake about his identity
What are the four factors used to determine whether claims and/or counterclaims are transactionally related?
1) issues of fact and law are largely the same
2) res judicata (claim preclusion) would bar litigation of counterclaim if omitted
3) same evidence will be used to support or refute each of claims
4) a logical relationship exists between main claim and counterclaim
One of the most important deadlines in Civil Procedure. (According to Blankey)
A party MUST respond to requests for admission within 30 days after being served with the request.