Civil Procedure

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Author:
gillps21
ID:
184220
Filename:
Civil Procedure
Updated:
2012-11-18 13:08:55
Tags:
Chicago Civil Procedure
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Description:
Civil Procedure Rules
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  1. What does it mean to demur?
    To challenge the legal sufficiency of the declaration
  2. What rules do away with complex pleading?
    • 7a and 8b(6) do away with complexp pleading. 
    • 7a: only the complaint and answer are allowed. Replies can be allowed if the court finds it necessary.
  3. What does rule 8 generally require for the individual filing the complaint?
    • 1. Short plaint statement regarding court's jurisidction 
    • 2. Short plain statement of the claim that shows the pleader is entitled to relief
    • 3. Demand for relief to each claim. 
  4. What does Rule 8 require for an indvidiaul responding to a complaint?
    • 1. Short terms defenses to each claim
    • 2. admit or deny allegations
    • 3. affirmative defenses
    • 4. Allegation must be simple, concise and direct. 
  5. Rule 10: Form of pleading
    • i. Caption
    • ii. Paragraphs 
    • iii. adoption by reference: exhibits
  6. What does 12b6 do?
    • 1. Challenges the substantive merits of the complaint
    • 2. Failure to state a claim upon which relief can be given. Even if everything the plaintiff says is true, it is still not illegal. 
    • 3. Insufficieny of form: there is some kind of insufficiency in the factual allegations by the complaint
    • 4. Insufficiency of substance: there is some kind of insufficiency in the application of the facts to the law itself. 
  7. How is service made  under Rule 4?
    • Rule 4 provides that
    • 1)personal service,
    • 2)service left at the defendant’s usual place of abode with one of suitable age and discretion residing therein or 3)service upon an authorized agent of the defendant, is valid.
    • 4) Alternatively, service may be made under
    • state rules or by mail under the waiver of service provision of rule 4(d). 















    Rule 4 authorizes any person who is at least 18 years old and not a party to the action to serve the summons and complaint. A party may request that service be made by a United States marshal or by another person appointed by the court for this purpose
  8. What happens if you waive service under Rule 4?
    • 1) If waive service, D has 60 days to answer complaint instead of 21.
    • 2) If there is a failure to waive, only have 21 days to respond and will be liable for the cost of service if there was no good cause for failing to waive. 
  9. What is the service time limit under Rule 4
    If D is not served with 120 days after a complaint is filed, the court must dismiss action without prejudice against D. 
  10. Rule 15: Amendment and Supplemental Pleadings. 
    When can a pleading be amended?
    • 1. If responsive: 21 days after service of a responsive pleading or pre-answer motion
    • 2. A pleading can be amended once within 21 days of serving it.
    • 3. 15a allows for automatic amendment of a pleading before response has been served or 21 days of service of the original pleading if no response is required. 
  11. Rule 15: Relation Back Amendments
    Amendments relate back to the date that the original pleading was filed if the "conduct, transaction or occurence" set forth in the amendment if the amendment was set forth or attempted to be set forth in the original pleadings. 
  12. Changing party under rule 15c
    • 1. Can freely amend as long as the policies and the statues of limitations have been effectively served. Remember Statute of Limitations!!!  
    • 2. 120 days after filing the complaint, the party to be is brought in by amendent. 
    • 3. Party received notice of action and will not be prejudiced in defending on the merits
    • 4. Knew or should have known that but for a mistake concerning the proper party's identity the action would have been brought. (Mistake about proper party's identiy is different from mistake about who committed the disputed act)
  13. What does 15(c)(3)(B) regard?
    It regards errors. But not designed to protect errant lawyering. 
  14. When does changing the party under FRCP 15 relate back?
    • 1) IT relates back if the amendment concerns the same conduct, transaction, or occurence as the original pleading. 
    • 2) Within 120 days of filing the complaint, the party is brought in by amendment. 
    • 3) Knew or should have known that action would be brought against. 
  15. Discovery: Rule 26
    Have to provide within 14 days of meeting necessary information to make discovery go smoothly for other party. Addresses, descriptions of documents etc. 
  16. When can a party file for summary Judgment: FRCP 56?
    1. Unless there is a rule or court order that dictates otherwise, a party may file a motion for SJ anytime until 30 days after close of all discovery. 
  17. What does FRCP 38 pertain to?
    Right to a jury trial and demand. 
  18. If a party wants a jury trial under FRCP 38, when should they file it?
    Demand must be made 14 days after the service of the pleading in which the jury triable issue arose. 
  19. Under FRCP 38, what happens if a party fails to demand a jury within 14 days after the service of the pleading in which the jury-triable issue arose?
    It constitutes a waiver. 
  20. What does FRCP 39 pertain to?
    • Trial by jury or by the court. 
    • court may on motion order a jury trial on any issue for which a jury might have been demanded. 
  21. What does FRCP 47 pertain to?
    • FRCP 47 pertains to the selection of jurors. 
    • 1. Exmaining jurors
    • 2. Peremptory challenges. 
  22. What does FRCP 48 pertain to?
    • 1. (a) Number of jurors: a jury must have at least 6 and no more than 12 members. 
    • 2. (b) Verdict: must be unanimous unless parties agree otherwise. 
    • 3. (c) Polling: On a party's request a court must poll the jurors individually after a verdict is returned but before the jury is discharged: if the poll reveals lack of unanimity or lack of required assent the court may direct further deliberation or may order a new trial. 

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