Civpro Rules & pleading.txt

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Author:
stimmel49
ID:
51484
Filename:
Civpro Rules & pleading.txt
Updated:
2010-11-24 03:43:51
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Rules
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Rules
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  1. Rule 1
    These rules govern the procedure of all civil suits
  2. Rule 2
    Only one kind of action called a civil action
  3. Rule 3
    Civil action begins when a complaint is filed with the court
  4. Rule 4 - Summons
    Service must be proper, may be done by someone 18 years of age or older that is not a party of the action at their dwelling or usual place of abode
  5. Rule 4(k)
    • A 3rd party properly joined under Rule 14 (for
    • contribution or indemnity) is subject to personal jurisdiction if served within 100 miles of the federal courthouse where the action is pending
  6. Rule 8(a) - Pleading
    Short, plain statement of jurisdiction unless the court already has it, why the pleader is entitled to relief, and demand for relief sought; California uses code pleading (pleading with particularity with facts)
  7. Rule 8 (c) - Pleading
    • Affirmative Defenses include: contributory negligence, res
    • judicata, etc.
  8. Notice Pleading (Rule 8)
    Short plain statement of the claim showing that the pleader is entitled to relief (applies to an original claim, counterclaim, cross-claim, or third-party claim)
  9. Code Pleading (Rule 8)
    A pleading of the facts to establish cause of action
  10. Rule 9 - Pleading Special Matters
    In allegations of fraud or mistake you must plead specific facts to state a cause of action
  11. Rule 11 - Sanctions
    Holds who ever signs the pleading accountable, must give this person notice of this violation
  12. Rule 11 (b) - Sanctions
    By presenting to the court, an attorney is certifying their representation to the best of their knowledge, information, and belief, formed after a reasonable inquiry.
  13. Rule 11 (c) - Sanctions
    Allows sanctions where the courts finds that a pleading is not well founded in fact or warranted by existing law or a good faith argument sanction may be imposed; Safe Harbor rule-can escape sanctions by withdrawing within 21 days of motion
  14. Rule 12 - Defenses and Objections
    • 1) Objection to Subject Matter Jurisdiction (raised at any time)
    • 2) Objection to Personal Jurisdiction (raised in the first pleading)
    • 3) Objection to Venue (raised in the first pleading)
    • 4) Insufficiency of process (raised in the first pleading)
    • 5) Manner of service was improper (raised in the first pleading),
    • 6) Failure to state a claim (raised at any time)/for test purposes*shows up as a code pleading v. notice pleading issue
    • 7)Failure to join a necessary and indispensable party *Federal policy favors permitting the amendment of pleadings
  15. Rule 12 (c) - Defenses and Objections
    • a. Motion for judgment on the pleadings
    • 1. soon after pleadings are concluded can make such motion
    • 2. treated as a motion for summary judgment
  16. Rule 12 (e) - Defenses and Objections
    Motion for a more definite statement, if a responsive pleading is necessary than may move for a more definite statement before responsive pleading
  17. Rule 12 (f) - Defenses and Objections
    Motion to strike: motion to take out part of the complaint: where pleader is redundant in material, insufficient evidence, impertinent or scandalous matter.
  18. Rule 12 (h) - Defenses and Objections
    Motions 12b2-5 are waived if not raised in answer or first pre-answer motion. SMJ can be raised anytime, including on appeal.
  19. Rule 15 (a) - Amended Pleadings
    • Can amend the party’s pleading once before responsive pleading, if done after then need leave of court or written permission from opponent. Court should freely give leave to amend when justice so requires
    • - test purposes-question about amending, do R 15 analysis, then SMJ
  20. Rule 15 (b) - Amended Pleadings
    Can amend party’s pleading to conform to the evidence
  21. Rule 15 (c1&c2) - Relation Back (Amended Pleadings)
    • Amendments can relate back to the filing date of original pleading if(anytime SOL has expired):
    • 1) relation back permitted by statute (if statute is on point)
    • 2) claim arose from same transaction or attempted to be set forth in the original pleading (same occurrence; tries to add cause of action after SOL has run)
  22. Rule 15 (c3) - Misnomer (Amended Pleadings)
    3) Provides that a plaintiff may amend a complaint to correct a misnomer of the defendant (within 120 days of service of summons), provided that the defendant knew that but for the misnomer he was the intended party and it the defendant will not be prejudiced by the amendment.
  23. Rule 15 (d) - Supplemental Pleadings
    The court may allow the plaintiff to add additional claims that occurred since the original pleading (need leave of court)

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