pleading joinder flashcards.txt

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pleading joinder flashcards.txt
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  1. A12(b)(6) motion tests the evidentiary sufficiency of a plaintiff�s claim.
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  2. After Iqbal v. Ashcroft, Form 11 annexed to the FRCPs is no longer valid."
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  3. Under FRCP 9(b), a party must state with particularity the circumstances constituting malice, intent, knowledge and other conditions of a person�s mind should be stated with specificity."
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  4. Affirmative defenses must be pleaded in the answer, otherwise they are waived."
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  5. The list of affirmative defenses under FRCP 8(c) is exhaustive.
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  6. The pleading rules described in FRCP 8(a) also apply to other claims-initiating pleadings, such as counterclaims, cross-claims and third party complaints."
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  7. The Forms in the Appendix that accompanies the FRCPs are mandatory and should be followed any time a pleading is filed.
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  8. Under Leatherman, federal judges may create exceptions to the notice pleading requirement under FRCP 8(a)(2)."
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  9. Under Iqbal, when determining whether a complaint passes the FRCP 12(b)(6) test, a court should (i) identify the conclusory allegations in the complaint that are not entitled to the assumption of truth, and excise them; and (ii) accept the remaining �factual� conclusions as true and measure them against the requirement elements of the claim, to see whether they give rise to a �plausible� claim."
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  10. The answer is subject to the same �short and plain� pleading standards as is the complaint.
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  11. In her answer, the defendant must admit or deny each allegation in the complaint."
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  12. A denial cannot be based on the pleader�s lack of �knowledge or information.�
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  13. Under the FRCPs, an allegation is admitted if a responsive pleading is required and the allegation is not denied."
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  14. A 12(b)(6) motion is a motion for failure to state a claim upon which relief can be granted.
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  15. An affirmative defense is a defense that defeats an otherwise legitimate claim.
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  16. The admissions, denials, affirmative defenses, and counterclaims included in an answer are all subject to Rule 11."
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  17. Under Kirksey v. Reynolds, once the defendant files a FRCP 12(b)(6) motion, plausibly demonstrating that no legal theory is available to provide relief under the facts asserted, the burden of identifying a legal theory shifts to the plaintiff."
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  18. In order to add a claim or party to a lawsuit in a United States District Court (�USDC�), both the rules of joinder and the standards of subject matter jurisdiction must be satisfied."
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  19. Federal Rule of Civil Procedure 18(a) allows a party asserting a claim to join as many claims as that party has against an opposing party so long as the claims all arise out of the same transaction or occurrence.
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  20. In general, a pleading must state as a counterclaim any claim that, at the time of its service, the pleader has against an opposing party if the claim arises out of the transaction or occurrence that is the subject matter of the opposing party�s claim and does not require adding another party over whom the court cannot acquire jurisdiction."
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  21. There are no exceptions to the compulsory counterclaim rule.
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  22. The federal rules allow a defendant to file any counterclaim she has against an opposing party.
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  23. The majority rule is that supplemental jurisdiction cannot be exercised over a permissive counterclaim.
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  24. The federal rules no longer allow a party to seek leave to file an omitted counterclaim.
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  25. Under the first-to-file-rule, a USDC, in which a case was first filed, may enjoined another USDC from proceeding with a subsequently filed parallel proceeding."
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  26. Under the first-first-to-file-rule, a counterclaim that would be compulsory in the first filed proceeding will not be treated as part of that case if the counterclaim has been timely filed in a subsequent proceeding."
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  27. Rule 13(a) (compulsory counterclaims) applies only to defendants.
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  28. According to the majority view, under Rule 13(g), a plaintiff may not file a crossclaim against a co-plaintiff unless a counterclaim has been filed against that plaintiff and co-plaintiff."
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  29. Under the federal rules, crossclaims are permissive."
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  30. Under the federal rules, given the permissive nature of crossclaims, a defendant who has been served with a proper crossclaim need not include any claims she has against the crossclaimant even if those claims are transactionally related to the claim filed by the crossclaimant."
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  31. In a diversity case, if a plaintiff files a crossclaim against a co-plaintiff consistently with the standards of the federal rules and in satisfaction of the same-transaction test, the USDC may exercise supplemental jurisdiction over that claim even if the two plaintiffs are from the same state."
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  32. If a defendant in a federal proceeding objects that a case is not being prosecuted in the name of the real party interest, the USDC must afford the real party in interest a reasonable time to ratify, join, or substitute into the action."
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  33. Rule 20(a)(1) requires a plaintiffs to join together in a single proceeding whenever their claims arise out of the same transactions or occurrence and share a common question of fact.
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  34. Even if the federal rules permit joinder of a particular claim or party, that joinder cannot be permitted unless there is an independent basis of subject matter jurisdiction over that claim or party."
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  35. In a federal question case, in which a plaintiff sues two defendants, each for violations of the federal and state constitution, the USDC may exercise jurisdiction over the state-law claims if those claims form part of the same constitutional case or controversy as the federal claims even if all the parties are citizens of the same state and despite the fact that the plaintiff is asserting claims against parties joined pursuant to Rule 20(a)(2)." 35.
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  36. If two plaintiffs properly join together under Rule 20(a)(2) and sue a defendant on a state-law claim and complete diversity is satisfied, but only one of those plaintiffs satisfies the amount in controversy, the USDC may nonetheless exercise supplemental jurisdiction over the other plaintiff�s claim."
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  37. If two plaintiffs properly join together under Rule 20(a)(2) and sue a defendant on a state-law claim, both of them satisfying the amount in controversy requirement, but only one of them satisfying the diversity requirement, the USDC may nonetheless exercise supplemental jurisdiction over the non-diverse plaintiff�s claim."
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  38. If two plaintiffs properly join together under Rule 20(a)(2) and sue two defendants on a state-law claim and complete diversity is satisfied, but only one of those plaintiffs satisfies the amount in controversy, the USDC may nonetheless exercise supplemental jurisdiction over the other plaintiff�s claim."
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  39. The federal rules allow a defendant to add additional parties to a counterclaim if doing so would be consistent with the standards of Rule 20.
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  40. �Contamination� does not apply to a party joined to a compulsory counterclaim.
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  41. �Contamination� might apply to a party joined to a permissive counterclaim.
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  42. If P sues D for injuries suffered in a car accident, D may implead Third Party on the theory that the Third Party caused the accident."
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  43. Although Rule 14(a) allows a defendant to implead a third party, such impleader will not be allowed if the third party is from the same state as the defendant since the defendant would now be suing a party joined pursuant to Rule 14 when doing so would be inconsistent with the jurisdictional requirements of �1332."
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  44. Rule 14(a) allows the original plaintiff to file a transactionally related claim against a party joined pursuant to that rule.
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  45. Section 1367(b) alters the jurisdictional requirements of �1332.
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  46. Section 1367(b) provides that a plaintiff may not, under any circumstances, file a claim against a non-diverse party."
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  47. Under the federal rules, a non-party has a right to intervene in any civil action in which that non-party claims an interest relating to the property or transaction that is the subject of the case."
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  48. In a diversity case, a party will not be allowed to intervene as a plaintiff if the claim that party wishes to assert does not satisfy the amount in controversy requirement."
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  49. If a party seeking to intervene satisfies all the standards for �intervention of right,� the USDC retains discretion to deny the motion to intervene if the intervention will unduly delay or prejudice the adjudication of the original parties� rights."
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  50. If a party seeking to intervene satisfies all the standards for �intervention of right,� the USDC may not impose any conditions on that intervention."
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  51. Section 1367(b) imposes no limits on a party�s ability to intervene as a defendant.
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  52. A USDC may realign parties for purposes of determining subject matter jurisdiction.
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  53. A USDC may exercise subject matter jurisdiction over an interpleader action if any two claimants to the stake are diverse from one another and if the amount in controversy is equal to or greater than $500.
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  54. A USDC may exercise subject matter jurisdiction over an interpleader if the stakeholder is diverse from all the claimants and if the amount in controversy exceeds $75,000, exclusive of interests and costs."
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  55. In the context of interpleader filed under �1335, venue is proper in any judicial district where any claimant resides."
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  56. In a case involving interpleader under Rule 22 and �1332, a USDC may exercise nationwide service of process."
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  57. In both statutory and rule interpleader cases filed in a federal court, the USDC with jurisdiction over the stake may enjoin all other suits against that stake."
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  58. In determining whether an absent party�s joinder is required under Rule 19(a), the USDC must consider whether, in that party�s absence, the existing parties or the absent party will suffer any prejudice."
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  59. Joinder of an absent party is not feasible if that party is not subject to personal jurisdiction or if that party�s joinder would be inconsistent with standards of subject matter jurisdiction.
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  60. If the joinder of a party who ought to be joined under Rule 19(a) is not feasible, the party must nonetheless be joined if the USDC concludes that it cannot proceed in that party�s absence."
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  61. If the joinder of a party who ought to be joined under Rule 19(a) is not feasible, the USDC must consider ways to shape the relief in order to ameliorate any prejudice caused by the non-joinder."
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  62. In Provident Tradesmens Bank v. Patterson, the insurance company could have brought in the absent vehicle owner (Dutcher) by filing a counterclaim in interpleader and naming the vehicle owner as a claimant, thus avoiding the Rule 19 joinder issue."
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  63. An absent party�s status as a joint tortfeasor will not, in itself, require the joinder of that party under Rule 19(a)."
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