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Civil Procedure - Coggle Diagram
Civil Procedure
Pleadings
Answer: if the D does not file a motion to dismiss or if its motion to dismiss is denied, it must file and answer that must fairly and precisely admit or deny every allegation in the complaint. In addition, the answer must include the p12(b) defenses and all affirmative defenses or they are waived. AFFIRMATIVE DEFENSES UNDER RULE 8(c)(1):
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Joinder of Claims: The P may join as many claims as they have against a D regardless of where there is any connection between those claims.
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First Responsive Pleading. Once served with a complaint, D must file a responsible motion or answer. Either a motion or an answer, whichever is filed first, is considered the first responsive pleading. D has 21 days from the date of service of the complaint to file its first responsive pleadings. 21 days includes weekends and holidays. If the 21st day falls on a weekend or holiday, the 1st responsive pleading or answer must be filed on the next business day.
12(b) defenses must be filed within the first responsive pleading. If not, thee defenses are waived.
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Joinder of Parties: P may join parties to the same lawsuit if the claim involving those parties derive from the same transaction or occurrence or at least the same series of common transaction or occurrences. The P must join indispensable parties where there would be prejudice to any parties' right to a full and fair adjudication, including leaving an existing party subject to a substantial risk of incurring multiple inconsistent obligations.
Complaint: The initial pleading. Must contain sufficient facts to place the adversary on notice of plausible claims. Must include statement of jurisdiction, statement of claim that would entitle claimant to relief, and a demand for relief.
Amendments: Plaintiff may amend its complaint once as of right within 21 days of service upon the D. After that, the P must file a motion for leave to amend, which is granted freely by the court when justice requires. If the amendment is a new claim, then it relates back to the date of a timely filed complaint if the new claim derives from the same transaction or occurrence a the earlier claim. If the amendment is a new party, relation back applies only if the amendment derives from the same transaction or occurrence, and the new party acquired knowledge within 120 days of the earlier timely filed complaint that but for a mistake in name it would have been sued.
Counterclaim: A D may bring a counterclaim against the Plaintiff. If it arises from the same transaction or occurrence, then it must be brought in that action and is called a mandatory or compulsory counterclaim.
Class Actions: are action s in which a named P represents a class of commonly situated absent Ps. The certification requirements for class actions can be remember by the acronym CANT
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NUMBERS: the class must be so numerous that joinder of them all would be impracticable (at least 40)
COMMONALITY: there must be common issues of fact or law, including common claims and common injuries
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Cross Claims may be brought by any party against any co-party when the claim arises out of the same transaction or occurrence as the original claim or counterclaim. If a claim is only a permissive counterclaim, then no supplemental jurisdiction exists because it did not arise out of the same transaction or occurrence and independent grounds for federal jurisdiction must exist.
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Discovery: Includes both mandatory disclosures and the more traditional means of discovery. Mandatory disclosures are required within 2 weeks of the initial discovery conference. A party has a duty to supplement the mandatory disclosures or be subject to the exclusion of that evidence at trial.
TRADITIONAL MEANS OF DISCOVERY: 1) deposition, 2) interrogatories, 3) request for admission, 4) production of documents 5) requests for physical or mental examination.
MANDATORY DISCLOSURES: 1) all supporting witnesses 2) all supporting documents 3) damages computation 4) relevant insurance coverage.
WORK PRODUCT DOCTRINE: Privilege that covers any material that an attorney or someone at her discretion prepared for litigation and was not in the ordinary course of business. Material including attorney's mental impression is never discoverable. All other forms of work product are discoverable only with a showing of substantial need and undue hardship. Sanctions for refusing to produce discovery can range from not being able to sue the withheld information at trial, to the striking of a claim, to the dismissal of the case.
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Preclusion: means that parties are barred from relitigating claims or issues that they have already fully and fairly litigated to a final judgment on the merits.
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RES JUDICATA (CLAIM PRECLUSION): A claim cannot be relitigated if the claim arises between the same parties or those in privity with them; that arises out of the same transaction or occurrence; and that the court determined the claim on the merits and had proper SMJ and PJ. This is an affirmative defense that is waived if not asserted in an answer
Jury Trial: A party has a constitutional right to a jury trial if its claim primarily seeks monetary damages. The party must file a written demand within 14 days of service of the complain. Each party is entitled to strike potential jurors for cause. Otherwise, each party receives 3 preemptory challenges that may be used to strike jurors without cause.