Civil Procedure II - Final Exam with
Complete Solutions
Pleading - ANSWER-Document in which claimants set forth their claims and defending
parties respond to the claims and raise defenses. Concerns the sufficiency of each
side's allegations.
Rule 8(a) - Three things must be in the complaint - ANSWER-1) Subject Matter
Jurisdiction
2) Short and plain statement of the claim.
3) A demand for relief sought.
Twombly and Icqbal, boiled down, say three things - ANSWER-a. Plaintiff must plead
facts supporting a plausible claim. (Plausible NOT Possible)
b. A court will ignore conclusions of law.
c. The court will use its own experience and common sense to determine whether a
claim is plausible.
When does the Demand for Relief Matter? - ANSWER-1) It sometimes affects subject
matter jurisdiction
2) It affects the right to a jury trial
3) If plaintiff wins by default
Without these three reasons there would not be a reason for Rule 8(a)(3)
What will your client get from the defendant if the client wins? - ANSWER-1) Damages?
Of course, that is a given. With interest.
2) Attorneys' Fees? Probably not, unless:
i. Contractual Provision
ii. Some Statutes Authorize "Fee Shifting"
3) Costs? (54(d)) - Almost certainly yes, if he wins, unless:
i. In a diversity case, he gets less than $75,000, or
ii. Rule 68 - he gets less than the Defendant's "Offer of Judgment"
,4) Declaratory Judgment (See Below)
5) An Injunction (See Below)
Some special cases require additional information when pleading: - ANSWER-i. Rule
9(b) - Allegations of fraud or mistake must be pled with particularity.
An allegation of fraud should generally include the identity of the person making the
statement, when and where the misrepresentation was made, how it was
communicated, and the resulting injury.
ii. Rule 9(g) - If plaintiff claims special damage, must be pled with specificity.
Special Damage = That does not normally flow from an event.
Amendments to Pleadings - ANSWER-The General Rule: The sooner the better...
Permitted When:
1) As a matter of course
a. Within 21 days after serving it or within 21 days after plaintiff gets defendants first
response.
b. Defendant allowed similar right to amend.
i. Within 21 days after serving answer.
ii. Cut off by passage of time, not the plaintiff's actions.
c. When plaintiff amends (either by right or permission) the defending party must
respond (unless the court orders otherwise) within the time remaining to respond to the
original pleading or within 10 days after service of the amended pleading, whichever is
later.
2) Permissive amendment, with either:
a. A) Stipulation: Opponent's written consent, or
b. B) Motion: With leave of the court
i. Shall be "freely" granted when justice requires (Rule 15(a)(2))
3) At Trial: "Variance" and amendments "to conform to the evidence."
a. Court grants liberally...
b. Treated as if evidence was raised during pleading.
4. 4) On Appeal? See §1653
a. Almost never allowed.
b. Will only be allowed when there is no prejudice to the defense; it has nothing to do
with the trial.
, Relation Back - ANSWER-Plaintiff adds a new claim or defendant after the statute of
limitations has expired.
Must Be:
1. Within 120 Days
2. Out of same transaction or occurrence
3. Plaintiff must show defendant knew in time or should have know that plaintiff was
looking for him.
Does not apply to defenses that have been lost (Rule 12(b)), but only to new claims.
Supplemental Pleadings - ANSWER-Assertion of items that have occurred after the
pleading was filed.
Amended = Before Pleading Filed, Supplemental = After Pleading Filed
No right to supplement pleading. Must be raised by motion by party seeking leave to
supplement.
Most courts allow, unless it will cause undue delay or prejudice, or if the party seeking
leave to supplement is guilty of bad faith.
Defendant must respond by... - ANSWER-Motion (NOT a Pleading)
Answer (Is a Pleading)
Three things we look at when someone is making a motion: - ANSWER-i. How long did
they take to make the motion?
ii. What is the reason for the delay?
iii. What is the prejudice to the other side?
Proper Use of "Motion" - ANSWER-You make a motion, or move. NEVER MOTION
THE COURT
Motions to Dismiss Under Rule 12(b) - ANSWER-1) Subject Matter Jurisdiction
2) Personal Jurisdiction
3) Venue
4) Insufficient Process
Complete Solutions
Pleading - ANSWER-Document in which claimants set forth their claims and defending
parties respond to the claims and raise defenses. Concerns the sufficiency of each
side's allegations.
Rule 8(a) - Three things must be in the complaint - ANSWER-1) Subject Matter
Jurisdiction
2) Short and plain statement of the claim.
3) A demand for relief sought.
Twombly and Icqbal, boiled down, say three things - ANSWER-a. Plaintiff must plead
facts supporting a plausible claim. (Plausible NOT Possible)
b. A court will ignore conclusions of law.
c. The court will use its own experience and common sense to determine whether a
claim is plausible.
When does the Demand for Relief Matter? - ANSWER-1) It sometimes affects subject
matter jurisdiction
2) It affects the right to a jury trial
3) If plaintiff wins by default
Without these three reasons there would not be a reason for Rule 8(a)(3)
What will your client get from the defendant if the client wins? - ANSWER-1) Damages?
Of course, that is a given. With interest.
2) Attorneys' Fees? Probably not, unless:
i. Contractual Provision
ii. Some Statutes Authorize "Fee Shifting"
3) Costs? (54(d)) - Almost certainly yes, if he wins, unless:
i. In a diversity case, he gets less than $75,000, or
ii. Rule 68 - he gets less than the Defendant's "Offer of Judgment"
,4) Declaratory Judgment (See Below)
5) An Injunction (See Below)
Some special cases require additional information when pleading: - ANSWER-i. Rule
9(b) - Allegations of fraud or mistake must be pled with particularity.
An allegation of fraud should generally include the identity of the person making the
statement, when and where the misrepresentation was made, how it was
communicated, and the resulting injury.
ii. Rule 9(g) - If plaintiff claims special damage, must be pled with specificity.
Special Damage = That does not normally flow from an event.
Amendments to Pleadings - ANSWER-The General Rule: The sooner the better...
Permitted When:
1) As a matter of course
a. Within 21 days after serving it or within 21 days after plaintiff gets defendants first
response.
b. Defendant allowed similar right to amend.
i. Within 21 days after serving answer.
ii. Cut off by passage of time, not the plaintiff's actions.
c. When plaintiff amends (either by right or permission) the defending party must
respond (unless the court orders otherwise) within the time remaining to respond to the
original pleading or within 10 days after service of the amended pleading, whichever is
later.
2) Permissive amendment, with either:
a. A) Stipulation: Opponent's written consent, or
b. B) Motion: With leave of the court
i. Shall be "freely" granted when justice requires (Rule 15(a)(2))
3) At Trial: "Variance" and amendments "to conform to the evidence."
a. Court grants liberally...
b. Treated as if evidence was raised during pleading.
4. 4) On Appeal? See §1653
a. Almost never allowed.
b. Will only be allowed when there is no prejudice to the defense; it has nothing to do
with the trial.
, Relation Back - ANSWER-Plaintiff adds a new claim or defendant after the statute of
limitations has expired.
Must Be:
1. Within 120 Days
2. Out of same transaction or occurrence
3. Plaintiff must show defendant knew in time or should have know that plaintiff was
looking for him.
Does not apply to defenses that have been lost (Rule 12(b)), but only to new claims.
Supplemental Pleadings - ANSWER-Assertion of items that have occurred after the
pleading was filed.
Amended = Before Pleading Filed, Supplemental = After Pleading Filed
No right to supplement pleading. Must be raised by motion by party seeking leave to
supplement.
Most courts allow, unless it will cause undue delay or prejudice, or if the party seeking
leave to supplement is guilty of bad faith.
Defendant must respond by... - ANSWER-Motion (NOT a Pleading)
Answer (Is a Pleading)
Three things we look at when someone is making a motion: - ANSWER-i. How long did
they take to make the motion?
ii. What is the reason for the delay?
iii. What is the prejudice to the other side?
Proper Use of "Motion" - ANSWER-You make a motion, or move. NEVER MOTION
THE COURT
Motions to Dismiss Under Rule 12(b) - ANSWER-1) Subject Matter Jurisdiction
2) Personal Jurisdiction
3) Venue
4) Insufficient Process
