Civil Procedure 1 Comprehensive Course Set
with Complete Solutions
"Except as provided in Rule 12(h)(2) or (3),"
What does this clause mean? - ANSWER-Rule 12(h)(2) and (3) are exceptions to
the general rule stated in 12(g) and will sometimes allow the assertion of a defense
that was omitted from a Rule 12 Motion.
3 types of documents that can be filed in a court - ANSWER--pleadings
-motions
-other paper (discovery)
7th Amendment - ANSWER-Right to a trial by jury in civil cases
a case's file number changes in later filed - ANSWER-false
A party should seek a motion to compel if... - ANSWER-A party is not cooperating
OR there is a legitimate dispute about entitlement of information or relevance OR a
party makes a partial response to discovery
A pleadings title must name the parties to the lawsuit - ANSWER-ttur
According to rule 8(a) what do you need to include in a complaint? - ANSWER--
jurisdiction
-claim
-claim for relief
All pleadings must contain a title - ANSWER-true
Amending as a matter of course - ANSWER-amendments made early on in the case
without having to ask anyone's permission
amending with the consent of the other parties - ANSWER-amendments made later
in the case with the permission of the other parties
amending with the permission from the court - ANSWER-Amendments made later in
the case with leave from the court
Are all defenses waived if you omit them? - ANSWER-No. Some defenses are easily
waived, but others are never waived. Rule 12(h) sets out different groups of
defenses and tells you how each one is waived (or saved). There is a group of
defenses -- lack of PJ, Venue and objections to Service - that are easily waived
(under Rule 12(h)(1)).
Are the FRCP statutes? - ANSWER-No, they are a series of rules.
,Are there any other repercussions if you file false, unsupported or improper
documents with the court? - ANSWER-Yes
areas for factual development - ANSWER-context, understanding, damages,
knowing the witnesses, and requests for admission
As a general rule does Rule 12(g) allow you to file a second Rule 12 Motion to raise
a defense that was available to you, but you omitted? - ANSWER-No
Batson and Jeb challenge - ANSWER-Can't use these to discriminate, party alleging
discrimination must make a prima facia showing
Party exercising this has to give a non-discriminatory reason for the strike
Batson v. Kentucky (1986) - ANSWER-Supreme Court ruled that the use of
peremptory challenges specifically to exclude African American jurors violated the
equal protection clause of the Fourteenth Amendment
Can a defendant be in default if he has appeared in the lawsuit? - ANSWER-Yes.
Default is defined as failing to "plead or otherwise defend," so sometimes even if
the defendant has appeared (or shown up) in the lawsuit if he fails to take the steps
the Rules require (e.g., filing an Answer), defendant is in default.
Can a lawyer avoid the obligation to perform a reasonable inquiry by stating that
her allegations are based "upon information and belief?" - ANSWER-No
Can a lawyer file a pleading called a response to a complaint? - ANSWER-No
Can a lawyer fill all of the pleadings listed in rule 7(a) without getting the court's
permission? - ANSWER-No
Can a motion made during a hearing or trial be made orally? - ANSWER-Yes
Can a pleading violate both Rule 11 and the rules on how to draft a pleading (e.g.
Rule 8)? - ANSWER-Yes
Can a pro se litigant be sanctioned? - ANSWER-Yes
Can exhibits be attached to pleadings? - ANSWER-Yes
Can you escape your rule obligations under rule 11 simply by saying you acted in
good faith or that you did not intend to violate the rule? - ANSWER-No
Can you file alternative and inconsistent claims? - ANSWER-Yes, rule 8(d) allows a
party to plead in alternative and even offer inconsistent pleadings. This applies to
both claims and defenses.
, Can you only get a "default judgment" by filing a Motion for Default Judgment with
the Judge? - ANSWER-No. Under Rule 55 you normally go to the judge, but there
are some cases (where there is no need for any hearing or decision to be made,
and no risk of unfairness), where the Clerk (a court official) simply issues the
default judgment. Pay attention to when you can go to the Clerk versus the Judge.
Can you only present a document once? - ANSWER-False
Chauffers test for a new cause of action problem - ANSWER-Compare the new
statutory action to 18th century actions brought in the courts of England prior to
the merger of law and equity
Examine the remedy sought and determine whether it is legal or equitable in nature
(most important factor)
Claim for Relief - ANSWER-any cause of action on which you seek to recover money
or another remedy
Court can place limits on discovery if it determines that..... - ANSWER--
Unreasonable, duplicative, or cumulative
-Can be more conveniently done, less burdensome, less expensive
-Had opportunity already to get information
-Outside the scope permitted by 26(b)(1) which makes it Irrelevant, Proportional,
Privileged
-Motion for a protective order 26 c. This can mean it is for good cause, to protect a
party from annoyance, embarrassment, or oppression, undue burden or expense,
outside the scope of discovery
Defendant's two options to respond to a complaint - ANSWER--file a responsive
pleading (an answer)
-file a motion asking the court to dismiss the complaint
demand for relief - ANSWER-"a demand for the relief sought, which may include
relief in the alternative or different types of relief."
disclosures - ANSWER-must be in writing, signed, and served
discovery devices - ANSWER-1. interrogatories
2. request for production of documents, things, and land for inspection
3. request for physical or mental examination
4. request for admission
5. deposition
Discovery Plan - ANSWER--Timing and form of disclosures
with Complete Solutions
"Except as provided in Rule 12(h)(2) or (3),"
What does this clause mean? - ANSWER-Rule 12(h)(2) and (3) are exceptions to
the general rule stated in 12(g) and will sometimes allow the assertion of a defense
that was omitted from a Rule 12 Motion.
3 types of documents that can be filed in a court - ANSWER--pleadings
-motions
-other paper (discovery)
7th Amendment - ANSWER-Right to a trial by jury in civil cases
a case's file number changes in later filed - ANSWER-false
A party should seek a motion to compel if... - ANSWER-A party is not cooperating
OR there is a legitimate dispute about entitlement of information or relevance OR a
party makes a partial response to discovery
A pleadings title must name the parties to the lawsuit - ANSWER-ttur
According to rule 8(a) what do you need to include in a complaint? - ANSWER--
jurisdiction
-claim
-claim for relief
All pleadings must contain a title - ANSWER-true
Amending as a matter of course - ANSWER-amendments made early on in the case
without having to ask anyone's permission
amending with the consent of the other parties - ANSWER-amendments made later
in the case with the permission of the other parties
amending with the permission from the court - ANSWER-Amendments made later in
the case with leave from the court
Are all defenses waived if you omit them? - ANSWER-No. Some defenses are easily
waived, but others are never waived. Rule 12(h) sets out different groups of
defenses and tells you how each one is waived (or saved). There is a group of
defenses -- lack of PJ, Venue and objections to Service - that are easily waived
(under Rule 12(h)(1)).
Are the FRCP statutes? - ANSWER-No, they are a series of rules.
,Are there any other repercussions if you file false, unsupported or improper
documents with the court? - ANSWER-Yes
areas for factual development - ANSWER-context, understanding, damages,
knowing the witnesses, and requests for admission
As a general rule does Rule 12(g) allow you to file a second Rule 12 Motion to raise
a defense that was available to you, but you omitted? - ANSWER-No
Batson and Jeb challenge - ANSWER-Can't use these to discriminate, party alleging
discrimination must make a prima facia showing
Party exercising this has to give a non-discriminatory reason for the strike
Batson v. Kentucky (1986) - ANSWER-Supreme Court ruled that the use of
peremptory challenges specifically to exclude African American jurors violated the
equal protection clause of the Fourteenth Amendment
Can a defendant be in default if he has appeared in the lawsuit? - ANSWER-Yes.
Default is defined as failing to "plead or otherwise defend," so sometimes even if
the defendant has appeared (or shown up) in the lawsuit if he fails to take the steps
the Rules require (e.g., filing an Answer), defendant is in default.
Can a lawyer avoid the obligation to perform a reasonable inquiry by stating that
her allegations are based "upon information and belief?" - ANSWER-No
Can a lawyer file a pleading called a response to a complaint? - ANSWER-No
Can a lawyer fill all of the pleadings listed in rule 7(a) without getting the court's
permission? - ANSWER-No
Can a motion made during a hearing or trial be made orally? - ANSWER-Yes
Can a pleading violate both Rule 11 and the rules on how to draft a pleading (e.g.
Rule 8)? - ANSWER-Yes
Can a pro se litigant be sanctioned? - ANSWER-Yes
Can exhibits be attached to pleadings? - ANSWER-Yes
Can you escape your rule obligations under rule 11 simply by saying you acted in
good faith or that you did not intend to violate the rule? - ANSWER-No
Can you file alternative and inconsistent claims? - ANSWER-Yes, rule 8(d) allows a
party to plead in alternative and even offer inconsistent pleadings. This applies to
both claims and defenses.
, Can you only get a "default judgment" by filing a Motion for Default Judgment with
the Judge? - ANSWER-No. Under Rule 55 you normally go to the judge, but there
are some cases (where there is no need for any hearing or decision to be made,
and no risk of unfairness), where the Clerk (a court official) simply issues the
default judgment. Pay attention to when you can go to the Clerk versus the Judge.
Can you only present a document once? - ANSWER-False
Chauffers test for a new cause of action problem - ANSWER-Compare the new
statutory action to 18th century actions brought in the courts of England prior to
the merger of law and equity
Examine the remedy sought and determine whether it is legal or equitable in nature
(most important factor)
Claim for Relief - ANSWER-any cause of action on which you seek to recover money
or another remedy
Court can place limits on discovery if it determines that..... - ANSWER--
Unreasonable, duplicative, or cumulative
-Can be more conveniently done, less burdensome, less expensive
-Had opportunity already to get information
-Outside the scope permitted by 26(b)(1) which makes it Irrelevant, Proportional,
Privileged
-Motion for a protective order 26 c. This can mean it is for good cause, to protect a
party from annoyance, embarrassment, or oppression, undue burden or expense,
outside the scope of discovery
Defendant's two options to respond to a complaint - ANSWER--file a responsive
pleading (an answer)
-file a motion asking the court to dismiss the complaint
demand for relief - ANSWER-"a demand for the relief sought, which may include
relief in the alternative or different types of relief."
disclosures - ANSWER-must be in writing, signed, and served
discovery devices - ANSWER-1. interrogatories
2. request for production of documents, things, and land for inspection
3. request for physical or mental examination
4. request for admission
5. deposition
Discovery Plan - ANSWER--Timing and form of disclosures
