Civ Pro Skeleton Answers

CIV. PRO. Rule 15 Essay •

•

•

• • • •

RULE [general intro] ○ Rule 15 allows a party to change the legal theories or factual allegations in their pleadings. The thrust of Rule 15 follows the liberal standard of pleading within the rules which gives greater focus to the merits of the case then mere technicalities. ISSUE [15(a) starting problem] ○ The issue is whether the court will grant ______ ‘s motion to amend her pleading. For the reasons that follow, the motion should be ___________. RULE [15(a)] ○ FRCP 15(a) addresses two types of amendments: those filed “as a matter of course”, and those filed with leave of court ○ An amendment may be filed once as a matter of course (meaning without leave of court or without permission of the other parties) any time before a responsive pleading is served. This usually applies to the plaintiff’s complain for which an answer must be filled within 20 days after service according to FRCP 12(a)(1)(A). ○ Conversely, if no responsive pleading is required, the party may amend its pleading within 20 days of its service. This usually applies to the defendant’s answer as no reply is needed to an answer unless ordered by the court under FRCP 7(a). ○ Otherwise, a party can only amend its pleading by leave of court, which shall be granted freely when justice so requires or through written consent from the adverse party. Leave to amend is usually given unless the adverse party would be prejudiced or if the requesting party seeks amendment very late into litigation, or parties usually consent out of professional courtesy. ANALYSIS [15(a)] ○ Apply to the Facts CONCLUSION [15(a)] ○ Repeat conclusion ISSUE [15(c) Relation back] ○ RULE [15(c) Relation back] ○ FRCP 15(c) is a relation back provision that addresses the common problem that litigants have when attempting to add new legal theories or factual allegations after the statute of limitations period has passed.

•

•

○ Under FRCP 15(c)(2), a new claim will relate back to the date of the original pleading if it arises out of the same conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading. ○ However, under FRCP 15(c)(3), which governs amendments that change the name of the party, 2 more elements must be satisfied along with the initial requirement of 15(c)(2) ○ First, the amendment will relate back only if the new party sought to be added had notice of the original claim the period of Rule 4m (within 120 days of its filing the complaint unless good cause is shown) ○ Secondly, the amendment will relate back only if the new party sought to be added knew or should have known that, but for a mistake, the original action would have been brought against the party ANALYSIS [15(c) Relation back] ○ State what the T/O of the original pleading was ○ State what the new claim is seeking to plead ○ Apply elements and see if the two arise out of the T/O ○ State how this amendment falls under the provision because it seeks to change a name ○ Apply the element to the facts and see if the new party had the requisite notice ○ Apply to see if there was a mistake CONCLUSION [15(c) Relation back] ○ Conclude on whether or not the amendment will relate back

Summary Judgment Essay •

•

ISSUE ○ Should the court grant _____________’s motion for summary judgment? For the reasons that follow, the motion should be _____________. RULE: INITIAL BURDEN OF PRODUCTION ○ Any person making or opposing a claim, counterclaim, or cross-claim may move for summary judgment under FRCP 56. A court is required to grant summary judgment if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, “show that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. FRCP 56(c). The movant may move for summary judgment with or without supporting supporting affidavits. Id ○ If the movant is the party that carries the burden of persuasion at trial (usually the plaintiff), then its initial burden of production in the motion is to show enough admissible evidence that no reasonable jury would find for anyone but him. As such, there is hardly any need for a trial and the movant is entitled to judgment as a matter of law. ○ If the movant does not carry the burden of persuasion at trial (usually the defendant), then it has several options. First, it could follow the example set forth in Addickes and

•

•

•

put forth affirmative admissible evidence negating one or more essential elements of the non-movant’s claim. Secondly, the movant could follow the example in Celotex and put forth no evidence but simply show that the non-movant’s evidence is insufficient to establish one or more essential elements of its claim. This makes sense, since there is no need for a trial if the non-movant cannot show a jry a genuine issue of material fact as to one of its elements in its claim. Furthermore, the movant could combine both approaches, putting forth affirmative evidence as well as pointing out the lack of supporting materials of the non-movant. RULE: BURDEN SHIFT ○ Once the movant meets this initial burden of production by showing an absence of GIMF, then the burden shifts to the non-movant to “put up or shut up”. The nonmovant must put forth enough affirmative evidence to show a GIMF that could be tried by a jury. ○ The non-movant may not rest on mere allegations or denials of their pleadings but must set forth specific facts showing that there is a genuine issue for trial. ○ Any supporting affidavits must be based on personal knowledge in order to satisfy the requirement if 56(e) ○ If the non-movant cannot produce any affidavits, it could move for a 56(f) motion to request additional time to gather the necessary materials ○ However, even if the non-movant party does not respond, summary judgment will only be entered when appropriate. In short, an showing of an absence of GIMF does not necessarily demonstrate that the movant is entitles to judgment as a matter of law ○ Thus, the court must apply the undisputed facts to the controlling law before a JMOL is granted ○ In doing so, the judge will look at all the supporting materials in a light most favorable towards the non-movant. ANALYSIS ○ Identify who the movant and the nonmovant is ○ Identify who has the burden of persuasion at trial (10 bucks says it’s the non-movant) ○ Identify what approach they took (addickes, celotex, or both) ○ Set forth what the controlling law is separating the undisputed elements with the disputed elements ○ Apply and see whether the initial burden is satisfy and then shifts ○ Analyze the opposing materials that the non-movant sets forth  Are they based on personal knowledge and rely on mere allegation?  Should he request more time  Can argue as in Dyer that the witnesses might change their stories on cross examination ○ Conclude as to whether summary judgment should be granted CONCLUSION ○ Restate the conclusion

Rule 19 Essay •

•

•

•

•

Issue ○ The issue is whether [person] is a necessary party to the litigation. For the reasons that follow, they are ______________ General Intro ○ Rule 19 asks whether a person not a party to a action can and should be joined, and if they cannot be joined, whether the action should be dismissed. The question is usually asked upon a 12(b)(7) motion to dismiss to failure to join an indispensible party 19(a) ○ 19(a) asks whether a person(s) is a “necessary party” to an action. ○ To be a necessary party, the person must be such that (1) their absence prevents complete relief to be accorded to those already parties, and (2) while having an interest in the action, their absence (i) as a practical matter would impair or impede their ability to protect that interest and (ii) could subject those already party to double, multiple or inconsistent obligations concerning the interest. ○ Also, joinder of the person(s) must be feasible e.g. the person(s) must be 1) subject to the service of process of the court (Rule 4), and their joinder cannot remove the court of Subject Matter Jurisdiction (normally when the person sought to be joined is nondiverse). ○ If the person(s) is considered a necessary party, and they joinder is feasible, then the court must make the person(s) a party Issue ○ The issue is whether [person] is an indispensible party to the litigation. For the reasons that follow, they are ______________ 19(b) ○ If joinder is not feasible, however, a 19(b) analysis must be made to determine if the person(s) is an indispensible party, and as such their nonjoinder will prompt the court to dismiss the action. ○ The court must make this decision in equity and good conscious. ○ 19(b) provides the court with some guidance, suggesting factors to be considered by the court including 1) adequacy of a judgment without the necessary party, 2) adverse consequences of preceding without the necessary party, 3) to what extent prejudice can be lessened or removed by order, or 4) availability of another Forum for the necessary party ○ The factors are non-exhaustive and their relative weight varies from case to case

Rule 24 Intervener Essay •

Intervener In General

•

•

○ A party may intervene in two ways: 1) as of right pursuant to 24(a), or without a right under 24(b). ○ Both require timely application. Although there is no time limit, the court will look at whether there is undue delay in the application and whether there would be prejudice to those already party ○ 24(c) demands that application be made by motion to the court and those already party, stating the grounds for intervention accompanied by a pleading setting forth claims or defenses 24(a) ○ A person may intervene as of right if either (1) a statute of the United States gives them an unconditional right to intervene or (2) the person claims an interest related to the subject matter of the action and they are in such a position that their absence will as a practical matter impair or impede their ability to protect that interest, unless their interest is adequately represented by those already party. ○ There is no clear test as to what constitutes an interest 24(b) ○ Permissive intervener maybe sought when (1) a statute of the United States confers a conditional right to intervene and (2) when the applicants claims or defenses have a common question of law or fact