Short Answers for Civil Procedure Exams

Short Answers for Civil Procedure Exams - Short Answers for...

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Short Answers for Civil Procedure Exams (1) Under the FRCP (Rule 8(a)), a short plain statement of the claim showing that the pleader is entitled to relief is all that is required, just enough to put the D on notice. It may be necessary to touch upon and allege the elements of a C.O.A. in order to show a claim on which relief may be granted, but they do not have to be described in full detail. Notice pleadings of the FRCP are designed to give notice, unlike the C/L pleadings, which deprived meritorious claimants of their day in court. The only exceptions of claims that must be plead specifically are: (a) fraud (b) mistake (c) condition of the mind (malice, intent, knowledge) (d) special damages (2) Ordinary work product is waived if divulged to anyone other than the client, your co- counsel, your partners and the like. If it gets into the hands of your adversaries, by you not reasonably caring for it (locking it up, shredding it, etc…) then it is tough luck. If you show (1) a substantial need and (2) the information is otherwise unavailable, then the work product is not immune from discovery. Areas absolutely immune include mental impressions, legal theories, conclusions and opinions. (3) Summary judgment (FRCP 56) must be denied when the evidence (not pleadings) shows a dispute of material fact. If there is any dispute as to material fact, a summary judgment motion must be denied. For Summary judgment a genuine issue of material fact is created whenever any of the evidence of the P (not pleading, but evidence such as interrogatories, depositions) does not match the evidence of the D. When there is a genuine issue of material fact, a motion for summary judgment under FRCP 56 must be denied. S/J can only be overruled for abuse of discretion. Summary judgment does not deny the loser his day in court. He had his day in court and lost. For S/J look at the evidence in a light most favorable to the non-moving party. Since summary judgments are based on facts, not pleadings , the motion may not be made till discovery when there are actually facts. In the pleadings stage, there are no facts present, only pleadings. If you want to file a motion in the pleadings, then file a 12(b)(6) failure to state a claim motion, this can be done on pleadings only, not evidence. (4) “Congress is precluded by the Supreme Court’s decision in Erie, from enacting rules of decision governing federal diversity cases.” Wrong!!! (Shaky answer ;()) The REA allows the congress to enact rules as long as they are constitutional. Congress or the Supreme Court can pass any rules of practice and procedure for US
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This note was uploaded on 02/15/2008 for the course LAW 1000 taught by Professor Minda during the Fall '06 term at St. Johns Duplicate.

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Short Answers for Civil Procedure Exams - Short Answers for...

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