Can bring up again hwvr in an amended answer rule 15a

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Can bring up again hwvr, in an amended answer (Rule 15(a): ∆ has 21 days to amend his answer if crt finds good cause. If answer needs amending after 21 days, ∆ must file a motion for leave to amend. 1. ∆ bears the risk of non-persuasion w/ aff∆s 2. will bear risk of non-persuasion everywhere else 5. Counterclaims: Fall under R13, where ∆ files a suit against and divided btwn Compulsory and Permissive CCls 1. Compulsory CCls (a crt must entertain if) 1. Must arise out of the same transaction or occurrence as the subject matter of ’s claim 2. If not raised in first suit (in the answer), they will be waived 1. 2 tests: 1. Logical Relation Test: must be logically related to ’s claim 2. Evidence Test: does majority of evidence bears upon both the claim and counterclaim. 1. Compulsory CCls covered by rules of supplemental jurisdiction 2. B/c the CCL is compulsory, if it isn’t brought in the original action, can’t be revived 2. Permissive CCls, fall under R13(b): 1. Claim against an opposing party that doesn’t arise out of the same T/O 2. Crts will almost always order separate trial, but it allows parties to settle all their claims w/o having to file separate suits 1. For a Permisse CCl to be entertained: 1. Independent Grounds:They must satisfy the requirements for SMJ 1. Must exceed the amount in controversy requirement – as well as others of diversity (a crt can’t go outside its constitutional mandate) 2. Perm CCls not covered by SuppJ: 3. Permissive CCL’s adhere to SOL for law in question 3. Wigglesworth v. Teamsters Local 592: are counter claims allowed into a proceeding where they don’t arise from the same transaction or occurrence? 1. Rule: Where there’s a question about whether a CCl is compulsory or permissive, there must be (1) a logical relationship between the claims, and (2) both claims must be disposed of by same evidence. 3. Voluntary Dismissal: Fed. R. Civ. P. 41; 11 1. R41: can voluntarily dismiss the action at any time before ∆ answers or files a motion of summary judgment 1. Voluntary Dismissal; must be before answer or motion for SumJ comes. Prejudice only when called for 2. may either file a notice of dismissal or file a stipulation of dismissal signed by all parties who have appeared in the action. 3. Unless otherwise stated, dismissal is without prejudice 1. If faced with an unfavorable voluntary dismissal, ∆ can file an answer or move for summary judgment 1. R11 sanctions may be avoided if the P dismisses the suit within 21 days after being served with the motion for sanctions 11
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1. R41 also applies to cross-claims, counterclaims, and TPC. 4. Relation Back of Amendments to Pleadings Made after the Statute of Limitations has Expired: Fed. R. Civ. P. 15 (c) 1. R15(c): an amendment of any pleading dates back to the date of the original pleading when: 1.
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