CIV. PRO. Rule 15 Essay •
RULE [general intro] ○
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ISSUE [15(a) starting problem] ○
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Apply to the Facts
CONCLUSION [15(a)] ○
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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, 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. party. Leave to amend a mend is usually given unless the adverse party would b e prejudiced or if the requesting party seeks amendment ver y late into litigation, or parties usually consent out of professional courtesy.
ANALYSIS [15(a)] ○
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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)] ○
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Rule 15 allows a party to change chang e 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.
Repeat conclusion
ISSUE [15(c) Relation back] ○
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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.
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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), 15(c)(3), which governs amendments that change c hange the name of the party, 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 da ys 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
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CONCLUSION [15(c) Relation back]
Conclude on whether or not the amendment will relate back
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Summary Judgment Essay ISSUE ○
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Should the court grant _____________’s motion for summary judgment? For the reasons that follow, follow, the motion should be _____________.
RULE : INITIAL BURDEN BU RDEN OF O F PRODUCTION PRODUCT ION ○
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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 su mmary judgment if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, any, “show that there is no genuine g enuine 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 bu rden 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 jur y 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 exa mple set forth in Addickes and
put forth affirmative admissible evidence negating one or more essential elements of the non-movant’s claim. Secondly, 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 ○
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Once the movant meets this initial burden of production by showing an absence of GIMF, 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 nece ssary materials However, even if the non-movant party does not respond, su mmary judgment will only be entered when appropriate. In short, an showing of an absence absenc e 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 ○ ○ ○ ○
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Identify who the movant and the nonmovant is Identify who has the burden of persuasion p ersuasion 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 und isputed 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 chang e 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, 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
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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, follow, they are ______________ ____________ __
19(b) ○
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If joinder is not feasible, however, a 19(b) analysis must be made to determine if the person(s) is an indispensible party, party, and as such their the ir 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 adequac y of a judgment without the necessary nece ssary party, 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 the ir relative weight varies from case to case
Rule 24 Intervener Essay Intervener In General
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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) ○
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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 ab sence will as a practical matter impair or impede their ability to protect that interest, unless their interest is adequately represented b y 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
