Term
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Definition
| The most common sought are money damages as the primary means of recovery in order to rectify harm done to the plaintiff. |
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Term
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Definition
| Money damages for money lost by the plaintiff (economic) or to rectify harm done to the plaintiff (non-economic). Although non-economic damages are hard to measure the rule of thumb is a 3:1 ratio between non-economic and economic damages suffered. |
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Term
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Definition
| Parties may agree contractually to a converted cash amount as a beforehand if the actual damages would be difficult to calculate. |
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Term
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Definition
| Normally a small amount awarded where the plaintiff has not sustained actual loss or injury, however the defendant engaged in conduct that should not be permitted. |
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Term
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Definition
| Aimed entirely at punishing the defendant for wrongful behavior, but is limited constitutionally. |
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Term
| What determines whether punitive damages are constitutional (substantive due process)? |
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Definition
| The court looks at 3 factors:
1) The defendant's degree of reprehensibility;
2) the disparity between the actual or potential harm suffered and the award (few awards exceeding a single-digit ratio between punitive and compensatory damages will satisfy due process);
3) the difference between the punitive damages awarded by the jury and the civil penalties imposed in comparable cases. |
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Term
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Definition
| Results in an injunction by the court ordering a party to do or refrain from doing any range of acts. These orders can range from temporary to permanent. |
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Term
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Definition
| One must normally show:
1) a balancing of interests of the parties affected;
2) the plaintiff is being threatened by some injury for which there is no adequate legal remedy;
3) the plaintiff is being threatened by some injury where there will be a suffering of irreparable harm. |
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Term
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Definition
| Relief pending final adjudication of a dispute due to need for timely interference by the court (will maintain a status quo until the courts decides what should be done). |
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Term
| What is the standard test a plaintiff must pass in order to get a provisional injunction? |
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Definition
| 1) Will suffer irreparable injury if injunctive relief is not granted;
2) Will probably prevail on the merits;
3) The defendant will not be harmed more than the plaintiff will be helped by injunction; and
4) Granting the injunction is in the public's interest (some courts do not include this factor). |
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Term
| What is the alternative test a plaintiff must pass in order to get a provisional injunction? |
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Definition
| 1) Will suffer irreparable injury if injunctive relief is not granted;
2) The plaintiff has a fair chance of success on the merits;
3) The harm to the plaintiff that may occur is sufficiently serious; and
4) Granting the injunction is in the public's interest (some courts do not include this factor). |
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Term
| How is an action commenced in federal court? |
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Definition
| The Federal Court follows the Federal Rules of Civil Procedure (FRCP):
FRCP 3: Commencing an Action - A civil action is commenced by filing a complaint with the court. |
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Term
| In federal court, what must a complaint contain? |
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Definition
| FRCP 8(a): Claim for Relief - A pleading that states a claim for relief must contain ("notice pleading"):
1) a short and plain statement of the grounds for the court's jurisdiction;
2) a short and plain statement of claim showing that the pleader is entitled to relief;
3) a demand for the relief sought. |
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Term
| In state court (California), what must a complaint contain? |
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Definition
| CCCP 425.10: A complaint or cross-complaint shall contain both of the following ("code pleading"):
a) A statement of the facts constituting the cause of action, in ordinary and concise language; and
b) A demand for judgment for the relief to which the pleader claims to be entitled. |
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Term
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Definition
| Only these pleadings are allowed:
1) a complaint;
2) an answer to a complaint;
3) an answer to a counterclaim;
4) an answer to a crossclaim;
5) a third-party complaint;
6) an answer to a third-party complaint; and
7) if the court orders one, a reply to an answer.
*Note: Pleading must be sufficient in form and substance. |
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Term
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Definition
| In general, in responding to a pleading party must:
(A) state in short and plain terms its defenses to each claim asserted against it; and
(B) admit or deny the allegations asserted against it by an opposing party. |
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Term
| FRCP 9(a). Pleading Special Matters. Capacity to Sue |
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Definition
| Exception to FRCP 8:
Except when required to show that the court has jurisdiction, a pleading need not allege:
1) a party's capacity to sue or be sued;
2) a party's authority to sue or be sued;
3) the legal existence of the party. |
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Term
| FRCP 9(b). Pleading Special Matters. Fraud or Mistake |
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Definition
Exception to FRCP 8:
In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person's mind may be alleged generally. |
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Term
| FRCP 11(b). Representations to the Court |
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Definition
| By presenting to the court a pleading, the party certifies that to the best of their knowledge, after a reasonable inquiry, the information is accurate, and if violated the court may impose appropriate sanctions on any attorney (FRCP 11(c)). |
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Term
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Definition
| Generally, after notice and a reasonable opportunity to respond, the court may impose an appropriate sanction on any attorney, law firm, or party that violated the rule or is responsible for the violation. Absent exceptional circumstances, a law firm must be held jointly responsible for a violation committed by its partner, associate or employee. |
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Term
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Definition
| Motion for failure to state a claim upon which relief can be granted. |
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Term
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Definition
| (1) A party waives any defense listed under FRCP(b)(2)-(5) by failing to make the motion;
OR include it in a responsive pleading.
(2) A motion for failure to state a claim, to join a person required, or state a legal defense to a claim may be raised at any time.
(3) If a court determines at any time that it lacks SMJ, the court must dismiss the action. |
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Term
| FRCP 14(a(1). Defendant Adding a Third-Party |
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Definition
| A defendant may, as a third-party plaintiff, serve a summons and complaint on a nonparty who is or may be liable to it for all or part of the claim against it. |
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Term
| FRCP 14(b). Plaintiff Adding a Third-Party |
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Definition
| When a claim is asserted against a plaintiff, the plaintiff may bring in a third party if this FRCP14(a) would allow a defendant to do so. |
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Term
| FRCP 15(a). Amended Pleadings |
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Definition
| Before trial a party may amend its pleading once as a matter of course before the response or within 20 days; in all other cases, a party may amend its pleading only with opposing party's written consent, or the court's leave. (liberally granted) |
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Term
| FRCP 15(b). Amended Pleadings |
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Definition
| May amend to conform to evidence if not within issues raised in pleadings and will avoid prejudice. |
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Term
| FRCP 15(c). Amended Pleadings |
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Definition
| Relation Back to Amendments: An amendment to a pleading relates back to the date of original pleading when:
1A) the law that provides the applicable statue of limitations allows relation back;
1B) it asserts a claim that arose out of the same conduct, transaction or occurrence…;
1C) it changes the party of whom it is asserted, if the party is notified and knew or should have known that the action would be brought. |
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Term
| FRCP 15(d). Supplemental Pleadings |
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Definition
| On motion or reasonable notice, the court may, permit a party to serve a supplemental pleading for event after original… |
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Term
| FRCP 20(a): Permissive Joinder of Parties |
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Definition
| All persons may join in one action as plaintiffs (or be joined as defendants) if they assert any right to relief arising out of the same transaction or occurrence, AND if any question of law or fact in common will arise. |
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