Professor Christensen-Civ Pro 1, fall 2012- Charlotte School of law
IRAC OUTLINE
TABLE OF CONTENTS
I. PLEADINGS
WELL PLED (RULE 8)
FRAUD OR MISTAKE (RULE 9B)
SPECIAL DAMAGES (RULE 9G)
MOTION TO DISMISS (RULE 12)
TIMELY DISMISS/ FAILURE TO BE WELL PLED (12B6, 12H2)
MOTION TO STRIKE 12(F)
JUDGMENT ON THE PLEADINGS (12C)
RULE 11 SANCTIONS
II. JOINDER
Rule 14-contribution or indemnification
Rule 13-add a crossclaim/counterclaim
Rule 20 add a party
Rule 15(d) after lawsuit-supplement/ 15(a)before lawsuit-amend
III. DISCOVERY
Documents 26
Sanctions 37
Depositions
Interrogatory
Devices
IV. JUDGMENT
Rule 41a-voluntary dismissal/ involuntary (b)
Rule 50- Judgment as a Matter of Law-heard witnesses
Rule 55-Entering a default; Default judgment
Rule 56-Summary Judgment-documents and affidavits
Rule 59-New Trial, altering or amending a judgment
Rule 60-Relief from a judgment or order
V. CLAIM PRECLUSION
Rule 62
Us. Title 28
VI. APPEALS
Rule 54
I. PLEADINGS
IS THE MOTION TO DISMISS LIKLEY TO SUCCEED?
ISSUE: Is the motion to dismiss timely?
RULE:12(b)(6) says that a motion to dismiss in done in a timely manner when it is before the Answer or in the Pleadings
APPLICATION: APPLY FACTS
CONCLUSION: YES/NO – The Motion to Dismiss was/was not timely
Will so and So’s motion to dismiss succeed? If so, under 12(b)(6) or 12(h)(2)?
Rule 12(h)(2) governs dismissal after the pleadings are closed (B) specifically allows it to be brought after pleadings are closed but early enough not to delay trial.
Issue: Will the motion to dismiss be successful?
Rule: 12(h)(2) failure to state a claim upon which relief can be granted
Application: As a matter of law____is/ is not allowed to recover against _________.
Conclusion: Motion to dismiss will be successful.
________________Once timing is established (before or after pleadings, Rule 12 motions usually need to establish rule 8 or 9 unless assuming well pled. To recover attorneys fees and dismiss add Rule 11 sanctions—————————-
IS THE COMPLAINT WELL PLED?
ISSUE: Is the Complaint well pled?
RULE: In order for a Complaint to be well plead it must contain a short and plain statement of the facts that are alleged to be true and when taken as true are plausible.
APPLICATION:
RULE: 8(A)(3): A Complaint must contain, a request for relief, and in order to be well pled, the complaint must also (state) be something with which damages can be recovered.
APPLICATION: Apply to facts
CONCLUSION: The Complaint is/is not well pled
OVERALL CONCLUSION: Because the Complaint is/is not well pled, and there is/is not a claim for which relief can be granted, The 12(b) Motion to dismiss may/may not be granted by the court.
________RULE 9 TAKES PLACE OF RULE 8(A)(2)—still need 8(a)(3)_________________
IF THERE IS FRAUD OF MISTAKE? IF THERE IS NO NOT USE 8A, USE 9(B)
IS THERE SPECIAL DAMAGES ? USE 9G
IS THERE FRUAD OR MISTAKE?
ISSUE: Is there fraud or mistake?
RULE: 9B says that if there is fraud or mistake the complaint must be pled with particularity, particularity is; Time, Place & Content.
APPLICATION: Sample Time could be the date it occurred, Sample place, where it occurred, content is the amount of fraud (think Monetary for fraud) Apply all facts if it DOES NOT State relief the not well pled under 8(A)(3).
CONCLUSION: Well Pled/Not well pled, under 8(A)(3) likely/not likely to succeed.
ARE THERE SPECIAL DAMAGES?
ISSUE: Is the party claiming special damages?
RULE: Rule 9(g) states that in order to claim special damages, we must plead specific facts to show causation (literally, that the events that we described specifically caused the injury described).
APPLICATION:
CONCLUSION: Motion for Special Damages will/will not be grated because the specific facts either showed/did not show causation.
MOTION FOR or FOR FAILURE TO STATE A CLAIM OF RELIEF
ISSUE: Do the pleadings include a short and plain statement of facts, claiming relief?
RULE: (8)(a) states that a claim for relief must contain; 8(a) (1) a short and plain statement of grounds of jurisdiction, unless court already has jurisdiction, 8(a)(2) a short and plain statement of the claim showing that the pleader is entitled
judice to the plaintiff.
Application: Burden is on the Defendant, It presents a bar to recovery, would be prejudicial to the plaintiff not to have notice
Conclusion: It is an affirmative defense and so cannot come in unless amended.
Issue: Can Monica amend her answer to include the affirmative defense?
Rule: 15(a)(1) – automatic right to amend once within 21 days
Application: answer was filed on the 15th, disclosure made on the 30th – 15 days is less than 21 days.
Conclusion: Automatic right to amend.
Always test RULE 15 THEN Rule 20-
II. Joinder
Amend a party??— CLUSTER 15 & 20
Rule 15©:
I: May _________ amend the complaint to add_________ as a party?
R: Rule 15c is a relations back amendement. states requires that you have the ability to amend. Rule 15(c)(1)(ii) says that the party “knew or should have known they could be responsible, and the moving party has to bring in because of a mistaken party (Krupski) but for the mistake –Def. has to be aware and Plaintiff had to of made a mistake. Def must have received such notice of the action that it will not be prejudced on the merits..
A: was their a mistake…..apply a test… STO Sto test: Similar law or facts? Same evidence supports both claims or claim..logical relationship.
, Def aware, but for mistake by plaintiff they would be in lawsuit, Plaintiff legitimately made a mistake concerning the parties identity
C: Court should allow amending.
——–Alternate Irac for Amend A Party—Different scenario if no notice—-(under mistake)—may not need rule 20 cluster.
Issue: Can we amend to include party “b”ability to amend?
Rule: 15(c) (Knowledge “b”, Mistake by “a”)-relation back
Same transaction or occurrence/ Defendant aware but for a mistake by plaintiff they would be in lawsuit, plaintiff legitimately made a mistake.
Application: “a” made a mistake, but “b” did not have knowledge
Conclusion: Cannot add “b”
