Civil Litigation 7th: Chapter 5

Four parts of "complaint"

1. Caption 2. Cause of Action/Allegations and description of loss 3. prayer ("wherefore" clause) 4. subscription (and sometimes 5. verification)

Class action "conditions" (rule 23)

1. class is so numerous that joinder of all members is impractical 2. questions of law or fact are common to the class 3. claims or defenses of the representative parties are typical of the class 4. representative parties will fairly and adequately protect the interests of the class plus one of the following: individual lawsuits might produce inconsistent decisions -or- decision in one case may prejudice another -or- party opposing the class has acted in a way applicable to all members of the class -or- common questions of law or fact predominate over individual questions of law or fact

Elements of COA breach of contract

1. contract exists 2. plaintiff performed duties (or was excused) 3. defendant failed to perform his duties 4. damages resulted

Elements of COA strict/products liability

1. defendant manuf. or distributed product 2. product was defective 3. product was used in a forseeable manner 4. product caused injury 5. damages resulted

Elements of COA negligence

1. duty of care 2. duty breached (careless act) 3. actual cause of damages 4. proximate (foreseeable) cause of damages 5. damages sustained

Purposes of "complaint"

1. identifies plaintiffs and defendants and their legal status 2. statement showing proper jurisdiction and venue 3. factual basis for lawsuit 4. requests or demands relief from court

Elements of COA fraud

1. misrepresented, concealed, or failed to disclose fact 2. knew of the falsity 3. intended to defraud 4. plaintiff justifiably relied on statement 5. damages resulted

Types of equitable relief

1. specific performance 2. recission 3. restitution 4. declaratory relief 5. quiet title action 6. injunction

venue

Among all the courts that have jurisdiction, venue defines the specific geographical location of the court where an action should be brought (residence of defendant, place where cause of action arose)

verification (verify)

Statement at the end of a document and under penalty of perjury that the contents of the document are true.

CM/ECF

System whose name stands for Case Management and Electronic Case Files. Used by attorneys to file papers in the federal courts.

jurisdiction

The power that a court has to hear a particular case; requires that a court have the power to hear the type of case (subject matter) and that the court have the power to render a decision against a particular defendant (personal) or property

Status of a party

Type of entity that describes the plaintiff or defendant, such as a corporation, government agency or individual

PACER

Website whose name stands for "Public Access to Court Electronic Records"

"Piercing the corporate veil"

When the individuals behind a corporation are named individually as defendants

permissive joinder

a concept allowing multiple parties to be joined in one lawsuit as plaintiffs or defendants as long as there is some common question of fact or law

allegation

a contention or claim made within a pleading, regarding a fact that the party intends to prove at trial

declaratory relief

a court order defining or explaining the rights and obligations of parties under some contract of other document

preliminary injunction

a court order made prior to final judgment in the case, but after all parties have had the opportunity to present evidence, directing that a party take or refrain from some action until the trial in the case takes place

injunction

a court order requiring a party to take some action or to stop some conduct.

specific performance

a court order requiring a person to fulfill his or her promises in a contract.

summons

a form served with a complaint informing a person of a lawsuit against him or her, the time limit for responding to the lawsuit, and the consequences of failing to respond.

equitable relief

a judicial remedy other than money damages, such as specific performance of a contract or an injunction.

class action

a lawsuit brought by a limited number of parties on behalf of themselves and other persons with the same or similar issues; party filing the lawsuit must first ask the court to certify it as a class action; usually when damages suffered by each plaintiff is minimal but total damages is substantial

quiet title action

a legal proceeding to determine ownership of real property

docket number

a number assigned to a lawsuit by the court; each pleading or document filed n the action must bear this number

compulsory joinder

a party who should be included or named in a lawsuit; in federal court, Federal Rule of Procedure 19 sets out the criteria for compulsory joinder of parties.

guardian ad litem

a person who is appointed by the court to represent a party in a lawsuit, where the party lacks the capacity to file the action; guardians ad litem are usually appointed for minors or those who are mentally incapacitated.

indispensable parties

a person who must be joined in the lawsuit and whose absence makes it impossible for a court to render a judgment (would be required as a compulsory joinder)

subscription

a signature at the end of a document.

interpleader

a type of action or complaint in which a party deposits money or property in the court because, although the party clearly owes money or the return of property, the parties to whom it is owed is unclear; after the property is deposited, the court determines its proper distribution.

stipulation

an agreement between opposing lawyers in a lawsuit

compensatory damages

an award of money damages that compensates the plaintiff for actual loss, including pain and suffering.

temporary restraining order

an order from the court requiring a person to act or refrain from acting in a certain way, issued for limited time until a full hearing on the matter can be scheduled.

agency allegation

claims that one or more of the defendants were agents or employees of one or more of the other defendants

sovereign immunity

common law: the king could not be sued; many jurisdictions have laws that limit and regulate the circumstances under which a government entity can be sued

punitive or exemplary damages

damages that punish a defendant for intentional or malicious conduct that causes injury

fictitiously named defendants

defendants in a lawsuit who are not identified by their correct names; usually refers to the practice in some state courts of including several "Does" as defendants to provide for discovery of additional defendants after the statute of limitations has run out (not generally used in Federal Court) .

Federal Rules of Civil Procedure (FRCP)

define, among other things, the content and format of pleadings.

pleadings

documents that are filed which: define the nature of the dispute between the parties; describe the claims and defenses of a lawsuit; which contain allegations of contentions and defenses (2 examples are the complaint and answer to the complaint)

capacity

having the legal ability to do something such as initiating a lawsuit

cause of action

legal basis of a lawsuit based on facts of case and applicable law (examples are negligence, breach of contract, products liability, fraud)

personal service of process

notice of a lawsuit or other proceeding that is given to a party by personally delivering a copy of the papers to that party (defined by FRCP Rule 4)

pleading paper

numbered paper used in some jurisdictions for filing a complaint

filing

presenting a paper to the court clerk to be included in the court file for the case

restitution

returning property to the original owner where fairness requires that it be done

count

separate claims stated in one complaint

Request/demand for Jury

should be included in the complaint or the right may be waived. (Required in all Massachusetts complaints)

caption

the heading found in all pleadings, usually identifying the court, the parties, the nature of the pleading, and the docket number.

prayer

the part of the pleading (usually at the end) where the party asks the court to either grant or deny some relief.

real party interest

the person who is entitled to the relief requested in a complaint, even though not named as a plaintiff (example: executor may sue on behalf of estate - FRCP Rule 17a)

rescission

to "undo" or abrogate a contract

proof of service

written verification that papers have been delivered to a party, detailing when, where, and how the papers were delivered; usually found on the back of summons; must be returned to court clerk.