Civil Procedure & Litigation Flashcards

A defendant who timely waives service under Rule 4(d) within the United States has how long to answer, measured from when the waiver request was sent?

Answer: 60 days

Rule 12(a)(1)(A)(ii) gives 60 days from when the request was sent as an incentive to waive.

Under Twombly and Iqbal, to survive a Rule 12(b)(6) motion a complaint must contain:

Answer: Enough factual matter to state a claim that is plausible on its face

The plausibility standard replaced Conley's 'no set of facts' test.

A defendant files a Rule 12(b)(6) motion but omits a personal jurisdiction defense. What happens to that defense?

Answer: It is waived

Under Rule 12(h)(1), personal jurisdiction, venue, process, and service defenses are waived if omitted from a pre-answer Rule 12 motion.

Under Rule 15(a)(1), a party may amend its pleading once as a matter of course within:

Answer: 21 days after serving it, or 21 days after service of a responsive pleading or Rule 12(b), (e), or (f) motion

Rule 15(a)(1) allows one amendment as of course within those 21-day windows.

Before filing a Rule 11 sanctions motion, the movant must serve it on the opposing party and allow how long for withdrawal or correction?

Answer: 21 days

Rule 11(c)(2) provides a 21-day safe harbor.

An amendment adding a claim relates back to the original pleading date when the new claim:

Answer: Arises out of the conduct, transaction, or occurrence set out in the original pleading

Rule 15(c)(1)(B) permits relation back for claims arising from the same conduct, transaction, or occurrence.

A defendant fails to assert a counterclaim arising from the same transaction as the plaintiff's claim. What is the likely consequence?

Answer: It is barred in a later suit as a compulsory counterclaim

Rule 13(a) requires same-transaction counterclaims to be asserted or they are generally barred.