Robert Mark Flores - Ch

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Cerro Coso Community College *

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Law

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Apr 3, 2024

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Robert Mark Flores markrobert25@yahoo.com robert.flores8314@email.cerrecoso.edu March 20, 2024 Chapter 5: Vocab, Questions & Exercises Vocabulary 1. Allegation – A contention or claim made within a pleading, regarding a fact that the party intends to prove at trial. 2. Capacity – Having the legal ability to do something such as initiating a lawsuit. 3. Caption – The heading found in all pleadings, usually identifying the court, the parties, the nature of the pleading, and the docket number. 4. Class Action – A lawsuit brought by a limited number of parties on behalf of themselves and other persons with the same or similar issues. 5. 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. 6. 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. 7. Indispensable Party – A person who must be joined in the lawsuit and whose absence makes it impossible for a court to render a judgment. 8. Injunction – A court order requiring a party to take some action or to stop some conduct. 9. Interpleader – A type of action 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. 10. 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. 11. Prayer – The part of the pleading (usually at the end) where the party asks the court to either grant or deny some relief. 12. 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. 13. Proof of Service – Verification that a copy of a pleading, a motion, or other document has been served to another party or attorney. 14. Real Party in Interest – The person who is entitled to the relief requested in a complaint, even though not named as a plaintiff. 15. Rescission – To “undo” or abrogate a contract. 16. Stipulation – An agreement between the parties in a lawsuit that certain facts are not in dispute. 17. 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. 18. Verification – Statement at the end of a document and under penalty of perjury that the contents of the document are true. Page 1 of 3

Review Questions (No. 4, 5, 10, 11 & 12) 4. Explain why a court’s jurisdiction and venue are alleged in a complaint. The complaint must contain some allegation showing that the lawsuit is filed in the proper court. In federal or state courts, venue can be determined by a number of factors. The most common factor is the residence of the defendant. The jurisdiction and venue are alleged in a complaint so that the plaintiff can state why the action is filed in that venue and what jurisdiction was used to determine the venue was proper. 5. What is the difference between notice pleading and code pleading? In code pleading, the complaint must contain a factual allegations or statements that support each element of cause of action. However, in notice pleading, it was not essential that each element of the cause of action be support by factual allegations. A pleading must contain sufficient facts to put the defendant on notice as to why he/she is being sued. 10. What is a 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. 11. How is service of process accomplished? The Plaintiff is responsible to ensure that all Defendants are properly served. A copy of the summons and a copy of the complaint must be delivered to the defendant. Generally, plaintiffs cannot serve the papers themselves. Someone must do it for them. The federal rules authorize service by any person over the age of 18 who is not a party to the action. Under some circumstances and with court approval, the U.S. Marshall can serve papers. In many instances, attorneys hire persons licensed by the state as process servers to serve papers. 12. What is the procedure for amending a complaint? As long as an amendment does not drastically alter the nature of the case, or cause any undue hardship to the defendant or delay in the case, it will probably be allowed. Rule 15 of the Federal Rules of Civil Procedure allows the plaintiff to amend the complaint once, as a matter of right, within 21 days after a responsive pleading or motion was filed. After that, the plaintiff needs either a stipulation from the other parties agreeing to the amendment or an order from the court. If the plaintiff cannot obtain a stipulation, he must make a motion in court asking the court to allow the filing of the amended complaint. Chapter Exercises (No. 4, 5 & 6) 4. Review the complaint found in Exhibit 5-5. Identify by number the paragraphs that show: a. venue: After reviewing the Complaint found in Exhibit 5-5, the Complaint did not identify the venue in the body of the complaint. The venue was only shown at the very top of the first page of the Complaint, which was the United States District Court For The District Of Nevada. b. damages: Paragraph 10 of the Complaint shows the alleged damages, and paragraphs 15 and 19 show the restate of the alleged damages. Page 2 of 3

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