Exam (elaborations)
Civil Procedure multiple choice.
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- Master ASL! Unit 6
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- Master ASL! Unit 6
Civil Procedure multiple choice.
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Civil Procedure multiple choiceThe "first" prong of the Twombly-Iqbal test: Are the allegations well pleaded? - correct
answer-In deciding whether a pleading states a claim showing that the pleader is entitled to
relief, the court should accept as true only the well-pleaded allegations.
What is a well-pleaded allegation? - correct answer-An allegation is well-pleaded when it is
more than a mere conclusory statement. Must be a factual allegation supporting the
elements.
The second prong of the Twombly-Iqbal test: Are the well-pleaded allegations plausible? -
correct answer-After the district court has identified and taken as true a complaint's
well-pleaded allegations, it must then determine whether they plausibly give rise to an
entitlement to relief.
What is plausible? - correct answer-When both the guilty and innocent explanations are
possible, the plaintiffs must plead something more by way of factual content to nudge his
claim across the line from conceivable to plausible.
Consider whether the following allegations meet the new pleading standard.
"Defendant negligently drove into plaintiff at a time and place." - correct answer-Rule 84 says
it does (and therefore trumps even the Supreme Court's interpretation of Rule 8), it just no
longer seems to be justified under Iqbal's logic.
Consider whether the following allegations meet the new pleading standard.
Atherton alleges that defendant officials conspired to remove him from a grand jury because
he was half Mexican. He alleges that he was the only semi-fluent Spanish-speaking grand
juror, and that, after he openly thanked a witness in Spanish, defendants communicated with
one another about his removal. - correct answer-Calling their communication "conspiracy" is
nothing more than a "threadbare recital of the elements of a cause of action" and is
insufficient without more under Iqbal.
Consider whether the following allegations meet the new pleading standard.
In Doe v. Smith, Doe alleges that Smith intercepted oral communications and published the
intercepted communications to students at her high school. - correct answer-This allegation
seems more vulnerable after Iqbal.
Consider whether the following allegations meet the new pleading standard.
Plaintiffs, housekeepers at the Governor's mansion, allege they were fired because they had
supported the losing party in the last election. In support of this claim, plaintiffs alleged that
they were fired without explanation immediately after the election, and that defendants had
overheard the plaintiffs speaking favorably about the losing party and its candidates. -
correct answer-These allegations are at best, consistent with plaintiffs' claims of political
motivation, but they do not, without more, make it plausible that the new Governor, his wife,
and his staff would fire housekeepers wholesale because of their political affiliation.
, True/False
On a Rule 12(b)(6) motion, the court must take all well-pleaded allegations as true and will
consider only those allegations within the four corners of the complaint? - correct
answer-True
True/False
A court should grant a Rule 12(b)(6) motion if, assuming the truth of the well-pleaded factual
allegations, it determines that they do not plausibly show an entitle to relief under the
applicable law. It is not enough that such allegations are equally consistent with an innocent
explanation as with a liability-creating explanation. - correct answer-True
True/False
Rule 8 requires fact pleading? - correct answer-False.
Although Rule 8 does not, in terms, require fact pleading, pleading specific facts in sufficient
detail to suggest the plausibility of liability under applicable law is nevertheless a wise
precaution, if not a necessity, after Twombly and Iqbal.
Which of the following responses by the defendant to service of the complaint and summons
constitutes a default? (There is more than one.)
A. Defendant does not answer, but files a motion to dismiss for improper venue within
21-days. The motion is denied.
B. Defendant answers within twenty-one days and admits the allegation of the complaint.
C. Defendant's lawyer files an appearance within twenty-one days by submitting a paper to
the clerk (called a praecipe in many courts) giving her name, address, and bar number, and
stating that she is appearing for the defendant.
D. Defendant herself brings a paper to the clerk saying that she plans to defend, and then
shows up in court on the twenty-first day saying she is ready to go to trial.
E. Defendant answers the complaint twenty-five days after service of the summons and
complaint. - correct answer-C. has begun to respond to the complaint, but we just said that a
mere apperance cannot stave off default; you must do something in addition to show a
desire to defend.
and
E. It is not enough to answer or move if you miss the deadline set by the Rules.
True/False
The clerk enters the default automatically? - correct answer-False.
Rule 55(a) states that the clerk shall enter the default only if there has been a default and
that failure is shown by affidavit or otherwise. Ordinarily, then, entry of default requires some
action by the plaintiff to bring the fact of default to the clerk's attention, such as filing an
affidavit.
Once the clerk enters a default, can the non-defaulting party enforce the entry to collect
damages from the defaulting party? - correct answer-No. There is an important difference
between a default - a failure to respond as the rules require - and a default judgment. The
entry of default is not itself an enforceable judgment.
True/False
Rule 55(b) is not mandatory? - correct answer-True
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