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BARBRI - Federal Civil Procedure > 2. Learning About the Case > Flashcards

2. Learning About the Case Flashcards

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Civil Procedure 1L flashcards
1
Q

Who Can Serve Process?

A

Any nonparty who is at least 18 years old.

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2
Q

What basic methods are available for serving process?

A
  1. Personal Service
  2. Substituted Service
  3. Service on D’s agent
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3
Q

When is substituted service proper?

A
  1. It is D’s usual abode (common sense)

2. You serve someone of suitable age and discretion who resides there

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4
Q

When can an agent be served process?

A

OK if receiving service is in scope of agency, e.g., corporation’s registered agent, managing agent, or officer.

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5
Q

Waiver by mail

A

Mail to D a copy of the complaint and two copies of a waiver form, with a prepaid means of returning the form (e.g., stamped envelope for sending it back to P). If D executes and mails waiver form to P within 30 days, D waives formal service of process.

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6
Q

How are other documents besides process served?

A

We serve these documents by delivering or mailing the document to the party’s attorney

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7
Q

What commences an action?

A

Filing the complaint

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8
Q

What are the requirements for a complaint?

A
  1. Statement of grounds of subject matter jurisdiction;
  2. Short and plain statement of the claim, showing entitled to relief;
  3. Demand for relief sought (e.g., damages, injunction, declaratory judgment)
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9
Q

What three matters must be pleaded with even more detail – with particularity or specificity?

A
  1. Fraud
  2. Mistake
  3. Special damages
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10
Q

Rule 12 requires D to respond in one of two ways:

A

(1) by motion
or
(2) by answer

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11
Q

To avoid default, when must D respond to the complaint?

A

Within 21 days after service of process

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12
Q

Rule 12(b) defenses:

A

(1) lack of subject matter jurisdiction (SMJ);
(2) lack of PJ;
(3) improper venue;
(4) improper process (problem with the papers);
(5) improper service of process;
(6) failure to state a claim;
(7) failure to join indispensable party.

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13
Q

What Rule 12(b) defenses are waivable?

A
  1. lack of PJ;
  2. improper venue;
  3. improper process (problem with the papers);
  4. improper service of process
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14
Q

What two things may the defendant do in an answer?

A
  1. Respond to allegations of complaint

2. Raise affirmative defenses

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15
Q

What possible responses are available to the allegations in a complaint?

A

(1) Admit;
(2) Deny;
(3) State that you lack sufficient information to admit or deny.

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16
Q

Counterclaim

A

A claim against an opposing party. Once somebody asserts a claim against you, you are opposing parties. Your claim back against that person is a counterclaim. Usually, this is a claim by D against P. The counterclaim is part of D’s answer.

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17
Q

What are the two types of counterclaims?

A
  1. Compulsory - arises from the same T/O as P’s claim.

2. Permissive - does not arise from same T/O as P’s claim.

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18
Q

When maya defendant file a compulsory counterclaim?

A

Unless you have already filed the claim in another case, YOU MUST FILE THIS IN THE PENDING CASE, OR THE CLAIM IS WAIVED.

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19
Q

When maya defendant file a permissive counterclaim?

A

Permissive means you are not

required to file it in this case. You may sue on it in a separate case.

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20
Q

How do we assess SMJ for counterclaims?

A

We must assess whether it invokes diversity or FQ

jurisdiction. If so, it’s OK in federal court. If not, we try supplemental jurisdiction.

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21
Q

Crossclaim

A

This is a claim against a co-party.

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22
Q

What is required for a cross claim, and when can it be asserted?

A

It must arise from the same T/O as the

underlying action. But it is not compulsory – you may assert it here or sue separately.

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23
Q

Additional Claims

A

Once you file a counterclaim or crossclaim (or any claim) you can join an additional claim to it – even if that claim has nothing to do with the others.

It must meet federal SMJ though.

24
Q

Does the P ever have a right to amend a pleading?

A

He has a right to amend once within 21 days after D serves her first Rule 12 response.

25
Q

Does the D ever have a right to amend a pleading?

A

Defendant has a right to amend once within 21 days of serving his answer.

26
Q

If a party does not have the right to amend, may it still amend its pleading?

A

If there’s no right to amend, seek leave of court. It will be granted if “justice so requires.”

27
Q

Variance

A

That’s where the evidence at trial does not match what was pleaded.

28
Q

When does an amended pleading “relate back?”

A

Amended pleadings “relate back” if they concern the same conduct, transaction or occurrence as the original pleading.

29
Q

When will an amended pleading to change a defendant relate back to the date of the filing of the initial claim?

A

(1) It concerns the same conduct, transaction, or occurrence as the original;
(2) The new party knew of this case within 120 days of its filing; and
(3) She also knew that, but for a mistake, she would have been named originally.

30
Q

When the lawyer or pro se party signs documents, she certifies that to the best of her knowledge and belief, after reasonable inquiry:

A

(1) The paper is not for an improper purpose, and
(2) The legal contentions are warranted by law (or non frivolous argument for law change), and
(3) The factual contentions and denials of factual contentions have evidentiary support (or are likely to after further investigation).

31
Q

If there is a violation (e.g., assertion of a baseless claim), against whom may Rule 11 sanctions be ordered?

A

The party, the attorney, or the firm

32
Q

Can the court raise Rule 11 problems on its own (“sua sponte”)?

A

Yes

33
Q

Unless a court order or stipulation of parties says otherwise, within 14 days of the Rule 26(f) conference (page 58), what must each party disclose?

A
  1. Identities of persons who have discoverable info that you (the disclosing party) may use to support your claims or defenses.
  2. Documents and things that you may use to support your claims or defenses. You may produce copies or a description of these things.
34
Q

What happens if a party fails to identify someone she was required to identify in initial disclosure?

A

The party cannot use that witness in the case (unless the failure to identify was substantially justified or harmless).

35
Q

What happens if a party fails to disclose something she was required to disclose?

A

You cannot use that material in the case (unless the failure to identify was substantially justified or harmless).

36
Q

Does a D need to disclose its insurance information?

A

D must disclose any insurance that might cover all or part of the judgment in the case.

37
Q

As to an expert witness (EW) “who may be used at trial,” what must each party generally disclose to the other parties?

A

The identity, and a written report prepared by the EW

38
Q

What must an expert witness’ report include?

A

The written report must include:

(1) opinions EW will express,
(2) bases for the opinions,
(3) facts used to form the opinions,
(4) EW’s qualifications, and
(5) how much EW is being paid.

39
Q

Pretrial required disclosure

A

No later than 30 days before trial, must give detailed information about trial evidence, including identity of witnesses to testify live or by deposition and documents/ESI/things to be introduced at trial.

40
Q

Assuming no court order or stipulation provides otherwise, when can a party first request discovery from other parties?

A

After the Rule 26(f) conference

41
Q

Is a deponent required to review all her relevant files and notes before being deposed?

A

No, she testifies from her present recollection

42
Q

Can you take the deposition of a party or of a nonparty?

A

Yes, but you should subpoena a non-party to compel attendance

43
Q

A subpoena “duces tecum” requires the deponent:

A

Brings requested materials with her

44
Q

Use of depositions at trial (all subject to rules of evidence):

A

(1) impeach the
deponent;

(2) any purpose if the deponent is an adverse party;
(3) any purpose if the deponent (regardless of whether a party) is unavailable for trial, unless that absence was procured by the party seeking to introduce the evidence.

45
Q

To whom can you send interrogatories?

A

Parties only

46
Q

How long does the party have in which to respond with her answers or objections to interrogatories?

A

30 days from service

47
Q

Requests to produce

A

These request that someone make available for review and copying documents or things, including ESI, or to permit you to enter designated property to inspect, measure, etc.

48
Q

What is required before a party can request a medical exam?

A

A court order, and to obtain one you must show: that the person’s health is in actual controversy and “good cause.”

49
Q

Who can be ordered to undergo a medical exam?

A

A party or someone in the party’s custody or legal control.

50
Q

Request for admission

A

This is a written request that someone admit things.

51
Q

If D fails to deny specifically (or to object to the request) in writing to a request for admission within 30 days, what happens?

A

It is deemed admitted

52
Q

Duty to supplement

A

After you respond to discovery, circumstances in the real world change. In light of these new circumstances, your response to a required disclosure, interrogatory, request for production, or request for admission is now incomplete or incorrect. In this case, you must supplement your response.

53
Q

What is the scope of discovery?

A

Anything relevant to a claim or defense (broader than admissible)

54
Q

Doctrine of Proportionality

A

Even if something is relevant, the court has authority to limit discovery if the request is cumulative or if the burden outweighs the importance of the issue.

55
Q

Does work product have to be generated by a lawyer?

A

No, it can be by a party or any rep of a party

56
Q

Suppose a memo is generated solely because the state requires a report of the issue discussed in the memo. Then litigation is filed concerning the incident discussed in the report. Would this memo be work product?

A

No, because it is not prepared in anticipation of litigation

57
Q

If the responding party thinks a discovery request subjects it to annoyance, embarrassment, undue burden, or expense (e.g., ESI is not reasonably accessible (e.g., deleted files) or the request is cumulative and not proportional to the case) what can she do?

A

She moves for a protective order

BARBRI - Federal Civil Procedure (6 decks)

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