2 - Learning about the case Flashcards
service of process
D is entitled to notice that D has been sued.
Usually this consists of 1) a summons and 2) a copy of the complaint.
service of process - summons
Summons - formal court notice of suit AND time for response
service of process
Who can serve process?
Any nonparty who is at least 18yo.
service of process
How is process usually served?
- Personal service - papers are given to D personally ANYWHERE.
- Substituted service - process is left a) at D’s usual abode and 2) served to someone of suitable age and discretion who resides there.
Usual abode is determined by common sense. - Service on D’s agent - receiving service must be in scope of agency (registered agent, managing agent, officer)
service of process
How else can process be served?
- Others - We can use methods for serving process that are permitted by state law where the fed ct sits OR where service is made.
For example, service by mail if allowed by state statute. - Waiver by mail
a. Mail D a copy of complain and 2 copies of waiver with a SASE
b. If D executes and mails the waiver back to P w/in 30 days, then D waives formal service of process (not a waiver of any defenses).
c. P then files the waiver in court. Waiver is effective when filed.
d. If D fails to return the waiver, P then has to serve personally or by substituted service. If D did not have good cause, then D must pay for the cost of service.
service of process
Return of service
The person who serves process files a report with the court detailing how service was made.
If server was a civilian, report is by affidavit.
Failure to file the report does not affect validity of service.
service of process
other docs
Other documents get served but do not need a summons or formal service.
Can be delivered or mailed or emailed (by AGR).
The other party gets 3 extra days if docs are mailed.
pleadings
- Complaint
- Response - motion or answer
- Counterclaim (compulsory or permissive) - check for SMJ
- Crossclaim
- Additional claims
- Amended pleadings
- Supplemental pleadings
- Rule 11 sanctions
pleadings
complaint requirements
- Statement of grounds of SMJ
- Short and plain statement of the claim, showing entitled to relief
- Demand for relief sought (damages, injunction, declaratory judgment)
Must plead facts supporting a plausible claim. (Judge uses experience and common sense for plausibility.)
D can challenge the complaint with 12(b)(6) motion.
pleadings
complaint requirements
What 3 matters must be pleaded with even more detail?
Fraud, mistake and special damages must be peladed with particularity and specificity.
pleadings
D’s response
Either a) motion or b) answer w/in 21 days of service of process.
If you waived service, you get 60 days from when P mailed you the waiver form.
pleadings
D’s response - motions
Motions - requests for a court order
pleadings
D’s response - motions
Issues of form
- Motion for more definite statement (statement so vague that D cannot respond - rare)
- Motion to strike (removes immaterial or scandalous things)
pleadings
D’s response - motions
12(b) defenses
Can be put either in a motion to dismiss or in the answer
1 - lack of SMJ - NEVER WAIVED
2 - lack of PJ - waivable
3 - improper venue - waivable
4 - improper process (problem w/papers) - waivable
5 - improper svc of process - waivable
6 - failure to state a claim - can be raised at anytime through trial
7 - failure to join an indispensable party - can be raised at anytime through trial
pleadings
D’s response - motions
waivable defenses
Waivable defenses must be put in the 1st rule 12 response or else they are waived.
pleadings
D’s response - motions
xfer of venue
If improper venue was waived, ct still has discretion to xfer.
pleadings
D’s response - motions
lack of SMJ
If court finds lack of SMJ, court must dismiss.
pleadings
D’s response - motions
lack of SMJ - removal
If case was removed to fed ct and then finds lack of SMJ, case gets remanded back to state ct.
pleadings
D’s response - answer
- Respond to allegations of complaint
2. Raise affirmative defenses
pleadings
D’s response - answer
respond to allegations of complaint
Either 1) admit, 2) deny, or 3) state that you lack sufficient information to admit or deny.
Failure to deny is an admission.
You have a duty to investigate things in your control, so don’t say you lack information. (Can serve as an admission)
D is never deemed to admit damages.
pleadings
D’s response - answer
raise affirmative defenses
Affirmative defenses inject a new legal fact into the case which will allow D to win.
Failure to plead an affirmative defense serves as waiver for the affirmative defense.
pleadings
counterclaim
A claim against an opposing party
2 types - compulsory and permissive
pleadings
compulsory counterclaim
Arises from the same ToO as P’s claim.
Unless you have already filed the claim in another case, you must file this in the pending case OR the claim is waived.
If the case is dismissed, then the compulsory ctrclaim is not waived.
pleadings
permissive counterclaim
Does not arise from the same ToO as P’s claim.
Not required to file and may sue as a separate case.
pleadings
counterclaim - SMJ
Must always assess if additional claim invokes diversity or FQ. If so, then in fed ct. If not, then try supplemental jdx.
pleadings
crossclaim
A claim against a co-party.
Must arise from the same ToO as underlying action.
NOT compulsory (may assert here or sue separately)
MUST MEET SMJ or try supp jdx
pleadings
additional claims
Once you file a ctrclaim or a crossclaim (or any claim), you can join an additional claim.
1. Must invoke SMJ or try supp jdx
pleadings
amended pleadings - 4 fact patterns
- Right to amend
- Seek leave of the court
- Variance
- Amendment after SoL has run
pleadings
amended pleadings - 4 fact patterns
right to amend
P has right to amend ONCE w/in 21 days after D serves 1st rule 12 response.
pleadings
amended pleadings - 4 fact patterns
seek leave of the court
If no right to amend, then seek leave of court.
Will be granted if justice so requires.
Courts look to delay, prejudice, futility of amendment
pleadings
amended pleadings - 4 fact patterns
variance
Evidence at trial does not match what was pleaded.
P can move to amend the complaint to conform to the evidence.
Ensures that the pleadings match what was actually tried.
pleadings
amended pleadings - 4 fact patterns
amendment after SoL has run (relation back)
You can amend to relate back to either
- Join a new claim or
- Change a Defendant
pleadings
amended pleadings - 4 fact pattern
relation back - join a new claim
To join a new claim: Amended pleadings relate back if they concern the same conduct, ToO as the original pleading.
Relation back means that you treat the amended pleading as though it was filed when the original was filed so you can avoid a SoL problem.
pleadings
amended pleadings - 4 fact pattern
relation back - change a D
To change a D after SoL has run, this will relate back IF
- It concerns the same conduct, ToO as the original pleading
- The new party knew of THIS case within 90 days of its filing, AND
- The new party also knew that, but for a mistake, she would have been named originally.
pleadings
supplemental pleadings
Supplemental pleadings set forth things that happened AFTER the pleading was filed.
(Amended pleadings are about things that happened BEFORE the pleading was filed but not asserted until later.)
Right to file a supplemental pleading is discretionary with the court.
pleadings
rule 11 sanctions
Applies to ALL documents except discovery
When the lawyer signs documents, she certifies that to the best of her knowledge and belief, after reasonable inquiry:
1. The paper is NOT for an improper PURPOSE, and
2. The legal contentions are warranted by LAW (or nonfrivolous argument for law change) and
3. The FACTUAL CONTENTIONS and denials of factual contentions have evidentiary support (or are likely after further investigation.
pleadings
rule 11 sanctions
When is the certification made?
The certification is made EVERY TIME lawyer presents a position to the court. (continuing certification)
pleadings
rule 11 sanctions
Against whom may a Rule 11 sanction be ordered if there is a violation?
A Rule 11 sanction may be ordered for violation against the party, the attorney, or the firm responsible.
Usually, the firm is jointly responsible with the attorney.
pleadings
rule 11 sanctions
purpose
The purpose of Rule 11 sanctions is to deter, not punish.
Before imposing a sanction, court must give attorney a chance to be heard.
pleadings
rule 11 sanctions
When can a motion for a Rule 11 sanction be made?
If the other party violates Rule 11, you can serve the motion on the other parties but NOT file it.
Party in violation has a 21 day safe harbor to fix the problem and avoid sanctions.
If party does not do so, then the motion can be filed.
pleadings
rule 11 sanctions
Can the court raise Rule 11 sanctions?
The court can raise Rule 11 problems on its own (sua sponte).
Court usually issues an order to show cause why sanctions should not be imposed.
(Court must give a chance to be heard before imposing a sanction.)
discovery
required disclosures
discovery tools
scope of discovery
enforcement of discovery rules
discovery
required disclosures
MUST be disclosed EVEN THOUGH no one asks for it
- initial disclosures
- expert witnesses
- pretrial required disclosure
discovery
required disclosures
initial disclosures
Unless a court order or stipulation of parties says otherwise, w/in 14 days of the rule 26(f) conference, each party must disclose:
- identity of person who have discoverable info that you may use to support your claims/defenses
a. Name, telephone #, subject on which they have info
b. Failure to identify a party means you cannot use the witness in the case (unless substantially justified or harmless) - documents and things you may use to support your claims/defenses
a. You can use copies or descriptions of the things
b. includes photos, recordings, ESI, plus tangible things like remnants of a blown out tire
c. Failure to disclose something means you cannot use the witness in the case (unless substantially justified or harmless) if they are in your control - Computation of monetary relief and docs/ESI supporting it
- Insurance coverage
discovery
required disclosures
expert witness
EW is someone who, because of special skill or training, may give opinion testimony hired to render an opinion in this case.
discovery
required disclosures
expert witness req disclosure
Later in the case, parties must identify EWs who may be used at trial.
- Identity and a written report prepared by EW
- EWs report must include: opinions EW wil express, bases for the opinions, facts used to form the opinion, EW’s qualifications, how much EW is getting paid
- Failure to identify an EW and provide the required info means you cannot use EW in the case (unless substantially justified or harmless)
discovery
required disclosures
pretrial required disclosure
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 docs/ESI/things to be introduced at trial.
discovery
discovery tools
- depositions
- interrogatories
- requests to produce
- medical exam (physical or mental)
- request for admission
- substantive answers under oath
- duty to supplement
discovery
discovery tools
depositions
deposition - live testimony in response to questions by counsel or pro se parties.
Questions are usually oral but can be written
Deponent testifies under oath
recorded by audio or video or steno and a transcript can be made
non-party should be subpoenad to compel attendance
subpoena duces tecum requires the deponent to bring requested materials with her
unless nonparty agrees, farthest required to travel for depo = 100 miles from residence or employment
discovery
discovery tools
depositions - limits
Cannot take more than 10 depos OR depose the same person twice w/o court approval or stipulation.
Depo cannot exceed 1 day of 7 hrs unless court orders or parties stipulate
discovery
discovery tools
depositions - use at trial
depo use at trial
- impeach the deponent
- any purpose if deponent is adverse party
- any purpose if deponent is unavailable for trial UNLESS that absence was procured by the party seeking to introduce the evidence
discovery
discovery tools
interrogatories
interrogatories - written questions to be answered in writing under oath
- You can sen interrogatories to parties only
- Party has 30 days from service to answer or object
- You can say you don’t know the answer, but you must answer from information reasonably available to you.
- Max 25 interrogs you can sent to party, including subparts
- Responding party can allow requesting party access to records in response
- You cannot use your own answers to interrogs at trial. (Others are ok per rules of evidence)
discovery
discovery tools
request to produce
request to produce - requests 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.
Person must respond in writing w/in 30 days of service stating that the material will be produced or asserting objections
discovery
discovery tools
request to produce issues
- Can make RTP of parties only, but can get same info from non-party w/subpoena
- ESI is to be produced in the form specified by the requesting party, but the responding party can object
discovery
discovery tools
medical exam (physical or mental)
You MUST get a court order.
You must show 1) that person’s health is in actual controversy and 2) good cause (otherwise it is harassment)
A party or someone in the party’s custody or legal control can be ordered to undergo a medial exam.
discovery
discovery tools
request for admission
request for admission - written request that someone admit things
Can be served on parties only
If responding party fails to deny specifically (or object) in writing w/in 30 days, responding party is deemed to admit
Responding party can says she does not know ONLY if she states that she made reasonable inquiry and cannot find enough to admit or deny.
discovery
discovery tools
substantive answers under oath
Every discovery request and response is signed by counsel certifying 1) it is warranted, 2) it is not interposed for improper purpose, and 3) it is not unduly burdensome.
discovery
discovery tools
duty to supplement
If real world circumstances change, you must supplement your response EVEN THOUGH no one asks you to.
discovery
scope of discovery
standard
Standard of discovery - You can discover anything relevant to a claim or defense AND proportional to the needs of the case.
Relevant is broader than admissible.
It is ok to discover relevant evidence if it is reasonably calculated to lead to admissible evidence.
discovery
scope of discovery
privilege
You can object to discovery on the basis of evidentiary privilege (like confidential communications between atty/client)
discovery
scope of discovery
work product (trial prep materials)
Work product is material prepared in anticipation of litigation. It is generally protected from discovery.
Work product does not have to be generated by a lawyer.
discovery
scope of discovery
work product - qualified work product
Qualified work product is work product that may be discoverable if there is 1) substantial need and 2) not otherwise available
discovery
scope of discovery
work product - absolute work product
Absolute work product is work product that cannot be discovered.
Mental impressions, opinions, conclusions, legal theories.
discovery
scope of discovery
work product - asserting privilege or work product
If you withhold discover or seek a protective order based on privilege or work product, you must claim the protection EXPRESSLY AND describe the materials in detail.
You do this in a document that lists the materials protected by date, author, recipient, and privilege or protection claimed. (This is a privilege log.)
If you inadvertently produce privileged or protected material, you should notifiy the other party promptly. The other party must return, sequester, or dstroy it pending decision by the court about whether there has been a waiver.
discovery
enforcement of discovery rules
discovery disputes
sanctions against a party
discovery
enforcement of discovery rules
discovery disputes - 3 ways
- protective order
- partial request to discovery request
- no response to discovery request
discovery
enforcement of discovery rules
discovery disputes - protective order
- If responding party thinks a discovery requests subjects it to annoyance, embarrassment, undue burden, or expense, move for protective order
- Must certify that she tried in good faith to work it out w/o court involvement and that she asked the other side to meet and confer
- If the court agrees, it can a) deny discovery, b) limit it, or c) permit it on certain terms
discovery
enforcement of discovery rules
discovery disputes
partial response to discovery request
partial response to discovery request - when responding party answers some questions but objects to others.
Requesting party will make a motion to compel answers, and court will decide whether the objections were legitimate.
discovery
enforcement of discovery rules
discovery disputes
no response to discovery request
no response to discovery request - when responding party fails completely to attend her depo, respond to interrogs, or respond to RFPs
discovery
enforcement of discovery rules
sanctions against a party
The party seeking sanctions must certify that she tried in good faith to get the info w/o court involvement.
Action depends on partial or no response
discovery
enforcement of discovery rules
sanctions against a party for partial response
2 steps
- Move for an order compelling the party to answer the unanswered questions and for costs (including atty fees) of bringing the motion.
- If the party violates the order compelling him to answer, “merits” sanctions plus costs (incl atty fees for the motion) AND could be held in contempt for violating a court order (except no contempt for refusal to submit to medical exam)
discovery
enforcement of discovery rules
sanctions against a party for no response
1 step
Merits sanctions plus costs (an atty fees for the motion)
discovery
enforcement of discovery rules
merits sanctions
Merits sanctions - choices available to judge
- Establishment order
- Strike pleadings of the disobedient party (re: issues of discovery)
- Disallow evidence from the disobedient party (re: issues of discovery) (ultimate sanction)
- Dismiss P’s case (if bad faith shown)
- Enter default judgment (if bad faith shown)
discovery
enforcement of discovery rules
failure to produce ESI lost in good faith
If a party failed to make reasonable efforts to preserve ESI, court can enter orders fixing the harm to the other party.
No merits sanction unless the loss was intentional.
