3. Pretrial Motions

Question 1

What are the types of pleadings?

Answer 1

1. complaints
2. answers to complaints
3. answers to counterclaims
4. answers to cross-claims
5. third-party complaints
6. answers to third-party complaints
7. replies to answers, if ordered by the court

This list outlines the various forms of pleadings recognized in legal proceedings.

Question 2

What are the three requirements of a pleading?

Answer 2

1. short and plain statement of the grounds for the court’s jurisdiction
2. short and plain statement of the claim showing entitlement to relief
3. demand for the relief sought

Question 3

What is required for a ‘Short and Plain Statement of the Claim’ in a pleading?

Answer 3

A complaint must contain enough factual detail to suggest a plausible claim for relief, not just the mere possibility of unlawful behavior by the defendant.

Question 4

True or False: A pleading may make inconsistent claims or defenses.

Answer 4

True

The court allows inconsistent pleadings to be determined by the trier of facts.

Question 5

What is the rule regarding technical defects in pleadings?

Answer 5

Courts are directed to ignore technical defects in pleadings, if NO substantial right of the parties is prejudiced.

This rule aims to ensure that cases are decided on their merits rather than on procedural technicalities.

Question 6

List five special matters that must be pleaded with particularity and underlying facts.

Answer 6

1. capacity or authority to sue
2. fraud, mistake, or condition of the mind
3. conditions precedent, when denying that the condition has occurred
4. time and place, when testing sufficiency
5. special damages

These matters require detailed pleading to avoid ambiguity.

Question 7

What is an answer in responsive pleading?

Answer 7

An answer is a pleading in which the responding party admits or denies the opposing party’s allegations and lists any defenses.

Question 8

What are the five kinds of denials in federal practice?

Answer 8

1. general denial
2. specific denial
3. qualified denial
4. denial based on lack of knowledge
5. denial based on information and belief

Question 9

What is a general denial?

Answer 9

A general denial is appropriate only when the responding party intends in good faith to deny all the allegations in the pleading.

Question 10

What is a specific denial?

Answer 10

The defendant may deny the allegations of a specific paragraph or averment of the complaint

Question 11

what is a qualified denial?

Answer 11

The defendant may deny a particular portion of a particular allegation.

Question 12

Rule 11 and Answers

Answer 12

Rule 11 ensures that when the defendant’s lawyer signs the answer, any denials are “warranted on the evidence, or if specifically so identified, are reasonably based on belief or a lack of information.”

The “reasonable inquiry” requirement aims to prevent the defendant’s attorney from:
i.) denying allegations that he KNOWS to be truthful; and
ii.) from denying knowledge or information about the allegation if he knows it to be truthful.

Question 13

Affirmative defense

Answer 13

An affirmative defense is a defense that relies on factual issues not presented in the complaint. It does not necessarily deny the allegations of the complaint, but pleads additional facts.

Question 14

A defendant waives an affirmative defense if he does NOT raise it in his _______ responsive pleading.

Answer 14

first

Question 15

Affirmative Defenses that MUST be pleaded in the FIRST responsive pleading

Answer 15

1. accord and satisfaction;
2. arbitration and award;
3. assumption of risk;
4. contributory negligence;
5. duress;
6. estoppel;
7. failure of consideration;
8. fraud;
9. illegality;
10. injury by fellow servant;
11. laches;
12. licenses;
13. payment;
14. release;
15. res judicata;
16. Statute of Frauds;
17. statute of limitations; and
18. waiver.

Question 16

What are the three types of pre-answer motions?

Answer 16

1. motion to dismiss
2. motion for a more definite statement
3. motion to strike

Question 17

Seven types of objections that may be raised either by a pre-answer motion to dismiss or responsive pleading

Answer 17

i.) lack of subject-matter jurisdiction; (can be raised at ANY time)
ii.) lack of personal jurisdiction; (MUST raise in FIRST pleading)
iii.) improper venue; (MUST raise in first pleading)
iv.) insufficient process; (MUST raise in first pleading)
v.) insufficient service of process; (MUST raise in first pleading)
vi.) failure to state a claim upon which relief can be granted (can raise up until trial); and
vii.) failure to join a party under Rule 19. (can raise up until trial)

Question 18

Rule for Multiple Pre-Answer Motions

What is not allowed?

Answer 18

A pre-answer motion may be joined with any other motion allowed by the rule.

Not Allowed:
a party that makes a motion under this rule MUST NOT make another motion under this rule raising a defense or objection that was available to the party but omitted from its earlier motion.

Question 19

What is the timing rule for filing an answer or pre-answer motion?

Answer 19

Must be filed within 21 days of service of process.

The 21-day period does NOT include the date of service but DOES include weekends and holidays.

If the 21st day is on a weekend or a holiday, the answer must be filed on the next business day.

Question 20

Timing for when Defendant must file an answer after pre-motion to dismiss was DENIED

Answer 20

If the defendant responds to plaintiff’s complaint by filing a pre-answer motion that is denied, the defendant MUST then file an answer within 14 days of the denial.

Question 21

what is rule for amended pleadings?

Answer 21

A party may amend a pleading ONCE as a matter of course if the amendment is filed:
i.) within 21 days of service of the original pleading; or
ii.) if the pleading requires a response:
within 21 days after service of a responsive pleading; or
21 days after service of a motion to dismiss, a motion for a more definite statement, or a motion to strike, whichever is earlier.

Question 22

Party Amending AFTER pleading ONCE as a matter of course

Answer 22

a pleading may be amended by:
i.) the written consent of the opposing party; or
ii.) with the leave of the court.

Question 23

What is the rule for Leave to Amend a Pleading?

Leave to amend a pleading should be DENIED only if…

Answer 23

Leave to amend must be freely given when justice requires. In deciding whether to grant a request to amend, the court will consider:
i.) the reason for the delay in raising the matter to be raised by the amendment; and
ii.) the prejudice to the opposing party caused by the delay.

leave to amend a pleading should be DENIED only if it would cause actual prejudice to the other party.

Question 24

A party’s objection at trial to evidence as not being within the scope of the issues raised in the pleadings

Answer 24

The court may permit the pleadings to be amended to conform to the evidence.

Question 25

What is the rule for supplemental pleadings?

Answer 25

Plaintiff may move to add a “supplemental pleading” to an original complaint, defined as a related event, occurrence, or transaction that occurred AFTER the date of the original pleading. The court may give permission for a supplemental pleading.

Doctrine of Relation Back DOES NOT APPLY

Question 26

What is the doctrine of relation back?

Answer 26

The court will treat an amendment to a pleading as though it had been filed with the original pleading.

Question 27

Doctrine of Relation Back

What is the rule for when an Amendment seeks to add a New Claim?

Answer 27

The amendment is considered filed on the date that the original complaint was filed IF
the new claim arises from the same transaction or occurrence as the existing claim.

Question 28

What do the courts focus on when deciding whether an amended pleading “relates back,” or falls under a single conduct, transaction, or occurrence?

Answer 28

courts focus on the issue of the defendant’s notice of an additional claim to the original pleading.

If the defendant, reading the original complaint, would NOT be placed on notice of the essence of what will later be claimed in the amended complaint, then the two complaints do NOT involve the same conduct, transaction, or occurrence, and relation back will NOT apply.

Ex. Additional claim and original complaint have different issues of fact and discovery.

Question 29

Doctrine of Relation Back

What is the rule for when an Amendment seeks to add a New Party?

Answer 29

The amendment adding a new party will be considered filed on the date on which the original complaint was filed as long as:

i.) the amendment asserts a claim or defense that arose out of the same conduct, transaction, or occurrence as the original claim;

ii.) the party to be added by the amendment received notice of the original action within 90 days of service of the claim such that it will not be prejudiced in defending on the merits;
and

iii.) the added party knew, or should have known, that the original action would have been asserted against it, but for a mistake concerning the proper party’s identity.

Question 30

Rule 11

Answer 30

An attorney or unrepresented party certifies that, after making a reasonable inquiry, the submission of a document to the court is based on:

1. Good Faith: The submission is not for any improper purpose (i.e. to harass, delay, or increase the cost of litigation);
2. Good Facts: The submission is based on evidentiary support or, if specifically noted, will likely have evidentiary support after discovery. This applies to affirmative representations of fact, as well as denials of factual allegations; and
3. Good Law: The submission is warranted by existing law or presents a non-frivolous argument for extending, modifying, or reversing existing law or for establishing new law.

Question 31

Rule 11 Sanctions

When appropriate, sanctions may be imposed against:

Answer 31

i.) parties;
ii.) attorneys; or
iii.) law firms.

Question 32

Rule 11 sanctions may consist of:

Answer 32

1. nonmonetary measures such as censuring the offending lawyer or striking the offending pleading; or
2. monetary penalties, such as payment of expenses and attorneys’ fees incurred because of the improper paper.

Question 33

The court has the power to impose sanctions limited to what is sufficient to deter repetition of such conduct against a party who presents a paper to the court in violation of the above requirements, either on:

Answer 33

i.) the court’s own initiative; or
ii.) on motion of the opposing party

Question 34

The court CANNOT impose monetary sanctions on a represented party(client) when the violation was that:

Answer 34

i.) legal contentions in the pleadings were not warranted by existing law; or
ii.) supported by a nonfrivolous argument for expanding the law.

Question 35

Safe-Habor Rule to Correct Rule 11 Sanctions

Answer 35

The party seeking sanctions MUST serve a separate motion on the other party, but may NOT file the motion if the challenged paper, claim, or defense:
i.) is withdrawn; or
ii.) appropriately corrected within 21 days AFTER the service.
IMPROPER to file a motion with the court BEFORE 21 days have passed.

Question 36

Show-Cause Order by the Court

Answer 36

A show-cause order issued by the court provides a party with notice of a possible infraction and an opportunity to argue against it. It does not by itself decide that a sanction should be imposed, as additional facts must be considered before making that determination.

Question 37

What is provisional relief?

Answer 37

The plaintiff files suit seeking injunctive relief, but can’t litigate the suit fast enough to get that relief before the defendant commits some irreversible harm.

Question 38

What are the two remedies of provisional relief?

Answer 38

• temporary restraining orders (TRO)
• preliminary injunctions (PI)

These remedies are designed to provide urgent relief before a full hearing can be conducted.

Question 39

When are TRO’s used/issued?

NO TRO When….

Answer 39

TROs are used in emergency situations(necessary to prevent irreparable injury to a party) when the injunction must be issued BEFORE any hearing and lasts only a few days, generally long enough for the parties to seek a PI.

NO TRO: Situations that can be resolved by money damages.

Question 40

When are PI’s used/issued?

NO PI’s when….

Answer 40

PI’s, if granted, will last until a decision on the merits, however long that may take.

NO PI: Situations to secure the satisfaction of a potential monetary judgment.

Question 41

What must a party establish to obtain provisional relief (TRO or PI)?

Answer 41

A party seeking a TRO or PI MUST establish a sufficient showing of:

i.) Likelihood of Success on the Merits: The plaintiff’s legal claim is plausible and will likely win if litigated (i.e., law and facts are on the plaintiff’s side);

ii.) Irreparable Harm: to the plaintiff if the TRO or PI is not granted;

iii.) Balance of Hardships: Whether the harm to the plaintiff is greater if the PI or TRO is denied, than the harm to the defendant if it is granted;

iv.) Public Interest: The court will not issue a TRO or PI that is injurious to the public interest; and

v.) Payment of Security: The plaintiff must deposit enough money with the court to compensate the defendant for any losses if the suit is unsuccessful.

Question 42

True or False: A court may issue a TRO without notice to the adverse party.

Answer 42

True

This allows for swift action in emergency situations.

Question 43

What happens if the party who obtained the TRO does not proceed with the motion for a Preliminary Injunction (PI)?

Answer 43

The TRO must be dissolved.

Question 44

What are the three requirements for granting a TRO without notice?

Answer 44

1. Specific facts establishing immediate and irreparable injury
2. Certification of efforts to give notice and reasons for not requiring it
3. Provision of security as determined by the court

Question 45

What must a TRO issued without notice include?

Answer 45

• Reasons for issuance
• Detailed acts restrained
• Date and hour of issuance
• Description of injury and reason for irreparability
• Prompt filing in the clerk’s office

Question 46

How long does a TRO last after issuance?

Answer 46

14 days.

Question 47

What is required for an extension of a 14-day TRO?

Answer 47

A showing of good cause.

Question 48

Can a Preliminary Injunction (PI) be issued without notice to the adverse party?

Answer 48

No, it must be issued on notice.

Question 49

Attachment of Property for Provisional Remedies

Answer 49

Federal courts are authorized to issue provisional remedies, including attachment, at any time following the commencement of the action for the purpose of securing satisfaction of a potential judgment.

Question 50

What is the rule regarding multiple claims by a single claimant against a single defendant?

Answer 50

A party may join as many claims as they have against an opposing party.

Question 51

Multiple Claims by Single Claimant against Single Defendant:
Rule 18

Answer 51

a party may join as many claims in a single action as the party has against an opposing party.

No requirement that all of the claims in a complaint be related.

Question 52

What is a counterclaim?

Answer 52

A counterclaim may be brought by any party against any other opposing party and can be compulsory or permissive.

Question 53

What type of counterclaim arises from the same transaction or occurrence as the original claim?

Answer 53

Compulsory counterclaim.

Question 54

What happens if a party fails to raise a compulsory counterclaim?

Answer 54

They waive the right to assert the claim in any future action.

Question 55

The Pleader need not state the compulsory claim if:

Answer 55

i.) when the action was commenced, the claim was the subject of another pending action; or

ii.) the opposing party sued on its claim by attachment or other process that did not establish personal jurisdiction over the pleader on that claim, and the pleader does not assert any counterclaim under this rule.

Question 56

What is a permissive counterclaim?

Answer 56

A claim that does not arise out of the same transaction or occurrence as the opposing party’s claim.

A party is NOT required to asset a permissive counterclaim.

Question 57

What is a cross-claim?

Answer 57

A claim made against a co-party that arises out of the same transaction or occurrence as the original action AND asks for actual relief from the co-party.

A cross-claim may include a claim that the party against whom it is asserted is OR may be liable for all or part of the claim asserted in the action against the cross-claimant.

Question 58

What is the purpose of an impleader claim?

Answer 58

To bring in a third-party defendant who may be liable for part or all of the claim against the original defendant.

Question 59

When is it improper to file an impleader claim?

Answer 59

It is IMPROPER for a defendant to file a third-party complaint against a third-party defendant on the theory that the third-party defendant is the only liable party, and that the original defendant is not liable at all.

Question 60

what is the timing requirement to file an impleader claim?

Answer 60

The original defendant may either implead a third party:
i.) in its answer to the original complaint; OR
ii.) file a third-party complaint separately within 14 days after serving the answer

Question 61

What must a defendant do to file an impleader claim after 14 days?

Answer 61

Obtain the court’s leave by motion.

Question 62

Under what conditions can a plaintiff file a third-party complaint?

Answer 62

1. A counterclaim has been asserted against the plaintiff
2. There is a basis for liability against the third-party

Question 63

What rights do third-party defendants have?

Answer 63

1. Service of process
2. File an answer to the third-party complaint
3. Assert counterclaims or cross-claims
4. Implead additional non-parties
5. Appeal orders or final judgments

Question 64

What is the rule for dismissals of Third-party complaints?

Answer 64

The court can dismiss a third-party complaint without prejudice or order a separate trial if it could unduly delay the original action or harm a party’s substantial rights.

Question 65

What is the rule regarding permissive joinder of parties-Rule 20?

NO same transaction or occurrence when….

Answer 65

Multiple plaintiffs can join one suit or multiple defendants can be sued in one suit, as long as:
(i) some claim against each defendant relates to or arises out of the same series of occurrences or transactions; AND
(ii) there is a question of fact or law common to all parties.

No same transaction or occurrence when defendants did not know one another or communicate with one another.

Question 66

Misjoinder of parties-Severance or Separate Lawsuits

Answer 66

misjoinder of parties is NOT a ground for dismissing an action, but it is within the court’s discretion to:
i.) to sever the claims; and
ii.) require the plaintiffs to bring separate lawsuits.

Question 67

What is required for compulsory joinder of parties-Rule 19?

Answer 67

Joinder is required for any person who:
(i) is needed for the court to provide complete relief among existing parties, or
(ii) has a significant interest in the case such that not joining them will either:
-impair their ability to protect that interest; or
-expose an existing party to substantial risk of multiple or inconsistent liability.

Question 68

If a party is deemed “required” or “necessary,” then joinder is _____

However, the court must also ensure that joinder of the required party __________

Answer 68

“compulsory” meaning the required party should be joined.

will not destroy its jurisdiction

Question 69

If a required party cannot be joined, the court must decide whether:

Answer 69

(i) the case should proceed without them “in equity and good conscience,” or
(ii) the absent party is “indispensable,” warranting dismissal of the case.

Question 70

To determine if an absent party is indispensable, warranting dismissal, the court considers:

Answer 70

(i) the prejudice to absent or existing parties from a judgment;
(ii) the possibility of reducing prejudice through the judgment or other means;
(iii) the adequacy of a judgment without the absent party; and
(iv) whether the plaintiff has an adequate alternative remedy if the case is dismissed.

Question 71

Step 1: Is the absent party necessary?

Answer 71

A Necessary party has an interest that might be impaired if left out and complete relief cannot be issued in the party’s absence; or if current parties would be subject to inconsistent/duplicative liability.

If a party is not necessary, there is no mandatory joinder.

a potential defendant who might be jointly and severally liable is NOT a required party for purposes of the federal rules.

Question 72

Step 2: If a missing party is necessary, can the party be joined?

Answer 72

If Yes - Court should just join them, adjudicate case, skip Step 3.

If No - Proceed to Step 3. A missing party can’t be joined in federal court if the court lacks PJ over the missing party, or adding the party would destroy SMJ by destroying diversity.

Question 73

Step 3: If a party cannot be joined, are they indispensable?

Answer 73

If a person who is required to be joined cannot be joined for jurisdictional reasons, the court must determine, whether, in equity and good conscience, the action should proceed among the existing parties or be dismissed. The factors for the court to consider include:
Potential prejudice to the absent person or existing parties from a judgment.
Measures to lessen or avoid prejudice, such as:
(a) Protective provisions in the judgment,
(b) Shaping the relief,
(c) Other measures.
Adequacy of a judgment without the absent person.
Adequacy of the plaintiff’s remedy if the action is dismissed for nonjoinder.

Question 74

What is interpleader?

Answer 74

Interpleader allows someone who is a stakeholder to a dispute to require:
i.) two or more parties to resolve a dispute first;
ii.) to determine who has a valid cause of action; so that
iii.) the stakeholder does not face separate actions for one obligation.

Question 75

what are the two avenues for federal interpleader?

Answer 75

1. FRCP 22 Interpleader
2. Federal Interpleader Statute under 28 U.S.C. 1335

Question 76

What jurisdictional requirements are there for FRCP 22 interpleader?

Answer 76

1. the party seeking to bring the interpleader action to be legitimately concerned about facing liability in multiple actions;
2. Federal question or diversity jurisdiction over the claim
3. Personal jurisdiction over the parties; and
4. Proper venue

The stakeholding party, or “stakeholder,” can commence an action for interpleader to resolve liability where there are two or more adverse claimants.
ONLY applicable where multiple claims demand the same thing or obligation-usually, a piece of property, prize, or, most commonly, the proceeds of an insurance policy.
The stakeholder may also initiate interpleader by counter-claiming or cross-claiming against a claimant in an action that has already commenced against the stakeholder.
NO effect on jurisdictional or venue requirements.
NO nationwide service of process is available.

Question 77

statutory interpleader claims (28 U.S.C. 1335)

Answer 77

Allows a person holding property which may be claimed, or is claimed by two or more adverse claimants, to interplead all possible claimants.
(i) the amount in controversy need only be $500 or more;
(ii) diversity of citizenship for any two adverse claimants is sufficient;
(iii) nationwide personal jurisdiction is authorized(not required to have PJ over any defendant); AND
(iv) venue will be proper where any claimant resides.

Question 78

Intervention-Rule 24

Answer 78

Allows a non-party to assert a right or interest in an ongoing action(intervention of right or permissive intervention)

Question 79

What is the timing requirement for Intervention?

Answer 79

A non-party’s request to intervene must be timely. The court considers:
(i) how long the non-party knew or should have known about its interest before applying,
(ii) the prejudice to existing parties from the delay, and (iii) the potential prejudice to the non-party if the request is denied.

Question 80

What is required for intervention of right?

Answer 80

A party must be permitted to intervene as a matter of right upon timely application when:
i.) The party claims an interest relating to the subject matter of the action, and
ii.) Without intervention, there is a risk that they might not be able to protect that interest.

Question 81

What is required for Permissive Intervention?

Answer 81

intervention by a third party may be granted permissively when the applicant’s claim has i.) a common question of law or fact as the main action; AND
ii.) the claim does not destroy complete diversity.

Question 82

The trial court may grant permissive intervention at its discretion, considering:

Answer 82

(i) the complexity of the existing action and the applicant’s claim or defense,
(ii) the duration of the primary action’s pendency, and (iii) potential delay or prejudice to existing parties from the applicant’s involvement.

Question 83

Class Actions-Rule 23

Answer 83

A class action can proceed if the case is:
1. So large that joinder of all members is impracticable;
2. Contain common questions of law or fact shared by the class;
3. Have claims or defenses from the named representatives that are typical of those in the class;
4. Have representatives that fairly and adequately protect the interests of the class; and
5. Meet the definition of one of the THREE TYPES of classes enumerated under 23(b), including cases where:
a) A single action is necessary to avoid inconsistent outcomes or impairment of absent members’ interests;
b) Injunctive or declaratory relief is necessary in response to a defendant’s actions or inactions; OR
c) Common questions of fact or law among the members prevail over individual members’ issues.

Question 84

What are the four factors used to determine common questions for class actions?

Answer 84

1. Pending individual litigation
2. Class members’ interest in controlling their own cases
3. Desirability of concentrating litigation in one forum
4. Difficulties in managing the class action

Question 85

What must a federal court do before trial regarding class actions?

Answer 85

Certify the action to ensure it meets the requirements of FRCP 23.

Question 86

What is required for class representatives in a class action?

Answer 86

They must have claims or defenses that are typical of the claims or defenses of the rest of the class.

Question 87

When must a motion to certify a class action be made?

Answer 87

At an early practicable time after the case is commenced.

Question 88

What must the order permitting a class action describe?

Answer 88

The class.

Question 89

What is the jurisdiction requirement for class actions regarding the defendants?

Answer 89

The court must have personal jurisdiction over every defendant and each of the plaintiffs named in the action.

Question 90

Are absent members of a plaintiff class required to have personal jurisdiction?

Answer 90

No, as long as they receive adequate notice and are afforded the opportunity to opt out.

Question 91

How is diversity of citizenship determined in class action suits?

Answer 91

Based on whether the named parties are diverse from one another, NOT the unnamed class members.

Question 92

Under the Class Action Fairness Act, what satisfies diversity for a class with 100 members seeking damages over $5M?

Answer 92

Diversity is satisfied if any single member is diverse from any defendant.

Question 93

What is the effect of a judgment in an FRCP 23(b)(3) class action?

Answer 93

It is binding on all those found to be members of the class.

Question 94

What right do individuals have regarding class actions?

Answer 94

They have the right to exclude themselves from the class by notifying the court.

Question 95

What must be shown to obtain relief from a class action ruling?

Answer 95

One must attack one of the four requirements to certifying a class.

Question 96

What does full faith and credit require in class actions?

Answer 96

A valid class action settlement must be binding on all members who did not opt-out.

Question 97

What is required for the dismissal or compromise of class actions?

Answer 97

Court approval.

Question 98

What must the court do regarding any settlement agreement in a class action lawsuit?

Answer 98

The court must approve it after a hearing to ensure it is fair, reasonable, and adequate.

Question 99

What does Rule 26(f) require parties to do?

Answer 99

Meet and discuss the likely content of discovery and draft a discovery plan.

Question 100

When must initial mandatory disclosures be made?

Answer 100

Within 14 days following the Rule 26 discovery conference.

Question 101

What must be disclosed if a party plans to rely on expert testimony?

Answer 101

The name/contact info of the expert and their final report at least 90 days before trial.

Question 102

What must a party provide at least 30 days before trial?

Answer 102

A list of witnesses expected to call at trial and documents or physical evidence expected to present.

Question 103

What is the Work Product Doctrine?

Answer 103

It protects documents prepared for litigation from discovery, categorized into absolute and qualified immunity.

Question 104

What is absolute immunity?

Answer 104

Absolute immunity protects documents with a party’s legal representatives’ subjective thoughts, like legal theories and mental impressions, making them nearly undiscoverable without an court order granting access.

Question 105

what is qualified immunity?

Answer 105

Qualified immunity covers all other litigation-prepared documents. This immunity can be overridden if the opposing party demonstrates a substantial need for the materials and their unavailability by other means.

Question 106

What must a moving party show to modify a scheduling order?

Answer 106

Good cause, demonstrating diligence in trying to meet the original deadline.

Question 107

What are the conditions under which a deposition may be used in court?

Answer 107

If the party was present, represented, or had reasonable notice at the time of the deposition.

Question 108

What are the three options for a voluntary dismissal?

Answer 108

Option 1: Unilateral dismissal by filing notice any time BEFORE the defendant has filed an answer OR motion for summary judgment.

Option 2: Before or after a responsive pleading, Stipulation of dismissal signed by all parties, usually a settlement.

Option 3: Permission of the court.

Question 109

Voluntary Dismissal and Counterclaims

Answer 109

Generally a court will grant permission to dismiss, but if the defendant filed a counterclaim, the court will NOT dismiss/deny UNLESS:
i.) that claim can remain pending for independent adjudication.

Question 110

What is the effect of a voluntary dismissal on the case?

Answer 110

1st Time-Automatically terminates the case without prejudice(can file again)
2nd Time-Adjudication upon the merits-with prejudice(CANNOT file again)
CANNOT get a court order to file a third time!

Question 111

What is the effect of an Involuntary Dismissal for a failure to state a claim?

Answer 111

dismissed with prejudice(cannot file again).

Question 112

What is the effect of an Involuntary Dismissal for failure to prosecute?

Answer 112

dismissed with prejudice(cannot file again)

Question 113

What is the exception for Involuntary Dismissal that are without prejudice?

Answer 113

It is WITHOUT prejudice when it’s a dismissal for lack of jurisdiction, improper venue, or failure to join a party under Rule 19.

Question 114

What happens if a defendant does not respond after being properly served?

Answer 114

The plaintiff is entitled to a default judgment.

Question 115

What must happen for a default judgment to be set aside?

Answer 115

The court may set it aside for good cause.

Question 116

What is required for a party to obtain a protective order?

Answer 116

They must seek a judicial order under FRCP 26(c).

Question 117

What is the rule regarding non-testifying experts at trial?

Answer 117

A party cannot obtain facts or opinions from a non-testifying expert unless exceptional circumstances exist.

Question 118

Fill in the blank: Under federal rules, parties must proactively disclose certain information at the start of litigation, known as _______.

Answer 118

Initial Disclosures

Question 119

True or False: A deposition can be used against a party at trial if the party received less than 14 days’ notice.

Answer 119

False

Question 120

Offer of Judgment

Answer 120

At least 14 days BEFORE the date is set for trial a party defending against a claim may serve on an opposing party an offer to allow judgment on specified terms, with the costs then occurred.
If, within 14 days after being served, the opposing party serves written notice accepting the offer, either party may then file the offer and notice of acceptance, plus proof of service. The clerk must then enter judgment.
DOES NOT provide recovery for attorney’s fees.