5) Pretrial Procedure

Question 1

complaint: must contain

Answer 1

1) grounds for SMJ
2) st of facts
3) demand for judgment+ relief

Question 2

complaint: statement of facts: sufficiency

Answer 2

sufficient to show that P is entitled to relief – can be simple, but must be PLAUSIBLE.

*fraud/mistake

Question 3

complaints: statement of facts: sufficiency: fraud/mistake

Answer 3

higher standard! Need sufficient particularity (not general allegations)

Question 4

amending complaint: 2 ways

Answer 4

1) as of right
2) w permission

always think about sol too!

Question 5

amending complaint: as of right

Answer 5

–w/in 21 days of service of complaint (or of answer/mxn dismiss)

can do this 1x

Question 6

amending complaint: things to think about

Answer 6

SOL

right vs permission

Question 7

dl to amend answer

Answer 7

ok amend answer w/in 21 days of service

Question 8

amending complaint: w permission

Answer 8

1) all opposing parties consent OR

2) court can give permission

Question 9

amending complaint: court permission: factors

Answer 9

usually liberally granted. consider:

1) reason for delay
2) will it prejudice other party?

Question 10

amendments + SOL: no new claims or parties

Answer 10

no SOL issues if no add new claims/parties (just correcting errors, omissions)

Question 11

amendments+ SOL: new claims

Answer 11

can relate back IF new claim arises from same transaction or occurrence as existing claim

Question 12

amendments + SOL: adding new parties

Answer 12

must arise from same transaction or occurrence AND
(all 3):
1) party knew of lawsuit soon enough to not be prejudiced and no later than time permitted for service
2) should have expected to be named as a D
3) left out bc of mistake in identity (not litigation strategy)

Question 13

service: process (def)

Answer 13

complaint + summons: must serve BOTH at same time

Question 14

service: dl

Answer 14

w/in 90 days of filing cmplt

court might give adl time if good cause

Question 15

service: who

Answer 15

18+, not a party to action

Question 16

service: constitutional

Answer 16

must comply w constitutional minimums (must have had adequate notice of claims – was service reasonably calculated to notify D?) (can still go on in suit if made every reasonable effort)

Question 17

service: people: ways: mnemonic

Answer 17

PAAWS

Question 18

service: people: ways:

Answer 18

1) personal
2) abode
3) agent
4) waiver
5) state methods

Question 19

service: people: ways: state methods (def)

Answer 19

in state court way (state where filed OR state where service happens)

Question 20

service: people: ways: personal: def

Answer 20

deliver process to D himself wherever he is

Question 21

service: people: ways: abode: def

Answer 21

leave at usual place of abode w a person

• -of suitable age or discretion
• -who RESIDES there

Question 22

service: people: ways: agent: def

Answer 22

serve D’s regsitered agent

Question 23

service: people: ways: Waiver: def

Answer 23

mail to D w letter requesting he waive (if he refuses, must pay cost of being personally served. also gets mroe x to rp)

Question 24

service: corporations: ways

Answer 24

1) serve on an officer
2) serve on managing agent/general agent
3) serve on any other agent authorized by appointment/law

Question 25

service: if law requires service by mail on agent

Answer 25

then must also serve in person

Question 26

service: needed when new claims added?

Answer 26

only new parties (to activate PJ over them)

Question 27

rp to complaint: options

Answer 27

1) answer
2) mxn for more definite st
3) mxn strike
4) mxn dismiss

Question 28

rp: answer: def

Answer 28

admits/denies allegations

Question 29

rp: answer: effect of not denying an allegation

Answer 29

deemed admitted!

Question 30

rp: answer: effect of not including a defense in your answer (and exceptions)

Answer 30

usu forfeiting that defense

exceptions:

1) failure to state a claim upon which relief can be granted
2) failure join nec party
3) lack of SMJ

Question 31

rp: mxn for more def st: def

Answer 31

cmplt or answer is so vague/ambiguous that rp party can’t reasonably rp so move court to clarify

Question 32

rp: mxn strike: def

Answer 32

cmplt or answer contains redundant, immaterial, or scandalous matter. court may (on its own or by mxn) order strike

Question 33

rp: mxn dismiss: def

Answer 33

mxn dismiss: seeks dismissal of claim and can be filed by any party defending

Question 34

rp:timing

Answer 34

21 days if served, 60 days if waived service

Question 35

rp: timing: seocndary rp

Answer 35

if mxn denied hten must file answer w/in 14 days of denial

Question 36

ethical obligations

Answer 36

presenting doc to court certifies:

1) good faith
2) good facts
3) good law

Question 37

ethics: good faith: def

Answer 37

not for improper purpose

Question 38

ethics: good facts: def

Answer 38

based on evidentiary support or (if noted) will have after dy

Question 39

ethics: good law: def

Answer 39

nonfrivolous argument for change in existin glaw

Question 40

ethics: sanction

Answer 40

must serve mxn for sanctions 21 days before filing to give time to correct

Question 41

ethics: sanction: goals

Answer 41

must be deter not punish

Question 42

ethics: sanctions: who (exception)

Answer 42

1) anyone who committed violation (exception: unrepresented parties/”good law” req)
2) entire law firm if 1 atty

Question 43

preliminary injunction vs tro

Answer 43

PI: must give notice to adverse party AND pendancy of the lit
TRO: ex parte AND only lasts 14 days

Question 44

tro: must show

Answer 44

tried to notify opposint party but unable

Question 45

pi: elements

Answer 45

1) likelihood of success on merits
2) ireparable harm
3) balance of hardships
4) public interest
5) payment of security

Question 46

pi: irreparable harm: standard

Answer 46

courts usu find any violation of right ocunts as irreparable