5) Pretrial Procedure Flashcards
complaint: must contain
1) grounds for SMJ
2) st of facts
3) demand for judgment+ relief
complaint: statement of facts: sufficiency
sufficient to show that P is entitled to relief – can be simple, but must be PLAUSIBLE.
*fraud/mistake
complaints: statement of facts: sufficiency: fraud/mistake
higher standard! Need sufficient particularity (not general allegations)
amending complaint: 2 ways
1) as of right
2) w permission
always think about sol too!
amending complaint: as of right
–w/in 21 days of service of complaint (or of answer/mxn dismiss)
can do this 1x
amending complaint: things to think about
SOL
right vs permission
dl to amend answer
ok amend answer w/in 21 days of service
amending complaint: w permission
1) all opposing parties consent OR
2) court can give permission
amending complaint: court permission: factors
usually liberally granted. consider:
1) reason for delay
2) will it prejudice other party?
amendments + SOL: no new claims or parties
no SOL issues if no add new claims/parties (just correcting errors, omissions)
amendments+ SOL: new claims
can relate back IF new claim arises from same transaction or occurrence as existing claim
amendments + SOL: adding new parties
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)
service: process (def)
complaint + summons: must serve BOTH at same time
service: dl
w/in 90 days of filing cmplt
court might give adl time if good cause
service: who
18+, not a party to action
service: constitutional
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)
service: people: ways: mnemonic
PAAWS
service: people: ways:
1) personal
2) abode
3) agent
4) waiver
5) state methods
service: people: ways: state methods (def)
in state court way (state where filed OR state where service happens)
service: people: ways: personal: def
deliver process to D himself wherever he is
service: people: ways: abode: def
leave at usual place of abode w a person
- -of suitable age or discretion
- -who RESIDES there
service: people: ways: agent: def
serve D’s regsitered agent
service: people: ways: Waiver: def
mail to D w letter requesting he waive (if he refuses, must pay cost of being personally served. also gets mroe x to rp)
service: corporations: ways
1) serve on an officer
2) serve on managing agent/general agent
3) serve on any other agent authorized by appointment/law
service: if law requires service by mail on agent
then must also serve in person
service: needed when new claims added?
only new parties (to activate PJ over them)
rp to complaint: options
1) answer
2) mxn for more definite st
3) mxn strike
4) mxn dismiss
rp: answer: def
admits/denies allegations
rp: answer: effect of not denying an allegation
deemed admitted!
rp: answer: effect of not including a defense in your answer (and exceptions)
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
rp: mxn for more def st: def
cmplt or answer is so vague/ambiguous that rp party can’t reasonably rp so move court to clarify
rp: mxn strike: def
cmplt or answer contains redundant, immaterial, or scandalous matter. court may (on its own or by mxn) order strike
rp: mxn dismiss: def
mxn dismiss: seeks dismissal of claim and can be filed by any party defending
rp:timing
21 days if served, 60 days if waived service
rp: timing: seocndary rp
if mxn denied hten must file answer w/in 14 days of denial
ethical obligations
presenting doc to court certifies:
1) good faith
2) good facts
3) good law
ethics: good faith: def
not for improper purpose
ethics: good facts: def
based on evidentiary support or (if noted) will have after dy
ethics: good law: def
nonfrivolous argument for change in existin glaw
ethics: sanction
must serve mxn for sanctions 21 days before filing to give time to correct
ethics: sanction: goals
must be deter not punish
ethics: sanctions: who (exception)
1) anyone who committed violation (exception: unrepresented parties/”good law” req)
2) entire law firm if 1 atty
preliminary injunction vs tro
PI: must give notice to adverse party AND pendancy of the lit
TRO: ex parte AND only lasts 14 days
tro: must show
tried to notify opposint party but unable
pi: elements
1) likelihood of success on merits
2) ireparable harm
3) balance of hardships
4) public interest
5) payment of security
pi: irreparable harm: standard
courts usu find any violation of right ocunts as irreparable
