Chapter 5: Multiple Claims and Parties; Discovery Flashcards
NC: counterclaims
A party that fails to assert a compulsory counterclaim waives the right to sue on the claim
NC R. 13 allows a court to permit a party to amend a pleading to add a counterclaim if it was omitted throuh oversight, inadvertence, excusable neglect if justice so requires (Federal similar rule under 15)
Compulsory Joinder of Parties
NC: R. 19 similar to FRCP, but uses term “united in interest” as standard for when party must be joined
NC Class Actions
The named rep must establish that they will fairly and adequately represent the interests of all members of the class;
There must be no conflict of interest between the named representatives and members of the class;
The named representatives must have a genuine personal interest in the outcome of the case;
Class representatives w/in NC will adequately rep members outside the state;
Class members are so numerous that it is impractical to bring them all before the court; and
Adequate notice must be given to all members of the class
Discovery in NC
No mandatory discovery or disclosure in NC except: parties must disclose the identity of those who might testify as expert witnesses; disclosure of witness report is optional.
No mandatory discovery conference or creation of discovery plan.
Discovery only occurs upon initiative of a party to the case and is generally conducted w/out oversight of the court. Court only gets involved if there is a dispute about the scope of discovery (protective order to limit)
Can apply to the court to compel discovery
Parties may by written stipulation vary any discovery provisions unless otherwise ordered by the court.
The trial court has expansive discretion in managing discovery and can only be reversed for abuse of discretion.
NC: Depositions
No limit to # of depos
FRCP: anytime after mandatory initial disclosure 10 per party unless a showing of good cause.
Parties or non-parties
Subpoenas can be used to require non-parties to provide documents or other materials.
May take depo anytime after action commences; leave is required if P seeks depo w/in 30 days after service of summons and complaint on any D. However, P does not need to obtain leave of court w/in 30 days period if person is about to leave county where action is pending; about to leave U.S.; or bound on a voyage to sea.
Notice of depo: must give written notice to evey other party; a nonparty also requires a subpoena
A NC resident may be required to attend a depo only in the county in which she resides, is employed, or transacts business in her person.
Subpoena
Commands each person to whom it is directed to attend and give testimony at a specified time and place
Require production of documents
Issues from the court where it is pending
May be served by any person who is not a party and is not less than 18
May object; motion to quash for: reasonable time for compliance, requires disclosure of privileged or protected matter; subjects the person to an undue burden or expense; unreasonable or oppressive; or procedural defective.
If an objection is made to subpoena, the serving party may not compel the appearance or production of materials unless the court so orders.
Failure to obey may be deemed contempt of the court. If a party fails to attend or proceed w/ a depo after being properly noticed, the party is subject to a court order requiring payment of reasonable expenses to other parties, including attorneys fees.
Interrogatories
NC: no more than 50 w/out leave of the court
FRCP: 25 per party: relating to non-privileged matters relevant to party’s claim/defense. Must be fully and separately answered under oath unless timely objected to with specificity.
Use of depos at trial
May be used against party to:
Contradict or impeach testimony of the deponent as a witness
As substantive evidence by any party adverse to the party who called the deponent as a witness
As substantive evidence of facts stated in depo that are in conflict with or inconsistent w/ the testimony of the deponent as a witness, by the party who called the witness;
For any purpose, if the depo was of a party, and is used by an adverse party, regardless of whether the deponent testifies.
In addition, a party may use depo of a witness for any purpose if the court finds: the witness is deceased, more than 100 miles from the place of trial or is outside the US, unless it appears that the party offering the depo procured teh witnesses absence; age, illness, infirmity or imprisonment, party offering depo could not procure the witnesses attendance by subpeona, or on application adn notice, exceptional circumstances make it desirable in the interest of justice to permit the depo to be used.
Objections to admissibility
Can object to admission of depo on the same grounds as if the deponent was testifying at the hearing
NC: discovery limits
unreasonably cumulative or burdensome; party seeking discovery has had ample opportunity to obtain the evidence; or the discovery is unduly burdensome or expensive taking into account the parties resources.
Insurance agreements
NC allows discovery on whether other party had liability insurance, discover able in case against insured; however not necessarily admissible at trial.
Protective orders
The court may, for good cause, enter orders to protect parties and others from unreasonable annoyance, embarrassment, oppression, or undue burden or expense resulting from discovery.
The trial court has broad discretion and review is abuse of discretion.
FRCP Permissive Joinder
Joinder of parties
Ps and Ds may join/be joined in 1 action if any right to relief is asserted jointly, severally, or w/ respect to or arising out of the same tx occurrence of series and question of law of fact common to all Ps or Ds will arise
Required SMJ
Ds: Complete diversity & exceed 75K
Ps: Supplemental jx permitted for less than or equal to 75K but there must still be complete diversity.
In personam jx: court needs in personam PJ over D for proper joinder.
Joinder subject to venue requirements.
FRCP Compulsory joinder
Necessary parties: necessary for a just adjudication:
Complete relief can’t be provided to existing parties in absence of person or disposition in absence of that person may impair person’s ability to protect his interset or absence of that person would leave existing parties subject to substantial risk of multiple or inconsistent judgments.
SMJ required
Court needs in persona PJ over D for proper joinder
Joinder subject to venue requirements
FRCP Indispensable parties
If parties can’t be joined in compulsory joinder bc of jx or venue, court may dismiss caswe and will consider the following factors:
Extent to which judgment w/out party would prejudice them or existing parties
Extent to which protective measures could prevent injustice
Whether judgment rendered in necessary party’s absence woul be adequate and
Whether P would have adequate remedy if action were dismissed.
FRCP Intervention as of right
Nonparty has interest in property or tx that is subject matter of action
Disposition may impair nonparty’s interest
Nonparty’s interest not adequately represented by existing parties
Can’t join a case based exclusively on DJ if inconsistent w/ requirement of DJ
FRCP Permissive intervention
Court must consider undue delay/prjudice to rights of original parties
Movant has conditional right to intervene under federal statute or
Movant’s claim/defense and original action share common question of law or fact
Can’t join a case based exclusively on DJ if inconsistent w/ requirement of DJ
Factors for timeliness of intervention
Length of time movant knew or reasonably should have known that its interest was threatened before moving to intervene
Prejudice to existing parties if intervention permitted
Prejudice to movant if intervention is denied
