CIv Pro 3 - Pretrial Flashcards
Counterclaim
A D in a suit file a counterclaim against the P.
Permissive Counterclaim
Is a claim that does not arise out of the transaction or occurrence underlying any of the P’s claims against D. D may file, but doesn’t have to.
Compulsory Counterclaim
A claim those does arise out of the transaction or occurrence underlying any of P’s claims against D. D must file the claim or the claim is forfeited.
Cross Claim
A claim filed by a party against a co-party on the same side of the v. Can only be filed if they arise from the same transaction or occurence as one of the P’s underlying claims.
Claims Joined with Cross Claims
Once a D files an appropriate cross claim against a co-D, the D can join with that claim additional, unrelated claims.
Counterclaiming a Cross Claim
Once a D has cross claimed a D2, the D2 can counterclaim against D1 and the counterclaim can be permissive or compulsory.
Impleader Claim
Claim brought by a party defending a claim against someone not yet involved in the suit. May only be brought if the claim alleges the 3rd party is responsible for some or all of the liability facing the D.
- Joint tortfeasor
- Insurer
Impleader Claim - Timing
A D has an automatic right to implead a 3rd party within 14 days of serving an answer. After that you need permission of the court.
Impleader Claim - Subsequent Claims
After a party has been impleaded into a suit, that party may bring claims of its own against other parties. The original P may file a claim against the impleaded party as long as it relates to one of the P’s original claims.
Permissive Joinder of Parties
Multiple P’s can join and multiple D’s can be sued as long as:
(1) The joined parties claim relief (P’s) or face liability (D’s) that arises out of the same transaction or occurrence, and
(2) There will arise in the action common questions of law or fact.
Mandatory Joinder of Parties
Absent parties must be joined if they are:
(1) Necessary. If they have an interest that might be impaired if they are left out of the litigation, if complete relief cannot be issued in their absence, or if the current parties would be subject to duplicative or inconsistent liability.
(2) Jrdx. If necessary, the party must be joined if court has jrdx over them.
(3) But if (a) ct lacks personal jrdx or (b) adding would destroy diversity jrdx, then court must determine whether party is indispensable, considering the extent of prejudice to missing party, whether prejudice can be avoided, whether P could find relief in another forum.
Class Actions - 4 Requirements
- Numerosity. Class is so numerous joinder is impracticable.
- Commonality. Common questions of law or fact in the class.
- Typicality. The reps will have incentive to litigate in ways to protect class.
- Representativeness. The reps will fairly and adequately protect the class.
3 Instances where Class Action is Proper
- Separate actions would create risk of inconsistent judgments or judgments that would substantially impair the ability of a nonparty to protect his interests.
- Where the party opposing the class has acted in ways generally applicable to the class. (unlikely if seeking monetary relief)
- Where the court finds that common questions of law or fact predominate over individualized questions and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.
Class Actions - Personal Jrdx
Court must have PJ over every D and only the named P’s.
Class Actions - Binding Effect
A judgment in a class action will bind all members of the class unless they opt out of the class.
Class Actions - Notice
In common-question class actions, class members must be given notice of the pendency of the suit. The notice must be reasonably calculated to apprise members of the class. Often by mail or publication.
Class Actions - Diversity
- Normally requires D’s and named P’s to be diverse.
- If over 100 members and over $5 mil, only 1 class member has to be diverse from only 1 D.
- If removal, no need for agreement of all D’s, and a home state D can still remove.
Interpleader Claims
A party may file one when the party fears that it will be exposed to multiple and inconsistent liability, caught in the middle.
Intervention of Right
A person must be permitted to intervene in an action when the person:
(1) Claims in interest relating to the subject matter of the action, and
(2) Is so situated that, absent the intervention, there is a risk that the person will not be able to protect their interest.
Permissive Intervention
Person may be permitted to intervene in an action when they have a claim or defense that shares with the main action a common question of law or fact.
Joinder and SMJ
SMJ is need for every claim that is put forward.
Joinder and PJ
PJ is need for every party.
Bulge Rule
An impleaded D will be subject to PJ if they are served with process within 100 miles of the courthouse.
Joinder and Venue
Venue need only be worried about when the lawsuit is filed.
Discovery Planning Conference (Rule 26f)
- Parties must meed and discuss likely content of discovery and draft a discovery plan.
- Plan must be submitted to court within 14 days of conference.
- Must be held at least 21 days before a pre-trial conference.
Pretrial Conference (Rule 16)
- After discovery planning conference, court can order parties to discuss litigation and most efficient way for it to proceed and any possibilities for settlement.
Pretrial Scheduling Order
Court must issue scheduling order dictating schedule on which litigation will proceed. Period in which parties can be joined, motions made, amended, completion of discovery, etc. Order must be issued within 120 days of D being served or within 90 days of when D appears, whichever is earlier.
Initial Discovery Disclosures
Within 14 days after discovery meeting:
(1) Witness name and contact info.
(2) Documents or objects that a party may use to support a claim or defense.
(3) Computation and explanation of damages.
(4) Copies of insurance agreements.
Discovery Expert Disclosures
90 days before trial:
- Name and contact info of experts.
- Expert’s final report that explains qualifications, opinion, and info relied on
Discovery Pretrial Disclosures
30 days before trial
(1) List of all witnesses expected to call at trial
(2) Witness you may call at trial if the need arises
(3) List of witnesses whose testimony will be through deposition
(4) List of documents and physical evidence you indent to present
Scope of Discovery - 5 things
(1) Relevance
(2) Work product
(3) Privilege
(4) Undue burden
(5) Experts
Discovery Scope - Relevance
Parties are permitted discovery into any matter that is relevant to a claim or defense by making a fact in dispute more or less likely to be true, regardless of whether the info would be admissible at trial.
Discovery Scope - Work Product
Even if relevant, can only get work product in two situations:
(1) The WP is a statement the requesting party made.
(2) If it has a substantial need and cant otherwise obtain the info without substantial hardship. Requires court order and the court must make every effort to keep secret author’s litigation strat or mental processes.
Discovery Scope - Privilege
Can’t get privileged info
Discovery Scope - Undue Burden
Can’t get disco if it would create an undue burden on the party:
(1) Disco sought is unreasonably cumulative or can be obtained from a less burdensome source or in a less burdensome way
(2) Party seeking disco has had ample opportunity to obtain the info
(3) The burden or expense outweighs the benefits, considering the nature of the evidence sought, amount in controversy, and parties’ resources.
Discovery Scope - Experts
- Non-testifying experts. Opinions only discoverable if they’re like the only experts on this matter in the world.
- Testifying experts. Can obtain communications relating to (a) their compensation, (b) data provided by atty to expert, (c) any assumptin the atty asked the expert to make in developing an opinion
Interrogatories
Question submitted to other side in writing. Up to 25 questions. Party has 30 days to respond in writing. If a question can be answered by reviewing documents and the burden of reviewing the documents would be the same for the requestor, you can just provide the requesting party access to those documents.
Requests for Admission
Party can ask other side to admit truth of any fact as well as the genuineness of any document. If admitted it is conclusive for use in litigation. Response in 30 days, you can admit, deny, or state you lack sufficient info to admit or deny.
Request for Production of Documents, Tangible Items, or Access to Evidence
You have 30 days to respond and have to provide them as they are maintained in the usual course of business and label them to correspond to the request.
Request for Mental or Physical Examination
If mental or physical state is an issue in the case. Have to get court order. Examiner must prepare a report and provide it to any party who requests it.
Depositions
- You can depose up to 10 witnesses. More with ct permission.
- If deposing before filing a complaint, all parties have to be provided opportunity to be present and ask questions.
- Can use at trial as long as opposing party had opp to be present at depo.
- Depo of a party or their designee can be used for any purpose.
- Depo of a non-party can be used to impeach or if the deponent is unavailable it can be used for any purpose
Subpoena
- Duces tecum or ad testifcatum.
- Used for non-parties.
- Can object to a subpoena being outside the scope of disco or object that it requires the person to travel more than 100 miles from where she resides or works.
Enforcement of Discovery Requests - If they sort of comply
- Confer with the person and see if you can figure it out.
- File a motion to compel. If you win you get legal fees associated with filing the motion. If you dont they get legal fees if the motion was not substantially justified.
- If they dont comply with motion to compel, you can get sanctions.
Discovery Sanctions
- Court order declaring the facts sought are established in favor of the requestor.
- Court order prohibiting the non-complier from presenting certain claims or defenses.
- A stay or dismissal of the entire action.
- Order of contempt (if there’s been a motion to compel granted)
Enforcement of Discover - If they don’t comply at all
Don’t even need to do a motion to compel, can immediately seek sanctions.
Voluntary Dismissal
(1) Anytime before D has filed answer or motion for summary judgment.
(2) Stipulation of dismissal signed by all parties.
(3) Permission of the court. (Wont dismiss if there’s a counterclaim unless that counterclaim can remain pending for independent adjudication)
Dismissal - Prejudice
- If whatever causes the dismissal says with or without prejudice that controls.
- If not addressed, its presumed without prejudice on the first dismissal and with prejudice on subsequent dismissals of the suit.
Involuntary Dismissal
If P fails to prosecute case or comply with court order or any FRCP, D may move to dismiss the action. Always a dismissal with prejudice.
Default Judgment - 2 Parts
- Entry of Default
2. Default Judgment
Entry of Default
If a D fails to defend the action, clerk must enter a default.
Default Judgment
- Entry by clerk if P’s claim is for a sum certain and D isn’t a minor or incompetent person.
- Entry by court, P must make application. If D is minor or incompetent, court will only issue judgment if D is represented by a guardian or some other competent person.
Appearance but Later Default
Court may issue a default judgment only if the D had been served with written notice of the application for default seven days before a hearing on the applicaiton.
Relief from Entry of Default and Default Judgment
If a default entered by clerk, court may set aside for good cause. If clerk or court enters default judgment, court amy set it aside with motion to set aside judgment.
Motion to Dismiss
Must be filed before an answer is filed. Have 21 days after process was served or 60 days if you waived service.
Grounds for Motion to Dismiss
- Lack of SMJ
- Lack of PJ
- Improper venue
- Insufficient process
- Insufficient service of process
- Failure to state a claim upon which relief can be granted
- Failure to join an indispensable party
Waiver of Defenses
Use em or lose em in the first response: 1. Lack of PJ 2. Improper venue 3. Insufficient process or service of process. Use em or lose em before trial ends: 1. Failure to state a claim upon which relief can be granted 2. Failure to join a necessary party Never lost: 1. Lack of SMJ
Motion for Summary Judgment
Motion challenging claim or defense on the merits. Movant is arguing there is no genuine dispute as to any material fact, therefore I am entitled to judgment as a matter of law.
Summary Judgment Analysis
(1) Whether movant has shown–based on his arguments alone–that the non-movant lacks sufficient facts/law to prevail on the claim or defense in question. Can do this by:
(a) Pointing out holes in the other party’s claims or defenses, or
(b) Giving new evidence demonstrating the claim or defense cant be true
(2) If get past step 1, non-movant must adduce evidence sufficient for a reasonable jury to find in her favor. Court looks only at this evidence and will assume everything is true.
(3) Any info presented to court must be admissible at trial.
(4) Motion can be made up to 30 days after the close of disco
Joinder of Claims
A P may bring multiple claims against a D in the same suit regardless of whether they are related or not.m
