CIv Pro 3 - Pretrial

Question 1

Counterclaim

Answer 1

A D in a suit file a counterclaim against the P.

Question 2

Permissive Counterclaim

Answer 2

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.

Question 3

Compulsory Counterclaim

Answer 3

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.

Question 4

Cross Claim

Answer 4

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.

Question 5

Claims Joined with Cross Claims

Answer 5

Once a D files an appropriate cross claim against a co-D, the D can join with that claim additional, unrelated claims.

Question 6

Counterclaiming a Cross Claim

Answer 6

Once a D has cross claimed a D2, the D2 can counterclaim against D1 and the counterclaim can be permissive or compulsory.

Question 7

Impleader Claim

Answer 7

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.

1. Joint tortfeasor
2. Insurer

Question 8

Impleader Claim - Timing

Answer 8

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.

Question 9

Impleader Claim - Subsequent Claims

Answer 9

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.

Question 10

Permissive Joinder of Parties

Answer 10

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.

Question 11

Mandatory Joinder of Parties

Answer 11

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.

Question 12

Class Actions - 4 Requirements

Answer 12

1. Numerosity. Class is so numerous joinder is impracticable.
2. Commonality. Common questions of law or fact in the class.
3. Typicality. The reps will have incentive to litigate in ways to protect class.
4. Representativeness. The reps will fairly and adequately protect the class.

Question 13

3 Instances where Class Action is Proper

Answer 13

1. Separate actions would create risk of inconsistent judgments or judgments that would substantially impair the ability of a nonparty to protect his interests.
2. Where the party opposing the class has acted in ways generally applicable to the class. (unlikely if seeking monetary relief)
3. 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.

Question 14

Class Actions - Personal Jrdx

Answer 14

Court must have PJ over every D and only the named P’s.

Question 15

Class Actions - Binding Effect

Answer 15

A judgment in a class action will bind all members of the class unless they opt out of the class.

Question 16

Class Actions - Notice

Answer 16

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.

Question 17

Class Actions - Diversity

Answer 17

1. Normally requires D’s and named P’s to be diverse.
2. If over 100 members and over $5 mil, only 1 class member has to be diverse from only 1 D.
3. If removal, no need for agreement of all D’s, and a home state D can still remove.

Question 18

Interpleader Claims

Answer 18

A party may file one when the party fears that it will be exposed to multiple and inconsistent liability, caught in the middle.

Question 19

Intervention of Right

Answer 19

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.

Question 20

Permissive Intervention

Answer 20

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.

Question 21

Joinder and SMJ

Answer 21

SMJ is need for every claim that is put forward.

Question 22

Joinder and PJ

Answer 22

PJ is need for every party.

Question 23

Bulge Rule

Answer 23

An impleaded D will be subject to PJ if they are served with process within 100 miles of the courthouse.

Question 24

Joinder and Venue

Answer 24

Venue need only be worried about when the lawsuit is filed.

Question 25

Discovery Planning Conference (Rule 26f)

Answer 25

1. Parties must meed and discuss likely content of discovery and draft a discovery plan.
2. Plan must be submitted to court within 14 days of conference.
3. Must be held at least 21 days before a pre-trial conference.

Question 26

Pretrial Conference (Rule 16)

Answer 26

1. After discovery planning conference, court can order parties to discuss litigation and most efficient way for it to proceed and any possibilities for settlement.

Question 27

Pretrial Scheduling Order

Answer 27

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.

Question 28

Initial Discovery Disclosures

Answer 28

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.

Question 29

Discovery Expert Disclosures

Answer 29

90 days before trial:

1. Name and contact info of experts.
2. Expert’s final report that explains qualifications, opinion, and info relied on

Question 30

Discovery Pretrial Disclosures

Answer 30

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

Question 31

Scope of Discovery - 5 things

Answer 31

(1) Relevance
(2) Work product
(3) Privilege
(4) Undue burden
(5) Experts

Question 32

Discovery Scope - Relevance

Answer 32

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.

Question 33

Discovery Scope - Work Product

Answer 33

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.

Question 34

Discovery Scope - Privilege

Answer 34

Can’t get privileged info

Question 35

Discovery Scope - Undue Burden

Answer 35

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.

Question 36

Discovery Scope - Experts

Answer 36

1. Non-testifying experts. Opinions only discoverable if they’re like the only experts on this matter in the world.
2. 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

Question 37

Interrogatories

Answer 37

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.

Question 38

Requests for Admission

Answer 38

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.

Question 39

Request for Production of Documents, Tangible Items, or Access to Evidence

Answer 39

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.

Question 40

Request for Mental or Physical Examination

Answer 40

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.

Question 41

Depositions

Answer 41

1. You can depose up to 10 witnesses. More with ct permission.
2. If deposing before filing a complaint, all parties have to be provided opportunity to be present and ask questions.
3. Can use at trial as long as opposing party had opp to be present at depo.
4. Depo of a party or their designee can be used for any purpose.
5. Depo of a non-party can be used to impeach or if the deponent is unavailable it can be used for any purpose

Question 42

Subpoena

Answer 42

1. Duces tecum or ad testifcatum.
2. Used for non-parties.
3. 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.

Question 43

Enforcement of Discovery Requests - If they sort of comply

Answer 43

1. Confer with the person and see if you can figure it out.
2. 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.
3. If they dont comply with motion to compel, you can get sanctions.

Question 44

Discovery Sanctions

Answer 44

1. Court order declaring the facts sought are established in favor of the requestor.
2. Court order prohibiting the non-complier from presenting certain claims or defenses.
3. A stay or dismissal of the entire action.
4. Order of contempt (if there’s been a motion to compel granted)

Question 45

Enforcement of Discover - If they don’t comply at all

Answer 45

Don’t even need to do a motion to compel, can immediately seek sanctions.

Question 46

Voluntary Dismissal

Answer 46

(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)

Question 47

Dismissal - Prejudice

Answer 47

1. If whatever causes the dismissal says with or without prejudice that controls.
2. If not addressed, its presumed without prejudice on the first dismissal and with prejudice on subsequent dismissals of the suit.

Question 48

Involuntary Dismissal

Answer 48

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.

Question 49

Default Judgment - 2 Parts

Answer 49

1. Entry of Default

2. Default Judgment

Question 50

Entry of Default

Answer 50

If a D fails to defend the action, clerk must enter a default.

Question 51

Default Judgment

Answer 51

1. Entry by clerk if P’s claim is for a sum certain and D isn’t a minor or incompetent person.
2. 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.

Question 52

Appearance but Later Default

Answer 52

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.

Question 53

Relief from Entry of Default and Default Judgment

Answer 53

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.

Question 54

Motion to Dismiss

Answer 54

Must be filed before an answer is filed. Have 21 days after process was served or 60 days if you waived service.

Question 55

Grounds for Motion to Dismiss

Answer 55

1. Lack of SMJ
2. Lack of PJ
3. Improper venue
4. Insufficient process
5. Insufficient service of process
6. Failure to state a claim upon which relief can be granted
7. Failure to join an indispensable party

Question 56

Waiver of Defenses

Answer 56

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

Question 57

Motion for Summary Judgment

Answer 57

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.

Question 58

Summary Judgment Analysis

Answer 58

(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

Question 59

Joinder of Claims

Answer 59

A P may bring multiple claims against a D in the same suit regardless of whether they are related or not.m