Civ Pro 3 - Sheet1 Flashcards
Civil Procedure
What is the difference between a Compulsory and a Permissive Counterclaim?
(1) Compulsory Counterclaims
- Arises out of the same transaction or occurrence
- if not pled, waived
(2) Permissive Counterclaims
- Does not arise out of the same t/o
- Not waived if not pled
Civil Procedure
If you get a case dismissed through a motion, are you barred from brining a compulsory counterclaim because it was not pled?
NO.
If you haven’t yet filed an answer, you have not waived it.
Civil Procedure
Is there such thing as a compulsory crossclaim?
NO
Because they must arise out of the same t/o, there is no need to categorize them
Civil Procedure
What is the difference between a crossclaim and a counterclaim?
(1) Counterclaim
- Against opposing party
- Need not arise out of the same t/o
(2) Crossclaim
- Against co-party
- MUST arise out of the same t/o
Civil Procedure
When can a complaint a P’s complaint and a D’s answer be amended?
RIGHT TO AMEND:
(1) Defendant
Once within 20 days after serving his answer
(2) Plaintiff
Once before D serves his answer
LEAVE OF COURT
Both P and D can seek leave of court to amend
Court will grant if justice so requires
I.e., No delay or prejudice
Civil Procedure
If P introduces evidence at trial that is NOT pertinent to the claims contained in the complaint, what may happen?
Variance
- P may move to amend to complaint to reflect those claims
- Moral of the story, OBJECT
Civil Procedure
How can a claim be amended to a pleading after the SOL has run?
Relation back doctrine:
It holds that if an amended pleading concerns that same T/O it will ‘relates back’ to the original so it can avoid SOL problems.
Civil Procedure
How can a D be changed in a pleading after the SOL has run?
Relation back doctrine:
IF:
(1) Same T/O; AND
(2) New party knew of the action within 120 days of its filing; AND
(3) New party also knew that, but for a mistake, she would have been named
NOTE:
CA calls this a ‘misnomer’
Civil Procedure
What MUST be disclosed?
(1) Initial Disclosures:
- 14 days after 26(f) conference
- Identify all persons
- Give copies to those persons
- Of all info likely to be discoverable
- That may be used to support its claim or defense
(2) Experts
- Identify who may be used at trial
(3) Pretrial
- Not later than 30 days before trial
- Disclose all evidence and witnesses
Civil Procedure
What are the 5 federal discovery tools?
(1) Depositions
- Party or non-party with subpoena
- Subpoena Duces Tecum (bring items)
- 10 max (may request more)
- 2 per person max
- 7 hours max
- 100 miles travel max
(2) Interrogatories
- Parties only
- 25 max (may request more)
- 30 days response time
(3) Request to produce
- Party or non-party with subpoena
- 30 days response time
(4) Physical or mental exams
- Court order required
- ‘good cause’
- health is in actual controversy
(5) Request for admissions
- Party only
- 30 days response time
Civil Procedure
What does counsel warrant with every discovery request?
(1) Warranted
(2) Not an improper purpose
(3) Not unduly burdensome
NOTE:
Rule 11 does NOT govern discovery
Civil Procedure
Does an attorney have an affirmative duty to supplement responses to discovery requests?
YES
NOTE:
This is NOT true in CA
Civil Procedure
What is discoverable?
Anything relevant to a claim or defense.’
Relevant =
- Reasonably calculated to LEAD to the discovery of admissible evidence
- Need not be admissible itself
NOT privileged material
Civil Procedure
What material is ‘privileged’ and therefore not discoverable?
(1) Work Product
- Material prepared in anticipation of litigation
- By party, agent, attorney, attorney’s agent
(2) Consulting Experts
- Not going to be called at trial
Civil Procedure
When can privileged material be discovered?
(1) Not mental impressions, opinion, theory, etc.
(2) Substantial need
(3) Not otherwise available
