Civ Pro 4 - Sheet1 Flashcards
Civil Procedure
If a party does not believe that requested discovery is discoverable, e.g., trade secretes or privileged, what should he do?
Seek a ‘protective order.’
Civil Procedure
If a party’s request for a protective order is denied, will sanctions be imposed?
YES
(1) Partial violation
- Answering some and objecting to others
- Minor sanctions
(2) Total Violation
- Not responding
- Major sanctions
Civil Procedure
How does a party seek to have sanctions imposed against another party?
Certify that she tried in good faith to get the info without court involvement
IF partial violation
(1) Seek order compelling party to produce plus order to pay costs
(2) If that fails seek major sanctions plus cost
(3) Possibly contempt
IF total violation
(1) Straight to major sanctions plus costs
Civil Procedure
What are ‘major sanctions’
(1) Establishment order (our facts are true)
(2) Strike pleadings (in re to violation)
(3) Disallow evidence (in re to violation)
(4) Dismiss case (bad faith required)
(5) Default judgment (bad faith required)
-Judge’s choice
Civil Procedure
When MAY a co-party (P or D) be joined?
(1) Arises from same T/O
AND
(2) Raises at least 1 common question
Civil Procedure
Who MUST be joined as a co-party?
A ‘Necessary and Indispensable’ party
-If this person cannot be joined, the case MUST dismiss
Civil Procedure
What are the 3 questions that must be asked regarding Necessary and Indispensable parties?
(1) Are they required?
(i) Complete relief cannot be had without absent party (A); OR
(ii) A’s interest may be harmed; OR
(iii) A claims an interest which subjects a party to multiple obligations
(2) Is joinder feasible?
(i) PJDX
(ii) SMJDX (diversity not disturbed)
(3) Can they be joined?
(i) Is there an alternative forum
(ii) what is the actual likelihood of prejudice
(iii) can the court avoid prejudice
*If not, they are ‘indispensable’ and case must be dismissed
Civil Procedure
What is impleader and when is it typically used?
(1) Defending party wants to add someone to the law suit
(2) Typically used for indemnity or contribution
(3) Right to implead w/in 10 days of answer
(4) Must serve process
(5) Must have SMJDX or Supplemental
Civil Procedure
May P assert a claim against a 3rd party D (impleader)?
YES
So long as the claim arose out of the same T/O
Civil Procedure
What are the 3 types of 3rd party joinder issues?
(1) Impleader
- D joins a party
(2) Intervention
- Party joins on his own
(3) Interpleader
- Quiet title to property force all to join
- Settle this once and for all
Civil Procedure
What are the 5 types of joinder?
(1) Counterclaim
(2) Cross Claim
(3) Impleader
(4) Intervention
(5) Interpleader
‘I’ new party
‘C’ existing party
Civil Procedure
Initial requirements for a class action?
(1) Numerosity
- Too may to join
(2) Commonality
- Common issues of law or fact
(3) Typicality
- Rep’s claim is typical
(4) Representative is adequate
- Rep will fairly and adequate represent
Civil Procedure
What are the 3 types of class actions?
(1) Prejudice
- Depleting common fund
(2) Damages
- Mass tort
(3) Injunction or declaratory
- Civil Rights
Civil Procedure
Class Action ‘Big Picture’
INITIAL REQUIREMENT
(1) Numerosity
(2) Commonality
(3) Typicality
(4) Adequate Rep
TYPE
(1) Prejudice
(2) Damages
(3) Injunction/declaratory
CERTIFICATION
NOTICE
OPT OUT (1) Damages type only
BOUND
SMJDX
Civil Procedure
Particular requirements of a ‘Damages Type’ class action?
(1) Common questions predominate
(2) Class action is superior method
(3) Notice
- may opt out
- bound if not opt out
- may have own attorney
(4) 2nd Notice
- Settlement or dismissal
- Input from class
- 2nd chance to opt out
