Civ Pro - Pre-Trial procedures

Question 1

Complaint

Answer 1

• Filed commences SOL
  
  • Service within 90 days
    1. Short and plain statement of jurisdiction
    2. Summary of the facts (not theory)
    3. Demand for relief
    fraud and special damages must be pled with specificity

Question 2

Answer

Answer 2

○ Signed by lawyer
○ Whatever is not denied is admitted
Within 21 days of service of complaint

Question 3

Affirmative defense - pled in answer

Answer 3

Contributory negligence, SOF, SOL, illegality, duress

Question 4

Amend the pleading

Answer 4

Amendment as of right: once within 21 days of service of pleading
After 21 days: Leave of court - court’s permission if “justice so requires.”

Question 5

Relate back

Answer 5

• Relate back - to date of og pleading for SOL purposes
  ○ Amending pleading (defenses/claims)
  § Allowed if: arises out of the same conduct, transaction, or occurrence
  ○ Amending to change party
  1. Same c/t/o
  2. Within 90 days of filing the party had notice
  Knew/should have known but for mistake of ID

Question 6

Rule 11

Answer 6

attorney signs to best of knowledge, information, and belief that there is a basis for the claim
- Warranted by existing law
- Evidentiary support
No improper purpose

Question 7

Counterclaim

Answer 7

D raises a claim back at P
○ Compulsory: same T/O; supplemental jurisdiction
○ Permissive: not same T/O; needs independent jurisdiction

Question 8

Permissive joinder

Answer 8

Multiple Ps can join together if 1. same t/o and 2. common question of law of fact

Question 9

Compulsory joinder

Answer 9

party needs to be joined or unfair
1. Necessary party if impairment of interest. If cannot join due to jurisdiction, case may still PROCEED
Indispensable party if not joining would prejudice them. If cannot join, case must be DISMISSED.

Question 10

Adding or changing parties/claims

Answer 10

counterclaim or joinder

Parties can join as many claims as they want as long as SMJ

Question 11

Class actions - elements

Answer 11

1. Numerosity: case so big that separate claims are impractical
2. Commonality: common claim
3. Typicality: claim is typical for the class
4. Rep adequate: reps will fairly and adequately represent the class
   • Up to court to certify class action
   • Denial of certification may be appealed
   • Settlement must be approved by court
     
     • Reasonable attorney’s fees based on size
       Statement detailing the agreement has to be supplied

Question 12

Class actions - types

Answer 12

1. B1: impairment of the interests of the class members
   2. B2: injunctive relief
   3. B3: common question among members (superior method. Generally torts)
   - B1 and B2 members may NOT opt out, B3 members may opt out
   B1 and B2 notice Not required, in discretion of court; B3 notice required to ALL members (mail ok)

Question 13

Class actions - diversity

Answer 13

• Citizenship of the named reps
• One named member must have a claim of 75k+ OR
  Exception: the sum is 5 million

Question 14

Intervention of right

Answer 14

1. interest in the property or transaction
2. Interest impaired
3. No court permission required

Question 15

Permissive intervention

Answer 15

○ Claim/defense has common question of law or fact
- Court permission IS required

Question 16

Interpleader

Answer 16

1 party owes something to 2 or more people, so having them decide who the rightful owner is

1. Statutory:
	1. Nationwide service of process allowed
	2. Any 2 claimants can be diverse
	3. Minimum $500 at stake
	4. Person that owns the property starts the suit, puts the property/deposits money with the court or posts a bond
2. Rule
	1. Complete diversity between claimant and ALL opponents
	2. NO nationwide service
	3. 75k No requirement to deposit money to court

Question 17

Impleader

Answer 17

Third party defendant is liable to D for part or all of the claim

Question 18

Crossclaim

Answer 18

1. Co-party
2. Same t/o
3. Actual damage

Question 19

Discoverable if

Answer 19

Not privileged, relevant, and proportional to needs of case

Question 20

discovery - Work-product

Answer 20

lawyer’s work prepared in anticipation of trial is privileged
- Exception: substantial need and cannot obtain without undue hardship
- Absolute immunity for mental impression, conclusions, and legal opinions/theories

Question 21

Discovery - Witness

Answer 21

○ Discoverable: Names and location and info they’re going to use

Question 22

Discovery - Testifying expert

Answer 22

party must give other party:
○ Identity list
Expert report - basis for opinion, data, exhibits, compensation

Question 23

discovery - Expert not testifying

Answer 23

discoverable only under exceptional circumstances - when impractical

Question 24

Discovery methods

Answer 24

1. Deposition: written or oral.
   
   1. Party (notice) or non-party (subpoena).
   2. Max 10
   3. Can’t depose more than once
   4. 1 day or 7 hours max
2. Interrogatory
   
   1. Only to a party
   2. Written/answered in writing
      
      3. 25 max
3. Request for admission: written request, conclusively established at trial (only to a party)
4. Request to produce documents: documents in the other side’s possession, control, custody (only to a party)
5. Physical or mental exam:
   
   1. Must be at issue
   2. Court order
      
      3. Good cause
6. court orders

All can be used at trial and to impeach at trial

- Duty to supplement when previous info is incomplete or wrong. Must be timely.  No need for court intervention

Question 25

Discovery - court orders

Answer 25

1. Object to the request - info not relevant
2. Protective order - stop discovery for embarrassment, harassment, undue burden
3. Compel discovery - party not complying with discovery
4. Get fees and costs (start here)
5. Sanctions - dismiss or hold in contempt

Question 26

Pre-trial conference

Answer 26

1. Conference of the parties (meet and confer): MUST
   1. parties meet to discuss case, settlement, discovery issues.
   2. Parties MUST submit discovery plan
2. Scheduling conference (how litigation proceeds up to trial): MUST
   1. Limiting the time for motions, discovery, etc.
   2. Must issue scheduling order within 90 days of filing complaint
3. Final pre-trial conference (roadmap of trial): MAY
   1. Expedite trial, push settlement
   2. IF held, court MUST enter pre-trial order
   ONLY modified to prevent manifest injustice

Question 27

Temporary restraining order

Answer 27

• Can be granted without notice to other party
• Immediate irreparable harm
• 14 days

Question 28

Preliminary injunction

Answer 28

Notice and hearing required

Irreparable harm