Civ Pro - Pre-Trial procedures Flashcards
Complaint
- 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
- Service within 90 days
Answer
○ Signed by lawyer
○ Whatever is not denied is admitted
Within 21 days of service of complaint
Affirmative defense - pled in answer
Contributory negligence, SOF, SOL, illegality, duress
Amend the pleading
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.”
Relate back
- 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
Rule 11
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
Counterclaim
D raises a claim back at P
○ Compulsory: same T/O; supplemental jurisdiction
○ Permissive: not same T/O; needs independent jurisdiction
Permissive joinder
Multiple Ps can join together if 1. same t/o and 2. common question of law of fact
Compulsory joinder
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.
Adding or changing parties/claims
counterclaim or joinder
Parties can join as many claims as they want as long as SMJ
Class actions - elements
- Numerosity: case so big that separate claims are impractical
- Commonality: common claim
- Typicality: claim is typical for the class
- 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
- Reasonable attorney’s fees based on size
Class actions - types
- 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)
Class actions - diversity
- Citizenship of the named reps
- One named member must have a claim of 75k+ OR
Exception: the sum is 5 million
Intervention of right
- interest in the property or transaction
- Interest impaired
- No court permission required
Permissive intervention
○ Claim/defense has common question of law or fact
- Court permission IS required
Interpleader
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
Impleader
Third party defendant is liable to D for part or all of the claim
Crossclaim
- Co-party
- Same t/o
- Actual damage
Discoverable if
Not privileged, relevant, and proportional to needs of case
discovery - Work-product
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
Discovery - Witness
○ Discoverable: Names and location and info they’re going to use
Discovery - Testifying expert
party must give other party:
○ Identity list
Expert report - basis for opinion, data, exhibits, compensation
discovery - Expert not testifying
discoverable only under exceptional circumstances - when impractical
Discovery methods
- Deposition: written or oral.
- Party (notice) or non-party (subpoena).
- Max 10
- Can’t depose more than once
- 1 day or 7 hours max
- Interrogatory
- Only to a party
- Written/answered in writing
- 25 max
- Request for admission: written request, conclusively established at trial (only to a party)
- Request to produce documents: documents in the other side’s possession, control, custody (only to a party)
- Physical or mental exam:
- Must be at issue
- Court order
- Good cause
- 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
Discovery - court orders
- Object to the request - info not relevant
- Protective order - stop discovery for embarrassment, harassment, undue burden
- Compel discovery - party not complying with discovery
- Get fees and costs (start here)
- Sanctions - dismiss or hold in contempt
Pre-trial conference
- Conference of the parties (meet and confer): MUST
1. parties meet to discuss case, settlement, discovery issues.
2. Parties MUST submit discovery plan - 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 - 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
Temporary restraining order
- Can be granted without notice to other party
- Immediate irreparable harm
- 14 days
Preliminary injunction
Notice and hearing required
Irreparable harm
