Civ Pro-Pretrial Procedures Flashcards
Complaint
Filed w/ ct, signed by clerk, served to other party; commences the action for Statute of Limitations purposes; must serve complaint w/in 90 days
1. “Short and plain” statement for Jx
2. Statement of facts
3. Demand for relief
When complaint must be pled with specificity: fraud, special damages
Answer
Can either admit or deny any allegation made in the complaint; whatever is not denied is admitted; must be served w/in 21 days of service of complaint
Affirmative defenses must be explicitly pled in the answer: e.g., contributory negligence, statute of frauds, statute of limitations, illegality or duress
Amending the pleadings
(1) Amendment as of right: you can amend ONCE as of right, as long as it’s w/in 21 days after service of the original pleading [No ct permission needed]
(2) Amendment by leave of ct: any subsequent amendment (or after 21 days) requires leave of court, but is generally liberally granted [standard: when justice so requires]
Relation-back
Sometimes the amended pleadings can relate back to the date of the original pleading
When:
Amending a pleading to change claim/defense will relate back if the claim/defense “arose out of the same conduct, transaction, or occurrence” of the original pleading
Amending a pleading to change a party will relate back if:
(1) arose out of same conduct, transaction, or occurrence
(2) w/in 90 days of filing the complaint, the new party received enough notice so that they would not be prejudiced
(3) if the new party knew or should’ve known that the action would be brought, but for a mistake in the party’s ID
Rule 11
Attorney signs and submit document to ct to the best of their “knowledge, information, and belief” that there is a basis for what they’re submitting
Key words:
Legal arguments are warranted by exiting law
Allegations have evidentiary support
Not being presented for improper purpose
Compulsory Counterclaim
A claim that (1) arises out of the same transaction or occurrence of the original claim, AND (2) the ct already has supplemental Jx (i.e., no need for new independent Jx)
Permissive Counterclaim
Claim NOT out of the same transaction or occurrence that needs its own independent/supplemental Jx
Permissive Joinder
Multiple P’s can join together if (1) their claims come from a single transaction/occurrence, and (2) a question of law or fact is common.
Compulsory Joinder
Party needs to be joined by/c it would be unfair to litigate w/o them
Necessary Party
Impairment of interest = OK to proceed
(1) “impairment of interest”: Complete relief could not be afforded w/o having the party joined in to the action b/c by leaving them out it would impair their interest, AND
(2) Jx issue: if joining them would destroy the jurisdictional requirements,
The case may still proceed
Indispensable Party
Prejudice = dismissal
(1) Prejudice: if not having the party join would prejudice them, AND
(2) Jx issue: if joining them would destroy the jurisdictional requirements,
The case must be dismissed
Joinder of Claims
OK so long as the new claim has SMJx
Class Action Certification Requirements
(1) Size: case must be so large that joining all the claims would be impractical
(2) Common Q: the Q of law or fact among all the P’s is common
(3) Typicality: the claim of the class representatives must be typical of the class
(4) Fair representation: the class representatives will fairly and adequately represent and protect the interests of the class
Class Action Types
(B)(1) - Impairment of interests of the class members
(B)(2) - Injunctive relief is sought
(B)(3) - Common Q (*most common/superior method)
Differences:
1. For (B)(1) and (B((2), members may NOT opt out of the class (whereas they can for (B)(3))
2. Notice to all the members of (B)(1) and (B)(2) actions is within the discretion of the ct, whereas in (B)(3) ALL the members have to receive notice
How to provide notice to class members
Mail for Individual notice is OK, for anyone whose contact information can be obtained by reasonable effort
Diversity Class Action
(1) it’s the citizenship of the class representative(s) that counts
(2) if one named member has claim > 75K OR the cumulative sum total of claims is 5 million+ = OK
Note: as long as the case is worth 5 million or more, it’ll be OK even if no single member has a claim over 75K
Miscellaneous Notes on Class Action
Certification of class action is within the discretion of the ct
If the ct does not certify, the members of the original case could still go on by themselves as a sub class
Denial of certification of class action may be appealed
Any settlement in a class action has to be approved by the ct, permitting reasonable attorney’s fees based on the size of the class, and a statement detailing any agreement must be supplied to the ct
Intervention
3rd party wishing to join a suit
Intervention as of right
Ct permission not needed b/c you have an interest in the property or transaction that is subject to the action AND it would impair or impede your ability to protect that interest if you weren’t involved
Permissive Intervention
Intervening party has a claim or defense that has a common question of law or fact to the suit; requires ct permission to intervene
Interpleader
1 party owes something to 2 or more people
Statutory Interpleader
(1) Nationwide service of process is allowed
(2) As long as any two claimants are diverse + $500 at stake = Jx is OK
(3) Person who owns the property starts the suit, puts the property or deposits the money w/ the ct, or posts a bond
Rule Interpleader
(1) No nationwide service of process allowed
(2) Requires complete diversity
(3) 75K Amount in Controversy requirement
(4) No requirement to deposit money/property w/ the ct
(Third-party) Impleader
Adding a third-party that owes all or part of a claim (e.g., contribution or indemnification)
Cross Claim
(1) A party is suing a co-party
(2) claim has to be based on the same transaction or occurrence of the original action
(3) must be asking for actual relief (e.g., damages)
Scope of Discovery
Information is discoverable if the matter is (1) not privileged, (2) relevant, and (3) proportional to the needs of the case
Work Product
Any material prepared by counsel for the purpose/in anticipation of trial
Generally immune from discovery b/c it’s privileged, unless:
(1) there is a substantial need for the material;
(2) cannot be obtained, without undue hardship, by other substantial equivalent means
Mental Impressions, Conclusions, and Legal Opinions/Theories
Absolute immunity
Discoverable Materials wrt Witnesses Generally
Names and locations of all people who could be called as witnesses is discoverable
A list of all documents/materials that they’re going to use in the case must be provided
Discoverable Materials wrt Testifying Expert Witnesses
A list identifying each expert, and the expert themselves must provide a report containing their opinions, the basis for their opinions, any data or exhibits that they’re going to use, and their compensation
Discoverable Materials wrt Expert Witnesses NOT Testifying
Expert information only discoverable if “exceptional circumstances” making it impractical to get the information from other means
(Continuing) Duty to Supplement Information
After making the initial disclosure, you have a duty to supplement if you learn that the initial disclosure is either incomplete or wrong, and you must do so in a timely manner
Ct intervention in discovery
Discovery is generally done btw the parties w/o any ct intervention
Except [see later cards on FRCP 37 discovery sanctions]
Methods of Discovery
- Deposition: written or oral; btw parties or party and non-party (via subpoena); each party is limited to 10 deposition; the same person cannot be deposed more than once w/o court’s permission
- Interrogatory: only to a party; written Q’s & answered in writing; each party entitled to 25 interrogatories
- Request for Admission: only to a party; request to admit certain truths, and once admitted, the fact is conclusively established
- Request to Produce Documents: only to a party; any document that is in the other party’s possession, control or custody can be requested
- Physical/Mental Exam: (1) when the condition (mental or physical) is in controversy, (2) needs ct order and (3) must show good cause
Discovery Sanctions/Orders
(1) Object to Request: information sought is NOT relevant
(2) Protective Order: stops discovery for embarrassment, harassment, undue burden
(3) Order to Compel: party not complying w/ discovery
(4) Sanctions (from lowest to highest gravity): fees and costs; establish certain facts; bar certain defenses; dismiss an action; hold a party in contempt
Information discovered are admissible at trial
Pretrial Conferences/Orders
- Conference of the Parties: Parties must meet to talk about the case, settlement, discovery issues; AND the parties must submit a discovery plan to the ct
- Scheduling Conference: the ct MUST hold a scheduling conference limiting the time for motions/discovery/etc.; AND ct must issue a scheduling order w/in 90 days of filing the complaint
- Final Pre-trial Conference: the ct MAY have a final pre-trial conference to schedule a meeting; but if it does, it MUST enter a pretrial order (which can only be modified to prevent manifest injustice)
Temporary Restraining Order (TRO)
Can be granted w/o notice to opposing party; std = prevent immediate irreparable harm; expires at the time stated in order (no longer than 14 days)
Preliminary Injunction
Notice (to opposing party) and a hearing required; std = prevent irreparable harm; can be longer than 14 days
