Civil Procedure Flashcards
In what manner should the FRCP be construed and administered?
They should be construed, administered, and employed by the courts and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding. FRCP 1.
Under what circumstances can a court extend a deadline by which a task must be completed?
When an act may or must be done within a specified time, the court may, for good cause, extend the time:
(A) with or without motion or notice if the court acts, or if a request is made, before the original time or its extension expires; or
(B) on motion made after the time has expired if the party failed to act because of excusable neglect.
FRCP 6.
How must a party make a request for a court order?
Through a motion. FRCP 7.
When must a party file its corporate disclosure statement?
with its first appearance, pleading, petition, motion, response, or other request addressed to the court. FRCP 7.1
Is any specific form required for pleadings?
No. Each allegation must be simple, direct, and concise. No specific form is required. FRCP 8.
For a claim alleging fraud or mistake, what must a party plead?
A party must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person’s mind may be alleged generally. FRCP 9.
Does a pleading need to be verified by a party?
No (unless the court orders otherwise). In general, a pleading, motion, or other paper only must be signed by one attorney of record for the party. FRCP 11.
As it relates to motions and pleadings, for what reasons can a court impose sanctions upon a party upon request?
- it is being presented for an improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;
- the claims, defenses, and other legal contentions are not warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;
- the factual contentions have no evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and
- the denials of factual contentions are not warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.
FRCP 11
If a party files a motion for sanctions, how can the other party try to correct the alleged error or violation?
If the challenged paper, claim, defense, contention, or denial is withdrawn or appropriately corrected within 21 days after service or within another time the court sets. FRCP 11.
Can the court raise potentially sanctionable conduct on its own?
Yes - the court, on its own, may issue an order directing a party to show cause as to why its conduct should not be sanctioned under Rule 11. FRCP 11.
When must a defendant file a responsive pleading to a complaint?
Within 21 days after being served with the summons and complaint; or, if the defendant waived service, within 60 days after the request for a waiver was sent (90 days for defendant outside US). FRCP 12.
What’s the deadline for serving an answer to a crossclaim or counterclaim?
21 days after being served with the pleading that contains the counterclaim or crossclaim. FRCP 12.
What defenses can a party raise by motion under Rule 12?
(1) lack of subject-matter jurisdiction;
(2) lack of personal jurisdiction;
(3) improper venue;
(4) insufficient process;
(5) insufficient service of process;
(6) failure to state a claim upon which relief can be granted; and
(7) failure to join a party under Rule 19.
FRCP 12.
When can a party file a motion for judgment on the pleadings?
After the pleadings are closed—but early enough not to delay trial—a party may move for judgment on the pleadings. FRCP 12.
If the court determines at any time throughout the case that it lacks subject matter jurisdiction, what must it do?
Dismiss the action. FRCP 12.
When can a party amend a pleading?
A party may amend its pleading once as a matter of course no later than:
(A) 21 days after serving it, or
(B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.
(2) Other Amendments. In all other cases, a party may amend its pleading only with the opposing party’s written consent or the court’s leave. The court should freely give leave when justice so requires.
FRCP 15.
What happens if a party objects at trial that the evidence is not within the scope of the issues raised in the pleadings?
the court may permit the pleadings to be amended. The court should freely permit an amendment when doing so will aid in presenting the merits and the objecting party fails to satisfy the court that the evidence would prejudice that party’s action or defense on the merits. The court may grant a continuance to enable the objecting party to meet the evidence.
FRCP 15.
In what circumstances can plaintiffs join in a single action?
Persons may join in one action as plaintiffs if:
(A) they assert any right to relief jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and
(B) any question of law or fact common to all plaintiffs will arise in the action.
FRCP 20
In what circumstances can defendants be joined in one action as defendants?
Persons…may be joined in one action as defendants if:
(A) any right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and
(B) any question of law or fact common to all defendants will arise in the action.
FRCP 20
When can a court add or drop a party or sever claims against a party?
On motion or on its own, the court may at any time, on just terms, add or drop a party. The court may also sever any claim against a party. FRCP 21.
When must a party make its initial disclosures under Rule 26?
At or within 14 days after the parties’ Rule 26(f) conference unless a different time is set by stipulation or court order. FRCP 26(C).
What’s the scope of discovery under the FRCP?
Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case. FRCP 26(b).
What factors are considered in evaluating if a discovery request is proportional to the needs of the case?
- the importance of the issues at stake in the action;
- the amount in controversy;
- the parties’ relative access to relevant information;
- the parties’ resources;
- the importance of discovery in resolving the issues; and
- whether the burden of expense of the proposed discovery outweighs its likely benefit.
FRCP 26(b)
Does information have to be admissible to be discoverable?
No. FRCP 26(b)
What’s the work product rule set forth in Rule 26?
Ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party’s attorney, consultant, surety, indemnitor, insurer, or agent). FRCP 26(b)(3).
What are the exceptions to the work product rule set forth in Rule 26?
But subject to Rule 26(b)(4), those materials may be discovered if:
(i) they are otherwise discoverable under Rule 26(b)(1); and
(ii) the party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.
FRCP 26(b)(3)
If the court orders the production of materials that normally would be protected by the work product rule, what must always be protected from disclosure?
If the court orders discovery of those materials, it must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party’s attorney or other representative concerning the litigation. FRCP 26(b)(3)(B)
Under the FRCP, can a party depose an expert witness?
Yes - see FRCP 26(b)(4) - “A party may depose any person who has been identified as an expert whose opinions may be presented at trial.”
Does a party have to disclose an expert witness’s draft reports?
Generally, no. The work product rule set forth in FRCP 26 protects drafts of expert reports, regardless of the form in which the draft is recorded. FRCP 26(b)(4).
Are communications between an attorney and his/her expert witness discoverable?
Generally, no.
Communications between the party’s attorney and an expert witness are generally protected by the work product rule, regardless of the form of the communications. FRCP 26(3)(C).
In what circumstances can the opposing party obtain discovery of communications between an attorney and his/her expert witness?
Communications between an attorney and his/her expert witness can be discovered if they:
(i) relate to compensation for the expert’s study or testimony;
(ii) identify facts or data that the party’s attorney provided and that the expert considered in forming the opinions to be expressed; or
(iii) identify assumptions that the party’s attorney provided and that the expert relied on in forming the opinions to be expressed.
FRCP 26(b)(3)(C)
Can a party obtain discovery of facts and/or opinions held by an opposing party’s expert witness if the expert witness has been retained or specially employed by the opposing party in anticipation of litigation or to prepare for trial but who is not expected to be called as a witness at trial?
Generally, no. FRCP(b)(4)(D)
In what limited circumstances can a party obtain discovery of facts and/or opinions held by an opposing party’s expert witness who is retained in anticipation of litigation or to prepare for trial but who is not expected to be called as a witness at trial?
A party may do so only:
(i) as provided in Rule 35(b); or
(ii) on showing exceptional circumstances under which it is impracticable for the party to obtain facts or opinions on the same subject by other means.
FRCP 26(b)(3)(D)
In general, what’s the earliest time that a party can seek discovery under the FRCP?
A party may not seek discovery from any source before the parties have conferred as required by Rule 26(f), except in a proceeding exempted from initial disclosure under Rule 26(a)(1)(B), or when authorized by these rules, by stipulation, or by court order. FRCP 26(d)
Does a party have a duty to supplement its initial disclosure and/or discovery responses?
Yes - A party who has made a disclosure under Rule 26(a)—or who has responded to an interrogatory, request for production, or request for admission—must supplement or correct its disclosure or response:
(A) in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing; or
(B) as ordered by the court.
FRCP 26(e)
Is there a specified order for discovery?
No - methods of discovery may be used in any sequence. FRCP 26(d)
Are the parties permitted to modify the discovery rules?
Yes - procedures governing or limiting discovery be modified—but a stipulation extending the time for any form of discovery must have court approval if it would interfere with the time set for completing discovery, for hearing a motion, or for trial. FRCP 29.
How many depositions is a party limited to before they must obtain leave of court to take additional depositions?
10 depositions. FRCP 30.
Can a party depose someone more than once in a case w/out leave of court?
No. Leave of court required if the deponent has already been deposed in the case. FRCP 30.
Once an organization, corporation, etc. receives a deposition notice, what must it do in response?
The named organization must designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf; and it may set out the matters on which each person designated will testify. Before or promptly after the notice or subpoena is served, the serving party and the organization must confer in good faith about the matters for examination. FRCP 30.
In a deposition notice directed to an organization, corporation, etc., does the moving party have to explain which topics will be covered during the deposition?
Yes - The deposition notice “must describe with reasonable particularity the matters for examination.” FRCP 30.
How much notice and to whom must a party provide before taking a deposition?
“Reasonable” notice must be provided to every other party. FRCP 30.
