Civil Procedure Flashcards
1
Q
Define Personal Jurisdiction
A
The ability of a court to exercise power over a PERSON or item of property
2
Q
Personal Jurisdiction Two-Part Test
A
A court has personal jurisdiction if:
1) It satisfies a state statute, AND
2) It satisfies the constitution
3
Q
Personal Jurisdiction: Set of Factors to Determine Constitutional Analysis:
A
1) Contact;
2) Relatedness; and
3) Fairness
4
Q
PJ: Constitutional Analysis Factors - Contact Definition + (Factors + Examples)
A
There MUST be a relevant contact between D and the forum STATE
Factors: 1) Purposeful Availment (D’s voluntary act to reach out to the forum)
2) Foreseeability (that D could get sued in this forum)
Examples: 1) Purposeful Availment: marketing a product in the forum, using the roads in the forum, EVEN BY CAUSING AN EFFECT IN THE FORUM (indirect contact)
5
Q
PJ: Constitutional Analysis Factors - Relatedness Defined
A
Relatedness refers to P’s claim ARISING FROM D’s contact with the forum
6
Q
PJ: Specific v. General
A
Specific: Where the claim arises from D’s contact with the forum
General: Where the D is domiciled at the forum
7
Q
PJ: Domiciliary of Corporations
A
1) Where the corporation is incorporated, AND
2) Where it has its principal place of business (PPB)
8
Q
PJ: Constitutional Analysis Factors - Fairness + When to Use
A
Whether jurisdiction would be FAIR under the circumstances
Use: Only in SPECIFIC PERSONAL JURISDICTION claims
9
Q
PJ: Constitutional Analysis Factors - Fairness Factors
A
1) Burden on D and witnesses (look at a SEVERE disadvantage in the litigation)
2) State’s interest (ALWAYS TRUE if P is a citizen)
3) Plaintiff’s interest
10
Q
Notice/Service of Process: Process Documents
A
1) A summons (formal court notice of suit and time for response); and
2) Complaint
11
Q
Notice/Service of Process: Who Can Serve Process? + Timeline
A
Any NON-PARTY at least 18 years old
Timeline: No more than 90 DAYS after filing the complaint
12
Q
Notice/Service of Process: Serving Process on an Individual in the US Options
A
1) Personal service (can be anywhere)
2) Substituted service (must be (a) D’s usual abode, and (b) serves someone of suitable AGE AND DISCRETION who also RESIDES THERE)
3) D’s Agent (if receiving service is in scope of agency)
4) State law methods ((a) where federal court sits, OR (b) where service is made)
13
Q
Notice/Service of Process: Serving Process on a Business or Organization
A
Deliver a copy of the summons and complaint to an Officer who is a managing or general agent of the company (CEO, Treasurer, Secretary, etc.)
14
Q
Notice/Service of Process: Serving Process on a Minor or Incompetent Person
A
Use any method permitted by state law WHERE THE SERVICE IS TO BE MADE
15
Q
Notice/Service of Process: Serving Process in a Foreign Country Options
A
1) Allowed by international agreement,
2) Method allowed by foreign country’s law,
3) Method directed by foreign official
4) Personal service in foreign country, OR
5) Mail sent by AMERICA COURT CLERK, requiring signed receipt
16
Q
Notice/Service of Process: Waiver of Formal Service of Process - Plaintiff’s Actions + D Penalty For Failing To Return Waiver
A
P must mail D a notice and request to waive formal service, including a copy of the complaint and two copies of a waiver form, with a prepared means of returning the form
Penalty: If D fails to return waiver form without good cause, he MUST PAY THE COST OF SERVICE
17
Q
Notice/Service of Process: Proving Service of Process + Civilian Servers
A
Unless service is waived, the process server files a report with the court detailing how service was made
Civilian: If the server was a civilian, the report is by affidavit
18
Q
Notice/Service of Process: Immunity
A
If D is present in a state to APPEAR AS A PARTY, WITNESS, OR ATTORNEY in a different civil case, D is IMMUNE to service of process
19
Q
Define Subject Matter Jurisdiction
A
The court’s power over the case (not the parties)
20
Q
SMJ: State Courts v. Federal Courts
A
State Courts: Have “general” SMJ to hear any case
Federal Courts: Can only hear 1) diversity of citizenship claims, or 2) federal question claims
21
Q
SMJ: Diversity of Citizenship Requirements
A
The case is either:
1) Between citizens of different U.S. states AND the amount in controversy exceeds $75,000, OR
2) Between a citizen of a U.S. state and a citizen of a foreign country AND amount in controversy exceeds $75,000
22
Q
SMJ: Diversity of Citizenship - Complete Diversity Rule + Remember Green Card
A
There IS NO DIVERSITY if ANY P is a citizen of the same state as ANY D (or both aliens)
Remember: A so-called “green card” alien, meaning permanent residence in US, IS NOT CONSIDERED A CITIZEN, but special rule against federal courts hearing cases of a citizen of one state suing a green card alien of the same state
23
Q
SMJ: Diversity of Citizenship - How to Establish Domicile + Remember Intent Examples + Remember Time of Filing
A
You establish domicile by 1) presence in the new place, AND 2) intent to make that your home indefinitely
Remember (1): Taking a job, buying a house, registering to vote are all indicative of intent to domicile
Remember (2): The test for diversity takes place WHEN THE CASE IS FILED, wherever the parties move after is irrelevant
24
Q
SMJ: Diversity of Citizenship - Citizenship of a Corporation + Remember PPB Test
A
1) EVERY US state or country where incorporate, AND
2) The ONE US state or country of its PPB
Remember: PPB is where the manager direct, coordinate, and control corporate activities, otherwise known as the corporation’s “nerve center”
25
SMJ: Diversity of Citizenship - Citizenship of Unincorporated Association
The citizenship of ALL of its members
26
SMJ: Diversity of Citizenship - Decedents, Minors, or Incompetents
Such persons must sue or be sued through a representative, BUT, the representative's citizenship is IRRELEVANT. Use the citizenship of the decedent, minor, or incompetent.
27
SMJ: Amount in Controversy - What Counts Towards Amount in Controversy?
A court will ONLY look at the claim itself, not litigation costs or interest, and claim must be in GOOD FAITH unless CLEAR TO A LEGAL CERTAINTY
28
SMJ: Amount in Controversy - Aggregation + Exception
Aggregation means adding two or more claims to meet the amount in controversy requirement, which is okay because we aggregate claims of ANY ONE P against ANY ONE D
Exception: Joint claims are valued by the total value of the claim, therefore amount of tortfeasors are irrelevant
29
SMJ: Amount in Controversy - Equitable Relief
Two test for equitable relief cases:
1) P's viewpoint - does the claim amount to more than $75k of the plaintiff's property?
2) D's viewpoint - does the claim cost the D more than $75k
30
SMJ: Cases Excluded from Federal Courts Hearing Them
1) Divorce, 2) Child custody, 3) Alimony, or 4) Probate an estate
31
SMJ: Federal Question Cases + Well Pleaded Complaint Rule + Tip
P's claim in complaint ARISES UNDER FEDERAL LAW, citizenship and amount in controversy are IRRELEVANT
Rule: The P's claim ITSELF must "arise under" federal law, it is not enough that some federal issue is raised by the complaint
Tip: Ask if P is ENFORCING A FEDERAL RIGHT. If Yes, federal court has jurisdiction. If no, case cannot go to federal court
32
SMJ: Removal Jurisdiction Definition
Removal takes the case FROM state trial court to FEDERAL trial court, if it doesn't belong there the federal court remands it back to state court
33
SMJ: Removal Jurisdiction - When to Join, Who Must Join, and What Cases Can be Removed (and Exceptions) + Remember Plaintiff Removal Rule
When: D must remove NO LATER THAN 30 DAYS of SERVICE of the first paper that shows the case is removable
Who: ALL defendants who have been served with process MUST join removal (BUT 30 days starts anew when service on last D served)
What: Any case that meets diversity of citizenship (except if any D is a citizen of the forum OR more than one year after case was filed in state court) OR federal question
Rule: A P CAN NEVER EVER EVER REMOVE, even if D files counterclaim
34
SMJ - Supplemental Jurisdiction Definition
A court will invoke supplemental jurisdiction works to get additional claims into federal court -once a case is already there - that would otherwise not meet diversity of citizenship of federal question requirements
35
SMJ - Supplemental Jurisdiction Analysis + Remember T/O + Remember Limitation Exception + Remember Discretionary Factors
1) Test: Does the claim we want to get into federal court SHARE A COMMON NUCLEUS OF OPERATIVE FACT with the claim that invoked federal SMJ
2) Limitation: Claims by Ps WILL NOT invoke supplemental jurisdiction (ONLY APPLIES IN DIVERSITY CASES) (Different from aggregation)
Remember: The test is ALWAYS MET if the claim arises from the same transaction or occurrence as the underlying test
Limitation Exception: When there are multiple P, and the claim by one of them DOES NOT MEET the amount in controversy requirement
Remember: Even if we meet the requirements for supplemental jurisdiction, the court has discretion to decline it (e.g. if federal claim was dismissed early in the case)
36
What Law Applies in Federal Court? - Erie Doctrine Approach + Remember Clear Substantive Issues
1) Ask: Is there some federal law or FRCP on point that directly conflicts with state law? (Yes - apply Fed Law, supremacy clause)
2) If no fed law on point, court MUST APPLY STATE LAW IF issue to be decided is SUBSTANTIVE (clear substantive issues: (a) elements of claim or defense, **(b) SOL, (c) rules for tolling SOL, **(d) COL rules, AND (e) standard for whether to grant a new trial b/c jury's damages determination is excessive)
**Most commonly tested
3) If no federal directive and not an area listed above, then court MUST determine whether the issue is substantive
Remember: Use these factors to determine if an issue is substantive - outcome determinative, balance of interests of federal or state system rules, avoid forum shopping (will ignoring state law cause parties to flock to federal court)
37
Federal Common Law v. State Common Law
State Common Law: General common law of torts, contracts, and property, federal courts must apply state substantive law in diversity cases on these subjects
Federal Common Law: Admiralty, international relations, disputes between states, suing a federal officer, ****preclusive effect of a federal judgement
38
Venue: General Rule and Plaintiff's Choices + Remember Non-US Resident + Special Rule
Venue determines exactly WHICH federal court the case can be heard
P's Choices: 1) Any district where ALL DEFENDANTS reside, OR
2) where a SUBSTANTIAL PART of the claim arose
Remember: If D does not reside in the U.S., venue is OKAY ANYWHERE, but if another D lives in US, venue must be proper there
Special Rule: If ALL Ds reside in different districts of the SAME STATE, P can lay venue in the district where ANY D RESIDES
39
Venue: Where Do Defendants Reside? - Humans v. Business
Humans: Where they are domiciled
Business: Any district where they are subject to PJ (incorporated and PPB)
40
Venue: Transfer of Venue Rule + Exception
Transfer goes from one trial court to another trial court in the same judicial system - BUT, the transferee (new court) must be a proper venue and have PJ over D regardless of waiver
Exception: The court can transfer to any district if EVERY PARTY CONSENTS and court FINDS CAUSE for transfer
41
Venue: Can the original district transfer if it has proper venue? How? + Remember Burden + Remember Factors
If the original district has PROPER VENUE, they may transfer based on CONVENIENCE of parties and witnesses and the INTEREST OF JUSTICE
Remember: Public Factors - what law applies, burden on community with jury service, etc.
**Private factors - where the evidence and witnesses are
Remember: The burden is on person seeking transfer (usually D)
42
Venue: Forums Selection Clause (FSC) Effect + Remember Transferring From Federal to State (Or Vice Versa)
After transfer of case, the transferee (new court) will apply COL rules of the transferor UNLESS FSC decides
Remember: You CANNOT TRANSFER to a different judicial system (state to federal or federal to state)
43
Venue: Transfer Statute for Improper Venue + Remember COL Rules
If the original venue is IMPROPER, the court may transfer in the interest of justice OR dismiss
Remember: Transferee applies COL rules of the STATE IN WHICH IT SITS, NOT transferor unlike proper transfer statute
44
Venue: Forum Non Conveniens + Remember Adequacy of Other Court
Like transfer, there is another court that is the center of gravity, BUT COURT DOES NOT TRANSFER, rather it stays the case because the more convenient court is in a different judicial system (e.g. foreign country or state to federal, vice versa)
Remember: The other court MUST be available and adequate, meaning the P can get ANY remedy, if no remedies available court is inadequate
45
Pleadings: Complaint Requirements + Remember Standard for Claim
1) Statement on the grounds of SMJ
2) Short and plain statement of the claim,
3) Relief sought
Remember: P must plead facts supporting a PLAUSIBLE CLAIM (Twombly & Iqbal)
46
Pleadings: Matters that Need Particularity or Specificity in the Complaint
1) Fraud, 2) Mistake, and 3) Special Damages - merely pleading facts showing a plausible claim is NOT ENOUGH for these claims
47
Pleadings: Defendant's Response Options + Remember Timing Requirement
Rule 12 requires D respond to a complaint in one of two ways:
1) Motion, OR
2) Answer
Remember: D must do one of these two things NO LATER than 21 DAYS after being served with process, UNLESS D waives service, then D has 60 DAYS
48
Pleadings: Defendant's Motions in Response - Issues of Form
```
Rule 12(e) motion for more DEFINITE STATEMENT (for vague or ambiguous complaints); or
Rule 12(f) motion to STRIKE (asks court to remove immaterial or redundant things from pleadings
```
49
Pleadings: Defendant's Response - Rule 12(b) Defenses + Remember Waivable Defenses and Meaning of This
(1) lack of SMJ;
(2) lack of PJ;
(3) improper venue;
(4) improper process (problem w/ papers);
(5) improper service of process;
(6) failure to state a claim;
(7) failure to join indispensable party
Remember: (2) PJ, (3) Venue, (4) process, and (5) service of process ARE WAIVABLE, meaning they must be put in the FIRST RULE 12 RESPONSE or else they are WAIVED
50
Pleadings: How Late Can D Raise 12(b)(6) or 12(b)(7)? + Remember 12(b)(1)
Any time before end of trial
Remember: Can be raised ANYTIME, even on appeal
51
Pleadings: If Rule 12 Denied, What Happens Next?
After receiving a notice of denial for a Rule 12 Motion, Defendant MUST ANSWER WITHIN 14 DAYS
52
Pleadings: Defendant's Answer - Two Requirements
1) Respond to each allegation of complaint by admitting, denying, or stating you have lack of sufficient information to admit or deny; and
2) Raise affirmative defense
53
Pleadings: Amended Pleadings - Right to Amend (P and D)
P has a right to amend her complaint ONCE, no later than 21 DAYS after D serves her FIRST RULE 12 RESPONSE
D has a right to amend her answer ONCE, no later than 21 days of serving her answer
54
Pleadings: Amended Pleadings - If There is No Right to Amend + Remember Factors Courts Look To
Must seek leave of court, it will be granted if "justice so requires"
Remember: Delay, prejudice, and futility of amendment
55
Pleadings: Amended Pleadings - Variance + Remember Effect of D's Objection (Or Lack Thereof)
Where the evidence AT TRIAL does not match what was pleaded
Remember: If D objects, evidence is inadmissible. If D does not object, P may amend at or after trial
56
Pleadings: Amended Pleadings - Ways to Raise After SOL Has Run ("Relation Back") + Relation Back Rules
1) To join a claim not originally asserted
Rule: Amended pleadings "relate back" if they concern the same conduct, transaction, or occurrence as the original pleading
2) To change a defendant after the statute has run
Rule: Amendment will relate back if:
i) the amendment concerns the same conduct, transaction, or occurrence as the original,
ii) the new defendant KNEW of this case within 90 days of filing, AND
(iii) D also knew or should have known that, but for a mistake, she would have been named originally
57
Pleadings: Supplemental Pleadings Defined
Things set forth AFTER the pleadings were filed
58
Pleadings: Rule 11 + Remember Who Sanctions Apply To + Remember Purpose
When lawyer signs documents, she certifies that to the best of her knowledge and belief AFTER REASONABLE INQUIRY:
(i) the paper is not for an improper purpose, and
(ii) the legal contentions are warranted by law, and
(iii) the factual contentions and denials have evidentiary support
Remember: Sanctions are to the party, lawyer, or firm responsible for the violation
Remember: Purpose is DETERRENCE, not punishment
59
Pleadings: Rule 11 Safe Harbor + Remember Sua Sponte
If the other party violates Rule 11, you may not file a motion for sanctions UNTIL AFTER the violating party has 21 days to amend
Remember: There is no safe harbor when the court raises this
60
Joinder Defined
Defines the scope of the case by determining how many parties and claims can be joined in one case
61
Joinder: Claim by Plaintiff
P may join ANY additional claim she likes - even if the additional claim is unrelated to the original claim
62
Joinder: Proper Plaintiffs and Defendants Test
As many plaintiffs and defendants can be joined in a suit so long as:
1) the claims arise from the same transaction or occurrence, and
2) they raise at least one common question
63
Joinder: Necessary and Indispensable Parties Tests
An absentee (A) who meets any of these tests is considered "necessary" in the case:
1) Without A, the court cannot award complete relief among existing parties (worried about multiple suits); or
* **2) A's interest may be harmed if he's not joined; or
3) A claims an interest that subjects a party (usually D) to risk of multiple obligations
64
Joinder: When Can an Absentee be Joined?
It is feasible if: 1) there is PJ over you, and 2) joining you will not mess up diversity jurisdiction
65
Joinder: What Happens if Absentee Cannot be Joined? + Remember Courts Factors
Court may 1) proceed without absentee, or 2) dismiss the entire case
Remember: Courts will look at alternative forum available, likelihood of harm, or if the court can shape the relief to avoid harm
66
Joinder: Claim Joinder by Defendant - Counterclaim + Remember Plaintiff's Response
A claim against an OPPOSING PARTY as a part of D's answer
Remember: Plaintiff must respond under Rule 12 w/in 21 days of service
67
Joinder: Claim Joinder by Defendant - Compulsory Counterclaim v. Permissive Counterclaim
Compulsory: Arises from the same T/O as P's claim, and MUST RAISE THIS IN THE CURRENT CASE, otherwise you lose it
Permissive: Does NOT arise from same T/O as P's claim, and D is NOT REQUIRED to file it in this case
68
Joinder: Claim Joinder by Defendant - Crossclaim
A claim against a CO-PARTY, and MUST arise from same T/O as the underlying action, BUT NEVER COMPULSORY
69
Joinder: Impleader + Remember Popular Claims with Impleader + Tip About "I" in Joinder Cases
A defending party (usually D) is bringing in SOMEONE NEW to the lawsuit to SHIFT THE LIABILITY TO the third-party D
Remember: The cases that usually bring in impleader are 1) Indemnity (complete shift of liability), and 2) Contribution (pro-rata shift of contribution)
Tip: For joinder, the cases that bring in THIRD-PARTIES all start with "i" (e.g., impleader, intervention)
70
Joinder: Intervention
A non-party rings HIMSELF into the case, either as P or D, so long as it has come in TIMELY
71
Joinder: Intervention - Types of Intervention
1) Intervention or right: A's interest may be harmed if she is not joined and is not adequately represented now (same test for necessary parties), and
2) Permissive intervention: A's claim or defense and the pending case have AT LEAST ONE common question (discretion w/ court)
72
Joinder: Class Action Requirements
A representative may sue on behalf of a group if:
1) Numerosity - too many class members for practicable joinder (no magic number);
2) Commonality - SOME issue in common to all class members, resolution will solve everyone's answers;
3) Typicality - representative's claims are typical of those of the class; AND
4) Representative adequate - class representative will fairly and adequately represent the class
73
Joinder: Class Action Types
You MUST SATISFY one of these three:
1) Prejudice - class treatment necessary to avoid harm either to class members of to the non-class party (rare)
2) Injunction or Declaratory Judgement - when defendant treats class members alike, generally no damages (e.g. employment discrimination); or
3) Damages - (i) common question predominate over individual questions, AND (ii) class action is the superior method for handling the dispute (e.g. mass tort)
74
Joinder: Class Action - A Case is Not a Class Action Until What?
A court certifies a class action, defining the class, defining the claims, and appointing class council
75
Joinder: Class Action - Type 3 Notice Requirement
The court MUST NOTIFY class members they are in a class, individually notifying each member (usually through mail) that: they can opt out, they'll be bound if they don't, and they can enter a separate appearance through counsel
76
Joinder: Class Action - Who is Bound by Judgement in a Certified Class?
All class members, EXCEPT those who opted out of a type 3
77
Joinder: Class Action - Can Parties Settle?
Yes, but ONLY WITH COURT APPROVAL
78
Joinder: Class Action - Rules for SMJ
1) A class action could invoke FQ if rights asserted under federal law,
2) Diversity jurisdiction is invoked by: (i) Representatives citizenship, and (ii) amount in controversy claimed by representative
79
Discovery: Initial Required Disclosures + Remember Broadness + Remember Failing to Disclose Evidence
1) IDENTITIES OF PERSONS who have discoverable info that you (the disclosing party) may use TO SUPPORT your claims or defenses (name, phone, address, and topics);
2) DOCUMENTS and things you may use TO SUPPORT your claims or defenses (may produce copies, includes intangible things, BUT ONLY THINGS IN YOUR CONTROL);
3) COMPUTATION OF RELIEF and documents/electronically supported documents showing it; AND
4) Insurance coverage (D must disclose all or part of the judgement in the case, EVEN THOUGH it will likely not be admissible in court)
Remember: Discovery is much broader than admissibility.
Remember: If you fail to disclose something you were required to disclose, you CANNOT USE that material in the case, UNLESS failure to disclose was substantially justified or harmless
80
Discovery: Required Disclosures About Expert Witnesses + Remember Consulting Expert Difference
Later in the case, at a time directed by the court, each party MUST IDENTIFY 1) EXPERT WITNESSES "who may be used at trial" and 2) a written report by them
Remember: This does not include "consulting experts" who are experts assisting in the case
81
Discovery: When are discovery materials requested? + Minor Exception
Here, one party REQUESTS information from other people AFTER the 26(f) conference
Minor Exception: You can serve REQUESTS TO PRODUCE earlier - more than 21 days after service of process
82
Discovery: Discovery Tools - Depositions + Remember "Duces Tecum" + Remember Max Travel Distance for Non-parties + Remember Limits on Deposition
A live testimony in response to questions by counsel, usually oral but can be written, testified under oath
Remember: Requires the deponent to bring documents with them
Remember: The furthest a non-party may travel is 100 miles from WHERE SHE RESIDES or IS EMPLOYED
Remember: You cannot: 1) take MORE THAN 10 depositions, 2) depose the SAME PERSON TWICE without court approval, or 3) exceed one day of seven hours
83
Discovery: Discovery Tools - Interrogatories + Remember Response Time + Remember "I Don't Know" Answers + Remember Maximum Number of Interrogatories Per Party
Written questions to be answered in writing under oath sent ONLY TO PARTIES (never non-parties)
Remember: The party gets 30 DAYS FROM SERVICE to respond (extra 3 days if mailed)
Remember: A party MAY NOT respond with "I don't know," they have 30 days to respond with information REASONABLY AVAILABLE
Remember: 25 questions max per party
84
Discovery: Discovery Tools - Requests to Produce + Remember Responding Parties Timeline
These request that someone make available for review and copying documents or things, including electronically stored information (ESI)
Remember: The opposing party MUST RESPOND in writing within 30 DAYS OF SERVICE, stating the material will be produced or asserting objections
85
Discovery: Discovery Tools - Medical Exam Requirements + Remember Who Can Be Ordered to Undergo Medical Exam
Must get a court order by showing: 1) that the person's health is in ACTUAL CONTROVERSY, and 2) GOOD CAUSE
Remember: A party or SOMEONE IN PARTY'S CUSTODY OR LEGAL CONTROL (e.g. an employee IS NOT in the custody or legal control of employer)
86
Discovery: Discovery Tools - Request for Admission + Remember Timeline
A written request that someone admit things
Remember: Responding party has 30 days to respond from receiving service
87
Discovery: Discovery Tools - Does Rule 11 apply?
Rule 11 DOES NOT APPLY to discovery documents, but another Rule, every discovery request and response IS signed by counsel
88
Discovery: Discovery Tools - What if facts change after responding to discovery?
If after responding to discovery facts change, A PARTY HAS A DUTY to supplement their response
89
Discovery: Scope of Discovery
Anything RELEVANT to a claim or defense and PROPORTIONAL to the needs of the case
90
Discovery: Privilege
You can object to discovery on the basis of evidentiary privilege
91
Discovery: Work Product + Remember Qualified Work Product + Remember Absolute Work Product
Work product or "trial preparation materials", meaning PREPARED IN ANTICIPATION OF LITIGATION is not discoverable material
Remember: Qualified work product may be discovered if there is: 1) substantial need, AND 2) it is not otherwise available
Remember: Absolute work product refers to (1) mental impressions, (2) opinions, (3) conclusions, and (4) legal theories, and are ABSOLUTELY PROTECTED
92
Discovery: Inadvertent Production of Privileged or Protected Material
If you inadvertently produce protected material, you should notify the other party PROMPTLY, and the other party must return, sequester, or destroy it pending a decision by the court
93
Discovery: Enforcement of Discovery Rules - Protective Order
If the responding party thinks a discovery request SUBJECTS it to ANNOYANCE, EMBARRASSMENT, UNDUE BURDEN, or EXPENSE, the responding party may move for a protective order so long as she certifies she tried in good faith to work it out without court involvement
94
Discovery: Steps to Sanction a Party - Less Than Full Response
Two steps of sanctions: 1) move for an order COMPELLING the party to answer, but if party violates order compelling him to answer, then 2) "merits" sanctions plus costs and attorneys fees AND could be held in contempt
95
Discovery: Sanctions Against a Party - No Response
"Merits" sanctions plus costs and attorney's fees, no need to get an order compelling like less than full response
96
Discovery: Sanctions Against a Party - Litigation Hold
The court may enter an "adverse inference order" presuming the lost information would be unfavorable to the party IF the party lost the ESI WITH THE INTENT to deprive you of it
97
Adjudication Without Trial: Preliminary Injunctive Relief
P seeks a court order for the D to do something OR refrain from doing something before trial that will prejudice P's case
98
Adjudication Without Trial: Temporary Restraining Order Requirements
The court will issue a TRO ex parte ONLY if:
1) Applicant files a paper under oath clearly showing that if TRO is not issued, he will suffer "IRREPARABLE HARM" if the other side is heard, and
2) Applicant's lawyer certifies in writing her efforts to give oral or written notice to D or D's lawyer
99
Adjudication Without Trial: Temporary Restraining Order Contents + Remember Timing
A TRO must state its SPECIFIC TERMS, describe in DETAIL what D must do (or refrain from doing), state WHY it was issued, and WHY THE THREAT to P was IRREPARABLE
Remember: TRO is effective for no more than 14 DAYS, but if applicant shows good cause, it may be extended another 14 DAYS - NO MORE THAN 28 DAYS, because beyond that is a preliminary injunction
100
Adjudication Without Trial: Preliminary Injunction Applicant Must Show
1) He is likely to suffer IRREPARABLE HARM if the injunction is not issued;
2) He is LIKELY TO WIN on the merits of the underlying case;
3) The BALANCE OF HARDSHIP favors him; and
4) The injunction is in the PUBLIC INTEREST
101
Adjudication Without Trial: Differences and Similarities Between Temporary Restraining Orders (TRO) an Injunctive Relief
Same: 1) If granted, applicant must post bond to cover D's costs
2) Must state its terms in specificity, describing in detail what D must do or refrain from doing and state why it was issued
Different: 1) In granting or denying prelim, the court MUST make specific findings of fact and separate conclusions of law, and
2) An order granting or denying a preliminary injunction is APPEALABLE
102
Adjudication Without Trial: Voluntary Dismissal Definition
If P wants to withdraw the case, he can make a motion for voluntary dismissal at any time, which the court has discretion to grant
103
Adjudication Without Trial: Voluntary Dismissal - Timing + Remember Consequences After Filing
P MUST file a "notice of dismissal" BEFORE D serves an answer or motion for summary judgment
Remember: If P files timely notice of dismissal, the case is dismissed "without prejudice" - P CAN refile the case, but ONLY GET WITHOUT PREJUDICE ONCE
104
Adjudication Without Trial: Default + Remember Default's Effect on Case
If D does not respond to complaint in time (21 days after served with process; 60 days from mailing waiver), P can request entry of default if he demonstrates D failed to respond in time
Remember: Default cuts off the right for D to respond
105
Adjudication Without Trial: How to Get a Default Judgment + Remember Alternative Way
The clerk of court can enter judgment, if: (1) D made no response at all; (2) the claim itself is for a sum certain in money; (3) Claimant gives an affidavit (sworn statement) of the sum owed; AND (4) D is not a minor or incompetent
Remember: If any above elements don't work, P must apply to the court itself for the default judgment
106
Adjudication Without Trial: Motion to Set Aside a Default or Default Judgment
D may move to have the court set aside a default or default judgment by showing 1) good cause AND 2) viable defense
107
Adjudication Without Trial: Motion to Dismiss for Failure to State a Claim Rule 12(b)(6) - What Court Looks At
Court IGNORES P's legal conclusions, and looks at only ALLEGATIONS OF FACT, assuming all true, to see if the P states a plausible claim
108
Adjudication Without Trial: Motion for Summary Judgment (Rule 56) + Elements + Remember Court's Discretion + Remember Timeline
Plaintiff has stated a claim, but there is no genuine dispute of material fact and moving party is entitled to judgment AS A MATTER OF LAW
Remember: Even if the standard is met, judge has discretion to not enter summary judgment
Remember: Any party can move for this NO LATER than 30 days AFTER close of discovery
109
Adjudication Without Trial: Rule 56 v. Rule 12(b)(6) Evidence
Rule 56: Evidence IS ALLOWED
Rule 12(b)(6): Evidence IS NOT allowed
110
Conferences, Trial, Judgment, and Post-Trial Motions: Rule 26(f) Conference
At least 21 days BEFORE scheduling order, parties "meet and confer" to discuss production of required initial disclosures, claims, defenses, settlements, AND a detailed discovery plan; presented NO LATER than 14 days AFTER 26(f) conference
111
Conferences, Trial, Judgment, and Post-Trial Motions: Pretrial Conferences
Court may hold "pretrial conferences" to determine the issues to be tried and evidence to be proffered SO THERE ARE NO SURPRISES AT TRIAL
112
Conferences, Trial, Judgment, and Post-Trial Motions: Motion in Limine
A pretrial motion to decide whether the jury should hear certain evidence
113
Conferences, Trial, Judgment, and Post-Trial Motions: Right to Jury Trial in Federal Court (7th Amendment) + Remember Mixed Cases + Remember State Court + Remember Timing
7th Amendment preserves the right to jury in "civil actions at law," but not suits at equity
Remember: If a case includes a claim for damages AND equitable relief, the jury decides ALL FACTS underlying the damages claim, but not the equity claim
Remember: The 7th Amendment DOES NOT apply in state court, it is federal civil cases only
Remember: Must demand the jury IN WRITING NO LATER than 14 days AFTER SERVICE OF THE LAST PLEADING (complaint or answer) addressing a jury triable issue
114
Conferences, Trial, Judgment, and Post-Trial Motions: Kinds of Juror Selection Challenges + Remember Race & Gender Neutral + Remember Range for Amount of Jurors
1) For cause (e.g. potential juror will NOT be impartial)
2) Peremptory - limit 3 per side
Remember: Peremptory strikes MAY ONLY be used in a RACE and GENDER-NEUTRAL manner
Remember: A minimum of 6 and maximum of 12 jurors for a federal case (unless parties agree to have less than 6)
115
Conferences, Trial, Judgment, and Post-Trial Motions: Jury Instructions + Remember Court's Informing Parties Before Final Argument
Judge instructs jury ON THE LAW after parties submit proposed jury instructions
Remember: Before final argument, court informs parties of: 1) what INSTRUCTIONS it will give, and 2) what proposed jury instructions it REJECTED
116
Conferences, Trial, Judgment, and Post-Trial Motions: Forms of Verdicts
1) General verdict - says who wins and what relief is
2) Special verdict - jury answers in writing specific written questions about facts in dispute, BUT DOES NOT say who wins and loses
3) General verdict with written questions - jury says who wins AND answers specific questions submitted to it
117
Conferences, Trial, Judgment, and Post-Trial Motions: Entry of Judgment + Remember Inconsistent Verdicts
1) General verdict - clerk of court enters judgment
2) Special verdict or general verdict with specific questions - judge approves judgment and clerk enters it
Remember: If juror answers are inconsistent with each other, or inconsistent with general verdict, THE COURT CANNOT ENTER A JUDGMENT - the court will either instruct the jury to reconsider or order new trial
118
Conferences, Trial, Judgment, and Post-Trial Motions: Juror Misconduct
In general, a verdict MAY BE IMPEACHED based upon EXTERNAL MATTERS
119
Conferences, Trial, Judgment, and Post-Trial Motions: Non-Jury Trial Requirements
1) Judge must record her "findings of fact" on record or in writing,
2) conclusions of law stated separately from findings of fact, and
3) The judgment - who wins and what relief
120
Conferences, Trial, Judgment, and Post-Trial Motions: Motions At and After Trial - Motion for Judgment as a Matter of Law (JMOL) + Remember Different Than Summary Judgment
Applies in jury trials during the trial when the REASONABLE PEOPLE could not disagree on the results, judge grants JMOL and refuses to let jury decide the case
Remember: It's like a summary judgment (where no dispute to material fact), but THIS OCCURS AT TRIAL instead of before trial
121
Conferences, Trial, Judgment, and Post-Trial Motions: Motions At and After Trial - Renewed Motion for Judgment as a Matter of Law (RJMOL) + Remember Timing + Remember Absolute Prerequisites for RJMOL
This is the same concept as JMOL, occurs when a jury reaches a conclusion that reasonable people could not have reached, BUT party raises this AFTER judgment
Remember: You move for RJMOL WITHIN 28 DAYS AFTER entry of judgment
Remember: You MUST have moved for JMOL at proper time at trial ON THE SAME GROUNDS as the RJMOL
122
Conferences, Trial, Judgment, and Post-Trial Motions: Motions At and After Trial - Motion for New Trial + Remember Timing + Remember Examples
After judgment is entered, some error at trial requires that the parties should start over and have a new trial
Remember: Party moves for this within 28 days after judgment
Remember: (1) Judge gave an erroneous jury instruction, (2) new evidence that could not have been gotten before with due diligence, (3) Misconduct by juror or party or lawyer, (4) judgment is against weight of the evidence, or (5) inadequate or excessive damages
123
Conferences, Trial, Judgment, and Post-Trial Motions: Remittitur + Remember State and Federal + Remember 7th Amendment Exception
If jury's damages is excessive, court may offer P the option to take a reduced reward OR go through a new trial
Remember: This is okay in STATE AND FEDERAL COURT
Remember: The court cannot simply lower damages, this would violate 7th Amendment right to jury trial
124
Conferences, Trial, Judgment, and Post-Trial Motions: Additur + Remember State and Federal
If jury damages is inadequate, court may offer D the choice to pay an increased damages to P OR go through new trial
Remember: This is OKAY IN STATE COURT, BUT unconstitutional in federal
125
Conferences, Trial, Judgment, and Post-Trial Motions: Offer of Judgment
If D offers to settle claim AT LEAST 14 DAYS BEFORE TRIAL, and P rejects, P is liable to D's costs incurred after offer was made IF P WINDS JUDGMENT LESS FAVORABLE THAN OFFER
126
Conferences, Trial, Judgment, and Post-Trial Motions: Motion for Relief from Order or Judgment (Grounds - Time)
1) Clerical error - ANY TIME
2) Mistake, excusable neglect (including viable defense) - Reasonable time (NEVER MORE THAN 1 YEAR)
2) Fraud, misrepresentation, or misconduct by opposing party - Reasonable time (NEVER MORE THAN 1 YEAR)
3) New evidence that could not have been discovered with due diligence - REASONABLE TIME (never more than 1 year)
4) Judgment is void (e.g. no SMJ) - Reasonable time (NO MAXIMUM)
127
Appellate Review: Final Judgment Rule + Remember Where and When to File Appeal
The loser has the right to appeal IF the order is a "final judgment," meaning one that determines the merits of THE ENTIRE CASE
Remember: You must file your notice of appeal in DISTRICT COURT (not appeals court) within 30 DAYS AFTER ENTRY OF JUDGMENT
128
Appellate Review: Interlocutory Review Appeals
On non-final judgments (interlocutory), the judgment MIGHT be appealable upon one of the doctrines
129
Appellate Review: Interlocutory Review Doctrines - Orders Reviewable as of Right + Remember TROs
Interlocutory orders reviewable as of right: orders granting, modifying, or refusing PRELIMINARY OR PERMANENT INJUNCTIONS
Remember: TROs have NO RIGHT TO APPEAL, BUT if a court extends a TRO past 28 days, this is treated as a preliminary injunction for appeal purposes
130
Appellate Review: Interlocutory Review Doctrines - Interlocutory Appeals Act
Allows appeal of non-final order IF:
1) The district judge CERTIFIES that it involves a controlling issue of law;
2) As to which there is SUBSTANTIAL GROUND for difference of opinion; AND
3) The Court of appeals AGREES TO HEAR IT
131
Appellate Review: Interlocutory Review Doctrines - Collateral Order Doctrine + Example
Appellate court has DISCRETION to hear ruling on an issue IF that issue:
1) Is DISTINCT from the merits of the case;
2) Involves an IMPORTANT LEGAL QUESTION; and
3) Is ESSENTIALLY UNREVIEWABLE if parties await a final judgment
Example: State immunity from suit not recognized as defense, but loses this immunity if it waits until end of suit
132
Appellate Review: Interlocutory Review Doctrines - Multiple Claims and Parties
When more than one claim is presented in a case, or when there are multiple parties, the district court MAY expressly direct entry of final judgment as to one or more of them IF it makes an EXPRESS FINDING that there is NO JUST REASON FOR DELAY
133
Appellate Review: Interlocutory Review Doctrines - Class Action + Remember Timing
Court of appeals HAS DISCRETION to review an order granting or denying certification of class action
Remember: Must seek review at the court of appeals within 14 days of order
134
Appellate Review: Interlocutory Review Doctrines - Extraordinary Writ
An original proceeding in the court of appeals to COMPEL district judge to make or vacate a particular order - AVAILABLE ONLY when district court is VIOLATING A CLEAR LEGAL DUTY
135
Appellate Review: Standards of Review - Questions of Law
When the district judge decides QUESTIONS OF LAW, the standard the court of appeals reviews is DE NOVO (no deference to what district court ruled)
136
Appellate Review: Standards of Review - Questions of Fact in Non-Jury Trials
In a non-jury trial, when the district judge determines QUESTION OF FACT, the court of appeals WILL AFFIRM, UNLESS there is that is CLEARLY ERRONEOUS
137
Appellate Review: Standards of Review - Questions of Fact in Jury Trials
Court of appeals WILL AFFIRM, UNLESS reasonable people COULD NOT HAVE MADE THAT FINDING
138
Appellate Review: Standards of Review - Discretionary Matters + Remember Jury Instruction Content v. Providing Instruction
The court of appeals will AFFIRM, UNLESS the district judge ABUSED HER DISCRETION
Remember: CONTENT of jury instruction is reviewed DE NOVO (question of law), BUT whether or not to provide it is DISCRETION (reviewed for abuse of discretion)
139
Appellate Review: Standards of Review - Harmless Error
Not every error (even an error of law) requires reversal on appeal, harmless errors will not trigger such appeal
140
Preclusion: Preclusion Law for Cases in Different Judicial Systems
If Case 1 and Case 2 are in different judicial systems (e.g. state and federal), the court in Case 2 applies the preclusion law OF THE JUDICIAL SYSTEM THAT DECIDED CASE 1
141
Preclusion: Claim Preclusion (Res Judicata) Requirements + General Rule for On the Merits + Remember Majority View and Minority View for Same Claim
1) Case 1 and Case 2 were BROUGHT BY SAME CLAIMANT AGAINST SAME DEFENDANT;
2) Case 1 ended in a VALID FINAL JUDGMENT based ON THE MERITS;
3) Case 1 and Case 2 asserted the SAME CLAIM
Remember: ANY judgment is "on the merits", UNLESS it was based on JURISDICTION, VENUE, and INDISPENSABLE PARTIES
Remember: Majority View - a claim is ANY right to relief arising from the same T/O
Minority View - there are separate claims for property damage and for personal injuries because those are different PRIMARY RIGHTS
142
Preclusion: Issue Preclusion (Collateral Estoppel) Requirements + Remember Nonmutual Defensive Issue Preclusion and Nonmutual Offensive Issue Preclusion
1) Case 1 ended in a valid, FINAL JUDGMENT on the MERITS;
2) The same issue was ACTUALLY LITIGATED and DETERMINED in Case 1;
3) The issue was ESSENTIAL to the judgment in Case 1, meaning the finding on this issue is the BASIS FOR THE JUDGMENT
4) AGAINST WHOM can issue preclusion be asserted? ONLY against somebody who WAS A PARTY to Case 1 OR in "privity" with a party to Case 1; AND
5) Issue preclusion can be used by someone WHO WAS A PARTY to Case 1
Remember: Nonmutual defensive issue preclusion - means the one using it was NOT A PARTY to Case 1 AND is D in Case 2 (most federal and state say this is OKAY if party had a full chance to litigate in Case 1)
Nonmutual offensive issue preclusion - the one using it WAS NOT a party in Case 1 and is P in Case 2 (most states say NO, but trend is THAT THIS IS OKAY IF FAIR)
143
(PA) Statute of Limitations: 1 Year Limitation Actions
Libel, slander, and invasion of privacy
144
(PA) Statute of Limitations: 2 Year Limitation Actions
All other torts (besides libel, slander, or invasion of privacy - those are 1 year)
145
(PA) Statute of Limitations: 4 Year Limitation Actions
Actions upon a CONTRACT
146
(PA) Statute of Limitations: Minors Tolling Statute
After a minor's 18th birthday, the period of the SOL to commence an action BEGINS
147
(PA) Statute of Limitations: Childhood Sexual Abuse Claims
An individual bringing a claim for childhood sexual abuse has a period of 12 YEARS after attaining 18 years of age to bring an action for damages
148
(PA) Statute of Limitations: Discovery Rule + Remember Date of Death + Remember Mass Media Defamation
The commencement of the SOL time period is tolled (stalled) until the P KNOWS, OR IN THE EXERCISE OF REASONABLE DILIGENCE should have known (i) that he has been injured, AND (ii) that his injury has been caused by another's conduct
Remember: The SOL for a tort claim is NEVER more than 2 years AFTER the date of death (wrongful death or survival act claims)
Remember: Discovery rule does not apply to mass media defamation, that SOL begins to run when the article/information IS PUBLISHED (even if injured party is unaware or should be unaware of it)
149
(PA) Statute of Repose + Remember SOL
Applies in CIVIL ACTIONS against a person PERFORMING construction of any improvement to REAL PROPERTY and MUST BE COMMENCED WITHIN 12 YEARS after the COMPLETION of construction to recover for personal injury, wrongful death, or property damage
Remember: Note that you MUST COMPLY WITH BOTH statute of limitations and statute of repose
150
(PA) Personal Jurisdiction Test
1) Does it satisfy PA long arm statute?; and
| 2) Does it satisfy Constitution? (contact, relatedness, and fairness)
151
(PA) Personal Jurisdiction: Distinguish Specific Jurisdiction v. General Jurisdiction
General: D can be sued for any claim that arose anywhere in the world in PA if he is domiciled here OR if a corporation is incorporated here or has their PPB here
152
(PA) Venue: Improper Venue Pleading
Must be raised in the FIRST RESPONSIVE PLEADING (preliminary objections), or venue can be waived
153
(PA) Venue: Where is Venue Always Proper + Remember Multiple Defendants + Remember Torts v. Contracts
Where the CAUSE OF ACTION AROSE or where SERVICE ON D can occur
Remember: Where there are multiple Ds, then venue is proper as to ALL Ds in ANY COUNTY where ANY ONE D is subject to venue
Remember: Torts - where tort occurred; contracts - where breach occurred
154
(PA) Venue: Defendant Corporations + Exceptions Health Care Providers & Political Subdivisions
Where the registered office, PPB, OR where the company regularly conducts business
Exceptions: 1) litigation against a health care provider for medical negligence (mal practice) may be brough ONLY in a county where the CAUSE OF ACTION arose
2) litigation against a political subdivision of local government may only be brought in the county it is located
155
(PA) Venue: What will a court do with a case if improper venue occurs?
The action is not dismissed, but shall be TRANSFERRED to the proper county
156
(PA) Exam Tip for PJ Distinction v. Venue Distinction
For PJ, think WHAT STATE can I sue?
For venue, think WHAT COUNTY can I sue?
157
(PA) Forum Non Conveniens Factors
1) Plaintiff's choice of forum holds GREAT WEIGHT
2) Petition to transfer shall NOT be granted, UNLESS D demonstrate's the forum is OPPRESSIVE or VEXATIOUS to D
3) Distance alone is NOT DISPOSITIVE
158
(PA) Commencing Litigation: How P Initiates Suit
1) Filing a complaint and serving on D; or
| 2) Filing a praecipe for a writ of summons and serving on D
159
(PA) Commencing Litigation: Why File Writ of Summons? + Remember Equivalent Period Doctrine
1) Plaintiff may obtain pre-complaint discovery;
2) To toll SOL, because litigation commences when this files
Remember: Filing a Praecipe for a Writ of Summons tolls SOL for a period equivalent to the applicable SOL of the action as long as P MAKES A GOOD FAITH EFFORT to serve D. The complaint MUST BE FILED within the equivalent period of original SOL, but added as if serving writ was start of SOL
160
(PA) Service of Process: How Must Process be Served - In State v. Out of State
In State: 1) Individuals - personally serve D, an adult family member where D resides, OR D's agent at office or business
2) Companies - sheriff serves officer, manager, or agent/person in charge of business
Out-of-state: Certified mail
161
(PA) Service of Process: When Must Initial Process be Served? + Remember Effort by P
P has 30 days to serve a D w/in PA, 90 days to serve D outside of PA
Remember: P must put forth a GOOD FAITH EFFORT
162
(PA) Pleadings: Signature Required For All Pleadings - Requirements
All pleadings, motions, other paper directed to the court MUST BE SIGNED by an attorney of record certifying that: 1)it is not being presented for an improper purpose; 2) the claims are warranted by existing law (good law); the factual allegations have evidentiary support (good facts); and 4) any denials of factual allegations are warranted by the evidence
163
(PA) Pleadings: Verification Requirement for Pleadings
Every pleading with factual averments or denials MUST BE VERIFIED by the party
164
(PA) Pleadings: Complaint - Requirements
1) PA Requires FACT pleadings;
2) P must specifically state: time, date, places, averments of fraud/mistake, special damages;
3) Allegations must be in separately numbered paragraphs;
4) If K involved, state oral or written; and
5) If they form the basis of the claim, any writings must be attached
165
(PA) Pleadings: In Response to a Complaint, What are D's Options + Exceptions to Waiver
1) File Preliminary Objections; or
2) Waive preliminary objections and file an answer to the complaint
Exceptions: Lack of SMJ, demurrer, and failure to join an indispensable party
166
(PA) Pleadings: Types of Preliminary Objections
* Most popular on Bar
* *1) Lack of PJ, Improper Venue, OR Improper Service
* *2) Failure of pleading to conform to the rules, OR inclusion of scandalous matter in pleading;
3) Insufficient specificity in pleading;
* *4) Legal insufficiency of pleading (demurrer);
5) Lack of capacity, ***Nonjoinder of necessary party, OR misjoinder of causes of action
6) Pendency of prior action OR ***agreement for ADR;
7) Failure to exhaust statutory or administrative remedy;
8) Full, complete and adequate non-statutory remedy at law
167
(PA) Pleadings: Answers to Complaints - D Requirements + Exceptions
1) D must ADMIT or DENY each paragraph of the Complaint - general denial is the same as admission
2) Averments to which a responsive pleading are required are admitted when NOT DENIED specifically or by implication
Exceptions: 1) If after REASONABLE INVESTIGATION the party is without knowledge to form a belief as to the truth, a party's statement shall have the effect of a DENIAL (must not be used if info is public knowledge OR within D's control)
2) In actions seeking bodily injury, death, or property damage, averments in a pleading MAY BE DENIED GENERALLY (UNLESS (i) relating to identity, agency, or employment OR (ii) averments relating to the ownership, possession or control of the property involved)
168
(PA) Pleadings: Affirmative Defenses Procedure + Remember Timing for P
Set forth in the ANSWER, under headline "new matter," or they are waived
Remember: P must file a reply within 20 days
169
(PA) Pleadings: Counterclaims Distinction with PA
In PA THERE ARE NO COMPULSORY COUNTERCLAIMS, all counterclaims are permissive
170
(PA) Pleadings: Default Judgment Procedure + Remember Notice of Intent
If D fails to file an answer or PO to the Complaint WITHIN 20 days, a default judgment can be taken
Remember: Prior to obtaining a default judgment, P has to MAIL A NOTICE OF INTENT to take a default judgment to D, giving D an additional 10 DAYS to file an answer
171
(PA) Pleadings: Certificate of Merit (COM) in Professional Liability Claims - Definition + Requirement
Def: Claims where a professional liability claim (against doctors, lawyers, engineers, etc.) is asserted by a patient or client filed WITHIN 60 DAYS after complaint, a certificate of merit
COM Requirement: an expert has indicated in writing that 1) there exists a REASONABLE PROBABILITY the care, skill or knowledge of the D fell outside acceptable standards, AND 2) such conduct caused harm to the P
172
(PA) Pleadings: Certificate of Merit (COM) in Professional Liability Claims - Additional Options for D
1) D may file a motion to dismiss attaching an AFFIDAVIT OF NON-INVOLVEMENT
2) D may file a a praecipe requesting entry of Judgment of Non Pros
173
(PA) Pleadings: Right to Amend Pleadings
A party has the right to amend an pleading to change the form of the action, add a party, correct the name of a party, WITHIN 20 DAYS after service of preliminary objections; or with consent of other party; or leave of court
174
(PA) Pleadings: Right to Amend Pleadings - Correcting Name of Defendant
An amendment correcting D's name RELATES BACK to the date of the commencement of the action if, within 90 days after the SOL, the party 1) received notice, and 2) the party knew or should have known that he would have been sued if not for the mistake
175
(PA) Pleadings: Right to Amend Pleadings - Liberal Application
Amendments to pleadings will be LIBERALLY ALLOWED, the court may disregard any error or defect of procedure WHICH DOES NOT AFFECT the substantial rights of the parties
176
(PA) Joinder: Compulsory Joinder
Multiple causes of action, arising from the same T/O AGAINST the same person, MUST be joined in the same action against that D, failure to do so is considered a waiver
177
(PA) Joinder: Permissive Joinder
Claims of multiple Ps or claims against multiple Ds may be brought in a single action IF: 1) they arise out of the same T/O AND 2) there are common questions of law or fact
178
(PA) Joinder: **Additional Defendants (Third Party Practice in Fed)
Any D may join as an additional D any person NOT ALREADY a party to the action who may be:
1) SOLELY LIABLE on the underlying cause of action against the joining party; OR
2) Joint and severally liable w/ the joining party OR liable OVER the underlying cause of action against the joining party
179
(PA) Joinder: Additional Defendants - Process to Join a Party
The joining party may file a praecipe for writ or complain, if by writ, then joining party should file a complaint within 20 days thereafter
180
(PA) Joinder: Additional Defendants - Plaintiff's Recovery + Remember SOL
P is able to recover from an additional D as though such additional D had been named as a D by the P
Remember: If joinder of additional D occurs BEFORE SOL, P can recover from either D. If joinder occurs AFTER SOL. P may not be able to recover if jury finds additional D solely responsible
181
(PA) Joinder: Additional Defendants - Recovery Against Joint Defendants + Joint and Several Exceptions
NO JOINT AND SEVERAL in PA. Where liability is attributed to more than one defendant, each D shall be liable for that proportion of the total verdict in relation to their liability
Exceptions to J&S: 1) Intentional misrepresentation, 2) intentional torts, 3) Dram Shop Act violations, 4) Release or threatened release of hazardous substances (Hazardous Sites Cleanup Act), or 6) Where D is held liable for 60% OR MORE of the total liability
182
(PA) Joinder: Pleading Rules for Class Action
May not initiate class action by filing Praecipe for Writ of Summons, ONLY can be initiated by filing a complaint
D may not file PO's to class action allegation, ONLY can be responded to with Answer
183
(PA) Discovery: Required Disclosure Distinction
Unlike Federal Rules, there is NO REQUIRED DISCLOSURE requirements in PA
184
(PA) Discovery: ***Scope of Discovery Elements (same as Federal, but very important)
The scope of discovery includes any information that is:
1) NOT privileged;
2) Relevant to the subject matter in the action; and
3) Appears reasonably calculated to lead to the discovery of admissible evidence
185
(PA) Discovery: Improper Discovery
Discovery is NOT ALLOWED that:
1) is sought in BAD FAITH;
2) would cause UNREASONABLE BURDEN OR EXPENSE;
3) would require an UNREASONABLE INVESTIGATION by deponent, party or witness
186
(PA) Discovery: Work Product Rule + Exceptions
In PA, there is NO WORK PRODUCT EXCEPTION for material developed in anticipation of litigation, as there is in Federal
Also discoverable: witness statements and reports of investigators
Exception: Attorney work product
187
(PA) Discovery: Expert Witness + Remember EW Not Testifying
A party, through expert witness interrogatories, require any other party to IDENTIFY any experts EXPECTED TO TESTIFY at trial, and a summary of the grounds of each opinion
Remember: A party IS NOT allowed to discover the opinions of experts retained in anticipation of trial, BUT NOT testifying
188
(PA) Discovery: Claims for Personal Injuries + Remember Exam
If the physical condition of P is in CONTROVERSY, D can obtain discover or relevant medical records ONLY: 1) with written consent from P; or 2) through method of discovery provided in the rules (e.g. subpoena)
Remember: D can also compel P to submit to a physical or mental exam by an expert hired by D
189
(PA) Discovery: Insurance Coverage
Insurance coverage available to satisfy all or a part of any judgment that may be entered in the litigation IS DISCOVERABLE
190
(PA) Discovery: Assets, Wealth, and Net Worth of D in Punitive Damages Claims + Tip
Where P's claim includes punitive damages, P may discover information on D's wealth, but such discovery is ONLY ALLOWED by court order
Tip: Watch for claims for intentional torts OR drunk driving, these are the types of claims that warrant punitive damages
191
(PA) Discovery: Supplementation of Discovery Responses + Exceptions
There is NO GENERAL DUTY to supplement discovery responses
Exceptions: 1) A party must supplement a response with respect to any question directly addressed to the identity and location of persons with knowledge of discoverable information
2) A party or expert must amend a prior response on obtaining information from which she knows that: the prior response was INCORRECT, or though correct when made, is NO LONGER TRUE
192
(PA) Discovery: Objectionable Discovery
On receiving objectionable discovery, an attorney can serve objections to written discovery on the adverse party, or file a Motion for a Protective Order
193
(PA) Discovery: Enforcing Discovery Rules
Two-Stage Process:
1) File Motion to Compel for a discovery response,
2) If still not received, then file Motion for Sanctions
194
(PA) Discovery: Use of Depositions at Trial (Adverse Party Deposition v. Witness Deposition) + Remember Non-Party Medical W
Adverse Party: A deposition of a PARTY may be used by an adverse party for ANY PURPOSE AT TRIAL
Witness: A W deposition may be used by any party for any purpose at trial if the party offering the deposition HAS BEEN UNABLE TO PROCURE ATTENDANCE OF THE W by subpoena, or if W is dead, outside PA, a location more than 100 miles, etc.
Remember: A deposition of a non-party medical W may be used at trial for ANY PURPOSE whether or not the W is available to testify
195
(PA) Adjudicating the Dispute: Motion for Judgment on the Pleadings Test
A MJP can only be granted when: 1) there is NO GENUINE issue of material fact; and 2) the moving party is entitled to judgment as a matter of law
196
(PA) Adjudicating the Dispute: Motions for Summary Judgment - Timing
Any party can file a MSJ at ANY TIME after pleadings are closed and early enough as not to delay trial
197
(PA) Adjudicating the Dispute: Motions for Summary Judgment - Test + Remember Establishing Undisputed Facts + Motion for Partial Summary Judgment
Same rule as Federal AND MJP: 1) there is no genuine issue of material fact; and 2) the moving party is entitled to judgment as a matter of law
Remember: All undisputed facts must be established by pleadings, discovery, depositions, and affidavits of parties or W
Remember: A MSJ can be filed with regard to ANY ISSUES in a case
198
(PA) Adjudicating the Dispute: Motions for Summary Judgment - Nanty-Glo Rule
Summary judgment WILL NOT BE GRANTED if: 1) the motion is supported ONLY BY uncontradicted affidavits or deposition testimony; and 2) the granting of SJ would require the acceptance of the credibility of the moving party's W
199
(PA) Adjudicating the Dispute: Voluntary Dismissal by P + Exceptions + Remember Continuation of Case
Prior to trial, P may voluntarily discontinue an action against all parties, UNLESS
1) case where P is a minor or incompetent;
2) case for wrongful death where a minor or incompetent is a beneficiary; or
3) class actions
Remember: After discontinuance or voluntary nonsuit, P may commence a second action upon the same cause of action, subject to limitation of SOL
200
(PA) Trial, Trial-Motions, and Post-Trial Motions: Motion for Compulsory Non-Suit
D files after P has finished all evidence on liability, D claims P has failed to establish a right to relief on any cause of action and WILL BE GRANTED IF P FAILS TO ESTABLISH RIGHT OF RELIEF
201
(PA) Trial, Trial-Motions, and Post-Trial Motions: Motion for Directed Verdict + Remember Timing
When the evidence is such that, without weighing the credibility of the witnesses, there can be but one REASONABLE CONCLUSION to the verdict, the court may enter a direct verdict
Remember: It can be granted AFTER ALL EVIDENCE IS INTRODUCED
202
(PA) Trial, Trial-Motions, and Post-Trial Motions: Molding of Verdict to Reflect Reduction for Comparative Negligence
In all NEGLIGENCE ACTIONS for damages for wrongful death, personal injury, or property damage, if plaintiff is 50% or less negligent, plaintiff can still recover, but any damages sustained by P will be reduced in proportion to P's negligence
203
(PA) Death Claims - Who Brings the Claim?
An action for wrongful death must be brought by the personal representative of the estate
204
(PA) Wrongful Use of Civil Proceedings - Dragonetti Act Claims + Remember Probable Cause
An attorney or party who initiates or continues civil proceedings that are terminated in favor of defendant may be subject to liability for Wrongful Use of Civil Proceedings IF the attorney acted grossly negligent and for an improper purpose
Remember: Lawyers will not be liable if they have probable cause to bring the litigation (facts and legal theory)
