Civil Procedure

Question 1

Define Personal Jurisdiction

Answer 1

The ability of a court to exercise power over a PERSON or item of property

Question 2

Personal Jurisdiction Two-Part Test

Answer 2

A court has personal jurisdiction if:

1) It satisfies a state statute, AND
2) It satisfies the constitution

Question 3

Personal Jurisdiction: Set of Factors to Determine Constitutional Analysis:

Answer 3

1) Contact;
2) Relatedness; and
3) Fairness

Question 4

PJ: Constitutional Analysis Factors - Contact Definition + (Factors + Examples)

Answer 4

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)

Question 5

PJ: Constitutional Analysis Factors - Relatedness Defined

Answer 5

Relatedness refers to P’s claim ARISING FROM D’s contact with the forum

Question 6

PJ: Specific v. General

Answer 6

Specific: Where the claim arises from D’s contact with the forum

General: Where the D is domiciled at the forum

Question 7

PJ: Domiciliary of Corporations

Answer 7

1) Where the corporation is incorporated, AND

2) Where it has its principal place of business (PPB)

Question 8

PJ: Constitutional Analysis Factors - Fairness + When to Use

Answer 8

Whether jurisdiction would be FAIR under the circumstances

Use: Only in SPECIFIC PERSONAL JURISDICTION claims

Question 9

PJ: Constitutional Analysis Factors - Fairness Factors

Answer 9

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

Question 10

Notice/Service of Process: Process Documents

Answer 10

1) A summons (formal court notice of suit and time for response); and
2) Complaint

Question 11

Notice/Service of Process: Who Can Serve Process? + Timeline

Answer 11

Any NON-PARTY at least 18 years old

Timeline: No more than 90 DAYS after filing the complaint

Question 12

Notice/Service of Process: Serving Process on an Individual in the US Options

Answer 12

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)

Question 13

Notice/Service of Process: Serving Process on a Business or Organization

Answer 13

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.)

Question 14

Notice/Service of Process: Serving Process on a Minor or Incompetent Person

Answer 14

Use any method permitted by state law WHERE THE SERVICE IS TO BE MADE

Question 15

Notice/Service of Process: Serving Process in a Foreign Country Options

Answer 15

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

Question 16

Notice/Service of Process: Waiver of Formal Service of Process - Plaintiff’s Actions + D Penalty For Failing To Return Waiver

Answer 16

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

Question 17

Notice/Service of Process: Proving Service of Process + Civilian Servers

Answer 17

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

Question 18

Notice/Service of Process: Immunity

Answer 18

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

Question 19

Define Subject Matter Jurisdiction

Answer 19

The court’s power over the case (not the parties)

Question 20

SMJ: State Courts v. Federal Courts

Answer 20

State Courts: Have “general” SMJ to hear any case

Federal Courts: Can only hear 1) diversity of citizenship claims, or 2) federal question claims

Question 21

SMJ: Diversity of Citizenship Requirements

Answer 21

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

Question 22

SMJ: Diversity of Citizenship - Complete Diversity Rule + Remember Green Card

Answer 22

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

Question 23

SMJ: Diversity of Citizenship - How to Establish Domicile + Remember Intent Examples + Remember Time of Filing

Answer 23

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

Question 24

SMJ: Diversity of Citizenship - Citizenship of a Corporation + Remember PPB Test

Answer 24

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”

Question 25

SMJ: Diversity of Citizenship - Citizenship of Unincorporated Association

Answer 25

The citizenship of ALL of its members

Question 26

SMJ: Diversity of Citizenship - Decedents, Minors, or Incompetents

Answer 26

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.

Question 27

SMJ: Amount in Controversy - What Counts Towards Amount in Controversy?

Answer 27

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

Question 28

SMJ: Amount in Controversy - Aggregation + Exception

Answer 28

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

Question 29

SMJ: Amount in Controversy - Equitable Relief

Answer 29

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

Question 30

SMJ: Cases Excluded from Federal Courts Hearing Them

Answer 30

1) Divorce, 2) Child custody, 3) Alimony, or 4) Probate an estate

Question 31

SMJ: Federal Question Cases + Well Pleaded Complaint Rule + Tip

Answer 31

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

Question 32

SMJ: Removal Jurisdiction Definition

Answer 32

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

Question 33

SMJ: Removal Jurisdiction - When to Join, Who Must Join, and What Cases Can be Removed (and Exceptions) + Remember Plaintiff Removal Rule

Answer 33

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

Question 34

SMJ - Supplemental Jurisdiction Definition

Answer 34

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

Question 35

SMJ - Supplemental Jurisdiction Analysis + Remember T/O + Remember Limitation Exception + Remember Discretionary Factors

Answer 35

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)

Question 36

What Law Applies in Federal Court? - Erie Doctrine Approach + Remember Clear Substantive Issues

Answer 36

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)

Question 37

Federal Common Law v. State Common Law

Answer 37

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

Question 38

Venue: General Rule and Plaintiff’s Choices + Remember Non-US Resident + Special Rule

Answer 38

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

Question 39

Venue: Where Do Defendants Reside? - Humans v. Business

Answer 39

Humans: Where they are domiciled

Business: Any district where they are subject to PJ (incorporated and PPB)

Question 40

Venue: Transfer of Venue Rule + Exception

Answer 40

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

Question 41

Venue: Can the original district transfer if it has proper venue? How? + Remember Burden + Remember Factors

Answer 41

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)

Question 42

Venue: Forums Selection Clause (FSC) Effect + Remember Transferring From Federal to State (Or Vice Versa)

Answer 42

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)

Question 43

Venue: Transfer Statute for Improper Venue + Remember COL Rules

Answer 43

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

Question 44

Venue: Forum Non Conveniens + Remember Adequacy of Other Court

Answer 44

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

Question 45

Pleadings: Complaint Requirements + Remember Standard for Claim

Answer 45

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)

Question 46

Pleadings: Matters that Need Particularity or Specificity in the Complaint

Answer 46

1) Fraud, 2) Mistake, and 3) Special Damages - merely pleading facts showing a plausible claim is NOT ENOUGH for these claims

Question 47

Pleadings: Defendant’s Response Options + Remember Timing Requirement

Answer 47

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

Question 48

Pleadings: Defendant’s Motions in Response - Issues of Form

Answer 48

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

Question 49

Pleadings: Defendant’s Response - Rule 12(b) Defenses + Remember Waivable Defenses and Meaning of This

Answer 49

(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

Question 50

Pleadings: How Late Can D Raise 12(b)(6) or 12(b)(7)? + Remember 12(b)(1)

Answer 50

Any time before end of trial

Remember: Can be raised ANYTIME, even on appeal

Question 51

Pleadings: If Rule 12 Denied, What Happens Next?

Answer 51

After receiving a notice of denial for a Rule 12 Motion, Defendant MUST ANSWER WITHIN 14 DAYS

Question 52

Pleadings: Defendant’s Answer - Two Requirements

Answer 52

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

Question 53

Pleadings: Amended Pleadings - Right to Amend (P and D)

Answer 53

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

Question 54

Pleadings: Amended Pleadings - If There is No Right to Amend + Remember Factors Courts Look To

Answer 54

Must seek leave of court, it will be granted if “justice so requires”

Remember: Delay, prejudice, and futility of amendment

Question 55

Pleadings: Amended Pleadings - Variance + Remember Effect of D’s Objection (Or Lack Thereof)

Answer 55

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

Question 56

Pleadings: Amended Pleadings - Ways to Raise After SOL Has Run (“Relation Back”) + Relation Back Rules

Answer 56

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

Question 57

Pleadings: Supplemental Pleadings Defined

Answer 57

Things set forth AFTER the pleadings were filed

Question 58

Pleadings: Rule 11 + Remember Who Sanctions Apply To + Remember Purpose

Answer 58

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

Question 59

Pleadings: Rule 11 Safe Harbor + Remember Sua Sponte

Answer 59

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

Question 60

Joinder Defined

Answer 60

Defines the scope of the case by determining how many parties and claims can be joined in one case

Question 61

Joinder: Claim by Plaintiff

Answer 61

P may join ANY additional claim she likes - even if the additional claim is unrelated to the original claim

Question 62

Joinder: Proper Plaintiffs and Defendants Test

Answer 62

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

Question 63

Joinder: Necessary and Indispensable Parties Tests

Answer 63

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

Question 64

Joinder: When Can an Absentee be Joined?

Answer 64

It is feasible if: 1) there is PJ over you, and 2) joining you will not mess up diversity jurisdiction

Question 65

Joinder: What Happens if Absentee Cannot be Joined? + Remember Courts Factors

Answer 65

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

Question 66

Joinder: Claim Joinder by Defendant - Counterclaim + Remember Plaintiff’s Response

Answer 66

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

Question 67

Joinder: Claim Joinder by Defendant - Compulsory Counterclaim v. Permissive Counterclaim

Answer 67

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

Question 68

Joinder: Claim Joinder by Defendant - Crossclaim

Answer 68

A claim against a CO-PARTY, and MUST arise from same T/O as the underlying action, BUT NEVER COMPULSORY

Question 69

Joinder: Impleader + Remember Popular Claims with Impleader + Tip About “I” in Joinder Cases

Answer 69

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)

Question 70

Joinder: Intervention

Answer 70

A non-party rings HIMSELF into the case, either as P or D, so long as it has come in TIMELY

Question 71

Joinder: Intervention - Types of Intervention

Answer 71

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)

Question 72

Joinder: Class Action Requirements

Answer 72

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

Question 73

Joinder: Class Action Types

Answer 73

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)

Question 74

Joinder: Class Action - A Case is Not a Class Action Until What?

Answer 74

A court certifies a class action, defining the class, defining the claims, and appointing class council

Question 75

Joinder: Class Action - Type 3 Notice Requirement

Answer 75

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

Question 76

Joinder: Class Action - Who is Bound by Judgement in a Certified Class?

Answer 76

All class members, EXCEPT those who opted out of a type 3

Question 77

Joinder: Class Action - Can Parties Settle?

Answer 77

Yes, but ONLY WITH COURT APPROVAL

Question 78

Joinder: Class Action - Rules for SMJ

Answer 78

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

Question 79

Discovery: Initial Required Disclosures + Remember Broadness + Remember Failing to Disclose Evidence

Answer 79

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

Question 80

Discovery: Required Disclosures About Expert Witnesses + Remember Consulting Expert Difference

Answer 80

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

Question 81

Discovery: When are discovery materials requested? + Minor Exception

Answer 81

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

Question 82

Discovery: Discovery Tools - Depositions + Remember “Duces Tecum” + Remember Max Travel Distance for Non-parties + Remember Limits on Deposition

Answer 82

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

Question 83

Discovery: Discovery Tools - Interrogatories + Remember Response Time + Remember “I Don’t Know” Answers + Remember Maximum Number of Interrogatories Per Party

Answer 83

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

Question 84

Discovery: Discovery Tools - Requests to Produce + Remember Responding Parties Timeline

Answer 84

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

Question 85

Discovery: Discovery Tools - Medical Exam Requirements + Remember Who Can Be Ordered to Undergo Medical Exam

Answer 85

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)

Question 86

Discovery: Discovery Tools - Request for Admission + Remember Timeline

Answer 86

A written request that someone admit things

Remember: Responding party has 30 days to respond from receiving service

Question 87

Discovery: Discovery Tools - Does Rule 11 apply?

Answer 87

Rule 11 DOES NOT APPLY to discovery documents, but another Rule, every discovery request and response IS signed by counsel

Question 88

Discovery: Discovery Tools - What if facts change after responding to discovery?

Answer 88

If after responding to discovery facts change, A PARTY HAS A DUTY to supplement their response

Question 89

Discovery: Scope of Discovery

Answer 89

Anything RELEVANT to a claim or defense and PROPORTIONAL to the needs of the case

Question 90

Discovery: Privilege

Answer 90

You can object to discovery on the basis of evidentiary privilege

Question 91

Discovery: Work Product + Remember Qualified Work Product + Remember Absolute Work Product

Answer 91

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

Question 92

Discovery: Inadvertent Production of Privileged or Protected Material

Answer 92

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

Question 93

Discovery: Enforcement of Discovery Rules - Protective Order

Answer 93

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

Question 94

Discovery: Steps to Sanction a Party - Less Than Full Response

Answer 94

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

Question 95

Discovery: Sanctions Against a Party - No Response

Answer 95

“Merits” sanctions plus costs and attorney’s fees, no need to get an order compelling like less than full response

Question 96

Discovery: Sanctions Against a Party - Litigation Hold

Answer 96

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

Question 97

Adjudication Without Trial: Preliminary Injunctive Relief

Answer 97

P seeks a court order for the D to do something OR refrain from doing something before trial that will prejudice P’s case

Question 98

Adjudication Without Trial: Temporary Restraining Order Requirements

Answer 98

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

Question 99

Adjudication Without Trial: Temporary Restraining Order Contents + Remember Timing

Answer 99

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

Question 100

Adjudication Without Trial: Preliminary Injunction Applicant Must Show

Answer 100

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

Question 101

Adjudication Without Trial: Differences and Similarities Between Temporary Restraining Orders (TRO) an Injunctive Relief

Answer 101

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

Question 102

Adjudication Without Trial: Voluntary Dismissal Definition

Answer 102

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

Question 103

Adjudication Without Trial: Voluntary Dismissal - Timing + Remember Consequences After Filing

Answer 103

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

Question 104

Adjudication Without Trial: Default + Remember Default’s Effect on Case

Answer 104

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

Question 105

Adjudication Without Trial: How to Get a Default Judgment + Remember Alternative Way

Answer 105

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

Question 106

Adjudication Without Trial: Motion to Set Aside a Default or Default Judgment

Answer 106

D may move to have the court set aside a default or default judgment by showing 1) good cause AND 2) viable defense

Question 107

Adjudication Without Trial: Motion to Dismiss for Failure to State a Claim Rule 12(b)(6) - What Court Looks At

Answer 107

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

Question 108

Adjudication Without Trial: Motion for Summary Judgment (Rule 56) + Elements + Remember Court’s Discretion + Remember Timeline

Answer 108

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

Question 109

Adjudication Without Trial: Rule 56 v. Rule 12(b)(6) Evidence

Answer 109

Rule 56: Evidence IS ALLOWED

Rule 12(b)(6): Evidence IS NOT allowed

Question 110

Conferences, Trial, Judgment, and Post-Trial Motions: Rule 26(f) Conference

Answer 110

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

Question 111

Conferences, Trial, Judgment, and Post-Trial Motions: Pretrial Conferences

Answer 111

Court may hold “pretrial conferences” to determine the issues to be tried and evidence to be proffered SO THERE ARE NO SURPRISES AT TRIAL

Question 112

Conferences, Trial, Judgment, and Post-Trial Motions: Motion in Limine

Answer 112

A pretrial motion to decide whether the jury should hear certain evidence

Question 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

Answer 113

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

Question 114

Conferences, Trial, Judgment, and Post-Trial Motions: Kinds of Juror Selection Challenges + Remember Race & Gender Neutral + Remember Range for Amount of Jurors

Answer 114

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)

Question 115

Conferences, Trial, Judgment, and Post-Trial Motions: Jury Instructions + Remember Court’s Informing Parties Before Final Argument

Answer 115

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

Question 116

Conferences, Trial, Judgment, and Post-Trial Motions: Forms of Verdicts

Answer 116

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

Question 117

Conferences, Trial, Judgment, and Post-Trial Motions: Entry of Judgment + Remember Inconsistent Verdicts

Answer 117

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

Question 118

Conferences, Trial, Judgment, and Post-Trial Motions: Juror Misconduct

Answer 118

In general, a verdict MAY BE IMPEACHED based upon EXTERNAL MATTERS

Question 119

Conferences, Trial, Judgment, and Post-Trial Motions: Non-Jury Trial Requirements

Answer 119

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

Question 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

Answer 120

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

Question 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

Answer 121

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

Question 122

Conferences, Trial, Judgment, and Post-Trial Motions: Motions At and After Trial - Motion for New Trial + Remember Timing + Remember Examples

Answer 122

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

Question 123

Conferences, Trial, Judgment, and Post-Trial Motions: Remittitur + Remember State and Federal + Remember 7th Amendment Exception

Answer 123

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

Question 124

Conferences, Trial, Judgment, and Post-Trial Motions: Additur + Remember State and Federal

Answer 124

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

Question 125

Conferences, Trial, Judgment, and Post-Trial Motions: Offer of Judgment

Answer 125

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

Question 126

Conferences, Trial, Judgment, and Post-Trial Motions: Motion for Relief from Order or Judgment (Grounds - Time)

Answer 126

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)

Question 127

Appellate Review: Final Judgment Rule + Remember Where and When to File Appeal

Answer 127

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

Question 128

Appellate Review: Interlocutory Review Appeals

Answer 128

On non-final judgments (interlocutory), the judgment MIGHT be appealable upon one of the doctrines

Question 129

Appellate Review: Interlocutory Review Doctrines - Orders Reviewable as of Right + Remember TROs

Answer 129

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

Question 130

Appellate Review: Interlocutory Review Doctrines - Interlocutory Appeals Act

Answer 130

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

Question 131

Appellate Review: Interlocutory Review Doctrines - Collateral Order Doctrine + Example

Answer 131

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

Question 132

Appellate Review: Interlocutory Review Doctrines - Multiple Claims and Parties

Answer 132

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

Question 133

Appellate Review: Interlocutory Review Doctrines - Class Action + Remember Timing

Answer 133

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

Question 134

Appellate Review: Interlocutory Review Doctrines - Extraordinary Writ

Answer 134

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

Question 135

Appellate Review: Standards of Review - Questions of Law

Answer 135

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)

Question 136

Appellate Review: Standards of Review - Questions of Fact in Non-Jury Trials

Answer 136

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

Question 137

Appellate Review: Standards of Review - Questions of Fact in Jury Trials

Answer 137

Court of appeals WILL AFFIRM, UNLESS reasonable people COULD NOT HAVE MADE THAT FINDING

Question 138

Appellate Review: Standards of Review - Discretionary Matters + Remember Jury Instruction Content v. Providing Instruction

Answer 138

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)

Question 139

Appellate Review: Standards of Review - Harmless Error

Answer 139

Not every error (even an error of law) requires reversal on appeal, harmless errors will not trigger such appeal

Question 140

Preclusion: Preclusion Law for Cases in Different Judicial Systems

Answer 140

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

Question 141

Preclusion: Claim Preclusion (Res Judicata) Requirements + General Rule for On the Merits + Remember Majority View and Minority View for Same Claim

Answer 141

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

Question 142

Preclusion: Issue Preclusion (Collateral Estoppel) Requirements + Remember Nonmutual Defensive Issue Preclusion and Nonmutual Offensive Issue Preclusion

Answer 142

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)

Question 143

(PA) Statute of Limitations: 1 Year Limitation Actions

Answer 143

Libel, slander, and invasion of privacy

Question 144

(PA) Statute of Limitations: 2 Year Limitation Actions

Answer 144

All other torts (besides libel, slander, or invasion of privacy - those are 1 year)

Question 145

(PA) Statute of Limitations: 4 Year Limitation Actions

Answer 145

Actions upon a CONTRACT

Question 146

(PA) Statute of Limitations: Minors Tolling Statute

Answer 146

After a minor’s 18th birthday, the period of the SOL to commence an action BEGINS

Question 147

(PA) Statute of Limitations: Childhood Sexual Abuse Claims

Answer 147

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

Question 148

(PA) Statute of Limitations: Discovery Rule + Remember Date of Death + Remember Mass Media Defamation

Answer 148

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)

Question 149

(PA) Statute of Repose + Remember SOL

Answer 149

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

Question 150

(PA) Personal Jurisdiction Test

Answer 150

1) Does it satisfy PA long arm statute?; and

2) Does it satisfy Constitution? (contact, relatedness, and fairness)

Question 151

(PA) Personal Jurisdiction: Distinguish Specific Jurisdiction v. General Jurisdiction

Answer 151

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

Question 152

(PA) Venue: Improper Venue Pleading

Answer 152

Must be raised in the FIRST RESPONSIVE PLEADING (preliminary objections), or venue can be waived

Question 153

(PA) Venue: Where is Venue Always Proper + Remember Multiple Defendants + Remember Torts v. Contracts

Answer 153

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

Question 154

(PA) Venue: Defendant Corporations + Exceptions Health Care Providers & Political Subdivisions

Answer 154

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

Question 155

(PA) Venue: What will a court do with a case if improper venue occurs?

Answer 155

The action is not dismissed, but shall be TRANSFERRED to the proper county

Question 156

(PA) Exam Tip for PJ Distinction v. Venue Distinction

Answer 156

For PJ, think WHAT STATE can I sue?

For venue, think WHAT COUNTY can I sue?

Question 157

(PA) Forum Non Conveniens Factors

Answer 157

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

Question 158

(PA) Commencing Litigation: How P Initiates Suit

Answer 158

1) Filing a complaint and serving on D; or

2) Filing a praecipe for a writ of summons and serving on D

Question 159

(PA) Commencing Litigation: Why File Writ of Summons? + Remember Equivalent Period Doctrine

Answer 159

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

Question 160

(PA) Service of Process: How Must Process be Served - In State v. Out of State

Answer 160

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

Question 161

(PA) Service of Process: When Must Initial Process be Served? + Remember Effort by P

Answer 161

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

Question 162

(PA) Pleadings: Signature Required For All Pleadings - Requirements

Answer 162

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

Question 163

(PA) Pleadings: Verification Requirement for Pleadings

Answer 163

Every pleading with factual averments or denials MUST BE VERIFIED by the party

Question 164

(PA) Pleadings: Complaint - Requirements

Answer 164

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

Question 165

(PA) Pleadings: In Response to a Complaint, What are D’s Options + Exceptions to Waiver

Answer 165

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

Question 166

(PA) Pleadings: Types of Preliminary Objections

Answer 166

• 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

Question 167

(PA) Pleadings: Answers to Complaints - D Requirements + Exceptions

Answer 167

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)

Question 168

(PA) Pleadings: Affirmative Defenses Procedure + Remember Timing for P

Answer 168

Set forth in the ANSWER, under headline “new matter,” or they are waived

Remember: P must file a reply within 20 days

Question 169

(PA) Pleadings: Counterclaims Distinction with PA

Answer 169

In PA THERE ARE NO COMPULSORY COUNTERCLAIMS, all counterclaims are permissive

Question 170

(PA) Pleadings: Default Judgment Procedure + Remember Notice of Intent

Answer 170

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

Question 171

(PA) Pleadings: Certificate of Merit (COM) in Professional Liability Claims - Definition + Requirement

Answer 171

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

Question 172

(PA) Pleadings: Certificate of Merit (COM) in Professional Liability Claims - Additional Options for D

Answer 172

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

Question 173

(PA) Pleadings: Right to Amend Pleadings

Answer 173

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

Question 174

(PA) Pleadings: Right to Amend Pleadings - Correcting Name of Defendant

Answer 174

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

Question 175

(PA) Pleadings: Right to Amend Pleadings - Liberal Application

Answer 175

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

Question 176

(PA) Joinder: Compulsory Joinder

Answer 176

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

Question 177

(PA) Joinder: Permissive Joinder

Answer 177

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

Question 178

(PA) Joinder: **Additional Defendants (Third Party Practice in Fed)

Answer 178

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

Question 179

(PA) Joinder: Additional Defendants - Process to Join a Party

Answer 179

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

Question 180

(PA) Joinder: Additional Defendants - Plaintiff’s Recovery + Remember SOL

Answer 180

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

Question 181

(PA) Joinder: Additional Defendants - Recovery Against Joint Defendants + Joint and Several Exceptions

Answer 181

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

Question 182

(PA) Joinder: Pleading Rules for Class Action

Answer 182

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

Question 183

(PA) Discovery: Required Disclosure Distinction

Answer 183

Unlike Federal Rules, there is NO REQUIRED DISCLOSURE requirements in PA

Question 184

(PA) Discovery: ***Scope of Discovery Elements (same as Federal, but very important)

Answer 184

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

Question 185

(PA) Discovery: Improper Discovery

Answer 185

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

Question 186

(PA) Discovery: Work Product Rule + Exceptions

Answer 186

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

Question 187

(PA) Discovery: Expert Witness + Remember EW Not Testifying

Answer 187

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

Question 188

(PA) Discovery: Claims for Personal Injuries + Remember Exam

Answer 188

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

Question 189

(PA) Discovery: Insurance Coverage

Answer 189

Insurance coverage available to satisfy all or a part of any judgment that may be entered in the litigation IS DISCOVERABLE

Question 190

(PA) Discovery: Assets, Wealth, and Net Worth of D in Punitive Damages Claims + Tip

Answer 190

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

Question 191

(PA) Discovery: Supplementation of Discovery Responses + Exceptions

Answer 191

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

Question 192

(PA) Discovery: Objectionable Discovery

Answer 192

On receiving objectionable discovery, an attorney can serve objections to written discovery on the adverse party, or file a Motion for a Protective Order

Question 193

(PA) Discovery: Enforcing Discovery Rules

Answer 193

Two-Stage Process:

1) File Motion to Compel for a discovery response,
2) If still not received, then file Motion for Sanctions

Question 194

(PA) Discovery: Use of Depositions at Trial (Adverse Party Deposition v. Witness Deposition) + Remember Non-Party Medical W

Answer 194

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

Question 195

(PA) Adjudicating the Dispute: Motion for Judgment on the Pleadings Test

Answer 195

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

Question 196

(PA) Adjudicating the Dispute: Motions for Summary Judgment - Timing

Answer 196

Any party can file a MSJ at ANY TIME after pleadings are closed and early enough as not to delay trial

Question 197

(PA) Adjudicating the Dispute: Motions for Summary Judgment - Test + Remember Establishing Undisputed Facts + Motion for Partial Summary Judgment

Answer 197

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

Question 198

(PA) Adjudicating the Dispute: Motions for Summary Judgment - Nanty-Glo Rule

Answer 198

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

Question 199

(PA) Adjudicating the Dispute: Voluntary Dismissal by P + Exceptions + Remember Continuation of Case

Answer 199

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

Question 200

(PA) Trial, Trial-Motions, and Post-Trial Motions: Motion for Compulsory Non-Suit

Answer 200

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

Question 201

(PA) Trial, Trial-Motions, and Post-Trial Motions: Motion for Directed Verdict + Remember Timing

Answer 201

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

Question 202

(PA) Trial, Trial-Motions, and Post-Trial Motions: Molding of Verdict to Reflect Reduction for Comparative Negligence

Answer 202

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

Question 203

(PA) Death Claims - Who Brings the Claim?

Answer 203

An action for wrongful death must be brought by the personal representative of the estate

Question 204

(PA) Wrongful Use of Civil Proceedings - Dragonetti Act Claims + Remember Probable Cause

Answer 204

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)