Civil Procedure _ PreTrial Procedures

Question 1

Complaint:

PLEADINGS, ANSWERS, & COMPLAINTS

Answer 1

• Filing of Complaint commences Statute of Limitations
• Service of the Complaint within 90 days

Question 2

Elements of the Complaint:

PLEADINGS, ANSWERS, & COMPLAINTS

Answer 2

1) Statement of Jurisdiction
2) Statement of Facts (not theory)
3) Demand for Relief

Question 3

Specific Complaint:

PLEADINGS, ANSWERS, & COMPLAINTS

Answer 3

Fraud & Special Damages

Question 4

Answer: (3)

PLEADINGS, ANSWERS, & COMPLAINTS

Answer 4

1) Signed by lawyer
2) Whatever is not denied is admitted
3) Served within 21 days of service of
Complaint

Question 5

(5 things)

Affirmative Defenses – Pled in Answer:

PLEADINGS, ANSWERS, & COMPLAINTS

Answer 5

• Contributory Negligence
• Statute of Frauds
• Statute of Limitations
• Illegality
• Duress

Question 6

Amendment as of Right:

AMENDMENT

Answer 6

• Once within 21 days of service of pleading

Question 7

Amendment After 21 Days:

AMENDMENT

Answer 7

• Need Court’s permission
  * “When justice so requires”

Question 8

Relation Back:

AMENDMENT

Answer 8

* “Arose out of the same conduct, transaction, or occurrence”

Question 9

Relation Back (for PARTIES): (3)

AMENDMENT

Answer 9

1) Same conduct, transaction, or occurrence
2) Within 90 days of filing the party had notice
3) Knew/should have known but for mistake of ID

Question 10

Definition – Rule 11

RULE 11

Answer 10

Attorney signs to best of “knowledge, information, and belief” there is a basis for the claim

Question 11

Key Words:

RULE 11

Answer 11

• Warranted by existing law
• Evidentiary support
• No improper purpose

Question 12

Counterclaim:

ADDING OR CHANGING PARTIES & CLAIMS

Answer 12

• Defendant raises a claim back at the plaintiff

Question 13

Compulsory Counterclaim:

ADDING OR CHANGING PARTIES & CLAIMS

Answer 13

1) Same transaction or occurrence
2) Supplemental jurisdiction

Question 14

Permissive Counterclaim:

ADDING OR CHANGING PARTIES & CLAIMS

Answer 14

1) NOT same transaction or occurrence
2) Needs independent jurisdiction

Question 15

Permissive Joinder:

ADDING OR CHANGING PARTIES & CLAIMS

Answer 15

1. Single transaction or occurrence
2. Common questions of law/fact

Question 16

Compulsory Joinder

ADDING OR CHANGING PARTIES & CLAIMS

Answer 16

• Party needs to be joined or unfair

Question 17

Compulsory Joinder:

(1) Necessary Party =

ADDING OR CHANGING PARTIES & CLAIMS

Answer 17

1) Necessary Party = Impair Interest
* If cannot join due to jurisdiction – Case may STILL PROCEED

Question 18

Compulsory Joinder:

(2) Indispensable Party =

ADDING OR CHANGING PARTIES & CLAIMS

Answer 18

2) Indispensable Party = Prejudice
* If cannot join due to jurisdiction –
Case must be DISMISSED

Question 19

Class Certification: (4)

ADDING OR CHANGING PARTIES & CLAIMS

Answer 19

1) Numerosity
2) Common Questions of law or fact
3) Typicality
4) Representation/Conflict

Question 20

B1,B2, B3

Types of Class Actions:

ADDING OR CHANGING PARTIES & CLAIMS

Answer 20

• B1 = Impairment of Interests
• B2 = Injunctive Relief
• B3 = Common Question (the superior method)

Question 21

B1, B2, B3

Opting Out:

ADDING OR CHANGING PARTIES & CLAIMS

Answer 21

• B1 & B2 = Members *MAY NOT *OPT OUT
  vs.
• B3 = Member MAY OPT OUT

Question 22

B1, B2, B3

Notice & Class Actions:

ADDING OR CHANGING PARTIES & CLAIMS

Answer 22

• B1 & B2 = Notice NOT required, in discretion of Court
• B3 = Notice to ALL members

Question 23

Diversity in Class Actions:

ADDING OR CHANGING PARTIES & CLAIMS

Answer 23

1) Citizenship of the named representatives
2) One member must meet $75K+
OR the sum of claims is $5 million

Question 24

Appealability of Class Actions:

ADDING OR CHANGING PARTIES & CLAIMS

Answer 24

• If Certification of Class is denied – May be appealed

Question 25

Intervention as of Right: (3)

ADDING OR CHANGING PARTIES & CLAIMS

Answer 25

1. Interest in property/transaction
2. Interest is impaired
3. NO Court permission required

Question 26

Permissive Intervention:

ADDING OR CHANGING PARTIES & CLAIMS

Answer 26

1) Claim/defense has common question of law/fact
2) Court permission IS required

Question 27

Interpleader:

ADDING OR CHANGING PARTIES & CLAIMS

Answer 27

• 1 party owes something to 2 or more people

Question 28

Statutory Interpleader:

ADDING OR CHANGING PARTIES & CLAIMS

Answer 28

1) Nationwide Service
2) ANY 2 claimants can be diverse
3) $500 or more at stake
4) Deposit money/property in Court/bond

Question 29

Rule Interpleader:

ADDING OR CHANGING PARTIES & CLAIMS

Answer 29

1) NO Nationwide Service
2) Complete Diversity between claimant & ALL opponents
3) $75K+ requirement
4) NOT required to deposit money

Question 30

Impleader:

ADDING OR CHANGING PARTIES & CLAIMS

Answer 30

• Adding a 3rd party defendant who owes part or all of claim

Question 31

Cross Claim:

ADDING OR CHANGING PARTIES & CLAIMS

Answer 31

1) Co-party
2) Same transaction or occurrence
3) Actual damage

Question 32

Discoverable:

DISCOVERY

Answer 32

1) Not privileged
2) Relevant
3) “Proportional to needs of the case”

Question 33

Work Product:

DISCOVERY

Answer 33

• Generally immune from discovery
• Documents prepared in anticipation of trial

Question 34

Work Product – Discoverable:

DISCOVERY

Answer 34

1) Substantial need
2) Cannot obtain without UNDUE HARDSHIP

Question 35

Absolute Immunity:

DISCOVERY

Answer 35

• Mental impressions
• Conclusions
• Legal opinions/theories

Question 36

EXPERT – Testifying:

DISCOVERY

Answer 36

1) MUST provide ID
2) Expert must prepare report

Question 37

EXPERT – NOT Testifying:

DISCOVERY

Answer 37

• Discoverable only in “EXCEPTIONAL CIRCUMSTANCES”

Question 38

Duty to Supplement:

DISCOVERY

Answer 38

• Duty to supplement incomplete or wrong information
• Must be done in a timely manner

Question 39

Depositions:

DISCOVERY

Answer 39

• Party or non-party
• Written or oral
• Non-party by subpoena
• Limit = 10

Question 40

AdaptiTip

You {CAN / CANNOT} depose the same person more than once without the court’s permission?

DISCOVERY

Answer 40

You cannot depose the same person more than once without the court’s permission

Question 41

Interrogatories:

DISCOVERY

Answer 41

• Only to a PARTY
• Written/Answered in writing
• Limit = 25

Question 42

Request to Admit:

DISCOVERY

Answer 42

• Written request
• Conclusively established

Question 43

Request to Produce:

DISCOVERY

Answer 43

• Documents in the other side’s possession, control, custody

Question 44

Physical/Mental Exam:

DISCOVERY

Answer 44

1) Must be at issue
2) Court Order
3) Good Cause

Question 45

Object to a Request:

DISCOVERY

Answer 45

• Information not relevant

Question 46

Protective Order:

DISCOVERY

Answer 46

• Stop Discovery for embarrassment, harassment, undue burden

Question 47

Order to Compel:

DISCOVERY

Answer 47

• Party not complying with Discovery

Question 48

AdaptiTip:

Court {MAY or MAY NOT} order {WHAT} if one party has acted unreasonably. Start with minimal {WHAT} of fees/costs and work up to larger {WHAT}

DISCOVERY

Answer 48

Court may order sanctions if one party has acted unreasonably. Start with minimal sanctions of fees/costs and work up to larger sanctions

Question 49

Admissibility at Trial:

DISCOVERY

Answer 49

• Discoverable information is admissible at trial

Question 50

Conference of Parties:

PARTY CONFERENCES

Answer 50

1) Court MUST have conference
2) Parties MUST submit Discovery plan

Question 51

Scheduling Conference:

PARTY CONFERENCES

Answer 51

1) Court MUST have conference to limit time
2) Must issue SCHEDULING ORDER within 90 days of filing complaint
3) CANNOT be modified unless “Good Cause”

Question 52

Final Pretrial Conference:

PARTY CONFERENCES

Answer 52

1) Court MAY hold conference
2) IF there is a conference, Court MUST issue Pretrial Order
3) ONLY modified to prevent
“Manifest Injustice”

Question 53

Temporary Restraining Order:

TEMPORARY RESTRAINING ORDER & PRELIMINARY INJUNCTION

Answer 53

1) No notice
2) IMMEDIATE IRREPARABLE HARM
3) Expires in no more than 14 days

Question 54

Preliminary Injunction: (4)

TEMPORARY RESTRAINING ORDER & PRELIMINARY INJUNCTION

Answer 54

1) Notice & Hearing required
2) IRREPARABLE HARM
3) LIKELIHOOD TO SUCCEED ON THE MERITS
4) HARM TO MOVING PARTY GREATER THAN OTHER PARTY