Civil procedure - Pre-trial procedures Flashcards
what is the first thing you do when you want to file a complaint before you serve the person
you file it with the court with a summons
When does the SOL commences
when you file the complaint
How long do you have to serve the complaint
90 days
What must a complaint have?
Statement of JDX
Statement of facts - NOT theory
Demand for relief
Fraud and special damages if they have it
The statement of facts basically
describes what happened
what cant the statement of facts have
be inconsistently factual
Answer must be signed by a lawyer and whatever is not denied is
admitted
When must the answer be served on the other side
21 days
What type of affirmative defenses be pleaded in the answer
contributory negligence
SOF
SOL
Illegality
Duress
A motion to dismiss cannot come before an answer when you have a
affirmative defense
what are the 2 ways to amend a pleading
once as of right if w/n 21 days and
with the courts permission
Amendement as of right needs to happen within
21 days of pleading
To amend with the courts permission, the court will apply the standard of
When justice so requires
Relation back to the date of the orginal pleadings is usually applied when
there is a SOL issue
Relation back for a pleading will apply when
it arose out of the same conduct, transaction, or occurrence
Relations back for parties elements
Same conduct, transaction or occurrence
w/n 90 days of filling the complaint
the party had notice so they would not be prejudiced
knew/should have known but for mistake of ID
Rule 11
Attorney signs to best of knowledge, information and belief there is a basis for the claim
Rule 11 will not apply if
Legal arguments are Warranted by existing law
Allegations have Evidentiary support
Not being presented for improper purpose
Counterclaim
D raises a claim back to the P
When is a counterclaim considered compulsory
Same transaction or occurrence
Court will already have Supplemental jdx
Permissive counterclaim
Not same t/o
Needs independent JDX
Joinder is used to add
parties
Permissive Joinder is usually used when
joining multiple p
Permissive joinder elements
Same t/o
Common q of law / fact
Complusory joinder is usually used by which party
D
Complusory joinder argues that
a party needs to be joined or its unfair
Necessary party means that the interest will be
impaired
A necessary party means an interest will be impaired. If that part cannot join due to JDX issues, the court
may still proceed
An indepensible party means that the party by not joining will be
prejudiced
An indispensable party will be prejudiced if not joined this means that if they cannot join due to JDX requirements, the court case
must be dismissed
If a potential D is jointly and severally liable then the party who is to be joined is considered
not a necessary party
Elements to qualify as a class action
Size
Common q
Typicality
Representation / conflict
Size for a class action
A case must be so large that joining all these little claims are impractical
Typicality for a class action means
The claim of the representatives is typical of the class
Representation / Conflict for a class action
representatives of the class will fairly and adequately represent and protect the interests of the class
For Representation / Conflict for a class action you have to watch out for any
COI
For impairment of interests class actions and injunctive relief can members opt out
Yes
For common question class actions can members opt out
no
For impairment of interests class actions and injunctive relief is notice required
no because it is left with the discretion of the court
Fo common question class actions is notice required
yes
For common question class action is mail okay
yes as long as it is done by reasonable relief
Diversity in class action means
Citizenship of the named representatives that counts
One named member must meet the 75k +
Or the sum of the claims is 5 mill even if the named member doesnt mean the 75k
Who has the responsibility to certify a class
court
what happens if the court does not certify the class
members can go and make their own sub class
If a class action certification is denied is it appealable
yes
What does the court also have to approve in a class action lawsuit other than the class itself
Any settlement
Reasonable attorney fees based on the size of the court
What else needs to be supplied to the court with a class action
statement detailing the agreement
Intervention as of right means a party wants to be
joined to the suit even though they were not invited
For intervention as of right, court permission is not required if
Interest in property transaction
Interest is impaired or impede if they didn’t join
When is court permission required for intervention
permission intervention
For permissive interventions, you need to show and get
Claim / defense has common question of law / fact
Court permission IS required
Interpleader is when
1 party owes something to 2 or more people
what are the 2 types of interpleader
statutory and rule
Example of interpleader
One person owes property claimed by two or more people
Statuory interpleader requires what type of service
nationwide service
statutory interpleader elements
Nationwide service
Any 2 claimants can be diverse
$500 or more is at stake
the person that owns the property starts the suit, puts the property or the money… deposits it in the court, or posts a bond
Rule interpleader does not require
nationwide service
Rule interpleader elements
No nationwide service
Complete diversity between claimant and all opponents
75k requirement
Not required to deposit $
Impleader is when the D
adds a 3rd party who owes part or all of the claim
Cross claim
co -party
Same t/o
Actual damages
What is considered discoverable
Not privileged
Relevant
Proportional to the needs of the case
Work Product is generally immuned from discovery and it must be documents that were
prepared in anticipation of litigation
Who does work product protect
Lawyer and anyone else working under the lawyer
When is work product not privileged
Substantial need
Cannot obtain w/o undue hardship
What has absolute immunity from being discoverable
Mental impressions
Conclusions
Legal opinions / theories
What are the basic discoverable information of witnesses
Names and locations of all people
List of all the documents or materials that witness will be using in the case
Must a lawyer provide an ID of each expert
yes
Testifying experts must prepare a report that includes
Opinions
the basis for their expert opinions
any data or exhibits that they’re going to use
and their compensation
Experts who are not testifying will only be discoverable in
exceptional circumstances making it impractical for obtaining the information
Duty to supplement
Duty to supplement incomplete or wrong info
Must be done in a timely manner
is discoverable information admissible at trial
yes
Depos can be asked to whom and what is the limit
party/nonparty and 10 per side
How can you ask depos
either written or oral
Can you depose the same person more than once
not w/o court permission
What happens if a party does not want to comply with depos
sanction
Interrogatories can be asked of
parties only
What are the methods you can use for interrogatories
writting
Limit on interrogatories
25
Request to admit is a written request to admit
certain truths and facts
Once the request to admit is admitted it is
conclusively established
Request to produce documents
Docs in other sides possession, control or custody
What must you do in order to get a physical/mental exam ordered for the other party
Must be at issue
Court order
Show Good cause
If you use discovery for an improper purpose you could
get orders or sanctions
What if the other side is using discovery to harass you
Object to a request
Protective order
Order to compel
Object to a request is when
info is not relevant
Protective order is ordered when it
Stop discovery for embarrassment, harassment, or undue burden
order to compel is appropriate when
party not complying with discovery
A court may order sanctions if one party has acted unreasonably. Generally the first thing you can get is what and then list by ascending order
fee and costs
court can order certain facts to actually be established
can bar certain defenses
totally dismiss an action, or
hold somebody in contempt.
Safe harbor period
Where you cannot file the motion if the challenged paper, claim or defense is withdrawn or appropriately corrected w/n 21 days of service
During the conference of parties court orders the parties to talk about what and then do what
to talk about discovery, possible settlement, and case
Parties must submit discovery plan
A court must have a what conference to limit the time for motions and discovery
scheduling conference
What must be issued within 90 day of the compliant
scheduling order
When can you get a scheduling order pushed after the 90 days
if there is good cause
Is final pretrial conference mandatory
no
Motion to sever
When you attempt to join 2 claims against 2 separate D and no facts indicate that either claims arise out of the same transaction or that there is a common q of law or fact
Motion to attach
A process by which someone’s property is seized in accordance with a writ or judicial order for the purpose of securing a judgement yet to be rendered
When can you motion for a motion to attach
any time following the commencement of an action
Standard for a TRO
immediate irreparable harm
Standard for a prelim
irrepable harm
Which of the following requires notice: TRO or prelim
Prelim
How long can a TRO last
14 days
