Court procedures (mods 8-11)

Question 1

What commences the action

Answer 1

Filing the complaint

Question 2

Complaint must contain

Answer 2

1. Statement of grounds of subject matter jurisdiction
2. A short and plain statement of the claim showing that the plaintiff is entitled to relief, and
3. A demand for relief sought

• Does not need to allege grounds for PJ or venue

Question 3

Details in a complaint

Answer 3

Plaintiff must plead sufficient facts to support a plausible claim
- enough detail to strike judge - hard to test because subjective

When determining plausibility, the judge uses her own experience and common sense

Question 4

Special pleading reqs

Answer 4

Fraud, mistake and special damages must be pleaded with more detail - particularity or specificity

Question 5

Defendant’s response to the complaint

Answer 5

Rule 12 requires that the defendant respond in one of two ways
- by motion, or
- by answer

Defendant must respond no later than 21 days after being served
- if the defendant waived service, the defendant has 60 days from when the plaintiff mailed the waiver form to respond

Question 6

Motion for more definitie statement

Answer 6

Rule 12(e) motion for more definite statement is used when the complaint is so vague or ambiguous the defendant simply cannot respond

This must be made before answering

Very rare on bar

Question 7

Motion to strike

Answer 7

Rule 12(f) motion to strike asks the court to remove redundant or immaterial things from a pleading

Any party can move to strike

Question 8

Waivable defenses

Answer 8

Some Rule 12(b) defenses are waived if not put in the first Rule 12 response (motion or answer):
-Lack of personal jurisdiction
-Improper venue
-Improper process (a problem with the papers), and
-Improper service of process

Question 9

Nonwaivable defenses

Answer 9

Some Rule 12(b) defenses are not waived even if they are not included in the first response:

• A failure to state a claim and a failure to join an indispensable party (can be made as late as trial)
• A lack of subject matter jurisdiction (can be waived at any time)

Question 10

Lack of subject matter jurisdiction

Answer 10

Can never happen

Cannot be waived

A court without SMJ cannot act, so any act done without it is void

Question 11

Denial of Rule 12 motion

Answer 11

If defendant makes a motion as first appearance and it is denied, the defendant must serve answer within 14 days after the notice of the denial

Question 12

What defense can be raised at any time

Answer 12

Lack of jurisdiction over subject matter

Question 13

What defense is waived if it is not raised in defendants first Rule 12 response

Answer 13

Lack of personal jurisdiction

improper venue

insufficiency of process

insufficiency of service of process

Question 14

What defenses can be raised at any time before trial or at trial

Answer 14

Failure to state a claim upon which relief can be granted

Failure to join a party under Rule 19

Question 15

Defendant’s answer generally

Answer 15

An answer is a pleading and it does two things:

1. Respond to allegations in the complaint
   - admit or deny
   - or state that has insufficient knowledge
2. Raise affirmative defenses

Question 16

Insufficient knowledge in answer

Answer 16

Defendant can admit or deny, or state that she has insufficient knowledge to admit or deny

This has the effect of a denial, but a party cannot do this if the answer to the allegation is in her control

Question 17

Failure to deny an allegation in the answer

Answer 17

Defendant’s failure to deny an allegation in their answer is an admission

Except regarding the amount of damages

Question 18

Affirmative defenses

Answer 18

Affirmative defenses inject a new fact into the case that would allow the defendant to win

Classic affirmative defenses
- Statute of Limitations
- Statute of Frauds
- Res judicata
- self-defense

All Rule 12(b) defenses can be pleaded as affirmative defenses

No response by plaintiff is required - allegations are deemed denied

Question 19

Right to amend

Answer 19

The plaintiff has a right to amend her complaint once as of course no later than 21 days after the defendant serves her first Rule 12 response

The defendant has a right to amend his answer once as of course no later than 21 days of serving it

Question 20

Defendants amendment and waivable defenses

Answer 20

If the defendant’s first response was an answer, in which he forgot to raise waivable defenses and forgot to raise an affirmative defense, he has a right to amend his answer to include the waivable defenses and the affirmative defense

But must still be done in 21 days

Question 21

Amendment after right to amend has expired

Answer 21

After the period to amend as of right, the amending party must seek leave of court (or get the written consent of the opposing party)

The court will grant leave to amend if justice so requires
- length of delay
- prejudice to the other party
- futility of amendment

Question 22

Amendment and Variance

Answer 22

Only at trial - When the evidence at trial does not match what was pleaded

If the other party fails to object at trial, the party introducing the evidence may move to amend the complaint to conform to the evidence

Amend the complaint to conform to the evidence

Question 23

Amendment to join a claim not originally asserted - SOL

Answer 23

An amended pleading relates back if the pleading concerns the same conduct, transaction, or occurrence as the original pleading

Relation back means treat the amended pleading as though it was filed when the original was filed, so it can avoid a SOL problem

Question 24

Amendment to change a defendant

Answer 24

Only use when the plaintiff sued the wrong defendant first, but the right defendant knew about it

The amendment will relate back if

• the amendment concerns the same conduct, transaction, or occurrence as the original
• the defendant had such knowledge of the case such that she will be able to avoid prejudice, and
• the defendant knew or should have known that, but for a mistake, she would have been named originally

The knowledge in the last two must have come within the period for service of process (90 days after the filing of the complaint)

Question 25

Supplemental pleadings

Answer 25

Supplemental pleadings set forth things that happened after the pleadings were filed

No right to file a supplemental pleading

Must make a motion and whether the motion is granted is within the discretion of the trial court

Question 26

Rule 11

Answer 26

Rule 11 applies to all papers except discovery

When the lawyer or pro se party signs documents, she certifies that to the best of her knowledge and belief, after reasonable inquiry,
- the paper is not for an improper purpose
- the legal contentions are warranted by law or a non-frivolous argument for a law change; and
- the factual contentions and denials of factual contentions have evidentiary support or are likely to after further investigation

A party must make this certification every time she presents a position to the court
- continuing certification: when party later advocates a position taken in the previous document

Question 27

Rule 11 violations - Sanctions

Answer 27

Purpose is to deter a repeat of the conduct, not to punish

If there is a violation, like the assertion of a baseless claim, sanctions may be imposed against the party, the lawyer, and/or the lawyer’s firm

The court can also raise Rule 11 violations on its own motion
- issue an order to show cause why sanctions should not be imposed

Regardless of who filed the motion, before imposing a sanction, the court must give the sanctioned party an opportunity to be heard

Question 28

Types of Sanctions

Answer 28

Often, courts impose non-monetary sanctions

Monetary sanctions are paid to the court, not to the other party, if imposed

Question 29

Safe harbor provision to sanctions

Answer 29

If the other party violates Rule 11, the opposing party cannot immediately file a motion for sanctions

The party serves the motion on the other parties, but does not file it with the court yet

The party in violation has a safe harbor of 21 days to fix the problem to avoid sanctions
- If she does not do so, then the motion can be filed with the court

Question 30

Claim joinder by plaintiff

Answer 30

The plaintiff may join any additional claim she has against that adverse party, even if the additional claim is unrelated to the original claim

There must be subject matter jurisdiction over the claim

Question 31

Claims by multiple plaintiffs or against multiple defendants

Answer 31

Must
- arise from the same transaction or occurrence, and
- raise at least one common question of law or fact

Question 32

Necessary and indispensable parties generally

Answer 32

When the court might force some nonparty absentee to join in the case

Step 1: is the absentee necessary/required?

Step 2: if the absentee is necessary, can the absentee be joined?

Step 3: If the absentee can’t be joined, can the case proceed anyway?

Question 33

Necessary / Required party?

Answer 33

A party will be a necessary / required party if:

• without the absentee, the court cannot accord complete relief among the existing parties, or
• the absentee’s interest may be harmed if she is not joined, or
• the absentee claims an interest that subjects a party (usually the defendant) to a risk of multiple obligations

Joint tortfeasors are never necessary

Question 34

Necessary party feasible to join

Answer 34

If the absentee is a necessary party, a court will join the party if joinder is feasible

Joinder is feasible if:
- there is PJ over the absentee; and
- there will be federal SMJ over the claim by or against the absentee. The court will align the absentee as a plaintiff or defendant based on their interests for purposes of diversity

Bulge rule

Question 35

Bulge Rule

Answer 35

For necessary parties and impleader

If the individual is served within a district of the US and not more than 100 miles from where the summons was issued, there is PJ

Otherwise, need traditional contacts-based PJ

Question 36

Necessary party not feasible

Answer 36

If the absentee / necessary party cannot be joined, court must determine whether the party is indispensable

If indispensable, dismiss the case. If not indispensable, can proceed without the necessary party

Question 37

Indispensable party

Answer 37

Court will consider factors to determine whether the party is an indispensable party:

• alternative forum available
• actual likelihood of harm to the absentee, and
• whether court can shape relief to avoid such harm to the absentee

Can the action proceed in equity and good conscience without absentee?

Question 38

Counterclaims

Answer 38

Claim joinder by the defendant

A counterclaim is a claim against an opposing party

Two types

There must always be SMJ over them

Question 39

Plaintiff response to counterclaim

Answer 39

After the defendant serves a counterclaim against the plaintiff, the plaintiff must respond under Rule 12 within 21 days of service of the counterclaim

Question 40

Compulsory counterclaim

Answer 40

A compulsory counterclaim arises from the same transaction or occurrence as the plaintiff’s claim

Unless the counterclaimant has already filed the claim in another case, she must file the compulsory counterclaim in the pending case or the claim is waived

Only comes into play when an answer is required

Question 41

Permissive counterclaims

Answer 41

A permissive counterclaim is one that does not arise from the same transaction or occurrence as the plaintiff’s claim

Doesn’t lose right to file it if not filed in the action

Question 42

Crossclaims

Answer 42

A crossclaim is a claim against a coparty

In order to assert it, it must arise from the same transaction or occurrence as the underlying action

Not compulsory

Question 43

Impleader generally

Answer 43

Defending party (third-party plaintiff) is bringing in a new party (third-party defendant)

An impleader claim is used to shift to the third party defendant the liability that the defendant will owe to the plaintiff
So if the defendant is found liable to the plaintiff, he will try to get the TPD to pay all or part of his own liability

Look for claims for indemnity or contribution

Permissive, so does not need to bring it in the current case

Question 44

Indemnity and contribution

Answer 44

Claims to look out for for impleader

Indemnity shifts liability completely

Contribution shifts it pro-rata

Question 45

Process for impleading

Answer 45

To implied a third party, the defendant must

1. file a third-party complaint naming the TPD, and
2. Have that complaint formally served

Right to implied within 14 days of serving the answer. After that, need court permission

Question 46

TPD and Plaintiff

Answer 46

After the TPD is joined, the plaintiff may assert claims against the TP, and the TPD may assert claims against the plaintiff

Ones that arise out of the same transaction or occurrence as the underlying case

SMJ required

Question 47

Intervention generally

Answer 47

A nonparty absentee uses intervention to bring herself into the case, either as pl or defendant

Application to intervene must be timely

Intervention as of right or permissive

Need SMJ

Question 48

Intervention of Right

Answer 48

If the absentee’s interest may be harmed if she is not joined, and that interest is not adequately represented by the current parties, intervention is of right

Basically same test for necessary parties

Question 49

Permissive intervention

Answer 49

If the absentee’s claim or defense and the pending case have at least one common question of law or fact, intervention would be permissive and discretionary with the court

Usually allowed unless it would cause delay or prejudice to someone

Question 50

Interpleader generally

Answer 50

Interpleader applies if separate actions might result in double liability against a stakeholder

Person/stakeholder requires two or more adverse claimants to the stake to litigate among themselves to determine which has the valid claim

Rule 22 interpleader and statutory interpleader

Question 51

Rule 22 Interpleader

Answer 51

Requires complete diversity or federal question claim

Normal service and venue rules

Question 52

Statutory interpleader

Answer 52

Only diversity between any two contending claimants and $500 in issue

Service may be nationwide

Venue proper where any claimant resides

Question 53

Class actions generally

Answer 53

Initial requirements (all four must be met):
- numerosity
- commonality
- typicality
- representative adequate

One of the three groups:
- type 1, prejudice
- type 2, injunctive or declaratory relief
- type 3, common question or damages

Question 54

Numerosity

Answer 54

Too many class members for practicable joinder

No magic number

Question 55

Commonality

Answer 55

Some issue in common to all class members, so resolution of that issue will generate answers for everybody in one stroke

Decide for one, decide for all

Question 56

Typicality

Answer 56

The class representative’s claims are typical of the claims of the class

Question 57

Representative Adequate

Answer 57

The class representative will fairly and adequately represent the class

Question 58

Class action type 1 - prejudice

Answer 58

For type 1 class actions, class treatment is necessary to avoid harm either to class members or to the non-class party

Very rare

Question 59

Class action type 2 - injunctive or declaratory relief

Answer 59

Seeks an injunction or a declaratory judgment because the defendant treated the class members alike

Generally cannot seek damages

Question 60

Class action type 3 - common question or damages

Answer 60

For this type of class action,
- common questions must predominate over individual questions, and
- the class action is a superior method to handle the dispute

Requires notice to all class members and option of opting-out

Question 61

Certifying class action

Answer 61

A case is not a class action until the court grants the motion to certify it as a class action

Must meet all four initial requirements and fit into one of the three categories

The court must also
- define the class and the class claims, issues, or defenses, and
- appoint class counsel, who must fairly and adequately represent the interests of the class

Losing party can seek immediate review on court’s decision whether the certify

Question 62

Notice in class actions

Answer 62

In type 3 class action, the court must notify the class members that they are in a class

Individual notice, usually be mail, to all reasonably identifiable members

Notice is paid for by the rep

Not required in type 1 and type 2 actions

Question 63

Content of notice in class actions

Answer 63

Notice tells the class members various things, including
- ability to opt out
- will be bound by judgment if they don’t opt-out, and
- can enter a separate appearance through counsel

Question 64

Opt out - class action

Answer 64

There is no right to opt out of a class 1 or 2 class action

All class members are bound by the judgment unless, in type 3, they opt out

Question 65

Settlement of a class action

Answer 65

The parties can settle or dismiss a certified class action only with court approval

Court must give notice to the class members in all types to get feedback on whether settled

If it’s a type 3 class, the court might also refuse to approve the settlement unless members are given a second chance to opt out

Question 66

SMJ in class actions

Answer 66

For diversity cases, only the citizenship of the class rep is considered and her claim must exceed $75,000

The claims of other class members are ignored

Question 67

Class Action Fairness Act

Answer 67

CAFA grants SMJ separate from diversity of citizenship if:
- at least 100 members
- any class member, not just the representative, is of diverse citizenship from any defendant, and
- the aggregated claims of the class exceed $5 million

Any one defendant, even an in-state defendant, may remove the case from state to federal court

Complicated provisions in CAFA to ensure that local classes do not stay in federal court

Question 68

Initial required disclosures

Answer 68

Information that each party must give to other parties, even though the parties have not asked for it

Unless stipulation or court order otherwise, within 14 days of the Rule 26(f) conference, each party must disclose certain information

• identities of persons with discoverable information that the party may use to support claims/defenses
• documents and things that the part may use to support claims/defenses
• computation of relief and along with supporting documents/esi
• insurance coverage

Question 69

Initial disclosure - identities of persons

Answer 69

The names, telephone numbers, and addresses of persons with discoverable information, and the topics on which they have discoverable information, who the party may use to support her claims or defenses, must be disclosed as an initial disclosure

Question 70

Initial disclosure - documents

Answer 70

Documents and tangible things that the party may use to support her claims or defenses must be disclosed as an initial disclosure

This includes photos, records, videos, and electronically stored information (ESI)

Must be in the party’s control and custody - documents and tangible things that are not in the party’s control need not be disclosed

Question 71

Initial disclosure - computation

Answer 71

Anyone claiming monetary relief must provide a computation, supported by documents or ESI of the amount sought as an initial disclosure

Question 72

Initial disclosure - insurance coverage

Answer 72

The parties must disclose any insurance that might cover all or part of the judgement in the case even though the existence of the insurance probably would not be admissible at trial

Question 73

Penalty for failing to disclose

Answer 73

If a party fails to disclose material that was required, that party cannot use the undisclosed material in the case unless the failure to disclose was substantially justified or harmless

Question 74

Expert witness required disclosures

Answer 74

At a time directed by the court, each party must identify expert witnesses who may provide testimony at trial

Each party must disclose to the other parties the identity of and written report prepared by the expert witness

Question 75

Consulting experts

Answer 75

A party hired an expert to help with preparing a case, but does not intend to call that expert to testify at trial

Such an expert is not an expert witness, but rather a consulting expert

Facts known and opinions held by consulting experts are generally not discoverable absent exceptional circumstances

Question 76

Expert’s written report

Answer 76

The written report must include
- opinions that the EW will express
- the bases for the opinions
- the facts used to form the opinions
- the EW’s qualifications, and
- how much the EW is being paid

Earlier drafts of the report and communications between the lawyer and the EW are work product

Question 77

Deposition of Expert Witness

Answer 77

After the disclosure of the expert, a party may take the deposition

Best practice is for that party to subpoena the EW to compel her attendance - without it, the expert may not show up

The deposing party ordinarily will bear the cost of the deposition - the court will set a per-hour fee

Question 78

Failure to disclose expert

Answer 78

If a party fails to disclose material that was required to be disclosed, she cannot use the EW in the case unless the failure was justified or harmless

Question 79

Required pretrial disclosures

Answer 79

No later than 30 days before trial, the parties must give detailed information about their trial evidence

Including identity of witnesses who will testify and documents, ESI and other things they intend to introduce at trial

Question 80

When party can send discovery requests

Answer 80

Assuming no court order or stipulation provides otherwise, a party cannot send discovery requests to another party until after the Rule 26(f) conference

Minor exception: requests to produce can be served earlier - once 21 days has passed since service of process
- but it is treated as though it was served at the Rule 26(f) conference

Question 81

Discovery generally

Answer 81

5 discovery tools
- depositions
- interrogatories
- request to produce
- medical exam
- request for admission

Generally, the cost of responding to discovery is borne by the responding party

Question 82

Depositions generally

Answer 82

Person gives live testimony

Questions are generally oral, but can be written

Deponent testifies under oath

Both partied and nonparties may be deposed

Deponent isn’t required to review records prior to the deposition

Question 83

Notice to parties and subpoenas to nonparties - deposition

Answer 83

A party does not need to be served with a subpoena for a deposition
A notice of deposition is sufficient to compel appearance

A nonparty must be served with a subpoena or else she is not compelled to attend

If the party noticing the deposition fails to do so and the deponent fails to show up, the noticing party may be liable for costs to the other parties

Question 84

Subpoena Duces Tecum

Answer 84

A subpoena duces tecum requires the deponent to bring materials with her to the deposition

Question 85

Limit on deposition of nonparty

Answer 85

Unless a nonparty agrees otherwise, the farthest she can be required to travel is 100 miles from where the nonparty resides or is employed

Question 86

Deposition of an organization

Answer 86

When the party is suing an organization, she may notice a deposition of an organization, describing the facts that she wants to discover in the deposition

The organization then must designate a person to testify on that matter

Question 87

Limits on depositions

Answer 87

A party cannot take more than 10 depositions or depose the same person twice without court approval or stipulation

Depositions cannot exceed one day of seven hours unless the court orders or parties stipulate otherwise

Question 88

Use of depositions

Answer 88

Subject to rules of evidence, depositions may be used at trial:
- to impeach the deponent
- for any purpose if the deponent is an adverse party, or
- for any purpose of the deponent is unavailable for trial, unless that absence was procured by the party seeking to introduce the evidence

Question 89

Interrogatories

Answer 89

Written questions to be answered in writing under oath

Only sent to parties

Maximum number, without a court order or stipulation, is 25, including subparts

To be answered within 30 days from their service

Must answer interrogatories based upon information reasonably available - do homework for reasonably available

Interrogatories that inquire about legal contentions are allowed

Question 90

Answers to interrogatories in business records

Answer 90

If the answers to interrogatories can be found in business records and the burden of finding the answer would be about the same for either party, the responding party can allow the requesting party to have access to the records

Question 91

Request to produce

Answer 91

A request to produce asks a party to make available for review and copying documents or things, including electronically stored information (ESI), or to permit entry in designated property to inspect, measure, etc’

Only parties can be sent a request to produce, but a nonparty can be served with a subpoena to require her to disclose the same types of information

Question 92

Responding to requests to produce

Answer 92

ESI must be produced in the form that the requesting party specifies, but the responding party may object

The disclosing party must respond to the request in writing within 30 days of service, stating that the material will be produced or asserting objections

Question 93

Medical exam

Answer 93

A court order is required to compel a party (or a person in the party’s custody and control) to submit to a medical exam
- custody and control is narrow

Requesting party must show
- that the person’s health is in actual controversy, and
- good cause

The requesting party chooses the licensed medical professional

Question 94

Requesting a copy of the medical exam

Answer 94

Once the court orders a medical exam and conducts the exam, the medical professional will write a report and give it to the requesting party

The person undergoing the exam can get a copy of the report just by asking for it

If the person requests and obtains the report, she must (on request) produce all medical reports by her own doctors about that same medical condition
- waives any doctor-patient privilege

Question 95

Request for Admission

Answer 95

A written request that someone admit certain matters

Must respond within 30 days of service, either denying specifically or objecting
- but if responding party states that made a reasonable inquiry and cannot find enough information from which to admit or deny, she can state that she does not know an answer

If the party fails to deny a proper request, the matter is deemed admitted

Question 96

Signature requirement for discovery

Answer 96

Parties sign substantive answers to discovery under oath

Rule 11 does not apply, but every discovery request and response is signed by counsel certifying it is
- warranted
- not interposed for an improper purpose, and
- not unduly burdensome

Question 97

Duty to Supplement

Answer 97

If new facts come to light after responding to discovery that make a required disclosure, interrogatory, request for production, or request for admission incomplete or incorrect, the party must supplement her response to discovery

Self-policing obligation

Question 98

Scope of discovery

Answer 98

A party can discover anything that is relevant to a claim or defense and proportional to the needs of the case

Unlike initial disclosures, something harmful to party may be discoverable

Discoverable is broader than admissible - information does not need to be admissible to be discoverable

Question 99

Requests for discovery - enormous costs

Answer 99

Discovery is not reasonably accessible because of undue burden of cost

If request discovery that would be very expensive to product, show good cause for it anyway despite the burden

If plaintiff does show good cause for discovery, the court can order production and allocate expenses between the parties

Question 100

Discovery and privilege

Answer 100

A party can object to discovery on the basis of evidentiary privilege

Question 101

Work product protection

Answer 101

Work product or trial preparation material, which is material prepared in anticipation of litigation, is protected from discovery

In federal court, work product does not need to be generated by a lawyer
- can be prepared by the party herself or by any representative of a party

Qualified vs. absolute work product

Question 102

Qualified vs. absolute work product

Answer 102

Work product sometimes may be discovered if the requesting party can show substantial need and undue hardship in obtaining the materials in an alternative way - qualified work product

But some work product is absolutely protected and cannot be discovered
- opinion work product

Question 103

Opinion work product

Answer 103

Consists of mental impressions, conclusions, opinions, or legal theories of the disclosing party

Cannot be discovered

Question 104

Party’s own statement

Answer 104

Notwithstanding work product, a party has a right to demand discovery of any previous statement that she has made regarding the case

Question 105

Asserting privilege or work product

Answer 105

If a party withholds discovery or seeks a protective order based on privilege or work product, she must claim the protection expressly and describe the materials in detail

Does so in a privilege log - lists the materials protected by date, author, recipient, and privilege or protection claimed
- must be enough detail to allow the judge to determine whether the material is protected

Question 106

Inadvertent disclosure of privileged or protected material

Answer 106

If a party inadvertently produces privileged or protected material, she should notify the other party promptly

The other party then must return, sequester, or destroy the material pending a decision by the court about whether there has been waiver

Question 107

Enforcement of discovery rules

Answer 107

There are three ways courts get involved in discovery disputes:

• Party seeks protective order
• Party responds, but not fully
• No response to discovery request

Question 108

Party seeks protective order (discovery)

Answer 108

If the responding party thinks a discovery request subjects her to annoyance, embarrassment, undue burden or expense, she can move for a protective order

Party must certify that she tried in good faith to resolve the issue without court involvement - asked other side to meet and confer

If the court agrees, it can
- deny discovery
- limit discovery, or
- permit discovery on specified terms

Question 109

Party responds to discovery, but not fully

Answer 109

If a party responds to a request but fails to answer all questions because she objects to them, she may be compelled to comply by court order

Two step process
- the requesting party moves for an order compelling the producing party to answer the unanswered questions, plus costs
- if the producing party violates the order compelling, the court can enter merits sanctions, along with costs and attorneys’ fees for bringing the motion

The producing party could be held in contempt for violating a court order, but there is no contempt for refusal to submit to a medical exam

Question 110

No response to discovery request

Answer 110

If a responding party fails completely to attend her deposition, respond to interrogatories, or respond to requests for production, she will be subject to various sanctions plus costs

Court can enter merits sanctions plus costs
- no need to get an order compelling answers, can go directly to merits sanctions

Question 111

Sanctions against a party - discovery

Answer 111

The party seeking sanctions generally must certify that she tried in good faith to get the information without court involvement - meet and confer

Question 112

Merits sanctions

Answer 112

A judge is free to choose among the following as merits sanctions
- establishment order
- strike pleadings of the disobedient party as to issues re the discovery
- disallow evidence from the disobedient party as to issues re the discovery
- dismiss plaintiff’s case if bad faith shown
- enter default judgment against defendant if bad faith shown

Question 113

Preserve discoverable information

Answer 113

When litigation is reasonably anticipated, parties must preserve discoverable information

ESI has some special rules

Question 114

Preserving discoverable information and ESI

Answer 114

If ESI is truly lost - it cannot be recovered or restored - and it was lost because the party in control of it failed to take reasonable steps to preserve it, the court may order measures to cure the harm caused to the other party

The court can enter an adverse inference order or enter merits sanctions if the party who lost the ESI acted with intent to deprive the other party of the information
The court can also enter a default against the defendant if conduct in bad faith

Adverse inference order: tell the jury that it must presume that the lost information would be unfavorable to the party that lost the ESI

Question 115

Preliminary injunction generally

Answer 115

Plaintiff is worried that before the case can be tried, the defendant may do or fail to do something that will prejudice the plaintiffs case

Preliminary injunction maintains the status quo until the court can adjudicate the underlying claim on the merits

Cannot be issued ex parte

Question 116

Preliminary injunction - applicant must show

Answer 116

To get a preliminary injunction, applicant must show
- she is likely to suffer irreparable harm if the injunction is not issued
- she is likely to win on the merits of the underlying case
- the balance of hardship favors her
- the injunction is in the public interest

Court has discretion

Question 117

Preliminary injunction and TRO - bond

Answer 117

If the court grants the preliminary injunction or TRO, the applicant must post a bond to cover the other side’s costs and damages caused if it turns out the restraint is wrongful

Question 118

Preliminary injunction and TRO - contents of it

Answer 118

Must state its terms in specificity, describe in detail what the defendant must do or refrain from doing, and state why it was issued, and why the threatened injury to the pl was irreparable

Question 119

Preliminary injunction - court deciding it

Answer 119

Discretion

In granting or denying the preliminary injunction, the court must make specific findings of fact and separate conclusions of law

Question 120

Temporary restraining order generally

Answer 120

Issued to preserve the status quo until a hearing for a preliminary injunction can be held

May be issued ex parte - a court has done something without giving notice to the other party

Question 121

Temporary restraining order - issue TRO ex parte

Answer 121

The court will issue a TRO ex parte only if
- the applicant files a paper under oath clearly showing that if the TRO is not issued, she will suffer immediate and irreparable harm if she must wait until the other side is heard
- the applicant’s lawyer certifies in writing her efforts to give oral or written notice to the defendant or the defendant’s lawyer (or why such notice should not be required in the case)

Question 122

Temporary restraining order - notifying defendant

Answer 122

If issues TRO, must be served on the defendant as soon as possible

Generally speaking, a party without notice of a TRO cannot be punished for violating it

Question 123

Duration of temporary restraining order

Answer 123

Effective for no more than 14 days - or lesser time stated by the court
- but restrained party may move to dissolve or modify it earlier

If applicant shows good cause before expiration, it can be extended for up to another 14 days
- but cannot extend past 28 days
- if extended past 28 days, may treat as preliminary injunction

Question 124

Voluntary dismissal - without court permission

Answer 124

If the plaintiff wants to withdraw the case, she may do so without a court order before the defendant serves an answer or motion for summary judgment

Parties may also stipulate to a voluntary dismissal without court order

Question 125

Voluntary dismissal with court permission

Answer 125

After defendant has filed answer or MSJ, court permission is required absent a stipulation

Pl must make a motion for voluntary dismissal and court has discretion

Question 126

First voluntary dismissal

Answer 126

The first voluntary dismissal is without prejudice - pl can refile the case

Only get to do it without prejudice once

The second voluntary dismissal is with prejudice - operates as an adjudication on the merits and takes away the plaintiff’s ability to refile the case

Question 127

Entry of default

Answer 127

A default is a notation by the court clerk on the docket sheet in the case

Pl must move for a default and demonstrate that the defendant failed to respond in time
- until a default is actually entered, the defendant can respond by motion or answer even beyond 21 days

The entry of default cuts off the defendant’s right to respond but does not automatically entitle the plaintiff to relief
- must seek a default judgment

Question 128

Default judgment by the clerk of the court

Answer 128

The clerk of the court can enter a default judgment if
- the defendant has made no response at all
- claim itself is for a sum certain in money
- the plaintiff gives an affidavit of the sum owed, and
- the defendant is not a minor or incompetent

If any of the above is not true, pl must apply to the court for default judgment

Question 129

Hearing for default judgment

Answer 129

The judge will hold a hearing and has discretion whether to enter the judgment

Defendant is entitled to notice of the hearing if she has appeared in some fashion

Question 130

Default judgment and plaintiff’s recovery

Answer 130

Plaintiffs recovery in a hearing for a default judgment is limited to what is pleaded in the complaint

Question 131

Motions to set aside default or default judgment

Answer 131

The defendant may move to have the court set aside a default or default judgment by showing
- good cause, and
- a viable defense

Question 132

Motion to dismiss for failure to state a claim

Answer 132

Rule 12(b)(6) - should know this

Tests whether the case belongs in the litigation stream at all
- if plaintiff’s case fails to state a claim, dismissed

Court ignores the plaintiff’s legal contents and looks only at the plaintiff’s allegations of fact on the face of the complaint
- if these facts are true, do they state a plausible claim?
- does not look at evidence

Court might allow pl to amend

Question 133

A motion for judgement on the pleadings

Answer 133

Same motion as a motion to dismiss for failure to state a claim but it is made after the defendant has answered

Question 134

Motion for summary judgment

Answer 134

Rule 56 - should also know this

Party moving for SJ must show
- no genuine dispute on a material fact, and
- entitled to judgment as a matter of law

If standard is met, not always required to grant the motion - some discretion

Can be partial judgment and case goes to trial for the rest

Question 135

Timing of MSJ

Answer 135

Any party can move for SJ no later than 30 days after close of discovery

Question 136

Evidence / matters when considering MSJ

Answer 136

The court can look at evidence, unlike 12(b)(6)

Views the evidence in the light most favorable to the nonmoving party

Usually
- affidavits
- declarations
- deposition testimony
- interrogatory answers

Stuff under oath
- verified pleadings are under oath
- but can use pleadings if def failed to deny an allegation and can be treated as fact

Does not assess credibility on a summary judgment motion

Question 137

Delaying ruling on MSJ

Answer 137

If the party opposing summary judgment needs more time to find evidence to oppose the motion, she may file an affidavit or declaration with the court stating what that evidence would be

Court may allow for more time