Federal Civil Procedure

Question 1

What is the Rules of Decision Act?

Answer 1

The Rules of Decision Act states that applicable provisions of the federal Constitution, treaties, and constitutional statutes enacted by Congress always take precedence over state law. The federal courts apply federal law when considering issues involving the U.S. Constitution and constitutional federal statutes.

Question 2

What is the Erie Doctrine?

Answer 2

A federal court with diversity or supplemental jurisdiction that is presiding over a state-law claim must apply the substantive law of the state in which the court sits.

Question 3

The Erie Doctrine ONLY applies when…

Answer 3

The Erie Doctrine applies ONLY when the following are present:

1. the court has diversity or supplemental jurisdiction over a case; and
2. the state law what would apply conflicts with the federal rule, statute, doctrine, or procedure at issue.

When conflicts arise, always

• apply state substantive law; and
• apply federal procedural law.

Question 4

What are the types of pleadings that are allowed under the Federal Rules?

Answer 4

1. Complaint
2. Answers to Complaints
3. Answers to Counterclaims
4. Answers to Cross-Claims
5. Third-Party Complaints
6. Answers to Third-Party Complaints
7. Replies to Answers (if ordered by the court)

Question 5

What are the rules of pleading?

Answer 5

A pleading that states a claim for relief must contain:

1. a short and plain statement of the grounds upon which the court’s jurisdiction rests and a statement of a claim, which, if true, would entitle the claimant to relief; and
2. a demand for relief.

Question 6

True or False:

A pleading may not make inconsistent claims or defenses.

Answer 6

False.

A pleading may make inconsistent claims or defenses.

• The court will allow inconsistent pleadings to be determined by the trier of facts.
• A party may set out 2 or more statements of a claim or defense alternatively or hypothetically, either in a single count or defense or in separate ones.

Question 7

What must be included in a responsive pleading?

Answer 7

A responding party must admit or deny the allegations made against it by an opposing party. The party must admit those allegations, or parts of allegations, that are true, and deny the others.

Question 8

How long do you have to file an Answer upon receipt of a Summons and Complaint?

Are there any exceptions?

Answer 8

An Answer must be filed within 21 days of service of the Complaint.

The 21-day period DOES NOT include the date of service, but does include weekends and holidays; if the 21st day is on a weekend or a holiday, the Answer must be filed on the next business day.

Question 9

What are the Affirmative Defenses that must be pled in a responsive pleading?

Answer 9

A party must plead certain affirmative defenses in its answer or reply to a counterclaim.

The Affirmative Defenses are:

1. Accord and Satisfaction
2. Arbitration and Award
3. Assumption of Risk
4. Contributory Negligence
5. Discharge in Bankruptcy
6. Duress
7. Estoppel
8. Failure of Consideration
9. Fraud
10. Illegality
11. Injury by fellow servant
12. Laches
13. Licenses
14. Payment
15. Release
16. Res Judicata
17. Statute of Frauds
18. Statute of Limitations
19. Waiver

Question 10

What are the objections that must be raised either by the Defendant’s initial motion or responsive pleading?

What are the objections that may be made, but are not waived, in the Defendant’s initial motion or responsive pleading?

Answer 10

The 12(b)s

MUST:

1. Lack of Personal Jurisdiction
2. Improper Venue
3. Insufficient Process
4. Insufficient Service of Process

MAY:

1. Lack of Subject Matter Jurisdiction
2. Failure to State A Claim Upon Which Relief Can Be Granted
3. Failure to join a party under Rule 19

NOTE – If one of these objections are raised by motion rather than in an Answer or other responsive pleading, the motion MUST be made BEFORE a responsive pleading is made.

Question 11

What is the rule regarding Amended and Supplemental Pleadings?

Answer 11

A party may amend a pleading once as a matter of course IF the amendment is filed:

1. within 21 days of service of the original pleading; OR
2. if the pleading requires a response, within 21 days after service of a responsive pleading or 21 days after service of a motion to dismiss, a motion for amore definite statement, or a motion to strike, whichever is earlier.

IN ALL OTHER CASES, a party may amend its pleading only with the opposing party’s written consent

OR

the Court’s leave. The Court must freely give leave when justice requires. The Court will consider:

1. the length and reason for the delay; and
2. prejudice to the opposing party as a result of the delay.

Question 12

What is the Doctrine of Relation Back?

Answer 12

Under the Doctrine of Relation Back, the Court will treat an amendment to a pleading as though it had been filed with the original pleading.

An Amendment to a Pleading relates back to the date of the original pleading when:

1. the law that provides the applicable statute of limitations allows relation back;
2. the amendment asserts a claim or defense that arose out of the same conduct, transaction, or occurrence as the original claim; OR
3. the amendment changes the party or the naming of the party against whom a claim is asserted, IF:
   
   1. the amendment asserts a claim or defense that arose out of the same conduct, transaction, or occurrence as the original claim;
   2. the party to be added by the amendment received notice of the original action within 90 days of filing the complaint such that it will not be prejudiced in defending on the merits; AND
   3. the party to be added knew, or should have known, that the oringal action would have been asserted against it, but for the mistake concerning the proper party’s identity.

Question 13

What is the significance of Rule 11?

Answer 13

Every pleading, written motion, and other paper filed with the court must be signed by at least one attorney of record in the attorney’s name, or by a party personally, if the party is not represented by an attorney. The attorney or unrepresented party who presents to the court a pleading, writtne motion, or other document certifies that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances that:

1. the document is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;
2. the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;
3. the factual contentions have evidentiary support or will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and
4. the denials of factual contentions are either warranted on the evidence or are reasonably based on belief or lack of information.

If the court finds that any of the above representations are untrue, it has discretion to impose sanctions on the party or the party’s attorney. Sanctions are ordered after notice to the offending party and an opportunity to be heard.

Question 14

What are the two forms of provisional relief that may be granted during litigation?

Answer 14

Provisional Relief is available to maintain the status quo and prevent irreparable damage or wasting of assets during litigation or pending arbitration.

Provisional Relief consists of 2 Remedies:

1. Temporary Restraining Order (TRO); and
2. Preliminary Injunctions.

Question 15

How and Why might you get a TRO or a Preliminary Injunction? How do they differ?

Answer 15

A Temporary Restraining Order is used in an emergency situation, when an injunction must issue before any hearing, and lasts only a few days, generally long enough for the parties to seek a preliminary injunction.

It is an extraordinary remedy that may be issued prior to a decision on the merits and provides immediate or quick by short-term injunctive relief.

TRO - may be ex parte w/o notice

Preliminary Injunction - notice to adverse party required

FOR BOTH YOU MUST ESTABLISH:

1. a substantial likelihood of success on the merits;
2. irreparable harm will be suffered unless the remedy sought is issued;
3. the harm to the plaintiff if the TRO or Preliminary Injunction is denied is greater than the hard to the defendant if the remedy is granted; and
4. the provisional remedy, if granted, will not be adverse to public interest.

Question 16

What is a Joinder of Claims?

Answer 16

Rule:

A party may join as many claims in a single action as the party has against an opposing party.

There is no requirement that all of the claims in a complaint be related.

The goal of joining all claims in one action is to achieve complete resolution of all disputes between the parties.

Question 17

What is a Compulsory Counterclaim?

Answer 17

A compulsory counterclaim is one that arises out of the same transaction or occurrence as the original claim in the lawsuit. A failure to raise a compulsory counterclaim waives the right to assert the claim in the original action, or in any other action.

Counterclaims and Cross-Claims may be based on any cause of action, even if unrelated to the subject of the complaint.

A Counterclaim may be brought by any party against any other opposing party and may be either compulsory or permissive.

Question 18

What is a Permissive Counterclaim?

Answer 18

A permissive counterclaim is any claim that a party has against an opposing party that does not arise out of the transaction or occurrence that is the subject matter of the opposing party’s claim.

Counterclaims and Cross-Claims may be based on any cause of action, even if unrelated to the subject of the complaint.

A Counterclaim may be brought by any party against any other opposing party and may be either compulsory or permissive.

A party is not required to assert a permissive counterclaim.

Question 19

What is a Cross-Claim?

Answer 19

A Cross-Claim is a claim against a party who is not an opposing party.

Cross-Claims may be brought by any party against any co-party, when the claim arises out of the same transaction or occurrence as the original claim or a counterclaim.

Counterclaims and Cross-Claims may be based on any cause of action, even if unrelated to the subject of the complaint.

Question 20

What is a Joinder of Parties?

Answer 20

A person who is subject to service of process and whose joinder will not deprive the court of subject-matter jurisdiction must be joined as a party if:

1. in that party’s absence, the court cannot grant complete relief among existing parties; OR
2. the party claims an interest relating to the subject of the action, and an adjudication without the party may, as a practical matter, impair or impede that party’s ability to protect his interests, or leave an existing party subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations.

Permissive Joinder is used by plaintiffs who want to join together as multiple plaintiffs or want to join multiple defendants.

Question 21

What happens if a required party cannot be joined for jurisdictional reasons?

Answer 21

If a person who is required to be joinded cannot be joined for jurisdictional reasons, the court must determine whether, in equity and good conscience, the action should proceed among the existing parties or by dismissed.

Question 22

What is an Interpleader?

Answer 22

Interpleader is used where a plaintiff has some holding that would expose the plaintiff to multiple liability from adverse claims. The stakeholding party (“stakeholder”) can commence an action for interpleader to resolve liability where there are two or more adverse claimants.

Question 23

What is an Impleader?

Answer 23

A Third-Party Plaintiff.

After a defendant to an action has served his answer, that defendant may proceed against a non-party who may be liable for all or part of the plaintiff’s claim against the defendant. The defendant becomes the third-party plaintiff.

Question 24

What is Intervention?

Answer 24

Intervention allows a non-party to assert a right or interest in an ongoing action. If the non-party can meet the test for intervention as a matter of right, then the court must allow the party to intervene. A non-party may also be allowed to intervene by permission of the court.

Upon a finding by the court that a non-party’s application was timely, the non-party must be allowed to intervene in an action IF:

1. the federal statute confers an absolute right of the party to intervene; OR
2. a non-party is asserting a protectable interest relating to the property or transaction involved in the lawsuit; AND

(a) the non-party is so situated that disposing of the action may, as a practical matter, impair or impede its ability to protect its interest; AND
(b) the non-party’s interests are not adequately represented by existing parties.

IF a non-party may NOT intervene in an action as a matter of right, then the court may permit intervention IF:

1. a federal statute allows a conditional right to intervention; or
2. the non-party has a claim or defense that shares a common question of law or fact.

Question 25

What are the requirements for a Class Action lawsuit?

Answer 25

1. **Numerosity** - the number of members of the class is so numerous that separate joinder of each member is impracticable. 2. **Commonality** - the legal and factual issues are common to those raised by each member of the class. 3. **Typicality** - the claims or defenses of the representative party are typical of those raised by each member of the class. 4. **Adequacy of Representation** - the representative party can fairly and adequately protect and represent the interests of each member of the class.

Question 26

What pretrial conference is required and when must it be held?

Answer 26

The parties are required to meet and have a **discovery planning conference** as soon as practicable, but ***at least 21 days before a scheduling order is issued***.

Question 27

What does the Discovery Planning Conference consist of?

Answer 27

In the Discovery Conference, the parties MUST: 1. discuss the nature and basis or their claims and defenses and the possibilities of timely setting or resolving the case; 2. make or arrange for the mandatory disclosures required by Rule 26(a)(1); 3. discuss any issues about preserving discoverable information; AND 4. develop a proposed discovery plan.

Question 28

When must a proposed Discovery Plan be submitted to the court?

Answer 28

A written report outlining the proposed Discovery Plan must be submitted to the court **within 14 days after the discovery conference**.

Question 29

What are some of the reasons that a court may order a pretrial conference?

Answer 29

After the required Discovery Planning Conference, the court may order the attorneys and any unrepresented parties to appear for one or more pretrial conferences for such purposes as: 1. expediting disposition of the action; 2. establishing early and continuing control so that the case will not be protracted because of lack of management; 3. discouraging wasteful pretrial activities; 4. improving the quality of the trial through more thorough preparation; and 5. facilitating settlement.

Question 30

What is a Scheduling Order?

Answer 30

The district judge must issue a **scheduling order** that limits the time to join other parties, amend the pleadings, complete discovery, and file motions. A schedule may be modified only for good cause and with the judge's consent.

Question 31

When must a Scheduling Order be issued?

Answer 31

The Scheduling Order must be issued **within the earlier of:** 1. **90 days** after any defendant has been served with the Complaint; OR 2. **60 days** after any defendant has appeared.

Question 32

A party is entitled to demand the Discovery of any matter that is...

Answer 32

A party is entitled to demand the Discovery of any matter that is: 1. **Relevant** to the claim or defense of any party; 2. **Not** unreasonably **cumulative or burdensome**; AND 3. **Not privileged**.

Question 33

What are Mandatory Disclosures and when must they be made?

Answer 33

With limited exceptions, parties are required to disclose some information as a matter of course upon the commencement of the litigation, without waiting for a discovery request. **The initial Mandatory Disclosures MUST be made within 14 days after the Discovery Conference** (Rule 26). A party must make these disclosures based upon the information then reasonably available. **Mandatory Disclosures Include** (among other information): 1. information about individuals likely to have discoverable information and a copy or description of all documents that the disclosing party may use to support its claims or defenses; 2. the total damages claimed by the disclosing party with supporting materials; 3. insurance agreements; AND 4. the identity of any witness that may testify at trial. **_RULE:_** A party must supplement a discovery response with any information that would have been subject to the mandatory disclosure requirement. Failure to comply may lead to the exclusion of that evidence at trial.

Question 34

How does Privilege apply to Discovery?

Answer 34

A **privileged** matter is NOT discoverable. A privilege may arise under the laws of evidence or constitutional principles. The most frequently invoked privilege is the **attorney-client privilege**, which precludes the discovery of confidential communications between an attorney and her client. Many states also recognize some combination of the following privileges: 1. priest-penitent 2. doctor-patient 3. psychotherapist-patient 4. spousal

Question 35

What are the five (5) Discovery Devices?

Answer 35

1. **Depositions** - permit the direct questioning of a party or witness under oath. They are typically conducted orally, and every word that is spoken is recorded verbatim and transcribed. A party may take **only 10** depositions in an action as a matter of right. 2. **Interrogatories** - are written questions that must be answered by another party in writing under oath. Interrogatories may only be served on parties to an action. The federal rules impose a **limit of 25** for each party. 3. **Document Requests** [Request for Production] - any party may ask another party to produce documents or property for inspection and copying. 4. **Requests for Admissions** - A party may propound a request for admission of any matter within the scope of discovery. Requests for admissions are typically "question and answer" statements that are used by either party to further explore specific contentions. Any request that is admitted is deemed established for all purposes in the litigation. 5. **Physical and Mental Examinations** - when a party's condition is in controversy, a physical or mental exam of the person may be requested. Physical and mental exams are the only discovery tools for which advance court approval is required. The court requires a showing of "good cause" for the examination.

Question 36

Does Rule 11 cover abuse of discovery?

Answer 36

No. Discovery Sanctions are governed by Rule 37. On notice to other parties and all affected persons, a party may move for an order compelling disclosure of discovery [**Motion to Compel**]. If the court where the discovery is taken order a deponent to be sworn or to answer a question and the deponent fails to obey, the failure may be treated as contempt of court.

Question 37

Can litigation be fully adjudicated without a trial?

Answer 37

Yes. Most cases do not result in a full trial. Possible methods of resolving disputes without a trial include: 1. default judgments; 2. settlements; 3. pretrial motions; 4. voluntary dismissals; and 5. involuntary dismissals.

Question 38

What is "Default" and how does it occur?

Answer 38

**_RULE:_** A entry of Default must be entered on behalf of a party against whom a judgment for affirmative relief is sought when the party has failed to plead or otherwise defend the claim and that failure is shown by affidavit or otherwise. A **Default Judgment** can be entered by the Clerk or the Court - 1. if the plaintiff's claim is for a sum certain, upon the plaintiff's request and with an affidavit showing the amount due, the clerk must enter judgment for that amount and costs against a defendant who has been defaulted by not appearing. 2. In all other cases, the party must apply to the court for a default judgment to be entered.

Question 39

What are considered Involuntary Dismissals?

Answer 39

**_RULE:_** Pleadings must contain "**a short and plain statement of the claim showing that the pleader is entitled to relief.**" If this requirement is not met, the party against whom the claim is alleged may move to dismiss for failure to state a claim upon which relief can be granted. When an action is dismissed based on **Failure to State a Claim**, the dismissal is **with prejudice** unless the court states otherwise in its order.