Federal Jurisdiction and Civil Procedure > 2. Learning About The Case (Service of process; pleadings; discovery)

Question 1

A. Service of Process

FILL Qs FROM PP. 15-16

Answer 1

of civ pro lecture

Question 2

B. Pleadings > Rule 11

What does FRCP Rule 11 apply to?

Answer 2

ALL documents except discovery.

NOTE: Rule 11 is a huge rule in terms of professional responsibility.

Question 3

B. Pleadings > Rule 11

What parties must certify a document under Rule 11?

Answer 3

the lawyer or the pro se party

Question 4

B. Pleadings > Rule 11

When the lawyer or pro se party signs documents OR “presents” a position to the court (e.g. when you later advocate a position taken in the document), she certifies what?

Answer 4

She certifies that to the best of her knowledge and belief, AND after reasonable inquiry, that 3 things are true:

(1) The paper is not for an improper purpose
(2) The legal contentions are warranted by law or a nonfrivolous argument for law change; AND
(3) The factual contentions and denials of factual contentions have evidentiary support, or are likely to have evidentiary support after further investigation.

NOTE: Rule 11 is an ONGOING certification.

Question 5

B. Pleadings > Rule 11

Sanctions for violating Rule 11 may be ordered against who?

Answer 5

the attorney, firm, or party

Note: The court must give a chance to be heard before imposing a Rule 11 sanction.

Question 6

B. Pleadings > Rule 11

Are Rule 11 sanctions supposed to punish or to deter a repeat of bad conduct

Answer 6

Deter

Question 7

B. Pleadings > Rule 11

Rule 11 sanctions can be monetary but also non-monetary (e.g., require lawyer to attend professionalism classes). If sanctions are monetary, who are they paid to?

Answer 7

The court. Not the other party.

Question 8

B. Pleadings > Rule 11

If the other party violates Rule 11, can you move for sanctions right away?

Answer 8

No.

You serve the motion on the other parties but cannot file it right away.

Question 9

B. Pleadings > Rule 11

After you serve a motion of Rule 11 violation on the other party, what must happen before the motion can be filed?

Answer 9

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

Question 10

B. Pleadings > Rule 11

In addition to a party, a court can raise Rule 11 problems on its own (sua sponte). How does a court usually do this?

Answer 10

Court usually issues an “order to show cause” why sanctions should not be imposed.

Note: The court must give a party a chance to be heard before imposing a sanction.

Question 11

B. Pleadings > Complaint

What act commences a legal action?

Answer 11

Filing a complaint.

Question 12

B. Pleadings > Complaint

What are the 3 requirements that must be present in a complaint?

Answer 12

1. Statement of grounds of subject matter jurisdiction;
2. Short and plain statement of the claim, showing entitled to relief,
3. Demand for relief sought

Question 13

B. Pleadings > Complaint

What is the standard for stating the claim in a complaint?

Answer 13

We must “plead facts supporting a plausible claim.” (not just a possible claim)

Question 14

B. Pleadings > Complaint

How is “plausibility” of a claim determined from the fact pleadings in a complaint?

Answer 14

To determine “plausibility,” the judge uses her own experience and common sense.

Question 15

B. Pleadings > Complaint

What three matters must be pleaded with even more detail than plausibility? To what degree?

Answer 15

1. Fraud, 2. Mistake, and 3. Special Damages (those damages that do not normally flow from an event) must be pleaded with particularity or specificity.

Question 16

B. Pleadings > Defendant’s Response

Rule 12 requires the defendant to respond in one of two ways:

Answer 16

by (1) motion or (2) answer

Question 17

B. Pleadings > Defendant’s Response

To avoid default under Rule 12, when must the defendant file a motion or an answer? What if the defendant waived service?

Answer 17

within 21 days after service of process

within 60 days from when the plaintiff mailed the waiver form to the defendant

Question 18

B. Pleadings > Defendant’s Response

Motions are not pleadings. They are ________.

Answer 18

requests for a court order

Question 19

B. Pleadings > Defendant’s Response

Although Rule 12(b) defenses are the most common motions, a defendant can respond to a complaint with motions based on issues of form. What are some examples?

Answer 19

(1) motion for more definite statement (pleading so vague D can’t frame a response)
(2) motion to strike (aimed at immaterial things) (e.g. asking to strike a demand for jury when no right exists)

NOTE: any party can bring these kinds of motions, not just a defendant after a complaint

Question 20

B. Pleadings > Defendant’s Response

What are the 7 Rule 12(b) defenses? They can be put either into the ______ or the _______.

Answer 20

1. lack of subject matter jurisdiction
2. lack of personal jurisdiction
3. improper venue
4. insufficiency of process
5. insufficient service of process
6. failure to state a claim
7. failure to join indispensable party

These can be put either in the motion or in the answer.

Question 21

B. Pleadings > Defendant’s Response

Which Rule 12(b) defenses are waivable? What does that mean?

Answer 21

The waivable defenses are:

2. lack of personal jurisdiction
3. improper venue
4. insufficiency of process
5. insufficient service

These waivable defenses must be put in the FIRST RULE 12 RESPONSE (motion or answer) or else they are waived.

Question 22

B. Pleadings > Defendant’s Response

P sues D. D files a timely motion to dismiss for defective service of process. The court denies the motion, after which D files and serves his answer, asserting lack of personal jurisdiction and improper venue. OK? No! D has waived both defenses. Why?

Answer 22

Because 1) they are waivable and 2) were not put in his FIRST Rule 12 response

Question 23

B. Pleadings > Defendant’s Response

At trial, D moves to dismiss for failure to join an indispensible party and for failure to state a claim on which relief can be granted. OK? Why/why not?

Answer 23

OK. These 2 can be raised ANY time through trial. Not waivable like the others

Question 24

B. Pleadings > Defendant’s Response

After trial, D asserts for the first time that the court lacks subject matter jurisdiction. OK? Why?

Answer 24

Yes. Lack of SMJ is NEVER waived.

Question 25

B. Pleadings > Defendant’s Response

Unlike a motion, an answer is a pleading, not a request for a court order. Must it be served or filed? When?

Answer 25

An answer must be served within 21 days after the defendant was served with process.

Question 26

B. Pleadings > Defendant’s Response

What are the two purposes for which a defendant pleads a response?

Answer 26

to (1) respond to allegations of the complaint; and (2) to raise affirmative defenses

Question 27

B. Pleadings > Defendant’s Response

What are the ways in which a a defendant responds to allegations of a complaint (as opposed to raising affirmative defenses) through pleading an answer?

Answer 27

(1) admit;
(2) deny; or
(3) state that you lack sufficient information to admit or deny
the allegations

Question 28

B. Pleadings > Defendant’s Response

What do you need to know about an answer that states the defendant lacks sufficient information to admit or deny an allegation?

Answer 28

It acts as a denial. But it can’t be used if the information is public knowledge or in the defendant’s control.

Question 29

B. Pleadings > Defendant’s Response

What do you need to know about an answer that doesn’t explicitly “deny” a plaintiff’s allegation?

Answer 29

He admits the allegation (except for allegations of damages).

e.g., In his complaint, P alleges “D was intoxicated while driving his car.” In his answer, D alleges “P has no proof that I was intoxicated.” D made a mistake. He has admitted intoxication because he didn’t deny it! The answer must say defendant “denies” …

Question 30

B. Pleadings > Defendant’s Response

In addition to responding to complaint allegations by admitting or denying, a defendant can raise affirmative defenses in his complaint. What does raising an affirmative defense do?

Answer 30

It injects a new fact into the case, which will allow the defendant to win.

Question 31

B. Pleadings > Defendant’s Response

What are the classic affirmative defenses?

Answer 31

(1) SOL, (2) statute of frauds, (3) res judicata, and (4) self-defense

Question 32

B. Pleadings > Defendant’s Response

When is an affirmative defense invalid?

Answer 32

Any time it is introduced after pleadings (i.e. in the answer).

e.g., P sues D for breach of contract. D answers, denying material allegations. At trial, D introduces evidence that the contract was procured by P’s fraud, and is therefore unenforceable. P objects. The evidence is INADMISSIBLE: You must PLEAD affirmative defenses or you risk waiver.

Question 33

B. Pleadings > Counterclaim

What is a counterclaim? What document is it a part of? What are the 2 types of counterclaims?

Answer 33

A counterclaim is a claim against an opposing party. It is part of the defendant’s answer. The two types of counterclaim are (1) compulsory and (2) permissive.

Question 34

B. Pleadings > Counterclaim

Where must the opposing party’s compulsory counterclaim arise from?

Answer 34

the SAME transaction or occurrence as the plaintiff’s claim

Question 35

B. Pleadings > Counterclaim

What happens if you don’t file a compulsory counterclaim in the pending case?

Answer 35

The claim is waived (unless you have already filed the claim in another case)

e.g. The new case brought by the original D will be dismissed b/c it was a compulsory counterclaim and D failed to put it in her answer.

Question 36

B. Pleadings > Counterclaim

Where does the opposing party’s permissive counterclaim arise from?

Answer 36

anywhere EXCEPT the same transaction or occurrence as the plaintiff’s claim

Question 37

B. Pleadings > Counterclaim

What happens if you don’t file a permissive counterclaim in the pending case

Answer 37

It’s OK. You may assert it in a separate case.

Question 38

B. Pleadings > Counterclaim

Even if a compulsory or permissive counterclaim is validly filed, what must you always still assess for each claim?

Answer 38

Whether it invokes diversity or federal question jurisdiction. If so, it’s OK in federal court. If not, try supplemental jurisdiction.

Question 39

B. Pleadings > Crossclaim

A crossclaim is a claim against a __________. Must it arise from the same transaction or occurrence as the underlying action? Must you file it in the pending case?

Answer 39

A crossclaim is claim against a co-party.

It must arise from the same T/O.

The crossclaim is permissive; you do not have to file it in this case.

Question 40

B. Pleadings > Crossclaim

COMMON FACT SCENARIO that tests counterclaims, crossclaims, diversity jurisdiction, and supplemental jurisdiction:

P (CA) sues Draper (NY) and Sterling (NY) for personal injuries of $500,000 arising from a car collision (Draper was driving Sterling’s car). Sterling doesn’t know who’s at fault between the two drivers, but knows is car (worth $200,000) is totaled. It’s a diversity case.

1. Sterling should file a compulsory counterclaim against P. It’s against an opposing party and arises from the same T/O as P’s claim, so it’s a compulsory counterclaim. Now, is there subject matter jurisdiction over the compulsory counterclaim? Why/why not?

Answer 40

Yes. The counterclaim invokes diversity. (1) different states: Sterling (NY) v P (CA); and (2) amount in controversy: for $200,000 (> $75,000)

Note: Every SINGLE claim must go through its OWN SMJ analysis.

Question 41

B. Pleadings > Crossclaim

COMMON FACT SCENARIO that tests counterclaims, crossclaims, diversity jurisdiction, and supplemental jurisdiction:

P (CA) sues Draper (NY) and Sterling (NY) for personal injuries of $500,000 arising from a car collision (Draper was driving Sterling’s car). Sterling doesn’t know who’s at fault between the two drivers, but knows is car (worth $200,000) is totaled. It’s a diversity case.

2. Sterling may file a cross claim against Draper. It’s against a co-party and arises from the same T/O as the underlying case, so it’s a crossclaim. Is there subject matter jurisdiction over the crossclaim? If not, what do you ask next?

Answer 41

There is no subject matter jurisdiction over the crossclaim because there is no (a) diversity (both Draper and Sterling are from NY) and no (b) federal question jurisdiction (it’s a personal injury suit).

If no SMJ, ask: Is there supplemental jurisdiction over this cross claim?

Question 42

B. Pleadings > Crossclaim

COMMON FACT SCENARIO that tests counterclaims, crossclaims, diversity jurisdiction, and supplemental jurisdiction:

P (CA) sues Draper (NY) and Sterling (NY) for personal injuries of $500,000 arising from a car collision (Draper was driving Sterling’s car). Sterling doesn’t know who’s at fault between the two drivers, but knows is car (worth $200,000) is totaled. It’s a diversity case.

3. Is there supplemental jurisdiction over this crossclaim? Why/why not?

Answer 42

Yes, there is supplemental jurisdiction over this crossclaim because

(1) it meets “the test,” which is “common nucleus of operative fact” (always met by same T/O as the underlying claim) –because the crossclaim is based on the totaled car that arose from the same occurrence as the original personal injury suit; and
(2) “the limitation” (In a diversity case, plaintiff cannot use supplemental jurisdiction to overcome a lack of diversity) does not apply. –because this is not a claim by a plaintiff

Question 43

B. Pleadings > Crossclaim

Once you file a crossclaim or counterclaim (or any claim) what other claims can you join to it?

Answer 43

Any other claim.

NOTE: That other claim (like any claim in federal court) must itself invoke SMJ (diversity, FQ or SJ)

Question 44

B. Pleadings > Amending pleadings

When does a plaintiff have the right to amend pleadings? A defendant?

Answer 44

Plaintiff: Right to amend ONCE within 21 days after defendant serves her first Rule 12 response (motion or answer)

Defendant: Right to amend ONCE within 21 days after serving his answer

Question 45

B. Pleadings > Amending pleadings

What can a plaintiff or a defendant do if it has no right to amend pleadings?

Answer 45

It can seek a leave of court. It will be granted if “justice so requires,” which involves weighing these factors: a. delay, b. prejudice, and c. futility of amendment.

Question 46

B. Pleadings > Amending pleadings

When is evidence inadmissible because it is at “variance with the pleadings?”

Answer 46

When, at trial, a party introduces evidence that does not match the pleadings, and the other party objects.

But if the other party does not object, that new evidence is admitted and P can move (at or after trial) to amend the complaint to conform to the evidence because we want the pleading to match what was actually tried in the case.

Question 47

B. Pleadings > Amending pleadings

Amended pleadings “relate back” after the SOL has run if ________.

Answer 47

Amended pleadings “relate back” after the SOL has run if they concern the same conduct, transaction, or occurrence as the original pleading. Avoids a SOL problem.

Question 48

B. Pleadings > Amending pleadings

P files his complaint and has process served on July 1. The SOL runs on July 10. In August, P seeks leave to amend to add a new claim. Is that new claim time-barred because the statute ran on July 10?

If the original claim and the new claim concern the SAME CONDUCT, TRANSACTION, or OCCURRENCE, there is relation back. That means we treat the August amendment as though ______________.

Answer 48

it was filed on July 1. We treat the amended pleading that relates back as though it was filed on the date of original filing of complaint/service of process.

Here, the amendment is timely, as of July 1.

Question 49

C. Discovery > Required disclosures

What three types of materials must be produced even though no one asks for it? Which is most likely on exam?

Answer 49

1. Initial disclosures (most likely on exam)
2. Disclosures about experts
3. Pretrial disclosures

Question 50

C. Discovery > Required disclosures

What are the initial disclosures that a party must produce even though nobody asks for it?

Answer 50

(1) a party must identify persons, electronically stored information, and documents that are “likely to have discoverable information that the disclosing party may use to support its claims or defenses.”
(2) a plaintiff must give a computation of damages
(3) a defendant must disclose insurance for any judgment

Question 51

C. Discovery > Required disclosures

When must a party make initial disclosures?

Answer 51

Within 14 days of the Rule 26(f) conference (unless court order or stipulation of parties differs)

Question 52

C. Discovery > Required disclosures

As directed by court, a party must (1) identify experts “who may be used at trial” and (2) produce

Answer 52

a written report containing: opinions, data used, qualifications, compensation for a study, etc.

NOTE: That report and drafts of it are work product.

Question 53

C. Discovery > Required disclosures

A party must give detailed information about trial evidence (i.e. pretrial disclosures), including documents and identity of witnesses to testify live or by _________. When?

Answer 53

deposition. No later than 30 days before trial.

Question 54

C. Discovery > Discovery tools

What is a key issue with discovery tools?

Answer 54

Which tools can be used to get information from a NON-PARTY? (They can ALL be used to get info from parties)

Timing note: Discovery tools may not be used until after the Rule 26(f) conference unless court order or stipulation allows.

Question 55

C. Discovery > Discovery tools

Who can counsel (or a pro se party) depose?

Answer 55

Nonparties or parties

Question 56

C. Discovery > Discovery tools

What must counsel (or pro se party) do to compel a nonparty to participate in a deposition?

Answer 56

Issue a subpoena to compel attendance because the nonparty is not otherwise compelled to attend. Also, unless she consents, a nonparty cannot be required to attend a deposition if traveling more than 100 miles from her residence or place where she regularly transacts business.

NOTE: The subpoena could be “duces tecum,” which requires the nonparty deponent to bring material (e.g. documents) with her.

Question 57

C. Discovery > Discovery tools

What must counsel (or pro se party) do to compel a party to participate in a deposition?

Answer 57

Properly serve notice of the deposition. A party need not be subpoenaed.

Question 58

C. Discovery > Discovery tools

Without court approval, counsel or pro se party cannot take more than ___ depositions, depose the same person more than ___, or allow the deposition to exceed _______ hours.

Answer 58

Ten depositions. One per deponent. Seven hours.

Question 59

C. Discovery > Discovery tools

Depositions are subject to the rules of evidence and are to be used at trial for the following 3 purposes:

Answer 59

(1) to impeach the deponent;
(2) for any purpose if the deponent is an adverse party;
(3) for any purpose if the deponent is unavailable for trial, unless that absence was procured by the party seeking to introduce the evidence

Question 60

C. Discovery > Discovery tools

What are interrogatories?

Answer 60

Questions in writing to another party to be answered in writing under oath.

Question 61

C. Discovery > Discovery tools

What are the 7 discovery tools?

Answer 61

1. Depositions
2. Interrogatories
3. Requests to produce
4. Physical or mental examination
5. Request for admission
6. Parties sign substantive answers to discovery under oath
7. Duty to supplement

Question 62

C. Discovery > Scope of discovery

What information can you get through discovery? What is “relevant?”

Answer 62

Anything relevant to a claim or defense other than communications protected by privilege.

“Relevant” includes things that are “reasonably calculated to lead to the discovery of admissible evidence.”

NOTE: So, discoverable is BROADER than admissible.

Question 63

C. Discovery > Scope of discovery

One party seeks discovery about hearsay that would not be admissible at trial. The other party objects because the info would not be admissible. Is this a good objection? Why?

Answer 63

This is not a good objection because admissibility is not the test for what is discoverable – it’s relevance.

Question 64

C. Discovery > Scope of discovery

Work product, i.e., material prepared in anticipation of litigation, is generally protected from discovery. When can work product nonetheless be discoverable? And what types of work product are absolutely protected?

Answer 64

A witness statement made in anticipation of litigation is nonetheless discoverable if a party shows: (1) substantial need; and (2) it is not otherwise available.

But the following items are absolutely protected regardless of substantial need of the other party: (1) mental impressions, (2) opinions, (3) conclusions, and (4) legal theories.

Question 65

C. Discovery > Scope of discovery

Who generates work product?

Answer 65

a party or any representative of a party (could be lawyer or nonlawyer, like a private investigator)

Question 66

C. Discovery > Scope of discovery

What is in a privilege log?

Answer 66

a listing of the privileged materials by date, author, recipient, privilege, etc.

NOTE: If you withhold discovery or seek a protective order based on privilege or work product, you must claim the protection EXPRESSLY AND describe the materials in detail. You can do this in a privilege log.

Question 67

C. Discovery > Scope of discovery

If you inadvertently produce protected material, you must notify the other party as soon as possible. What does the other party then have to do?

Answer 67

return, sequester, or destroy it, pending a decision by the court about whether there has been a waiver

Question 68

C. Discovery > Scope of discovery

When may a party depose an expert? What kinds of experts are not subject to discovery?

Answer 68

If the expert is listed in the mandatory disclosures as someone “whose opinions may be presented at trial.”

However, a consulting expert (one retained in anticipation of litigation but who will not testify at trial) is not subject to discovery (e.g. a deposition) absent “exceptional need.”

Question 69

C. Discovery > Enforcement of discovery rules

A responding party may seek a protective order. What are 3 examples of protective order bases:

Answer 69

1) the discovery request is overburdensome
2) it involves trade secrets and we want an order limiting disclosure to the litigation
3) ESI is not reasonably accessible (e.g. deleted files)

Question 70

C. Discovery > Enforcement of discovery rules

In a situation where the receiving party answers some questions and objects to others, but the objects are not upheld, this is a _________ violation, so we expect a __________ sanction.

Answer 70

partial violation, light sanction

Question 71

C. Discovery > Enforcement of discovery rules

In a situation where the receiving party fails completely to attend deposition, respond to interrogatories or to respond to requests for production, this is a _________ violation, so we expect a __________ sanction.

Answer 71

total violation, heavy sanction

Question 72

C. Discovery > Enforcement of discovery rules

If one party seeks sanctions as against the other party, what must the party seeking sanctions first do?

Answer 72

certify to the court that she tried in good faith to get the information without court involvement

Question 73

C. Discovery > Enforcement of discovery rules

Only in exceptional cases will there be sanctions if a party fails to produce ESI because it was lost in the _______.

Answer 73

good faith, routine operation of an electronic information system

Question 74

C. Discovery > Enforcement of discovery rules

In the case of a partial response (receiving party answers some and objects to others), what are the two steps to sanctions?

Answer 74

1) You move for an order compelling the party to answer the unanswered questions, plus costs (including attorneys’ fees) of bringing motion
2) If the party violates the order compelling him to answer, RAMBO sanctions plus costs (and attorneys’ fees regarding the motion) and could be held in contempt for violating a court order (except no contempt for refusal to submit a medical exam).

Question 75

C. Discovery > Enforcement of discovery rules

In the case of no response, what is the single step to sanctions?

Answer 75

RAMBO plus costs (and attorney’s fees) for the motion

Note: No need to get an order compelling answers. Go directly to RAMBO

Question 76

C. Discovery > Enforcement of discovery rules

What are RAMBO sanctions a judge may choose from for a party violating a discovery request?

Answer 76

Rambo sanctions:

1. Establishment order (establishes facts as true)
2. Strike pleadings of the disobedient party (as to issues re the discovery)
3. Disallow evidence from the disobedient party (as to issues re the discovery)
4. Dismiss plaintiff’s case (if bad faith shown)
5. Enter default judgment against defendant (if bad faith shown)