II. Learning About the Case Flashcards
Process
TWO Docs:
- Summons = Formal Court Notice of Suit & Time for Response
- Copy of the Complaint
Who can Serve?
-Any nonparty who is at least 18
How is Process Served?
- Personal
- Substituted (∆’s usual abode & serve someone of suitable age & discretion who resides there)
-See Waiver by Mail & “Return” of Service
Pleadings
Requirements:
- Statement of grounds of SMJ
- Short & plain statement of the CLAIM, showing entitled to relief
- Demand for RELIEF sought (damages, injunction, declaratory judgment)
∆’s Response
Rule 12 requires ∆ to respond in 1 of 2 ways:
- By MOTION or
- BY ANSWER
Rule 12(b) Defenses
(1) Lack of SMJ
(2) Lack of PJ
(3) Improper Venue
(4) Improper Process (problem w/the papers)
(5) Improper Service of Process
(6) Failure to State a Claim
(7) Failure to Join Indispensable Party
Waivable = 2, 3, 4, 5
–> WAIVABLE Defenses MUST be put in the 1st Rule 12 Response (Motion or Answer)
Or else they’re waived
The Answer
Respond to allegations of complaint:
- Admit
- Deny
- State that you lack sufficient info to admit or deny
Counterclaim
A CLAIM against AN OPPOSING PARTY
2 Types:
(1) Compulsory = Arises from same T/O as π’s claim (MUST file w/in pending case or claim is waived)
(2) Permissive = Does NOT arise from same T/O (not required to file it in this case.
- SMJ: Must assess whether it invokes diversity or FQ. If so it’s okay in Fed. Court. If not, try supplemental jurisdiction.
Cross-Claim
Claim Against CO-PARTY
Must arise from the same T/O as the underlying action. BUT IT IS NOT Compulsory (you may assert it here or sue separately)
See Pg. 31
Amended Pleadings
π has right to amend ONCE w/in 21 days AFTER SERVES HER 1st Rule 12 Response
∆ has a right to amend ONCE w/in 21 days of SERVING his ANSWER
Rule 11
Applies to ALL docs EXCEPT discovery
After reasonable inquiry:
- Paper is not for an improper purpose and
- Legal contentions are warranted by law and
- The factual contentions AND denials of factual contentions have evidentiary support
You cannot make a motion for sanctions immediately.
-You serve the motion on other parties BUT CANNOT file it. They 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.
Discovery & Required Disclosures
Initial Disclosures
-Identities of persons who have discoverable info. that you (the disclosing party) may use to SUPPORT your claims or defenses
-Docs and things that you may use to SUPPORT your claims or defenses. You may produce copies or a description of these things.
Expert Witnesses (EW)
Each party MUST ID EW “who may be used at trial”
-Written report MUST include (1) opinions EW will express (2) bases for the opinions (3) facts used to form the opinions (4) EW’s qualifications and (5) How much EW is being paid
Pretrial required disclosure = No later than 30 days before trial MUST give detailed info about trial evidence.
Discovery Tools
Assuming no court order or stipulation provides otherwise, when can a party 1st request discovery from other parties?
-After R. 26(f) Conference (See Pg. 58)
One big issue is:
-Which tools can be used to get info. from NON-PARTIES?
Can you take the Deposition of a Party or of a Non-party?
YES. BUT you should subpoena a non-party to compel attendance.
To Whom can you send Interrogatories?
Parties Only.
Party must respond w/answers or objections w/in 30 days from service.
Can you make Requests to Produce of Parties & of non-parties?
YES. BUT you should subpoena the non-party.
