Joinder

Question 1

Permissive Joinder (of Parties)

Answer 1

A. Requirements
1. claims arise form same transaction or occurrence AND
2. claims share a common question of law or fact
B. Federal court: must have SMJ over each of the joined claims: independent SMJ or supplemental SMJ

Question 2

Compulsive Joinder

Answer 2

II. Compulsory Joinder (of Parties): if a necessary and indispensable party (∆ will usually file a motion to dismiss for failure to join a party)

A. Necessary Parties: if joinder feasible and

1. complete relief cannot be afforded without absentee; or
2. the absentee’s interest will be harmed if he isn’t joined (practical harm); or
3. the absentee claims an interest which subject a party (usually the ∆) to multiple obligations

B. Indispensable Parties: if absentee is “necessary” but joinder not feasible, then the court must determine whether, in equity & good conscience (1) the action should proceed among the existing parties or (2) should be dismissed
1. factors: whether an alternative forum available where everybody can be joined, actual likelihood of prejudice, and whether the court can shape relief to avoid that prejudice

Question 3

Joinder of Claims

Answer 3

III. Joinder of Claims: freely allowed in state court, in federal court you need SMJ

Question 4

Counter Claims

Answer 4

IV. Counterclaims: offensive claims against an opposing party; filed with the answer

A. Permissive Counterclaims: ∆ can assert ANY claim they have against the π

B. Compulsory Counterclaims: MUST assert the claim in the pending case or it will be later barred if it arises from the same transaction or occurrence as π’s claim

1. Exceptions: claims pending in other courts or claim requires parties beyond court’s jx
2. Federal Supplemental JX is available for compulsory counterclaims, but not for permissive counterclaims (for permissive counterclaims you need an independent ground for jx)
3. Relation Back: compulsory counterclaims relate back to the time π filed the original complaint so they’re not barred by SOL

Question 5

Cross Claims

Answer 5

V. Cross-Claims: offensive claims against co-parties; arise from the same transaction/occurrence as the original action or a counterclaim therein; are never compulsory
A. Fed Supplemental Jx will always exist for cross claims because out of same transaction/occurrence

Question 6

Third Party Practice (Impleader)

Answer 6

VI. Third Party Practice (Impleader): a third party ∆ (TP∆) is brought in for indemnity or contribution, if I’m liable, then TP∆ is liable to me for all or part of it→ derivative liability

A. as of right 10 days in SC, 14 days in federal court
B. after that, court permission is required
C. the TP∆ can assert claims against the π, and the π can assert claims against the TP∆ as long as it arises from the same transaction or occurrence
D. Federal Supplemental Jx: the court will always have supplemental jx over the third-party claim/impleader and claims by TP∆ against the π; but for claims by the π against the TP∆, federal court must either have
1. independent SMJ or
2. supplemental jx over the claim only if same transaction/occurrence of a federal question

Question 7

Intervention

Answer 7

VII. Intervention: absentee WANTS TO JOIN a pending suit
A. As of right: when three requirements are met
1. applicant claims an interest in the property or transaction that is the subject of the action
2. the action may as a practical matter impair the applicant’s ability to protect that interest; and
3. applicant’s interest is not adequately represented by existing parties
B. Permissive Intervention: her claim and the pending claim have at least one commone question; intervention discretionary with the court; watch out for delay and prejudice
C. Supplemental Jx:
1. intervention as of right: as a ∆: always have supplemental jx; as a π: never have supplemental jx unless independent grounds for SMJ

Question 8

Interpleader

Answer 8

VIII. Interpleader: a party facing claims from diff. claimants that might expose that party to double or multiple liability, may interplead all potential claimants to avoid multiple litigation and the risk of inconsistent results

A. Federal Courts: have both rule and statutory interpleader:

1. Rule:
   a) requires complete diversity (stakeholder (holding interest in prop.) must be completely diverse from every claimant)
   b) amount in controversy must exceed $75,000
   c) normal territorial limits on service of process
2. Statutory:
   a) requires minimal diversity (one claimant must be diverse from one other claimant)
   b) amount in controversy must exceed $500
   c) nationwide service of process

Question 9

Class Actions

Answer 9

Class Actions: a joinder device in which representative parties sue or are sued on behalf of others similarly situated

A. South Carolina: 5 prerequisites
B. Federal Court: 4 prerequisites and must be one of three types of class actions
C. Prerequisites
1. Numerosity: too many for practicable joinder
2. Commonality: some questions of law or fact are shared by all class members
3. Typicality: named representatives’ claims/∆ses are typical of class members AND
4. Representation: representative(s) will fairly and adequately represent class
5. Jx amount > $400 for each member: SC only: when not seeking inj. or declaratory relief

Question 10

Types of Class Actions (Federal Only)

Answer 10

D. Types of Class Actions- federal court only

1. Rule 23(b)(1) “Prejudice”: CA necessary to prevent prejudice where ind. actions create risk of either independent standards of conduct or impairing the ability of absentees to protect their interest
2. Rule 23(b)(2) “Injunction” or “Declaratory Judgment”: party opposing the class acted in a way generally applicable to the class as a whole making it appropriate to render injunction or declaratory relief as to class as a whole
3. Rule 23(b0(3) “Damages”: 3 requirements: (1) action seeks money damages, (2) common questions predominate, (3) CA treatment is a superior way to handle the dispute

Question 11

Procedure for Class Action

Answer 11

1. ask court to allow you to have CA; have a hearing, if you meet the requirements the court will certify as Class Action
   a) in federal court, order certifying a class action must:
   (1) define the class and the class claims, issues, or ∆ses
   (2) appoint class counsel

Question 12

Notice for Class Action

Answer 12

a) SC: court may order notice as it deems appropriate
b) federal: depends on type of CA
(1) prejudice & injunction: may direct appropriate notice to the class
(2) the court must direct appropriate notice to the class members, best notice practicable including individual notice to all members who can be identified through reas. effort; notice must tell members they can opt out

Question 13

Class Counsel

Answer 13

3. Class Counsel (federal only): when ct. certifies CA, must appoint class counsel, considering the work done by the attorney, the attorney’s experience with class actions and knowledge of the applicable law, and the resources that the attorney will devote to the case

Question 14

Class Actions - Federal SMJ

Answer 14

5. Federal SMJ
   a) Diversity:
   (1) need diversity based on citizenship of the named parties
   (2) amount in controversy in damages CA: one of the π class members claim must exceed $75,000
   (3) amount in controversy in other CA’s: consider total amounts at stake

Question 15

CAFA

Answer 15

b) Federal Class Action Fairness Act of 2005 (CAFA)
(1) SMJ exists if there’s minimal diversity, total AIC > $5 million, and proposed class has at least 100 members
(2) easier to remove from state court to federal court: all ∆’s don’t have to consent, being in one of ∆’s home states doesn’t matter, and one year limitation on removal of diversity n/a

(3) no SMJ if the primary ∆s are state or state officials; or the CA solely involves a claim that arises under fed. securities statutes or relates to the internal affairs or governance of a corporation or other business entity and arises under state law

(4) must decline jx under CAFA if:
(a) more than 2/3 of the π class are citizens of the state it was removed from
(b) a “significant” ∆ is a citizen of that state and
(c) principal injuries were incurred in that state
(5) may decline jx under CAFA if:
(a) more than 1/3 but less than 2/3 of the π class are citizens of the state it was removed from and
(b) the primary ∆’s are citizens of that state

Question 16

Federal Discovery Initial Disclosure

Answer 16

Federal Only: requires parties to meet after discovery is filed for a discovery meeting
Required disclosures (FEDERAL ONLY):
o Initial disclosures (w/I 14 days of discovery conference or 30 days after joinder)
o 1. identity of individuals (names, addresses, and phone numbers) likely to have discoverable information that the disclosing party may use to support its claims or defenses
o 2. documents, electronically stored information, or things in the disclosing party’s possession that they may use to support its claims or defenses
o 3. a computation of damages claimed
o 4. insurance agreements

Question 17

Federal Discovery - Expert Witnesses

Answer 17

o Expert Witnesses: at least 90 days before trial or as directed by court
o 1. Identity of experts “who may be used at trial” and
o 2. Written reports for each such expert containing the expert’s opinions, data considered, exhibits, qualifications, compensation and previous expert testimony

Question 18

Federal Discovery Pretrial Disclosures

Answer 18

o Pretrial Disclosures: no later than 30 days before trial, parties must give detailed information about trial evidence, including
o document and exhibit lists; and
o lists of witnesses

Question 19

Discovery Limitations

Answer 19

Discovery Limitations:
o work product
o privilege

A. describe the nature of the things not produced ina manner that enables others to assess the applicability of the privilege or protection

B. claw-back provision (accidentally hand over privileged material):
• 1. notify the party that received the info.
• 2. the receiving party must then return, sequester, or destroy the privileged material/work product
• 3. the receiving party can present the info. to court under seal for determination of the claim
o protective orders
o unreasonably duplicative or obtainable from another source that is less burdensome or expensive; or
o party seeking discovery already has had ample opportunity to obtain the info. sought
o burden or expense of proposed discovery outweighs its likely benefit
o Electronically Stored Information (ESI): don’t have to provide discovery if stored info. is not reas. accessible because of undue burden or expense

Question 20

Federal Signature Requirement for Discovery

Answer 20

Federal Signature Requirement for Discovery: every discovery request and response must be signed by counsel certifying that it is (1) warranted, (2) not interposed for improper purpose, and (3) not unduly burdensome
-SC: no special signature req. for discovery- use Rule 11 signature requirement

Question 21

Depositions

Answer 21

Depositions: taken of sworn testimony outside of court before a court recorder. permitted
o federal court: ALL cases
o South Carolina: when amount in controversy is $10,000 or more; or in cases with lesser amounts with consent or a showing of good cause

Question 22

Depositions - Serve

Answer 22

serve:
o party: written notice of deposition
o non-party: service of written notice AND subpoena

Question 23

Depositions - Use at Trial

Answer 23

use at trial:
o to impeach the deponent
o for any purpose if the deponent is an adverse party
o for any purpose if deponent (whether a party or not) is unavailable for trial
o SC: any purpose if the deponent is a licenses physician, psychologist, chiropractor or dentist who provided actual treatment to a party

Question 24

Depositions - Conduct & Procedure

Answer 24

o direction not to answer ONLY:
• when asserting a privilege
• a court-ordered limitation on discovery (already exists)
• or a motion to terminate the deposition (to seek a protective order)
o SC only: if a counsel directs a witness not to answer, must seek a protective order within 5 days of the suspension or termination; or you waive your objection and depo can be reconvened
o SC only: no counsel/witness conferences off-the record except for deciding whether to assert a privilege, if a conference is required, counsel will state on the record the reason for the conference and the decision made after the conference
o SC only: must give opposing counsel a copy of all documents to be shown to the witness during the deposition at least 2 business days before depo; if not given at least 2 days before, then counsel and witness get a reas. amt. of time to privately discuss the documents before the witness answers questions concerning the document

Question 25

Depositions Upon Written Questions

Answer 25

Depositions Upon Written Questions: serve on another party a notice of deposition and a complete list of questions to be asked; the other party can serve cross-questions; deposition takes place live with court reporter and the only questions that can be asked are the ones given ahead of time

Question 26

Interrogatories

Answer 26

Interrogatories: written questions served on a party to the lawsuit that require written responses; anything that is properly within the scope of discovery- anything reasonably calculated to lead to admissible evidence (relevant to the SM involved in the pending action (SC); relevant to the claim or ∆ses of any party (federal)
o respond within 30 days (except ∆ gets 45 days after service of process in SC)

Question 27

Limitations on Interrogatories

Answer 27

o limitations: tested on past bar exams!
o federal: 25 interrogatories (or more with leave of court)
o state:
• cases of $25,000 or more: up to 50 “general interrogatories” (or more w/ leave of court)
• cases under $25,000: limited to 7 standard interrogatories- duty to automatically update:

Question 28

South Carolina Interrogatories

Answer 28

• 1. names and addresses of witnesses, existence of any statements taken from the witnesses, and the person who has possession of any such statements
• 2. photographs, sketches, or other prepared documents
• 3. personal injury action: names and addresses of all physicians and hospitals that treated a party and a statement of all medical costs
• 4. relevant insurance companies, policy #s, and amts of coverage
• 5. itemized statement of damages, exclusive of pain and suffering
• 6. names and addresses of expert witnesses; and
• 7. a summary of facts known to or observed by the witnesses listed

Question 29

Requests for Production or Entry on Land:

Answer 29

Requests for Production or Entry on Land: request to produce and permit inspection, or request to enter land; just serve a request on a party, for a non-party you have to use a subpoena duces tecum

o respond within 30 days (except ∆ gets 45 days after service of process in SC)

o SC: can serve request any time after commencement of the action (can serve w/ summons & complaint)

o in federal court: only after the required discovery conference

Question 30

Physical or Mental Examination

Answer 30

Physical or Mental Examination: may be required

1. only of a party
2. only with a court order
3. SC only: only in cases in which the amount in controversy exceeds $100,000

o showing required: (1) party’s health in ACTUAL controversy and (2) good cause
o procedures- SC only:
o can have your own doctor present
o must be in the county of the examined party or her physician (absent agreement otherwise)
o can request a copy of the examination report, but then you waive your doctor-patient privilege of other exams regarding the same condition

Question 31

Requests for Admission

Answer 31

Requests for Admission: requests by one party to another to admit the truth of any discoverable matter, including to admit the authenticity of documents

o respond within 30 days (except ∆ gets 45 days after service of process in SC)
o failure to respond timely constitutes an admission
o SC: limited to 20 requests for admission, except unlimited requests to admit authenticity of documents or tangible items – tested on past bars

Question 32

Enforcement of Discovery - Motions

Answer 32

Enforcement of Discovery Rules:
Motions:

Motion for Protective Order: for court to protect something from discovery; court can issue an order limiting or denying discovery

Motion to Compel Discovery because of:

• Partial Violation: when responding party answers some questions but objects to others, can only get info. objected to by filing motion to compel
• Total Violation: receiving party fails completely to attend a depo. or respond→ or a motion for sanctions

Federal court only: effort to confer before filing motion: motion must certify that the movant has in good faith tried to confer with the opposing party to resolve the discovery dispute

Question 33

Enforcement Against a Party

Answer 33

Sanctions

Partial Violation:

Order Compelling Discovery: compel responses, and award costs of bringing the motion (including attorney’s fees)

Violation of Order Compelling Discovery: sanctions plus costs & hold party in contempt

Total Violation: sanctions + costs of brining the motion (including attorneys’ fees)

Question 34

Sanctions for Discovery Violations

Answer 34

Sanctions

• Establishment order (establishes facts as true)
• Strike pleadings of the disobedient party
• Disallow evidence from the disobedient party
• Dismiss π’s case
• Enter default judgment against the ∆

Enforcement Against Nonparty: Contempt

Enforcement Against Attorney: Liable for all expenses (including attorneys’ fees) incurred by the other side if she counseled one of these bad acts

Question 35

Temporary Restraining Order

Answer 35

1. 4 substantive factors for preliminary injunctions
   
   1. substantial likelihood of prevailing on the merits
   2. irreparable harm
   3. balance of the hardships in π’s favor
   4. public policy considerations
2. π’s reasons for seeking the TRO without the full notice and opportunity to be heard w/ a preliminary injunction
   o bond required
   o expiration: unless extension
   o federal : 14 days
   o SC: 10 days

Question 36

Preliminary Injunction

Answer 36

Preliminary Injunction: exists throughout trial, until judgment
o	4 factors:
o	substantial likelihood of prevailing on the merits
o	irreparable harm to π 
o	balance of hardships
o	public policy
o	procedural requirements:
o	motion with complaint and affidavits
o	notice and opportunity to be heard
o	security bond

Question 37

Default Judgement

Answer 37

Default Judgment: for failure to defend or answer, comply w/ rules or orders of the court
o Entry of Default: clerk of court first makes an entry of default on the docket, then you make motion for default judgment
o Default Judgment
o Federal
• clerk of court can enter DJ if:
• ∆ did not appear AND
• judgment is for a sum certain
• judge must enter DJ if ∆ has appeared or judgment not for a sum certain
o South Carolina: judge must enter DJ

o	Notice: 
o	∆’s who appeared:
•	SC: 3 days notice
•	federal: 7 days notice
o	No sum certain
•	federal: no notice if ∆ did not appear
•	SC: have to have hearing to determine sum, then notice must be given to ∆ regardless of whether they appeared

o Relief:
o Motion to Set Aside Entry of Default: showing of good cause and viable defense
o Setting Aside Default Judgment: same limited grounds as any other judgment
• mistake, inadvertence, or excusable neglect AND
• establishment of a meritorious defense

Question 38

FAILURE TO STATE A CLAIM

Answer 38

FAILURE TO STATE A CLAIM: motion to dismiss for failure to state a claim tests only legal sufficiency of π’s ALLEGATION→ look only at the pleadings and assume all allegations to be true

Question 39

Summary Judgement

Answer 39

SUMMARY JUDGMENT: EVIDENCE to support your allegations

1. no genuine issue of material fact
2. movant is entitled to judgment as a matter of law

o Timing
o Federal: any time until 30 days after the close of discovery
• opponent gets 21 days to file response
• movant can file reply w/I 14 days
• federal court can grant SJ on its own motion
o South Carolina:
• ∆: may file for SJ any time
• π: may file for SJ anytime (1) after the expiration of 30 days from the start of the action or (2) after a motion for SJ by the ∆

o Movant has burden: must support or oppose with affidavits, depositions, pleadings, admissions, and answers to interrogatories
o Affidavits: must be based on personal knowledge, set forth such facts as would be admissible in evidence, and show the affiant is competent to testify
• when a motion for SJ is supported by affidavits, an adverse party can’t rest on mere pleading allegations or denials. his response must be shown by affidavits or otherwise and must set forth specific facts showing there is a genuine issue

Question 40

Directed Verdict

Answer 40

DIRECTED VERDICT (SC) / JUDGMENT AS A MATTER OF LAW (federal): when evidence on an essential issue permits only one conclusion
o	raised: at close of π’s evidence (by ∆ only) or at the close of all the evidence (by either party)
o	motion for non-suit (same thing as directed verdict or JMOL in non-jury trial)

Question 41

Renewed Motion for JMOL

Answer 41

JUDGMENT NOTWITHSTANDING THE VERDICT (JNOV)/ RENEWED MOTION FOR JMOL
verdict has been rendered and judgment has been entered, verdict-loser seeks JNOV; same standard as directed verdict or JMOL: evidence is so one-sided that there is only one conclusions

Prerequisite
o SC: move for directed verdict at close of al the evidence
o federal: move for JMOL at close of π’s evidence OR at close of all the evidence

Timing
o SC: promptly after the jury is discharged or in the discretion of the court not later than 10 days thereafter
o federal: within 28 days after entry of judgment

Question 42

Motion for New Trial

Answer 42

MOTION FOR NEW TRIAL
o Timing: same as JNOV: SC: promptly after jury discharged or in court’s discretion not later than 10 days thereafter; federal: within 28 days after entry of judgment
o Grounds:
o error during trial
o prejudicial misconduct of a party or juror
o judgment against the weight of the evidence
• federal: serious error of judgment by the jury
• SC: “Thirteenth Juror” Standard: trial judge has great discretion to grant new trial if trial judge would’ve reached a different result that the jury