Joinder of Claims Flashcards
Joinder of claims–permissive
Permissive joinder claims is when a party can join any and all claims, even if unrelated.
counterclaims
who
when
counterclaims are brought by the defendant against a plaintiff and can be included in the Answer. The Plaintiff has 21 days to answer.
Compulsory counterclaims
CC requires Defendant to join if the same t/o–must be brought or is waived.
Independent bases of SMJDX not required–supplemental jdx will extend to compulsory counterclaims in lawsuit if
(1) the claim arises from the same t/o AND
(2) claims raise at least one common question of fact or law
Crossclaims
Crossclaims are permitted and allow one D to bring a crossclaim against another Defendant if the same t/o or involves same property. Supp jdx will extend.
Joinder of parties–permissive
Permissive joinder of parties may be joined as party
Compulsory joinder Step 1–Is Absent Party required?
RUDOLF HARMED IGLOOS–REINDEER GAMES
Persons required to be joined: (Think: Rudolf, Harmed, Igloos)
1) court cannot provide complete RELIEF without AP
2) APs interest may be HARMED if not joined OR
3) AP’s subject to INCONSISTANT Obligation
Compulsory joinder Step 2–Is joinder feasible–must be joined?
1) REQUIRED PARTY
2) court has PJ over absent party
3) joining doesn’t doesn’t destroy diversity
Compulsory joinder Step 3–If not feasible, court will assess:
1) if in EQUITY and GOOD CONSCIENCE the action should proceed OR
2) whether action SHOULD BE DISMISSED if party is INDISPENSABLE (look at extent of prejudice to AP or parities, if prejudice can be reduced/avoided adequacy of judgement, whether P has adequate remedy at law if dismissed.
Impleader
impleader allows a defendant to implead a TPD (third party defendant) who is or may be liable for any party of Plaintiffs claim (joint tortfeasor/indemnity/contribution) if there is no SMJDX–Supplemental jdx ok. Venue need not be proper for TPD.
Intervention As of Right
Third Party wants to join as Plaintiff or Defendant if interests affected. As of Right Triple I
1) you have an INTEREST
2) your interest risks practical IMPAIRMENT AND
3) current parties are INDADEQUATE to protect your interest.
Permissive intervention
A permissive intervention is when the TPs claim/defense and the main action have ONE COMMON QUESTION of fact or law in the common and TPs involvement will NOT DELAY OR PREJUDICE THE CASE.
Intervention and supplemental jdx
No supplemental jdx–can’t mess up complete diversity.
Interpleader
One holding party (stakeholder) forces all potential claimants into 1 lawsuit to avoid multiple and inconsistent litigation.
Rule Interpleader
stakeholder must be diverse from all claimaints
Statutory Interpleader 5 things
1) One claimant must be diverse from another claimant and
2) Amount in controversy must be $500 or more.
3) Venue is where any claimant resides.
4) Process may be served anywhere in US.
5) Money in controversy must be deposited in court.
Class Action
1) Named representative sues on behalf of a group.
2) Only look at representatives SMJ.
3) Amount in controversy is met if any named representatives claim exceeds $75K
Required Every letter in CAN’T for a class action
Class shares
1) at least one COMMON question of law or fact
2) rep can ADEQUATELY represent the class
3) the class is so NUMEROUS that joinder is impracticable; AND
4) rep’s claims/defenses are typical of the class.
Required one letter in RIP for class action
1) normal action RISKS harm to the class or defendant
2) class only seeks an INJUNCTION or declaratory relief.
3) COMMON question predominates and CA is simply superior.
CAFA–5 things
1) Only applies to DJDX.
2) Minimal diversity; any class member diverse from any D.
3) Aggregate claims to exceed 5 mil.
4) At least 100 class members.
5) Any D may remove; no in state D rule.
DISCOVERY: Scope: Anything proportional and relevant/reasonably calculated to lead to admiss evidence.
Anything proportional and relevant/reasonably calculated to lead to admiss evidence.
DISCOVERY: Scope: Must not dig too DEEP.
1) Requests must not be unreasonably DUPLICATIVE.
2) There cannot be an EASIER way to get the info.
3) You must not have had ENOUGH opportunity to get the info already.
4) You cannot discover PRIVILGED info (or protected work product).
ESI: discoverable if …
Responsible party has burden to prove
discoverable if it meets normal requirements and is reasonably accessible in terms of burden and cost. Resp pty has burden to prove inaccessibility, undue burden/cost to ct.
ESI:
1) ESI discoverable if it meets normal requirements and is reasonably accessible in terms of burden and cost.
2) Resp pty has burden to prove inaccessibility, undue burden/cost to ct.
Duty to Supplement:
Duty to Supplement: must always supp and amend disclosures that are later discovered to be inaccurate or incomplete.
Scheduling Conference–timing
: usually w/in 90 days after D is served.
Mandatory Planning Conference
Mandatory Planning Conf: parties must confer as soon as practicable at least 21 days before a scheduling conference.
Discovery Plan
Discovery Plan: written report that must be filed w/in 14 days after the parties’ mandatory planning conference.
Required Initial Disclosure
what
why
when
Required Initial Disclosures are req disclosures that you make with regards of request or other party’s failure.
B4 discovery, party must make a reasonable inquiry into facts of the case.
Must make disclosures w/in 14 days after the mandatory planning conference.
Required Initial Disclosure
Substance = SLIC.
Substance = SLIC.
1) SUPPORTING: any discoverable docs used to supp claim,
2) LIKELY witnesses: names/contact info/subj might testify about of any1 you may call as a witness,
3) INSURANCE: ins. co. agreements who may be on the hook for damages,
4) COMPUTATION of each category of damages and evidence supporting those calculations.
Types of requested disclosures: Daddies.
- Types of requested disc:
1) DEPEO: interview witnesses under oath b4 trial. Limit of 10 depos per side – 7 hours per deo. Must give ntc.
2) ADIMISSIONS: seek admission or denial – no limit on # - if no answer w/in 30 days – deemed admitted.
3) DOCS written demand req docs. Can be directed to pty or non-pty. No limit on number.
4) INTEROGGOTORIES: written questions directed at opposing pty. Limited to 25.
5) EXAMINATIONS: capacity in controversy. Ct order req with showing of good cause.
6) SUBPOENEAS: non-parties must be subpoenaed for depos. 30 days to respond to Adm, Docs, Int.
Limitations on Discovery: Atty-Client Privilege:
Limitations on Discovery: Atty-Client Privilege: conf comm b/w atty and client for purposes of securing legal advice – does not protect underlying facts – intended to be confidential.
Can be waived by client or if TP present.
Crime-fraud exception.
Work-product Privilege
Work-product Privilege:
atty’s thoughts,
mental impress,
conc, opinions + legal theories – discoverable upon showing of substantial need and to avoid undue hardship.
Trial expert comm + reports + disc = protected.
Motion for Protection Order
Motion for Protection Order : good cause – ct may issue order to protect from annoyance, embarrassment, oppression, or undue burden/expense.
Motion to Compel:
Motion to Compel: on notice a party may move for an order compelling disclosure or discovery. meet + confer req.
Smurfs Attacked Elmo. Sanctions for:
1) failure to SUPPLEMENT– party cannot use info unless failure is justified or harmless.
2) failure to ADMIT– failing party can be req to pay reasonable expenses.
3) failure to take reasonable steps to preserve ELECTRONIC evidence.
Motion to Compel: Sanctions for:
Smurfs Attacked Elmo.
Smurfs Attacked Elmo. Sanctions for:
1) failure to SUPPLEMENT– party cannot use info unless failure is justified or harmless.
2) failure to ADMIT– failing party can be req to pay reasonable expenses.
3) failure to take reasonable steps to preserve ELECTRONIC evidence.
Enforcement: Partial failure
Enforcement:
1) Partial failure = motion to compel + costs.
2) Violation of order or total failure = costs, fees, disallow evidence, establish issue.
Enforcement: Violation of order or total failure
2) Violation of order or total failure = costs, fees, disallow evidence, establish issue.
