Kaplan Pgs 30-60 Pretrial Procedures Flashcards
What are the types of pleadings that are allowed under the FRCP?
- complaints
– answers to complaints, counter claims, cross claims, and third party complaints
– third-party complaints
– replies to answers, if ordered by the court
If you want to initiate a lawsuit, what is the first step?
File a complaint
A pleading that states a claim for relief must contain what three things?
– A short and plain statement of the grounds for the courts jurisdiction
– a short and plain statement of the claim showing that the person is entitled to relief (must give sufficient factual matter to state a plausible claim that is more than a sheer possibility that a defendant has acted unlawfully)
– a demand for relief
Is it possible for a pleading to have inconsistent claims or defenses?
Yes, this is determined by the trier of fact
If there is a technical defect in the pleadings in federal court, what do the courts usually do?
Just ignore it if it doesn’t affect a substantial right
What are special matters where you must plead with particularity?
– Capacity or authority to sue if required to show that the court has jurisdiction
– fraud, mistake, or condition of the mind
– conditions precedent when denying that the condition occurred
– time and place when testing the sufficiency of a pleading
– special damages
What is an answer?
When the responding party either admits or denies the allegations and lists any defences he might have
What is necessary for a general denial?
The responding party must intend in good faith to deny all of the allegations in the pleading
If a defendant fails to deny an allegation in his answer, what happens?
It is deemed to be admitted
What does an affirmative defense do?
Relies on factual issues that are not presented in the complaint. It doesn’t necessarily deny the complaint, but it please additional facts
Which affirmative defences must be pleaded in a responsive pleading?
I FACE the CRASS PILL WARD - illegality – fraud – accord and satisfaction – contributory negligence – estoppel - failure of consideration – release – arbitration and award – statute of frauds – statute of limitations – payment – injury by fellow servants – laches – licenses – waiver – assumption of the risk – rest judicata – duress
What is the mnemonic to help remember affirmative defences that must be pleated in a responsive pleading?
I FACE the CRASS PILL WARD
Affirmative defences that raise objections based on jurisdiction or procedural matters must be raised when?
In either a responsive pleading or in a pre-answer motion
What is a pre-answer motion?
– A motion to dismiss
– a motion for a more definite statement
– a motion to strike
When must pre-answer motions be raised?
Before a responsive pleading is made
What are the objections that can be raised either in a pre-answer motion to dismiss or in a responsive pleading?
– Lack of SMJ – lack of PJ – venue – insufficient process – insufficient service – failure to state a claim – failure to join a party
How long do you have to file an answer?
Within 21 days of service of process
Does the 21 day period for an answer to be filed include the date of service or weekends and holidays?
It does not include the date of service, but it does include weekends and holidays. If the 21st day is on a weekend or holiday, the answer must be filed on the next business day
If service of process was waived, how long do you have to file your answer?
- within 60 days after the request for a waiver was sent
– or within 90 days if you were outside of a judicial district of the United States
If a dependent responds to a plaintiffs complaint by filing a pre-answer motion that gets denied, how long does he have to file his answer after that?
He must file within 14 days of the denial
What kind of stuff does rule 11 not apply to?
Discovery matter: discovery request, response, motion, etc.
What is the purpose of provisional relief?
To maintain the status quo and prevent irreparable damage or wasting of assets during litigation or arbitration
Provisional relief consists of what two remedies?
– Temporary restraining orders
– preliminary injunctions
Why is provisional relief considered to be an extraordinary remedy?
Because it is issued before a decision on the merits and it provides immediate or quick but short term injunctive relief
When is a temporary restraining order issued?
In an emergency situation when the injunction must issue before a hearing, and it lasts only a few days for the parties to seek for luminary injunction
How long does a preliminary injunction usually last?
Until a decision can be made on the merits
What must be established before a temporary restraining order or a preliminary injunction will be issued?
Dash is substantial likelihood of success on the merits
– irreparable harm will be suffered unless the remedy sought is issued
– the harm to the plaintiff if either is denied is greater than the harm to the defendant if the remedy is granted
– the provisional remedy, if granted, will not be adverse to the public interest
Is it possible to issue a temporary restraining order without written or oral notice to the adverse party?
Yes
If a temporary restraining order is issued without written or oral notice to the adverse party, what needs to happen?
A motion for a preliminary injunction must be set for hearing at the earliest possible time, and if the party that got the temporary restraining order doesn’t proceed with the motion for a preliminary injunction, the restraining order must be dissolved
What is the only time that a temporary restraining order will issue without notice?
– If specific facts are given in an affidavit or verified complaint that’s not an immediate and irreparable injury or loss they will results to the person before the adverse party can be heard in opposition, and
– the movements attorney certifies in writing any efforts that were made to give notice and the reasons why notice should not be required
What must a temporary restraining order issued without notice include?
– The date and hour it was issued
– the injury and state wide is irreparable
– the reason that the order was issued without notice
– it must be probably filed in the clerks office and entered in the router
How long does a temporary restraining order that was issued without notice last?
A maximum of 14 days, but the court can for good cause extend the duration or the adverse party can consent to a longer extension
Can a preliminary injunction be issued by a court without giving notice to the adverse party?
No
Any evidence that is entered on emotion for a preliminary injunction that would be admissible at trial becomes what?
Part of the trial record and doesn’t have to be repeated at trial
Who are the people that are bound by a preliminary injunction or temporary restraining order?
– The parties
– the party’s officers, servants, agents, employees, and attorneys
– anyone that is an active concert with anyone described above
If you fail to raise a compulsory counterclaim, what happens?
You have waived the right to assert it in the future
Do federal courts have supplemental jurisdiction over compulsory and permissive counter claims?
Only over compulsive compulsory, not over permissive because for permissive they do not arise out of the same transaction or occurrence, so there has to be an independent ground for federal jurisdiction before federal court will hear a permissive counterclaim
What is required for a federal court to have jurisdiction over a cross claim?
Either there must be an independent basis for jurisdiction through federal question or diversity, or it must arise are the same transaction or occurrence as the original claim or counter claim
What is an impleader claim?
This allows a defending party to shift all or part of the liability owed to the plaintiff to a new party who is or may be liable for it
If A sues B for injuries when B hit her while driving, and B claims that the only reason the accident happened was because his steering mechanism in his car was damaged when his mechanic did a faulty repair job, can be proceed against the mechanic?
Yes, via impleader
What are the two most important impleader claims?
– Contribution
– indemnity
What is the difference between the two impleader claims of contribution and indemnity?
– Contribution: a claim against a joint tortfeasor that shifts PART of the liability to a new party
– indemnity: a claim that shift ALL of the defendants liability to a new party
In order to bring an employer claim, what does the defendant have to do?
File a third-party summons and complaint with the court with the original action is pending
How does impleader produce a third-party plaintiff?
Because the defendant in the original action becomes the plaintiff against the third-party defendant that he brought in
If a defendant in please and bring in a third-party, what can the plaintive do?
Can amend his original complaint to assert claims against the third-party defendant
Is it possible for a plaintive to file a third-party complaint to bring in a third-party defendant?
Yes if a counter claim was asserted against the plaintive and there’s a basis for the plaintive to argue that a third-party is liable for all or part of the liability under the counter claim
Do third-party defendants have the same rights as any other party to the action?
Yes
If two different people are both passengers that are injured on an airplane during a bad landing, can they join their claims in the same action?
Yes, because it involves a question of fact or law that is common to both parties
What is the requirement for permissive joinder of parties?
– The claim of relief or liability arises out of the same transaction or occurrence, and
– any question of fact or law is common to the joined parties
When does compulsory joinder apply?
– If that party was not joined, the court couldn’t grant complete relief to the existing parties, or
– without that party it would impair or impede that parties ability to protect his interest or leave an existing party subject to a substantial risk of incurring multiple or inconsistent obligations
Interpleader is only available when what?
Multiple claims are demanding the same thing or obligation. This usually involves a piece of property, a prize, or an insurance policy
If a conservation group tries to join a suit in an action against the developer, what is that called?
Intervention
In order to intervene, what is the first thing that the non-party’s request for intervention must be?
Timely. The court decides if it is timely by considering:
– the length of time that the non-party knew or should’ve known about the interest before making an application
– the extent of the prejudice that the existing parties may suffer as a result of the delay
– the likelihood and gravity of the prejudice that the lawn non-party may suffer if the application is denied
When must a discovery planning conference happen?
This requires the parties to meet and have a discovery planning conference as soon as practicable, but at least 21 days before the scheduling order is held
What must be discussed in a discovery planning conference?
– The nature in basis of the claims and defences as well as the possibilities of settling or resolving the case
– arrangements for mandatory disclosures
– discussing issues about preserving discoverable information
– developing a discovery plan
What must be created after a discovery conference occurs?
A written report outlining the proposed discovery plan
When must a written report that outlines the proposed discovery plan after a discovery conference occurs be submitted to the court?
Within 14 days after the discovery conference
What is a scheduling order?
When the judge issued an order that limits the time to join other parties, amend the pleadings, finish discovery, and file motions. This is done after the pre-trial conferences and can only be modified for good cause with the judge’s consent
When was the scheduling order be issued?
Either within 90 days after defendant is served with the complaint or 60 days after he has appealed, which ever is earlier
What are things that can be considered at a pre-trial conference?
Dash simplifying issues and illuminating frivolous claims
– amending the pleadings
– getting admissions and stipulations to avoid unnecessary proof
– appropriateness of summer adjudication
– controlling and scheduling discovery
– identifying witnesses and documents
– settling the case
– form and content of the pretrial order
– disposing of pending motions
– adopting special procedures for difficult or complex issues
– ordering a separate trial for a claim or issue
– ordering presentation of evidence
– establishing a reasonable time limit for presenting evidence
– facilitating adjust, speedy, and in expensive disposition of the action
What is the point of discovery?
To allow the litigants an opportunity to get and review all pertinent evidence before trial
Who initiates discovery?
The parties, and a court only becomes involved when there’s a discovery dispute that cannot be resolved by the parties
What does mandatory disclosure mean?
Parties are required to disclose some information as a matter of course upon the commencement of litigation without waiting for a discovery request
What are things that must be included in mandatory disclosure?
– The names/addresses/numbers of anyone that is likely to have discoverable information , Plus the subject of the information, if the disclosing party might use them to support their claim or defence
– A copy or description of any documents or things that the disclosing party has in its possession or control that they may use to support its claims or defenses
- a computation of damages plus supporting materials
– insurance agreements where a company may be liable to satisfy all or part of a possible judgement
When must mandatory disclosures be made?
Within 14 days after discovery conference
What is the standard for mandatory disclosures?
The party must disclose information that is then reasonably available
What is required at the discovery stage if you are planning to use an expert witness?
There must be disclosure of the expert witness as well as his final report, which includes:
Dash all opinions, basis, and reasons that the expert will testify to
– all facts and data he considered
– any exhibits that will be Youse
– his qualifications and a list of all publications from the previous 10 years
– a list of all cases he worked on in the previous four years
– a statement of the compensation he is being paid
When must you disclose expert information during discovery?
At least 90 days before trial
In addition to mandatory disclosures, what else must be provided to the opposing party at least 30 days before trial?
– The name for each witness the party expects to present
– a list of witnesses whose testimony will be presented through deposition
– a list of documents and evidence that the party expects to present
Parties are entitled to demand the discovery of any matter that is what three things?
– Non-privileged
– relevant
– proportional to the needs of the case
What are factors to consider when determining whether a matter is proportional to the needs of a case?
– The importance of the issues at stake
– the amount in controversy
– the parties relative access to relevant information
– the parties resources
– the importance of the matter sought to resolving the issues
– whether the burden or expense of the discovery outweighs it’s likely benefit
If a party is able to show that he needs work product to be discoverable because of a substantial need for the material that cannot be gotten without undue hardship, what must the court still be sure to protect from disclosure?
The attorney’s mental impressions, conclusions, opinions, or legal theories, which remain privileged
If a party gets a discovery request that is beyond the scope of discovery, what can he do?
– Object to the request
– request a protective order
What is the point of a deposition and how does it work?
It is direct questioning of a party or witness under oath. This is typically done orally and every word is recorded verbatim and transcribed
How many depositions can a party take as a matter of right?
10
Can any party use a deposition to contradict or impeach the testimony given by the deponent?
Yes
A party can use the deposition of a witness, if the court finds wet things?
- the witness is dead
– the witness is more than 100 miles from the place of hearing or is outside of the United States unless his absence was procured by the party
– the witness can’t attend because of age, illness, infirmity, or imprisonment
– the party could not procure the witnesses attendance by subpoena
– exceptional circumstances make it desirable and in the interest of justice
What is an interrogatory?
Written questions that must be answered by another party in writing under oath
What are the rules for interrogatories?
They can only be served on party to the action, each party may submit up to 25 questions on any other party, and they must be answered in writing, under oath, and within 30 days after the service of the interrogatories
What is involved in a document request?
A party can serve on any other party and request to produce and permit the other party to inspect, copy, test, or sample these items in his possession or control:
Dash any designated documents including writings, drawings, crafts, charts, pictures, sound recordings, images, or other data stored in any medium where information can be obtained directly or after translation into a reasonably usable form
– any designated tangible things
Dash permit entry on the designated land or other property possessed are controlled by the responding party for the requesting party to inspect, measure, survey, photograph, test, or sample the property
What must a document request entail?
Dash it must describe with reasonable particularity each item or category to be inspected
– must specify a reasonable time, place, and manner for the inspection
– may specify the form that electronically stored information can be produced in
What is the rule about producing the same electronically stored information in more than one form as a response to a document request?
This is forbidden
Can a non-party be compelled to produce documents or items or to permit and inspection under a document request?
Yes
Requests for admissions are meant to do what?
They are typically given in a question and answer statement and used to explore specific intentions. Any request that is admitted is deemed established for all purposes in the litigation and the other party does not have to prove the issue at trial
If you are served with a request for admission how long do you have to answer it?
30 days to respond
What is the only time that a physical or mental examination is permitted?
If a party’s physical or mental condition is put in controversy and advance court approval is gotten upon a showing a good cause for the examination.
Ayi: if the plaintive claims emotional distress, the defendant can request that he submit to a psychological examination
What are the steps that are taken for e-discovery?
– electronically stored data is identified by counsel as potentially relevant for further analysis and review
– ESI is placed on a legal hold to ensure it won’t be destroyed
– ESI is transferred to counsel to determine its relevance
– ESI is loaded into a document review platform
– ESI is reviewed for responsiveness to the discovery request and for privilege
– ESI is turned over to opposing counsel
After a request for e-discovery has been issued, how long does the other party have to respond?
30 days after being served
If a request for e-discovery has been issued, does the other party have to permit inspection of the documents or ESI?
No, they can produce copies of the documents instead
If a request has been made for e-discovery, what procedures must be used to produce the documents?
Dash a party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request
– if a request does not specify a form, a party must produce it in a form that it is ordinarily maintained in or a reasonably useable form
– a party doesn’t have to produce the same ESI in more than one form
If ESI that should have been preserved in anticipation of litigation is lost because a party failed to take reasonable steps to preserve it and it cannot be restored, what happens?
The court can order measures no greater than necessary to cure the conduct
– but if the court finds that the party acted intentionally to deprive the other part of the information, the court can:
• presume that the lost information was unfavourable to the party
• instruct the jury that it may or must presume the information was unfavourable to the other party
• dismiss the action or enter a default judgement
If a party fails to comply with a court order, what can happen?
– The court can declare that the facts site are established in favour of the requesting party
– strike pleadings in whole or in part
– stay for the proceedings until the order is obeyed
– dismiss the action in whole or in part
– render a default judgement against the disobedient party
– treat as contempt of court
Most cases do not result in a full trial. What are other possible methods of resolving a dispute without trial?
– Voluntary or involuntary dismissal
– default judgment
– settlements
What is voluntary dismissal?
When a plaintiff filed a notice of dismissal with the court, it automatically terminate the case without prejudices
What are the two steps involved in a default judgment?
– The entry of default
– the entry of the default judgement
For a default judgment, what is the difference between the two steps of “entry of default“ and “entry of the default judgment“?
– Entry of default: is entered on behalf of a party against whom a judgement for affirmative or leave his sight when the party has failed to plead or defend the claim. This must happen before a default judgement can be entered.
– Default judgment: if the plaintiffs claim for a sum is certain, the clerk must enter judgement for that amount
Who are two categories of people that a clerk cannot enter default judgements for?
Minors and incompetent persons
What are the different ways that settlements can be reached?
Dash through counsel in the parties themselves
– through ADR
Settlements are not mandatory, and a settlement conference is appropriate at any time
