Learning about the case

Question 1

Process

Answer 1

D is entitled to notice that she has been sued. This consists of 1) summons (formal court notice of suit and time for response); and 2) a copy of the complaint

Question 2

Who can serve process?

Answer 2

Any nonparty who is at least 18 years old. The process serve does not need to be appointed by court.

Question 3

How is process served?

Answer 3

1) Personal service - papers are given to D personally, anywhere
2) Substituted service - It’s D’s usual abode, and the papers are served on someone of suitable age and discretion who resides there
3) Service on D’s agent
4) Methods that are permitted by state law of the state where the federal court sits OR where service is made
5) Waiver by mail

Question 4

Waiver by Mail

Answer 4

One way process can be served. P mails D a copy of the complaint and two copes of a waiver form, with a prepaid means of returning the form. If D executes and mails waiver form to P within 30 days, D waives formal service of process.

If D fails to return the waiver form, P then serves D personally or by substituted service but D must pay cost of service if D did not have good cause for failing to return the waiver.

Question 5

Return of Service

Answer 5

The person who serves process must file a report with the court detailing how service was made.

Question 6

Service of other documents

Answer 6

Other documents (answer, other pleadings, motions, discovery), get served, but we don’t need a summons or to do it so formally. Documents are served by delivering or mailing to party’s attorney.

Documents can be served by mail, or email if parties agree.

Question 7

Pleadings

Answer 7

1) Complaint
2) Defendant’s response
3) Counterclaim
4) Crossclaim
5) Additional claims
6) Amended pleadings
7) Supplemental pleadings
8) Rule 11 sanctions

Question 8

Complaint

Answer 8

Commences the action when filed. Requirements:

1) statement of grounds of subject matter jdx
2) short and plain statement of the claim, showing entitled relief, and
3) demand for relief sought (damages, injunction, declaratory judgment).

P does not need to allege grounds of PJ or venue.

Question 9

Standard for short and plain statement of the claim

Answer 9

Traditionally, courts used “notice pleading,” which means you only need enough detail to put the other side on notice. NOW, SCOTUS requires more detail: you must plead facts supporting a PLAUSIBLE claim ( NOT just a possible claim).

Fraud, mistake, and special damages must be pleaded with even more detail - with particularity or specificity.

Question 10

Defendant’s Response

Answer 10

Rule 12 requires D to respond in two ways:
1) by motion, OR
2) by answer
D must respond either through motion or answer within 21 days after service of process (if you waived service, D gets 60 days from when P mailed the waiver to D)

Question 11

Motions

Answer 11

Motions are not pleadings, they are requests for a court order.

1) motion for a more definite statement - pleading is so vague that D can’t frame a response;
2) motion to strike, which is aimed at immaterial or scandalous things;
3) motions to dismiss

Question 12

Motion to Dismiss

Answer 12

Rule 12(b) defenses:

1) lack of SMJ (anytime)
2) lack of PJ (waivable)
3) improper venue (waivable)
4) improper process (waivable)
5) improper service of process (waivable)
6) failure to state a claim (through trial)
7) failure to join an indispensable party (through trial)

These defenses can be put EITHER in a motion to dismiss or in the answer.

Question 13

Waivable Defenses

Answer 13

Waivable defenses must be put in the FIRST Rule 12 response (either motion or answer), or else they are waived.

Question 14

The answer

Answer 14

A pleading. D does two things in the answer:

1) respond to allegations of complaint (admit, deny, or stat that you lack sufficient information to admit or deny);
2) Raise affirmative defenses (injects a new fact into the case - cannot be sprung at trial)

Question 15

Counterclaim

Answer 15

A claim against an opposing party. Usually, this is a claim by D against P. The counterclaim is part of D’s answer. After D serves a counterclaim against P, P must respond under R12 within 21 days.

Question 16

Two types of counterclaim

Answer 16

1) Compulsory: arises from the same T/O as P’s claim. D must file this in the pending case or the claim is waived. This is the ONLY compulsory claim.
2) Permissive: does NOT arise from same T/O as P’s claim. D is not required required to file it in this case and can sue on it in a separate case.

Remember: must asses SMJ with each new claim.

Question 17

Crossclaim

Answer 17

This is a claim against a co-party. It MUST arise from the same T/O as the underlying action. But it is not compulsory.

Question 18

Additional claims

Answer 18

Once you file a counterclaim or crossclaim (or any claim), you can join an additional claim to it, even if that claim has nothing to do with the others.
This claim must invoke federal SMJ (either through diversity, FQ, or supplemental jdx)

Question 19

Amended Pleadings

Answer 19

1) Right to amend - P has a right to amend ONCE within 21 days after D serves her first R.12 response. D has a right to amend ONCE within 21 days of serving his answer
2) If there’s no right to amend, seek leave of the court. It will be granted if “justice so requires” (delay, prejudice, futility of amendment)
3) Variance - where the evidence at trial does not match what was pleaded. If opposing party does not object at trial, the complaint is amended to show what was introduced at trial. If opposing party objects, evidence at trial is inadmissible because it is at variance with the pleadings.
4) Amendment after the statute of limitations has run (relation back)

Question 20

Relation Back

Answer 20

1) To join a new claim - amended pleadings “relate back” if they concern the same conduct, transaction or occurrence as the original pleading. You treat the amended pleading as though it was filed when the original was filed, so it can avoid a statute of limitations problem.
2) To change a defendant after the statute has run - will relate back if it concerns the same conduct, T/O as the original, the new party knew of this case within 120 days of its filing, and she also knew that, but for a mistake, she would have been named originally (this applies when P sued the wrong D first, but the right D knew about it).

Question 21

Supplemental Pleadings

Answer 21

Set forth things that happened AFTER the pleading was filed (compare: amended pleadings are about things that happened before the pleading was field but were not asserted until later)
No right to supplemental pleading, always left to the judge’s discretion

Question 22

Rule 11 sanctions

Answer 22

Applies to all documents except discovery
When the lawyer or pro se party signs documents, she certifies that to the best of her knowledge and belief, after reasonable inquiry:
1) the paper is not for an improper purpose, and
2) the legal contentions are warranted by law, and
3) the factual contentions and denials of factual contentions have evidentiary support

If there is a violation, Rule 11 sanctions can be ordered against the party, the attorney, or the firm. Court must give you a chance to be heard before sanctions are imposed.

If other party violates Rule 11, that party has a safe harbor of 21 days in which to fix the problem and avoid sanctions.

Question 23

Discovery - Required disclosures

Answer 23

These materials must be produced even though no asks for it.

1) Initial disclosures
2) Expert witnesses
3) Pretrial Required Disclosures

Question 24

Initial disclosures

Answer 24

Unless a court order or stipulation of parties says otherwise, within 14 days of the Rule 26(f) conference, each party must disclose:

1) Identities of persons who have discoverable info that you (the disclosing party) may use to SUPPORT your claims or defenses - name, telephone number, and subject on which they have info
2) Documents and things that you may use to SUPPORT your claims or defenses. copies or description of these documents/things is adequate
3) Computation of monetary relief and documents/ESI supporting it
4) Insurance coverage - D must disclose any insurance that might cover all or part of the judgment

Question 25

Expert Witnesses

Answer 25

Each party must identify expert witnesses “who may be used at trial.” This happens later in the case, at a time directed by the court. An expert witness is someone who, because of special skill or training, may give opinion testimony. Hired to render an opinion in this case.
Must disclose the identity of EW and the written report prepared by EW

Question 26

Written Report of Expert Witness

Answer 26

The 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 getting paid

Earlier drafts of the EW report are work product, as are communications between the lawyer and the EW

Question 27

Consulting Expert

Answer 27

Not an expert witness. Hired by a party to help prepare the case, but will not be called on to testify at trial. Facts known and opinions held by consulting experts are generally not discoverable, only in “exceptional circumstances.”

Question 28

Pretrial Required Disclosure

Answer 28

No later than 30 days before trial, must give detailed information about trial evidence, including identity of witnesses to testify live or by deposition and documents/ESI/things, to be introduced at trial

Question 29

Discovery tools

Answer 29

1) Depositions
2) Interrogatories
3) Requests to produce
4) Medical Exam (Physical or mental)
5) Request for admission

Question 30

Depositions

Answer 30

When a person gives live testimony in response to questions by counsel or pro se parties. Deponent testifies under oath and is recorded by sound or video or stenographically.

Both parties and nonparties can be deposed, but nonparties should be subpoenaed.

Question 31

Limits on depositions

Answer 31

1) no more than 10 depos without court order or stipulation
2) can’t depose the same person twice without court approval or stipulation
3) Depo cannot exceed one day of seven hours unless court orders or parties stipulate.

Use of depositions at trial are subject to the rules of evidence

Question 32

Interrogatories

Answer 32

Written questions to be answered in writing under oath. 1) Can ONLY be sent to parties

2) Party has 30 days from service to respond with her answers or objections
3) Party must answer with info reasonably available
4) Maximum number of interrogatories to a party: 25 (including subparts)

Question 33

Requests to produce

Answer 33

Requests that someone make available for review and copying documents or things, including ESI, or to permit you to enter designated property to inspect, measure, etc.

1) Person must respond within 30 days of service, stating that the material will be produced or asserting objections
2) Requests can be made on parties AND nonparties

Question 34

Physical or Mental Medical Exam

Answer 34

1) Must get a court order
2) In order to get the order, must show that the person’s health is in actual controversy and “good cause”
3) Only a party or someone in the party’s custody or legal control (child) can be ordered to undergo the exam
4) Party seeking the order chooses the licensed person to perform the exam
5) Party getting the exam can request the exam but he then waives ANY privilege he might have concerning testimony about all examinations of that medical condition.

Question 35

Request for Admission

Answer 35

Written request that someone admit things

1) Can only be served on parties
2) Often used to authenticate documents

Question 36

Discovery Requests and Lawyers’ Duty

Answer 36

Parties sign answers to discovery under oath. Every discovery request and response is signed by counsel certifying:

1) it is warranted
2) it is not interposed for an improper purpose
3) it is not unduly burdensome

Question 37

Discovery and the Duty to Supplement

Answer 37

If there are changes of circumstances after a required disclosure, interrogatory, request for production, or request for admission, these responses are now incomplete or incorrect. These responses MUST be supplemented

Question 38

Scope of Discovery

Answer 38

Anything relevant to a claim or defense may be discovered. Relevant includes things that are “reasonably calculated to lead to the discovery of admissible evidence” Broader than admissible.

BUT, court has the authority to limit discovery if the request is cumulative or if the burden outweighs the importance of the issue. This is called proportionality.

Question 39

Discovery and Privilege

Answer 39

A party can object to discovery on the basis of evidentiary privilege - like confidential communications between attorney and client.

Question 40

Discovery and Work Product

Answer 40

Trial preparation materials (materials prepared in anticipation of litigation) are generally protected from discovery.

1) Work product does not need to be generated by a lawyer (can be by a party or any representative of a party)
2) Identity of people with discoverable information is discoverable
3) A party has a right to ask for his own statements

Question 41

Qualified work product

Answer 41

Work product that is discoverable if the other party can show:

1) substantial need
2) that the information/material is not otherwise available

Question 42

Absolute work product

Answer 42

Work product that cannot be discovered:

1) mental impressions
2) opinions
3) conclusions
4) legal theories

Question 43

Asserting Privilege or Work Product

Answer 43

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. This is done in a document that lists the materials protected by date, author, recipient, and privilege - Privilege Log

Question 44

Enforcement of Discovery Rules

Answer 44

Three ways courts get involved in discovery disputes

1) Protective Order
2) Partial response to discovery requests
3) No response to discovery requests

Question 45

Protective Order

Answer 45

If the responding party things a discovery request subjects it to annoyance, embarrassment, undue burden, or expense, or the request is cumulative and not proportional to the , party can move for a protective order.

If court agrees, it cant deny discovery OR limit it OR permit it in certain terms

Question 46

Partial Response to Discovery Request

Answer 46

The responding party answers some questions but objects to others. Requesting party will make a motion to compel answer and court will decide whether the objections were legitimate

Question 47

Sanctions against party for partial response

Answer 47

The party seeking sanctions must certify that she tried in good faith to get the info without court involvement. Two steps:

1) Requesting party moves for an order compelling the party to answer the unanswered questions, pus costs of bringing motion.
2) IF the party violates the order compelling him to answer, RAMBO sanctions plus costs. Also could be held in contempt for violating a court order.

Question 48

Sanctions against party for no response

Answer 48

Responding party fails completely to attend her deposition, respond to interrogatories, or to respond to requests for production. One step:
1) RAMBO pluse costs. No need to get an order compelling answers.

Question 49

RAMBO Sanctions

Answer 49

Choices available to judge

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
4) Dismiss plaintiff’s case (if bad faith is shown)
5) Enter default judgment against D (if bad faith is shown)