Learning about the Case (service, pleadings, discovery)

Question 1

What does service of process afford?

Answer 1

Notice to the defendant.

• summons (formal court notice of the suit and time for response)
• copy** of the **complaint

Question 2

When must a plaintiff serve process on the defendant?

Answer 2

Within 120 days of filing the case.

• otherwise, the case is dismissed without prejudice (or not if good cause)

Question 3

Who may serve process?

Answer 3

Any** **nonparty** who is **at least 18 years old

• not necessary that the process server be appointed by the court

Question 4

What are the methods in serving process?

Answer 4

Personal service

Substituted service

• process is left at defendant’s usual abode; AND
• served on someone of suitable age and discretion who resides therein

Service on the defendant’s agent (if within the scope of agency)

May also use methods of service that is permitted by the state:

• where the federal court sits; or
• where service is made

Waiver

• Mail the defendant a copy of the complaint and two copies of a waiver form and prepaid means of returning
• if executives and mails the waiver to the plaintiff within 30 days, service is waived

NOTE:

• the carrot of waiver: 60 days to answer
• the stick in not waiving: pay for expenses in perfecting service

Question 5

What are the requirements of Rule 11?

Answer 5

When a lawyer signs documents**, she **certifies** that to the **best of her knowledge** and belief, after **reasonable inquiry:

• the paper is not for an improper purpose
• the legal contentions are warranted by law (or nonfirvolous argument for law change); and
• the factual contentions and denials of factual contentions have evidentiary support (or are likely to)

NOTE: Rule 11 applies to all documents except discovery

NOTE: you make a certification every time you present a position to the court (“continuing certification”)

Question 6

What is the procedure for raising Rule 11 sanctions?

Answer 6

Serv the motion for sanctions on the other party

• may not move for sanctions immediately
• must wait 21 days for the other party to fix the problem and avoid sanctions

After the passage of 21 days, the motion may be filed with the court

Sanctions are permitted against the attorney, firm, or party.

• the court must give the sanctioned party a chance to be heard before imposing sanctions
• deter a repeat of bad conduct
• may be non-monetary or monetary

NOTE: the court may order R. 11 sanctions sua sponte

• show cause order

Question 7

What are the requirements for a complaint?

Answer 7

State of grounds for subject matter jurisdiction

Short and plain statement** of the claim, **showing the plaintiff is entitled to relief

Demand for relief sought

Question 8

What is the standard for pleading before a federal court?

Answer 8

The plaintiff must plead** **facts** supporting a **plausible claim

• to determine plausibility, the judge uses her own experience and common sense

Question 9

What matters must be pleaded with even more detail?

Answer 9

Circumstances consituting:

• fraud
• mistake
• or special damages

This kind of pleading requires particularity** or **specificity

Question 10

How may a defendant respond to a complaint?

Answer 10

By motion; or

By answer

Must respond within 21 days of service

• if the defendant waived service, must respond within 60 days from when plaintiff mailed the waiver form

Question 11

What types of motions are available within Rule 12

Answer 11

Motions to form:

• more definite statement–pleading so vague that the defendant cannot frame a response;
• motion to strike–immaterial items in the complaint

12(b) defenses:

• lack of subject matter jurisdiction
• lack of personal jurisdiction
• improper venue
• insufficiency of process
• insufficient service of process
• failure to state a claim
• failure to join an indispensable party

Question 12

Which 12(b) defenses must be put in the first response (motion or answer)?

Answer 12

Lack of personal jurisdiction

Improper venue

Insufficiency of process

Insufficient service of process

These defenses are otherwise waived

Question 13

What may the defendant’s answer contain?

Answer 13

Response to the plaintiff’s complaint

Admit

Deny

State that you lack sufficient information to admit or deny

• functions as a denial
• may not use if the information is public knowledge or is in the defendant’s control

NOTE: failure to deny can be an admission on any matter except damages

Raise an affirmative defense

• must raise in the answer or risk waiver

Question 14

Define a counterclaim.

Answer 14

A claim against** an **opposing party

• part of the defendant’s answer

Compulsory counterclaim:

• arises from the same transaction or occurrence as the plaintiff’s claim
• must file or it is waived

Permissive counterclaim:

• may or may not file with answer

Question 15

Define a crossclaim.

Answer 15

A claim against** a **co-party:

• must arise from the same transaction or occurrence as the underlying claim

Question 16

When may a party amend pleadings.

Answer 16

Plaintiff: right to amend once within 21 days** after the defendant **serves her her first R. 12 response (via motion or answer)

Defendant: right to amend once within 21 days** of **serving her answer

NOTE: If no right to amend, seek leave of the court–will grant if justice so requires:

• delay, prejudice, futility of amendment
• applied loosely

Question 17

What happens when the eivdence at trial does not match what was pleaded?

Answer 17

If the defendant doesn’t object:

• Plaintiff may move at or after trial to amend the complaint to conform to the evidence

If the defendant does object:

• The varying evidence will be inadmissible because at variance with the pleadings

Question 18

When may an amendment after the statute of limitations relate back?

Answer 18

Amended pleadings relate back if they concern the same conduct, transaction, or occurrence as the original pleading

Question 19

Must a party disclose information to an adverse party and when, if ever, does this disclosure occur?

Answer 19

Within 14 days of the Rule 26(f) conference, a party must identify:

• persons, documents, or electronically stored information that
• is likely to have discoverable information that
• the disclosing party may use to support its claims or defenses

Plaintiff must give a computation of damages** and Defendant must disclose **insurance for any judgment

Parties must identify experts who may be used at trial

No later than 30 days before trial, parties must give detailed information about trial evidence

• documents
• identify witnesses

Question 20

What discovery tools are available to the party?

Answer 20

Depositions

• sworn testimony
• may depose nonparties or parties
• nonparties should be subpoenaed–compelled to attend
• duces tecum–bring material with her

Interrogatories

• questions in writing to a party, answered under oath
• must object within 30 days
• generally should do before depositions

Requests to produce

• may send to a party or nonparty (w/ subpoena)
• allow entry to designated areas in addition to produce

Physical or mental examination

• allowed only with court order on showing that party’s health is in actual controversy and good cause

Request for admission

• request to another party to admit the truth of any discoverable matter

Question 21

What do parties certify in all discovery requests?

Answer 21

That the discovery request is:

• warranted
• not interposed for imporper purpose
• not unduly burdensome

Question 22

Do parties have any additional obligations as discovery progresses?

Answer 22

Parties have a duty to supplement** their response if additional discovery shows that a previous response is now rendered **incorrect** or **incomplete.

Question 23

What is the scope of discovery?

Answer 23

A party may discover anything that is relevant to a claim or defense

• Relevant means things that are reasonably calculated to lead to the discovery of admissible evidence

A party may not discover communications protected by a privilege

Work product** or **trial preparation materials are generally not discoverable

• work product is anything generated in anticipation of litigation
• work product MAY BE discoverable if the other party demonstrates: 1) substantial need; and 2) the information is not otherwise discoverable

NOTE: mental impressions, opinions, conclusions, and legal theories are aboslutely protected

Question 24

How may a party enforce a discovery order?

Answer 24

Protective order:

• responding party seeks a protective order if the discovery request was overly burdensome or involves trade secrets

Partial violation:

• where the receiving party answers some requests and objects to others
• first, party moves for an order compelling** the party to answer the unanswered questions, **plus costs of bringing a motion
• If** the party **violates** the order, **RAMBO sanctions are available

Total violation:

• receiving party fails completely to attend a deposition, respond to interrogatories, or respond to requests for production
• upon filing of the motion, RAMBO sanctions plus costs

NOTE: a party’s failure to produce ESI** is generally not subject to sanctions if the **information was lost in good faith, routine operation of an electronic information system

Question 25

What are RAMBO sanctions?

Answer 25

Establishment order

Strike pleadings of the disobedient party

Disallow evidence from the disobedient party

Dismiss plaintiff’s case

• need bad faith

Enter default judgment against the defendant

• need bad faith