Pleadings, Amendments, Joining Parties Flashcards
When must an answer be served on a plaintiff?
Federal - 21 days after formal service; 60 days if waived service
MI - 21 days under MI service rules; 28 days if service made outside MI or by registered mail
What must a complaint contain?
- Name of the court and parties
- Statement of a claim
- prayer for relief
- signed in accordance with local regulation
Level of specificity in Complaint
Federal: requires Notice Pleading but also must contain sufficient facts to place adverse party on notice of plausible claims
Michigan: generally the same as fed - requires that complaint contain a statement of facts and a demand for judgment
Pleading Special Matters
(Fed and MI) Fraud or mistake must be stated with particularity although allegations of malice, intent, or knowledge may be stated generally.
Pleading Damages
General Damages do not need to be pleased, but special damages (which don’t naturally flow from the wrongdoing) must be pleaded
Answer Requirements
- Must assert an answer (or bring motion where appropriate)
- Party must explicitly admit, deny, or state they lack knowledge
- Affirmative defenses must be stated
When can a pleading be amended?
Fed: A pleading may be amended as a matter of right within 21 days of serving the pleading or 21 days after the responsive pleading or pre-answer motion is served
After this period, parties may amend their pleadings only with consent of the other party or court’s permission
Define: Relate Back of New Claims
New claims relate back if they service from the same conduct, transition or occurrence set forth in the original pleading
(maintains SoL from filing of original complaint)
Michigan Specific Statute of Limitations
6 months: after discovery of cause of action but more more than two years for most medical malpractice cases
One-Year: libel or slander
Two-Years: most intentional torts
Three-Years: negligence, products liability, injury, or death to persons
Four-Years: contracts for sale of goods under the UCC
Six-Years: most other contract actions
Relate Back of Amendments against New Parties
- New parties relate back if claims against new party derive from the same conduct, transaction, or occurrence as the original claims, and
- the new party had notice of the action within the time period allowed for service of process, and
- the new party acquired knowledge that but for a mistake as to the identity of the proper party, the original action would have been filed against them
Example: complaint against ABC Company when it should have been ABC Corporation
Joinder of Claims (18(a))
A party seeking relief from an opposing party may join all claims it has against that party regardless of whether there is any connection between those claims.
(Including claim, counterclaim, cross-claim, or third-party claim)
Permissive Counterclaim
Does not derive from the same transaction or occurrence, can be filed but don’t have to be filed.
Note: if brought in a federal court, court must have an independent basis for jurisdiction over the permissive counterclaim.
Compulsory Counterclaim
A claim that derives from the same transaction or occurrence as the P’s claim - a party must file such counterclaims as long as it does not require adding a party that the court does not have jurisdiction over.
When does the statute of limitations toll for counterclaims?
Tolls at the time of plaintiff filing complaint
Note: if SoL had already run when P filed, counterclaim cannot be asserted
Define: Cross-Claim (rule 13(g))
- A claim asserted by one party against a co-party (P v. P or D v. D)
- Must arise out of the same transaction or occurrence as the initial claim
- Must be filed with the answer or as an amendment within the requisite period
Permissive Joinder - P joining with P
Plaintiffs may sue together if they:
- assert a right to relief jointly, severally, or in the alternative with respect to
- claims arising out of the same transaction or occurrence, and
- their claims will involve a common question of law or fact
Note: can sue together even if seeking different relief
Permissive Joinder - P joining D
Plaintiff may sue multiple defendants in the same lawsuit if below criteria is met:
- assert a right to relief jointly, severally, or in the alternative with respect to
- claims arising out of the same transaction or occurrence, and
- their claims will involve a common question of law or fact
Impleader - D adding another D
D may implied a new claim against a new party if that party may be liable not the defendant for all or part of any recovery that the P obtains.
D may file imp leader within 14 days (21 in MI) of serving his original answer, otherwise leave of court is required
Note: court must have PJ over the impleaded party
Note: no compulsory imp leader
Can a Defendant bring independent claims against an impleaded party?
Yes, under Rule 18(a). The impleaded party may then assert a defense against defendant or plaintiff.
What are the two instances in which a party should bring in an additional party if feasible? (Necessary Parties)
- if the court cannot accord complete relief among existing parties in that party’s absence; or
- the party has an interest in the subject matter of the litigation and their ability to protect that interest will be impaired if they do not participate in it, or it will leave that party at risk of incurring double, multiple, or otherwise inconsistent obligations.
When might a party not be able to be joined?
If there are jurisdiction issues (lack of personal or subject matter jurisdiction) or venue issue
Define: Intervention (Rule 24)
When a nonparty moves to become a party (they want to intervene in the case)
Intervention as of Right
A person may intervene as a matter of right if:
- they have an interest relating to the property or transaction that is the subject of the action
- disposition without the movant may impair or impede the movant’s ability to protect its interest; and
- its interest is not adequately represented by the existing parties
MI - stipulation of all parties is also grounds for intervention
Permissive Intervention
Court has discretion to allow a party to intervene if the party has a claim or defense that shares a common question of law or fact with the main action - request must be timely
Note: court may also allow intervention for limited purposes
Interpleader (Rule 22)
When the holder of a property subject to conflicting claims may file a lawsuit as a plaintiff and join all claimants to avoid the possibility of double liability
(usually an insurance company that holds a common fund)
Note: under statutory imp leader, $500 is enough and minimal diversity is enough for fed courts - venue is where any claimant resides.
How many interrogatories are allowable?
Federal - 25
Michigan - 20
Deposition Limitations
- 10 depositions per side
- each deposition is limited to one day of 7 hours
How can a deposition be used at trial?
- to impeach, or
- if party is unavailable
Deposition of Corporate Entity Notice
- Notice does not have to name the party to be deposed
- notice may simply state the specific matter which they seek to examine and to corp picks the person who is deposed
Is a privilege waived if it is not claimed in a deposition?
Federal - no, can be raised when deposition is sought to be used
Michigan: Yes, privilege must be asserted at the deposition or the witness loses their privilege as to the testimony offered
Requirements for a Request for Physical and Mental Examination
- Court order required
- Good cause must be shown
- Cannot be used to check hearing or eyesight for impeachment
What can court do if electronically stored information (ESI) was negligently destroyed?
- court may order measures no greater than necessary to cure the prejudice
Examples: jury instruction, evidence of lost info, take evidence away from negligent party
What can a court do if ESI was destroyed intentionally?
The court may:
- presume that the lost info was unfavorable to the party (or instruct jury of this presumption), or
- dismiss the action or enter a default judgment
Define: Duty to Supplement
In Federal and State court, there is a duty to update responses within a reasonable time after one obtains new information if that new information has not otherwise been made known to the other side.
Define: Motion to Compel
A party may move to compel production of discovery materials if they can certify that they made a good faith attempt to confer with other party about obtaining materials without a court order
Note: if moving party wins, attorney fees may be allotted. Court may also enter default judgment, dismiss, strike part of pleadings if the failure to produce was willful
Spoliation Duty
A party should not destroy evidence it knows is relevant
failure to preserve crucial evidence can constitute spoliation even if it resulted from negligence
this duty exists before action is filed and even when there is just potential for litigation
Spoliation Sanctions
- A court may sanction for spoliation at the discretion of the court
- Can be anywhere from no sanction, to dismissal, to excluding evidence
Define Certifications
By presenting a paper to the court, the party or attorney certifies that to the best of their knowledge, information, and belief that the document:
- is not presented for improper purposes (to harass or delay)
- the claims, defenses, and other legal contentions are warranted by either existing law or by a non-frivolous argument for extending, modifying, or reversing existing law or establishing new law, and
- the factual contentions and denials are supported by evidence or likely will be after discovery
Signature Requirement
Every pleading, motion, and other paper must be signed by the attorney or party
Motion for Sanctions
- Motion must be made separate from any other motion
- Motion must specify conduct violating rule 11
- Other party has 21 days to correct or withdraw paper (being sanctioned)
- Court may order other party to show cause
- court may impose sanctions on an attorney, law firm, or party
