Pleadings, Amendments, Joining Parties

Question 1

When must an answer be served on a plaintiff?

Answer 1

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

Question 2

What must a complaint contain?

Answer 2

1. Name of the court and parties
2. Statement of a claim
3. prayer for relief
4. signed in accordance with local regulation

Question 3

Level of specificity in Complaint

Answer 3

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

Question 4

Pleading Special Matters

Answer 4

(Fed and MI) Fraud or mistake must be stated with particularity although allegations of malice, intent, or knowledge may be stated generally.

Question 5

Pleading Damages

Answer 5

General Damages do not need to be pleased, but special damages (which don’t naturally flow from the wrongdoing) must be pleaded

Question 6

Answer Requirements

Answer 6

1. Must assert an answer (or bring motion where appropriate)
2. Party must explicitly admit, deny, or state they lack knowledge
3. Affirmative defenses must be stated

Question 7

When can a pleading be amended?

Answer 7

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

Question 8

Define: Relate Back of New Claims

Answer 8

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)

Question 9

Michigan Specific Statute of Limitations

Answer 9

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

Question 10

Relate Back of Amendments against New Parties

Answer 10

1. New parties relate back if claims against new party derive from the same conduct, transaction, or occurrence as the original claims, and
2. the new party had notice of the action within the time period allowed for service of process, and
3. 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

Question 11

Joinder of Claims (18(a))

Answer 11

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)

Question 12

Permissive Counterclaim

Answer 12

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.

Question 13

Compulsory Counterclaim

Answer 13

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.

Question 14

When does the statute of limitations toll for counterclaims?

Answer 14

Tolls at the time of plaintiff filing complaint

Note: if SoL had already run when P filed, counterclaim cannot be asserted

Question 15

Define: Cross-Claim (rule 13(g))

Answer 15

1. A claim asserted by one party against a co-party (P v. P or D v. D)
2. Must arise out of the same transaction or occurrence as the initial claim
3. Must be filed with the answer or as an amendment within the requisite period

Question 16

Permissive Joinder - P joining with P

Answer 16

Plaintiffs may sue together if they:

1. assert a right to relief jointly, severally, or in the alternative with respect to
2. claims arising out of the same transaction or occurrence, and
3. their claims will involve a common question of law or fact

Note: can sue together even if seeking different relief

Question 17

Permissive Joinder - P joining D

Answer 17

Plaintiff may sue multiple defendants in the same lawsuit if below criteria is met:

1. assert a right to relief jointly, severally, or in the alternative with respect to
2. claims arising out of the same transaction or occurrence, and
3. their claims will involve a common question of law or fact

Question 18

Impleader - D adding another D

Answer 18

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

Question 19

Can a Defendant bring independent claims against an impleaded party?

Answer 19

Yes, under Rule 18(a). The impleaded party may then assert a defense against defendant or plaintiff.

Question 20

What are the two instances in which a party should bring in an additional party if feasible? (Necessary Parties)

Answer 20

1. if the court cannot accord complete relief among existing parties in that party’s absence; or
2. 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.

Question 21

When might a party not be able to be joined?

Answer 21

If there are jurisdiction issues (lack of personal or subject matter jurisdiction) or venue issue

Question 22

Define: Intervention (Rule 24)

Answer 22

When a nonparty moves to become a party (they want to intervene in the case)

Question 23

Intervention as of Right

Answer 23

A person may intervene as a matter of right if:

1. they have an interest relating to the property or transaction that is the subject of the action
2. disposition without the movant may impair or impede the movant’s ability to protect its interest; and
3. its interest is not adequately represented by the existing parties

MI - stipulation of all parties is also grounds for intervention

Question 24

Permissive Intervention

Answer 24

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

Question 25

Interpleader (Rule 22)

Answer 25

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.

Question 26

How many interrogatories are allowable?

Answer 26

Federal - 25

Michigan - 20

Question 27

Deposition Limitations

Answer 27

• 10 depositions per side
• each deposition is limited to one day of 7 hours

Question 28

How can a deposition be used at trial?

Answer 28

1. to impeach, or
2. if party is unavailable

Question 29

Deposition of Corporate Entity Notice

Answer 29

• 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

Question 30

Is a privilege waived if it is not claimed in a deposition?

Answer 30

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

Question 31

Requirements for a Request for Physical and Mental Examination

Answer 31

1. Court order required
2. Good cause must be shown
3. Cannot be used to check hearing or eyesight for impeachment

Question 32

What can court do if electronically stored information (ESI) was negligently destroyed?

Answer 32

1. 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

Question 33

What can a court do if ESI was destroyed intentionally?

Answer 33

The court may:

1. presume that the lost info was unfavorable to the party (or instruct jury of this presumption), or
2. dismiss the action or enter a default judgment

Question 34

Define: Duty to Supplement

Answer 34

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.

Question 35

Define: Motion to Compel

Answer 35

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

Question 36

Spoliation Duty

Answer 36

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

Question 37

Spoliation Sanctions

Answer 37

• A court may sanction for spoliation at the discretion of the court
• Can be anywhere from no sanction, to dismissal, to excluding evidence

Question 38

Define Certifications

Answer 38

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:

1. is not presented for improper purposes (to harass or delay)
2. 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
3. the factual contentions and denials are supported by evidence or likely will be after discovery

Question 39

Signature Requirement

Answer 39

Every pleading, motion, and other paper must be signed by the attorney or party

Question 40

Motion for Sanctions

Answer 40

1. Motion must be made separate from any other motion
2. Motion must specify conduct violating rule 11
3. Other party has 21 days to correct or withdraw paper (being sanctioned)
4. Court may order other party to show cause
5. court may impose sanctions on an attorney, law firm, or party