Pre-Trial And Venue Flashcards
1) Complaint
(a) Filing of Complaint start the clock for Statute of Limitation purposes
(b) Service of the Complaint must be completed within 90 days / 3 months
2) Elements of the Compliant
(a) Statement of Jurisdiction (JURIS)
(b) Statement of Facts (not theory) (FACTS)
(c) Demand for Relief (WANT)
3) Specific Complaint
(a) Fraud and Special Damages
4) Answer
(a) Signed by lawyer
(b) Whatever is not denied is admitted
(c) Served within 21 days / 3 weeks of service of Complaint
5) Affirmative Defenses
(a) Contributory Negligence
(b) Statute of Frauds
(c) Statute of Limitations
(d) Illegality
(e) Duress
1) Amendment as of right
(a) Once within 21 days of service of pleading
2) Amend. After 21 Days
(a) Need Court’s permission
(b) “When justice so requires”
3) Relation back – To avoid Statute of Limitation Issues
arose out of the same conduct, transaction or occurrence”
4) Relation Back (For Parties)
(a) Same conduct, transaction, or occurrence
(b) Within 90 days of filing the party had notice
(c) Knew/should have known but for mistake of ID
C) Rule 11
Attorney singed to best of their “knowledge, information, and belief,” there is a basis for the claim
1) Key Words: Warranted by existing law, Evidentiary support, No improper purpose
D) Adding or Chaining Parties & Claims
Counterclaim
Compulsory Counterclaim
1) Permissive Counterclaim
2) Permissive Joinder
Compulsory Joinde
1) Counterclaim
(a) D raises a claim back at the Π
2) Compulsory Counterclaim
(a) Same transaction or occurrence
(b) Supplemental Jurisdiction
3) Permissive Counterclaim
(a) NOT same transaction or occurrence
(b) Needs independent jurisdiction
4) Permissive Joinder
(a) Single transaction or occurrence
(b) Common question of law/fact
5) Compulsory Joinder
Party NEEDS to be joined or action unfair
2 kinds
(a) Necessary Party
impair interest’
(i) If cannot join due to jurisdiction – case may STILL PROCEED
(b) Indispensable Party
Prejuiduce
(i) If cannot join due to jurisdiction – Case must be dismissed
E) Class Certification
(a) Size
(b) Community
(c) Typicality
(d) Representation/conflict
2) Types of Class Actions
(a) B1= Impairment of Interests
(b) B2 = Injunctive relief
(c) B3 = Common Question (superior method)
3) Opting Out
(a) B1& B2 = Members MAY NOT OPT out
vs
(b) B3 = Members MAY OPT out
4) Notice and Class Actions
(a) B1& B2 = Notice NOT required in discretion of Court
(b) B3 = Notice to all Members
5) Diversity in Class Actions
(a) Citizenship of the named rep
(b) One member must meet $75k+ req
(i) Or sum of claims = $5 mil.
6) Appealability of Class Actions
(a) If certification of class is denied – may be appealed
F) Intervention as of Right
(a) Interest in property /transaction
(b) Interest is impaired
(c) NO court permission is required
2) Permissive Intervention
(a) Claim/defense has common question of law/fact
(b) Court permission IS required
3) Interpleader
(a) 1 party owes something to 2 or more people
4) Statutory Interpleader
(a) NATIONWIDE Service
(b) Any 2 claimants can be diverse
(c) $500 or more at stake
(d) Deposit money /property in Court/Bound
5) Rule Interpleader
(a) NO nationwide service is required
(b) Complete diversity between claimant and ALL opponents
(c) $75k + req
(d) NOT Required to deposit money
6) Impleader
(a) Adding a 3rd Party D who owes part or all of the claim
7) Cross-Claim
(a) Co-Party
(b) Same transaction or occurrence
(c) Actual damages
1) Discoverable
(a) Not privileges
(b) Relevant
(c) “proportionate to needs of the case”
2) Work Product
(a) Generally immune from discovery
(b) Docs prepared in animation of litigation
(c) Work Product Discoverability - exception
(i) Substantial need
(ii) Cannot obtain without UNDUE HARDSHIP
(d) Absolute Immunity on Work Product
(i) Mental impressions
(ii) Conclusions
(iii) Legal opinions/ theories
3) Expert
(i) Must provide ID
(ii) Expert must PREPARE
(b) Expert NOT Testifying
(i) Discoverable only in exceptional circumstances
4) Duty to Supplement
(a) Duty to supplement incomplete or wrong information
(b) Must be done in timely manner
Depositions
(a) Party or non-party
(b) Written or oral
(c) Non-party via subpoena
(d) Limit = 10
6) Interrogatories
(a) Only to a PARTY
(b) Written / Answered in in writing
(c) Limit = 25
7) Request to Admit
(a) Written request
(b) Conclusively established
8) Request to Produce: to a Party
(a) Documents in the other side’s possession / control
9) Physical/Mental Exam
(a) Must be at issue
(b) Need Court order
(c) Need good cause
10) Object to a request
(a) Info no relevant
11) Protective order = annoy harass
(a) Stop Discovery for embarrassment, harassment, undue burden
12) Order to Compel
(a) Party not complying w Discovery
13) Admissibility at trial
(a) Discoverable information is admissible at trial
1) Conference of Parties
(a) Court MUST have conference
2) Scheduling Conferences
ROAD MAP
(a) Court MUST have conference to limit time
(b) Must issue scheduling order within 90 days of filing
(c) CANNOT be modified unless “Good Cause”
3) Final Pretrial Conference
(a) Court MAY hold conference
(b) IF there is a conference, Court MUST issue pretrial statement
(c) Only modified to prevent “manifest justice”
1) Temporary Restraining Order
No trial
(a) No notice
(b) Trying to prevent -IMMEDIATE IRREPRAHABLE HARM
(c) Expires no more than 14 days
