Pre-Trial Procedure Flashcards
Complaint Contents
Grounds for SMJ
Statement of facts sufficient to show P is entitled to relief
- must state facts that make wrongdoing appear plausible
- must describe fraud/mistake w/ particularity
Demand for judgment and relief sought
Complaint Amendments
A party can amend a pleading once as a matter of right
- Can amend w/in 21 days of serving original complaint, or, if an answer/motion to dismiss has been filed, 21 days of that service
A party can amend w/ permission
- Permission of opposing parties
- Permission of court - will consider reason for delay & prejudice
Amendment Statute of Limitations
Whether amendment filed w/in SoL depends on whether amendment seeks to add new claim or party
- New Claims: filed on date that original complaint was filed if new claim arises from same T/O as the existing claim (relation back rule)
- New Parties: relate back to original filing date if:
- arises from same T/O as existing claim
- new party knew of suit soon enough to not be prejudiced (generally time permitted for service of original complaint
- new party should have expected to be named, but-for a mistake in identity
Service Process (Contents & Timing)
Must serve both complaint and summons
Must be served w/in 90 days of filing complaint
- If not, ct must dismiss w/out prejudice
- If P can show good cause, ct must provide additional time
Service Process (Method)
Manner prescribed by state court in state where
- fed suit has been filed, or
- where D will be served
Manner specified by Fed. R. 4
- D natural person
- personal service
- leave at D’s abode w/ person of suitable age & discretion residing there
- serve D’s registered agent
- mail w/ letter requesting D to waive in-person service
- If D declines to waive, they become responsible for cost of personal service
- D corporation, partnership, or association
- deliver to an officer
- deliver to managing/general agent
- deliver to any other agent authorized by appointment or by law to receive service
- if law requires by mail, must be by hand & mail
Service - Personal Jurisdiction
Service of process activates the court’s authority to assert PJ
If court has power to assert PJ, power becomes active at moment D is served
Service - Due Process
D entitled to notice of claims against them & an opportunity to respond
- If served, have notice
- must be reasonably calculated to inform D of action
- Notice w/out service is a constitutional issue if P did not take steps reasonably calculated to inform D of action
Service - New Claim Filed During Lawsuit
Service necessary when new party added, not for counterclaim, cross-claim, and other claims against current parties
Response - Answer
D must specifically admit or deny each of P’s allegations and list defenses
- Failure to deny is admission
There is no limit to how many defenses may be raised
- Anything not raised is waived except:
- Failure to state a claim upon which relief should be granted
- Failure to join a necessary party, and
- Lack of SMJ
Response - Motions
Motion for a more Definite Statement
- court will order pleading to be clarified if it is so vague that the responding party cannot reasonably prepare a response
Motion to Strike
- court can (on own or on motion) order material stricken if the complaint/answer contains redundant/immaterial/scandalous material
Motion to Dismiss
- seeks dismissal, can be filed by any defending party
Response - Timing
Initial response (answer/pre-answer motion)
- If D was actually served: 21 days
- If D waived service of process: 60 days
If D responds w/ motion and denied, D must finale answer w/in 14 days of denial
Ethics - Standard of Conduct
An attorney or representing party certifies that, after making a reasonable inquiry, the submission of a document is based on:
- Good Faith: not for any improper purpose
- Good Facts: based on evidentiary support, or if specifically noted, will likely have evidentiary support after discovery
- Good Law: warranted by existing law or presents non-frivolous argument for a change in existing law
Ethics - Sanctions
Complaining party must draft a motion for sanctions & serve it on the offending party
- Safe Harbor: motion filed 21 days after service, allows for chance to w/draw or modify any alleged violation
Court may order monetary or non-monetary sanctions
Any person who has committed a violation or is responsible for a violation except:
- represented parties not subject to monetary sanctions for violating “good law” requirement
Attorney’s law firm must be held jointly liable, absent exceptional circumstances
Discovery has separate sanctions rules
Provisional Relief
The P files suit seeking injunctive relief, but can’t litigate the suit fast enough to get that relief before the D commits some irreversible harm
Provisional Relief - Preliminary Injunction
Need notice to the adverse party and:
- Likelihood of success on the merits
- Irreparable harm to P if not granted
- Balance of hardships
- Public interest
- Payment of security
- P must deposit enough money w/ court to compensate the D any losses if suit is unsuccessful
Provisional Relief - Temporary Restraining Order
Same as injunctive relief, but:
- Expires 14 days after issuance, but can be extended upon showing of good cause
Can be ex parte
- Can only be issued w/out notice if:
- specific facts clearly show immediate & irreparable injury, loss, or damage will result before adverse party can be heard
- movant’s attorney certifies in writing any efforts made to give notice & reasons why it should not be required
Joinder - Multiple Claims
Brought by one P and one D
- P can bring all claims in one lawsuit, regardless of relatedness
- Not required to, but permitted to
- P must bring related claims, or else likely precluded
Joinder - Counterclaims
Sued party returns fire
- Permissive: claim does not arise out of the same T/O
- Compulsory: claim arises out of the same T/O
Joinder - Cross-Claims
Filed by party against a co-party
- Allowed only if arises from same T/O
- Once related claim is filed, can file unrelated
- Co-D can counter the cross under counterclaim rules
Joinder - Impleader
D brings claim against a person not already a party
- Must allege 3rd party is responsible for some/all of the liability
- D has right to implead if w/in 14 days of serving an answer, otherwise need permission of court
- After being impleaded, 3rd party may bring own claims
- Original P can bring claim against 3rd party if relates to original claim
Joinder - Permissive Joinder
Multiple Ps can join one suit or multiple D’s can be sued in one suit, as long as:
- joined parties claim relief or face liability that arises out of the same T/O
- there will arise in the action questions of law/fact common to joined partes
Joinder - Mandatory Joinder
Could be forced to add party to the suit
- Necessary: absent party has interest that might be impaired if left out, complete relief cannot be granted in absence, or if current parties would be subject to inconsistent/duplicative liability
- Cannot be joined if would destroy SMJ through diversity or court lacks PJ
- If cannot be joined, must dismiss suit if party indispensable considering:
- extent of prejudice to missing party
- whether prejudice can be lessened by shaping relief in a certain way
- if case is dismissed, whether the P can find relief in another forum
- If no, can adjudicate in party’s absence
Joinder - Class Actions (class formation)
Class can be formed if:
- Numerosity: so many that joinder is impractical
- Commonality: questions of law/fact are common to the class
- Typicality: rep.’s claims are typical of class members
- Representativeness: rep. will fairly & adequately protect the interests of the class
Joinder - Class Action (proper for resolution via class action)
- Separate actions would create risk of inconsistent judgments or judgments would impair non-parties from protecting their interests
- Opposing party has acted in ways generally applicable to the class
- Court finds that common question of law/fact predominate over individualized questions & class action is superior to other methods
Joinder - Class Actions (additional considerations)
- Court must have PJ over every D and named P
- Judgment binds all class members unless they opt out
- In common-question class actions, class members must be given notice of the pendency of the suit
- The D’s & rep.s need to be completely diverse for SMJ
- Exception for 100 members and over $5M at stake, minimal diversity needed
- Removal can be made by home state D and w/out agreement of all D’s
- Exception for 100 members and over $5M at stake, minimal diversity needed
Joinder - Interpleader
Have the other two sue each other
- When party fears it will face multiple/inconsistent liabilities
- Let would-be claimants duke it out
Joinder - Intervention
Non-party is interested, but has not been joined
- Right: party must be permitted to intervene upon timely application when:
- party claims an interest relating to subject matter of action, and
- w/out intervention, risk they might not be able to protect interest
- Permissive: upon timely application & at court’s discretion, party May intervene w/ claim/defense that shares a common question of law/fact w/ the main action
Discovery - Pretrial Conference & Conference Order
Conference
- Parties must meet & discuss the likely content of discovery in the case & draft a discovery plan
- Plan must be submitted w/in 14 days of the conference
- Conference must be held at least 21 days before Rule 16(b) conference is held or order is issued
Conference and Order
- After Conference held, court may order parties to confer again to discuss litigation, most efficient way to proceed, & any possibilities of settlement
- Requires court to issue a scheduling order to dictate the schedule upon which litigation will proceed & particular rules about discovery
Discovery - Mandatory Disclosures (Initial Disclosures)
W/in 14 days of Rule 26(f) conference to all parties:
- Witnesses: name/contact any witness may use to support
- Documents: copies/descriptions of documents, ESI, & tangible items may use to support
- Damages: computation of damages sought & supporting documents
- Insurance Agreements
Discovery - Mandatory Disclosures (expert disclosure)
At least 90 days before trial, must disclose name/contact & final report, which must include qualifications, opinion, and info relied on
Discovery - Mandatory Disclosures (pretrial disclosure)
At least 30 days before trial to all other parties:
- list of witnesses expected to call
- witnesses that may be called if need arises
- list of witnesses whose testimony will be given through depo. or transcript
- list of documents/physical evidence expect to present
Discovery - Scope
A party can ask for any non-privileged, relevant matter that is proportional to the needs of the case considering:
- importance of issue
- amount in controversy
- parties’ relative access to info
- parties’ resources
- importance of discovery in resolving the issues
- whether burden/expense outweighs likely benefit
Must limit discovery if: not proportional, unreasonably cumulative, can be obtain in some less burdensome way, or party seeking has had ample opportunity to obtain the info
Discovery - Experts
Non-testifying: undiscoverable unless party has extraordinary need/no other way
Testifying: opinions are discoverable to an extent
- compensation for study/testimony
- data provided by attorney to an expert
- any assumptions attorney asked expert to make in developing opinion
Discovery - Methods
Interrogatories: questions submitted in writing
- Up to 25 questions
- 30 days to respond in writing w/ objections stated w/ specificity
Requests for Admission: request to admit truth/fact
- If admitted, there for trial
- 30 days to respond
- May admit, deny, or state made reasonable attempt but lack info
Request for Production: documents, tangible items, access to evidence
- 30 days to respond
- Provided as maintained in usual course of business and labeled
Request for Examination
- Only upon court order, forcing party to submit
- Examiner must prepare report detailing exam
- Available to any requesting party
Deposition: used to ask questions of witness
- May depose up to 10 witnesses, but can get court order for more
- Most occur during pendency of lawsuit
- Cannot be conducted until after Rule 26(f) conference
- Depo before lawsuit is filed is available only if all expected opposing parties are provided an opportunity to be present and ask questions
- May use at trial so long as opposing party had a reasonable opportunity to be present
- Depo of party/party designee can be used for any purpose
- Depo of non-party can be used to impeach, or if unavailable, for any prupose
Subpoena: discovery from non-parties
- Duces tecum: demand for documents
- Ad testificatum: demand for testimony
- Person served may object as outside scope or if it requires >100 miles travel from home/work
Discovery - Enforcement
Motion to Compel: made after movant has in good faith attempted to confer with resistor
- Granted: movant gets fees/expenses for motion unless non-disclosure was substantially justified
- Denied: non-movant may get fees if motion not substantially justified
Sanctions: if after motion, still don’t comply
- Court order declaring facts sought are established in favor of requesting party
- Court order prohibiting the disobedient party from presenting certain claims/defenses
- Stay/dismissal of entire action
- Order of contempt
When no compliance at all, just jump to sanctions
Consider bad faith, ruining case for other party, strong prejudice, etc.
Pre-Trial - Voluntary Dismissal
Three options for claimant to drop case
- Unilateral Dismissal by filing notice any time before D has filed an answer/MSJ
- Stipulation of dismissal signed by all parties
- Permission of court
- Won’t give if D filed counterclaim unless can remain pending
W/ prejudice: P cannot relit it ate
- Silence: first dismissal is w/out, subsequent are presumed to be w/
Pre-Trial - Involuntary Dismissals
If P fails to prosecute their case or refuses to comply w/ court order, D can move to dismiss
- Operates as w/ prejudice unless order states otherwise or it’s a dismissal for lack of jurisdiction, improper venue, or failure to join a party
Pre-Trial - Default Judgments
If P properly serves D, but D never responds:
- Entry of default by clerk
- Entry of default judgement
- Entry by clerk if claim is for a sum certain and P requests default judgment
- Entry by court if clerk cannot enter & P makes that application to the court
- Minor/incompetent: D must be represented by competent
- If D initially appeared, D must have been served w/ written notice of application of default 7 days before hearing
- Judge may hold hearings to calculate damages/other matters
- Relief from Entry of Default & Default Judgment
- If clerk enters, judge may set aside for good cause
- If clerk or court enters, court may set aside (post-trial motion)
Pre-Trial - Motion to Dismiss
Motion filed by defending party seeking dismissal of claim against them
- Must file before answer is filed
Grounds
- Lack of SMJ (never waived)
- Lack of PJ (raise in first motion/answer)
- Improper venue (raise in first motion/answer)
- Insufficient Process (raise in first motion/answer)
- Insufficient Service of Process (raise in first motion/answer)
- Failure to State a Claim (raise before trial ends)
- Failure to Join an Indispensable Party (raise before trial ends)
Pre-Trial - Motion for Summary Judgment
No genuine dispute of material fact & movant entitled to judgment as a matter of law
- Assess only arguments advanced by movant
- Must show non-movant lacks sufficient facts/law to prevail by pointing out holes or adducing new evidence
- Assume witnesses tell truth
- Examine non-movant’s response
- Must bring evidence sufficient for a reasonable jury to find in their favor
- Court looks only at non-movant’s evidence & assumes witnesses tell truth
- Pleadings not enough unless under oath
Either party can’t move
Parties can present, & court can refer on own, to pleadings, discovery materials, and affidavits
Timing: anytime 30 days after close of discovery
