Pre-Trial Procedure and Discovery Flashcards
When is a motion for summary judgment appropriate?
A motion for summary judgment must be granted if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law. A genuine dispute of material fact exists when a reasonable jury could return a verdict in favor of the nonmoving party.
Can a nonparty be questioned?
A plaintiff may take an oral deposition of a nonparty witness, such as the former employee, as long as the nonparty is properly subpoenaed. By contrast, all of the other devices listed (interrogatories, physical exams, and requests for admission) can be used only against a party.
Requesting materials from non-parties
A party may use a subpoena duces tecum to obtain documents relevant to litigation that are in the possession of a person who is not a party to the litigation.
Ordering a physical examination
A court may order a physical examination of a party or a person in the legal custody or control of a party upon motion by the other party, for good cause shown.
A plaintiff may subject themselves to a physical examination by placing their physical condition into controversy by claiming personal injury damages, which constitutes sufficient “good cause” for the court to order a physical examination.
What can court do when a party fails to show up for a hearing?
The court may require that a party or its representative be present or reasonably available by telephone or by more sophisticated electronic means to consider possible settlement at a pretrial conference. If counsel or a party fails to appear, then the court may generally impose the same sanctions as those permitted for failure of a party to comply with a discovery order.
Third party claims
A defendant may implead a third party at any time after the complaint has been filed by serving a summons and third-party complaint on the third party. The defendant (i.e., the third-party plaintiff) may do so without the court’s permission if he files the third-party complaint within 14 days after serving his answer to the plaintiff’s complaint.
Can defendant move to dismiss if plaintiff doesn’t show up for trial?
If a plaintiff fails to prosecute his case and, in response to a defendant’s motion, the court dismisses the action, the dismissal is with prejudice and operates as an adjudication on the merits.
When can a motion for JMOL be made?
Under Rule 50(a), once a party has been fully heard on an issue at a jury trial, the court may grant a motion for judgment as a matter of law resolving the issue against a party, if the court finds that there is insufficient evidence for a jury to reasonably find for that party
When does a party have the right to immediately appeal a courts ruling?
Only a final judgment is subject to immediate appeal. Usually, a judge’s 12(b)(6) dismissal is considered a “final judgment” subject to immediate appeal. However, when there are multiple claims and parties, any order or other decision that adjudicates fewer than all of the claims or the rights and liabilities of fewer than all of the parties will not end the action as to any of the claims or parties, and it may be revised at any time before the entry of a judgment adjudicating all of the claims and all of the parties’ rights and liabilities.
Experts and disclosure necessary to opposing counsel
While experts who may testify at trial must be disclosed as part of the initial mandatory disclosure, experts employed in anticipation of litigation who are not expected to be called as a witness at trial need not be identified, absent exceptional circumstances under which it is impracticable for the party to obtain facts or opinions on the same subject by other means.
When can the clerk of courts enter a default judgment?
When a party has failed to plead or otherwise defend an action, and that failure is shown by affidavit or otherwise, the court clerk must enter the party’s default. Once a default is entered against a party, the plaintiff may seek a default judgment. If the relief sought is a sum certain or an amount that can be made certain by computation, the default judgment can generally be entered by the court clerk on the plaintiff’s request, accompanied by an affidavit showing the amount due. Otherwise, the plaintiff must apply to the court for a default judgment
What is the two dismissal rule?
If a plaintiff has voluntarily dismissed an action based on a claim without court approval, a subsequent voluntary dismissal of an action based on the same claim is a dismissal with prejudice and thus has preclusive effect. This is sometimes referred to as the “two-dismissal” rule.
When is a dismissal granted with or without prejudice?
Although involuntary dismissals of an action are typically with prejudice, the dismissal of an action due to the failure to join a necessary party is not
