Pre-trial procedures Flashcards
What begins the action?
The filing of the complaint.
It is filed along with the summons, and is given to and signed by the clerk of the court. Within 120 days the complaint is actually served.
TIP: Look for statute of limitations concerns
Requirements for Complaint?
- For Jx, there should be a short and plain statement for the grounds for Jx
- Short and plain statement of the facts
1. Doesn’t need to be legal theory,. Just need basic plain facts. - demand for relief.
- claims for damages
When do you need to be specific with the facts in the complaint?
When trying to prove fraud, then the complaint needs to be plead with specificity
Answer of the complaint?
- The answer is signed by the defendants lawyer and must be served within 21 days of the complaint.
- It can admit or deny any of the claims, but if you do not deny the claims are deemed admitted
- Can provide any affirmative defense, and they must be explicitly plead to use them.
EX: Contributory negligence, statute of limitations, statute of frauds, etc.
Can you amend pleadings?
Yes, you can always amend pleadings once without the court so long as it is within 21 days of the service of the original pleading.
After that, you just need to get the courts permission to do it. They typically allow it.
Relation back?
In certain instances, the time of the amending will relate back to the original complaint. This is important for statute of limitations.
When will it relate back?
It will relate back as long as it arose out of a conduct, transaction, or occurrence set out in the original pleading.
As long as what you’re now amending comes out of the same transaction as original complaint it will always go back to as it was from day one.
relation back for change of party?
Change of party will still relate back, so long as;
- Comes out of same transaction or occurrence
- If within 120 days of filing the party had enough notice
- New person knew or should have known that the action would be brought against them but for a mistake in their ID
Rule 11?
Comes up when attorney signs a document that says to the best of their knowledge, information and belief what they are saying is plausible. Basically, they promise they aren’t making stuff up.
judge can impose sanctions if they are making stuff up.
Two types of counterclaims?
- Compulsory counterclaim
- Permissive counterclaim
Compulsory counterclaim?
- when claims rises out of the same transaction or occurrence that is subject to the suit against you
- Have to make the claim now, because if you wait you will lose it
- You can use Supplemental jx
Permissive counterclaim?
- Not compulsory, so it does not arise out of the same events.
2. Can still bring claim, but, need new and independent Jx
1. Diversity, Fed Question, ETC
Adding parties to a claim?
- permissive Joinder
- Compulsory Joinder
Permissive Joinder with multiple plaintiffs joining together?
If claims come from the same transaction or occurrence and a question of law or fact is in common then multiple Plaintiffs can join together
Permissivle counterclaims with multiple defendants?
Same as with plaintiffs, but you need the permission of the defendants.
Kinds of Compulsory joinder?
Necessary party and Indispensable
Necessary joinder?
- If leaving them out would impair their interests to move forward without them
- If we cant because of jurisdictional grounds, we can move forward without them
Indespinsible joinder?
- Their absence would cause prejudicial effect
- If Jx issues arise and they would destroy diversity and we cant have them in this group then the case should be dismissed
adding claims to an action?
- Each party can add as many claims as they want
- If youre adding new claims they require new SMJ
Diversity for Class Action Law suits?
- Only the named representatives plaintiffs need to satisfy the Jx requirement
- as long as one of the class members has a claim over $75,000 then the rest can join
EXCEPTION: if over 5 million total at stake, then the action is okay even if no one has one $75,000 claim
Prerequesites for class action?
- Class is so large that joining all of them is impractical
- Question of law or fact is in common
- Claims o the named parties are typical of class as whole
- Representation of the class will fairly protect the interest of everyone in the class
B1 class action?
Allowed if risk of inconsistent decisions would bring impairment to the interests of the members
Members may not opt out of representation once they are in
Types of class actions?
B1, B2, B3
B2 class action?
looking for injunctive relief
members cannot opt out
B3 class action?
Most commonly tested
Common question and the class action is a superior method to all other methods
May opt out
Notice for a class action?
aLl members of the class must be given notice in a B3 action
Can be done by mail if you can get info with reasonable effort
notice is discretionary for B1 and b2
does the court have to certify for a class action?
yes. and if they deny it it cannot be appealed.
However, the named parties may continue the suit.
settlement of a class action?
Must be okayed by a court.
reasonable attorneys fees based on class size.
statement detailing elements of the settlement.
What is intervention?
Allows people who are not part of the original lawsuit to join on their own
Intervention as a right ?
No court permission needed, the person can just intervene if
- They have an interest in the transaction that is subject to the case
- Their lack of intervention would impair their protection their interest
Permissive intervention?
Where they have to have a claim or a defense that has a common question of law or fact. The court will decide whether not to allow this.
Interpleader law suit?
when one party owes some amount to two to more people but we do not know who is owed what. Jumping the gun to start the race.
It forces the other people to fight it out amongst themselves.
when does interpleader happen?
Statutory and Rule
Statutory interpleader?
- As long as claimants are diverse, that is ok. Plaintiff and any one defendant.
- $500 at stake.
- Nationwide service of process is okay. Can serve someone anywhere in the country.
- If you owe the money, you put the money into an account or post a bond.
Rule interpleader?
- Complete diversity
- No nationwide service
- $75,000 at stake at lease
- Not required to deposit in court
Third party interpleader?
d believes that a third party is liable to him for all or part of the claim.
he can implied the third person when;
- You have to pay, but other guy owes you part or all the money
Crossclaim?
- Where one D may sue co-defendants as long as
Claim is out of same occurance as OG suit AND you are seeking actual damages
for discovery, what is discoverable?
Any matter that is not privileged and relevant UNLESS there is a substantial need for the material and you can not without undo hardship obtain it without equivalent other means
Witness discoverability
Attornys must turn over the named and locations of parties who have discoverable items along with the items they’ll discuss
expert discoverability
experts must give other side iD of expert and must prepare a report with info they’ll testify about
IF they won’t testify, info is only discoverable in exceptional circumstances
duty to supplement?
if you realize you left stuff out, you must update it in a timely manner
methods of discoverability
Deposition, interrogatories, request for admission, request to produce documents, physical or mental exam
Deposition?
can depose a party or non party
If you want a non part depo, you can subpoena them
You have a limit of 10 demos and cannot do the same person once without the court approval
Interrogatories
Written Qs and As only to a party
Limit of 25 to any one party
Request for admission
Request to submit the truth about a matter
If you admit it, it is conclusively established at trial
If you d not admit it and its proven later you can have sanctions put on you
Request to produce documents
Only from a party
Physical or mental exam
has to be when the condition is in controversy
Need a court order and show good cause for the exam
Failure to abide by discovery rules?
Court can order sanctions for failure to comply with the rules if you act crazy in response to other discipline methods.
when will court object to a discovery request?
Information not relevant
Protective order
court stops discovery if there is any embarrassment, burden, or youre trying to annoy the other party
compel discovery
court can compel info to make you provide the info
Pre-trial conferences
Judges use different meetings to maintain control of the timing and expediting the trial itself
- Conference of the parties
- Scheduling conferences
- FInal pretrial conference
Conference of the parties?
where parties submit to meeting to talk about the case, discovery, and submit discovery plans
Scheduling conferences.
Limiting time for th emotion
Issue scheduling order within 120 days of complaint
cannot be modified except for good cause
Final pre-trial conference
They are option and seek to expedite trial or push for settlement. If it happens, the court must issue pretrial order laying to all the details an can be modified for good cause
Temp restraining order and preliminary injunctions
- Temp restraining order can be granted without notice
- Can last longer than 14 days
- If you already have th restraining order you can get a preliminary injunction
