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Civ Pro > Pre-trial procedures > Flashcards

Pre-trial procedures Flashcards

1
Q

What begins the action?

A

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

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2
Q

Requirements for Complaint?

A
  1. For Jx, there should be a short and plain statement for the grounds for Jx
  2. Short and plain statement of the facts
    1. Doesn’t need to be legal theory,. Just need basic plain facts.
  3. demand for relief.
    1. claims for damages
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3
Q

When do you need to be specific with the facts in the complaint?

A

When trying to prove fraud, then the complaint needs to be plead with specificity

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4
Q

Answer of the complaint?

A
  1. The answer is signed by the defendants lawyer and must be served within 21 days of the complaint.
  2. It can admit or deny any of the claims, but if you do not deny the claims are deemed admitted
  3. Can provide any affirmative defense, and they must be explicitly plead to use them.
                 EX: Contributory negligence, statute    of limitations, statute of frauds, etc.
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5
Q

Can you amend pleadings?

A

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.

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6
Q

Relation back?

A

In certain instances, the time of the amending will relate back to the original complaint. This is important for statute of limitations.

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7
Q

When will it relate back?

A

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.

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8
Q

relation back for change of party?

A

Change of party will still relate back, so long as;

  1. Comes out of same transaction or occurrence
  2. If within 120 days of filing the party had enough notice
  3. New person knew or should have known that the action would be brought against them but for a mistake in their ID
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9
Q

Rule 11?

A

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.

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10
Q

Two types of counterclaims?

A
  1. Compulsory counterclaim
  2. Permissive counterclaim
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11
Q

Compulsory counterclaim?

A
  1. when claims rises out of the same transaction or occurrence that is subject to the suit against you
  2. Have to make the claim now, because if you wait you will lose it
  3. You can use Supplemental jx
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12
Q

Permissive counterclaim?

A
  1. 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
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13
Q

Adding parties to a claim?

A
  1. permissive Joinder
  2. Compulsory Joinder
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14
Q

Permissive Joinder with multiple plaintiffs joining together?

A

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

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15
Q

Permissivle counterclaims with multiple defendants?

A

Same as with plaintiffs, but you need the permission of the defendants.

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16
Q

Kinds of Compulsory joinder?

A

Necessary party and Indispensable

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17
Q

Necessary joinder?

A
  1. If leaving them out would impair their interests to move forward without them
  2. If we cant because of jurisdictional grounds, we can move forward without them
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18
Q

Indespinsible joinder?

A
  1. Their absence would cause prejudicial effect
  2. If Jx issues arise and they would destroy diversity and we cant have them in this group then the case should be dismissed
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19
Q

adding claims to an action?

A
  1. Each party can add as many claims as they want
  2. If youre adding new claims they require new SMJ
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20
Q

Diversity for Class Action Law suits?

A
  1. Only the named representatives plaintiffs need to satisfy the Jx requirement
  2. 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

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21
Q

Prerequesites for class action?

A
  1. Class is so large that joining all of them is impractical
  2. Question of law or fact is in common
  3. Claims o the named parties are typical of class as whole
  4. Representation of the class will fairly protect the interest of everyone in the class
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22
Q

B1 class action?

A

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

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23
Q

Types of class actions?

A

B1, B2, B3

24
Q

B2 class action?

A

looking for injunctive relief

members cannot opt out

25
Q

B3 class action?

A

Most commonly tested

Common question and the class action is a superior method to all other methods

May opt out

26
Q

Notice for a class action?

A

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

27
Q

does the court have to certify for a class action?

A

yes. and if they deny it it cannot be appealed.

However, the named parties may continue the suit.

28
Q

settlement of a class action?

A

Must be okayed by a court.

reasonable attorneys fees based on class size.

statement detailing elements of the settlement.

29
Q

What is intervention?

A

Allows people who are not part of the original lawsuit to join on their own

30
Q

Intervention as a right ?

A

No court permission needed, the person can just intervene if

  1. They have an interest in the transaction that is subject to the case
  2. Their lack of intervention would impair their protection their interest
31
Q

Permissive intervention?

A

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.

32
Q

Interpleader law suit?

A

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.

33
Q

when does interpleader happen?

A

Statutory and Rule

34
Q

Statutory interpleader?

A
  1. As long as claimants are diverse, that is ok. Plaintiff and any one defendant.
  2. $500 at stake.
  3. Nationwide service of process is okay. Can serve someone anywhere in the country.
  4. If you owe the money, you put the money into an account or post a bond.
35
Q

Rule interpleader?

A
  1. Complete diversity
  2. No nationwide service
  3. $75,000 at stake at lease
  4. Not required to deposit in court
36
Q

Third party interpleader?

A

d believes that a third party is liable to him for all or part of the claim.

he can implied the third person when;

  1. You have to pay, but other guy owes you part or all the money
37
Q

Crossclaim?

A
  1. 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

38
Q

for discovery, what is discoverable?

A

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

39
Q

Witness discoverability

A

Attornys must turn over the named and locations of parties who have discoverable items along with the items they’ll discuss

40
Q

expert discoverability

A

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

41
Q

duty to supplement?

A

if you realize you left stuff out, you must update it in a timely manner

42
Q

methods of discoverability

A

Deposition, interrogatories, request for admission, request to produce documents, physical or mental exam

43
Q

Deposition?

A

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

44
Q

Interrogatories

A

Written Qs and As only to a party

Limit of 25 to any one party

45
Q

Request for admission

A

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

46
Q

Request to produce documents

A

Only from a party

47
Q

Physical or mental exam

A

has to be when the condition is in controversy

Need a court order and show good cause for the exam

48
Q

Failure to abide by discovery rules?

A

Court can order sanctions for failure to comply with the rules if you act crazy in response to other discipline methods.

49
Q

when will court object to a discovery request?

A

Information not relevant

50
Q

Protective order

A

court stops discovery if there is any embarrassment, burden, or youre trying to annoy the other party

51
Q

compel discovery

A

court can compel info to make you provide the info

52
Q

Pre-trial conferences

A

Judges use different meetings to maintain control of the timing and expediting the trial itself

  1. Conference of the parties
  2. Scheduling conferences
  3. FInal pretrial conference
53
Q

Conference of the parties?

A

where parties submit to meeting to talk about the case, discovery, and submit discovery plans

54
Q

Scheduling conferences.

A

Limiting time for th emotion

Issue scheduling order within 120 days of complaint

cannot be modified except for good cause

55
Q

Final pre-trial conference

A

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

56
Q

Temp restraining order and preliminary injunctions

A
  1. Temp restraining order can be granted without notice
  2. Can last longer than 14 days
  3. If you already have th restraining order you can get a preliminary injunction

Civ Pro (6 decks)

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