Pretrial Conference and Orders

Question 1

Types of Pleadings

Answer 1

• Complaints
• Answers to complaints
• Answers to counterclaims
• Answers to cross-claims
• Third-party complaints
• Answers to third-party complaints
• Replies to answers (if ordered by court)

Question 2

Complaint (What Must it Contain?)

Answer 2

• Grounds for SM jurisdiction
• Statement of facts that are sufficient to show that P is entitled to relief
• A demand of relief

Question 3

Complaint: Fraud Claims

Answer 3

In cases alleging fraud or mistake, the P must describe the alleged fraud or mistake with particularity. General allegations will not suffice.

Question 4

Complaint: Inconsistent Claims or Defenses

Answer 4

A court will allow inconsistent pleadings to be determined by the trier of facts

Question 5

Complaint: Alternative Claims

Answer 5

A complaint may set out two or more claims alternatively or hypothetically.

Question 6

Answer (What Must it Contain)

Answer 6

• An answer must admit or deny each allegations made against it by an opposing party. The party must admit those allegations, or parts of allegations, that are true, and deny the others. Certain affirmative defenses must also be raised.
• If there is a failure to deny any allegation, that allegation will be deemed admitted.
• The same rule applies to replies to counterclaims

Question 7

When Must the Answer Be Filed?

Answer 7

Within 21 days of service of the complaint unless:

-formal service of process is waived (e.g. D agrees to be served by email) –> one will have 60 days to respond.

Question 8

Answer: What Can Be Counted for the 21-day Period?

Answer 8

• The 21-day period does include weekends and holidays
• The 21-day period does not include the date of service
• If the 21st day is on a weekend or a holiday, the answer must be filed on the next business day

Question 9

Affirmative Defenses that Must Be Pled in an Answer (or Other Responsive Pleading)

Answer 9

Include:

• Accord and satisfaction
• Arbitration and award
• Assumption of risk
• Contributory negligence
• Duress
• Estoppel
• Failure of consideration
• Fraud
• Illegality
• Injury by fellow servant
• Laches
• Licenses
• Payment
• Release
• Res judicata
• Statute of Frauds
• Statute of Limitations
• Waiver

Question 10

Objections that May be Raised Either By Pre-Answer Motion or Responsive Pleading

Answer 10

• Lack of SM jurisdiction
• Lack of personal jurisdiction
• Improper venue
• Insufficient process
• Insufficient service of process
• Failure to state a claim upon which relief can be granted
• Failure to join a party under FRCP 19

Question 11

What Happens When a Party Fails to Raise an Objection in an Answer or Pre-Answer Motion?

Answer 11

This will constitute a waiver of these defenses except for:

• SM jurisdiction
• failure to state a claim upon which relief can be granted
• failure to join a party

Question 12

When a Pre-Answer Motion Is Denied

Answer 12

The D must file an answer within 14 days after denial.

Question 13

Amended and Supplemental Pleadings: First Amendment

Answer 13

A party may amend a pleading once as a matter of course if the amendment is filed:

• within 21 days of service of original pleading (original complaint or answer); or
• if the pleading requires a response within 21 days after service of a responsive pleading or 21 days after service of a motion to dismiss, a motion for a more definite statement, or a motion to strike, whichever is earlier.

Question 14

Amended and Supplemental Pleadings: Second Amendments and So Forth

Answer 14

A party may amend its pleading again only with opposing party’s written consent or the court’s leave.

Question 15

Amended and Supplemental Pleadings: When Will the Court Give Relief for Another Amendment?

Answer 15

When justice requires. Important factors include:

• the length and reason for the delay; and
• prejudice to the opposing party as a result of the delay

Question 16

Amended and Supplemental Pleadings: Relation Back Doctrine

Answer 16

The court will treat an amendment to a pleading as though it had been filed with the original pleading under certain circumstances (important for SOL).

Question 17

When Relation Back is Allowed

Answer 17

Whether relation back is allowed will depend on whether the amendment is adding a new claim or a new party.

Question 18

When Amendments that Add a New Claim Relate Back

Answer 18

When the new claim arises from the same transaction or occurrence as existing claim

Question 19

When Amendments that Add a New Party Relate Back

Answer 19

Include:

• The new claim arises from the same transaction and occurrence as existing claim
• The new party knew of the suit soon enough to not be prejudiced; and
• The new party should have expected to be named, but-for a mistake in identity

Question 20

Rule 11: Signature

Answer 20

Every pleading, written motion, and other paper filed with court must be signed by at least one attorney of record in the attorney’s name, or by a party personally, if appearing pro se.

Question 21

Rule 11: Certifications

Answer 21

The attorney or unrepresented party who presents the document certifies that to the best of the person’s knowledge, information, and belief that:

• (good faith)- the document is not being presented for any improper purpose such as to harass, cause unnecessary delay, or needlessly increase cost of litigation
• (good law)- the claims, defenses, and other legal contentions are warranted by existing law or by a non-frivolous argument for extending, modifying, or reversing existing law or establishing new law
• (good facts)- the factual contentions have evidentiary support or will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and
• the denials of factual contentions are either warranted on the evidence or are reasonably based on belief or a lack of information

Question 22

Rule 11: Motion for Sanctions and Safe Harbor

Answer 22

• The complaining party must draft a motion for sanctions and serve it on the offending party.
• The served party has 21 days after service to fix the alleged violation (does not apply to court initiated sanctions)

Question 23

Rule 11: Sanctions

Answer 23

• If the court finds that any of the certifications are false, it has the discretion to impose sanctions on the party or the party’s attorney (after notice and hearing)
• But represented parties are not subject to $ sanctions
• Attorney’s law firm is also held jointly liable, absent exceptional circumstances

Question 24

Rule 11: Discovery

Answer 24

Rule 11 does not apply to any discovery matter. The rules of discovery have their own rules.

Question 25

Provisional Relief

Answer 25

When a P files suit seeking injunctive relief because they can’t litigate the suit fast enough to get that relief before the D commits some irreversible harm. Consists of two remedies:

• 1) temporary restraining order (TROS); and
• 2) preliminary injunctions

Question 26

Temporary Restraining Order

Answer 26

Is used in an emergency situation, when the injunction must issue before any hearing, and lasts only for 14 days (can be extended for an additional 14 days if good cause is shown).

Question 27

Preliminary Injunction

Answer 27

Will last until a decision on the merits, however long that may take.

Question 28

Req. for TRO or Preliminary Injunction

Answer 28

Party must establish:

• a substantial likelihood of success on the merits:
• irreparable harm will be suffered unless the remedy sought is issued
• the harm to the P if the TRO or preliminary injunction is denied is greater than the harm to the D if the remedy is granted; and
• the provisional remedy, if granted, will not be adverse to the public interest
• the P has deposited enough $ with the court to compensate the D for any losses if the suit is unsuccessful.

Question 29

TRO v. Preliminary Injunction: Notice Req.

Answer 29

A court may issue a TRO ex parte (without written or oral notice to the adverse party) while a preliminary injunction may only be issued by a court on notice to the adverse party.

Question 30

Discovery Planning Conference

Answer 30

The parties are required to meet and have a discovery planning conference as soon as practicable, but at least 21 days before a scheduling order is issued.

Question 31

What Must the Parties do at the Discovery Conference?

Answer 31

The Parties must:

• discuss the nature and basis of their claims and defenses and the possibilities of timely settling or resolving the case;
• make or arrange for the mandatory disclosures required by discovery rules
• discuss any issues about preserving discoverable information; and
• develop a proposed discovery plan

Question 32

Discovery Plan

Answer 32

After the discovery conference, a written report outlining the proposed discovery plan must then be submitted to the court within 14 days after the discovery conference.

Question 33

Scheduling Order

Answer 33

• The district judge must issue a scheduling order that limits the time to join other parties, amend the pleadings, complete discovery, and file motions.
• The schedule may be modified only for good cause and with the judge’s consent

Question 34

When Must the Scheduling Order Be Issued

Answer 34

The earlier of:

• 90 days after any D has been served with the complaint; or
• 60 days after any D has appeared