Pretrial Proced & Discovery

Question 1

When may discovery requests b served?

Answer 1

Discovery requests generally cannot be served until the parties have held an initial planning conference to arrange for initial disclosures and prepare a discovery plan.

Question 2

Depositions

Answer 2

Written or oral examination of party or witness under oath

10 per party

Question 3

Request for production

Answer 3

Request served on party (or subpoena served on nonparty) to produce & allow inspection of documents, electronic information, tangible items, or land

No limit

Written response due within 30 days of service

Question 4

Interrogatories

Answer 4

Written questions served on party

Serve up to 25

Written responses due within 30 days of service

Question 5

Requests for Admission

Answer 5

Requests served on other party to admit truth of facts within scope of discovery

No limit

Written response due within 30 days of service

==> A matter is deemed to be admitted unless the party to whom the request is directed serves on the requesting party a written answer or objection addressed to the matter and signed by the party or her attorney.

Question 6

Physical/ mental exam

Answer 6

Order by court or parties’ agreement for physical or mental examination of party if those conditions are in controversy

The court where a lawsuit is pending may order a physical or mental examination of a party when
(1) that party’s condition is in controversy,
(2) the motion is based on good cause, and
(3) the order provides notice specifying the time, place, manner, conditions, and scope of the exam, as well as the person who will perform it.

Question 7

A party may conduct an oral deposition without the court’s leave or the parties’ stipulation unless …

Answer 7

(1) the deposition exceeds the 10-deposition limit,

(2) the deposition is sought before the initial planning conference, or

(3) the deponent was already deposed in the case.

Question 8

Summary judgment should be granted if…

Answer 8

the movant shows that …

(1) there is no genuine dispute as to any material fact and

(2) the movant is entitled to judgment as a matter of law.

Question 9

Voluntary Dismissal

Answer 9

π may dismiss suit without court order when:
-notice of dismissal filed before ∆ serves answer or summary judgment motion
or
-all parties sign stipulation of dismissal

π may request court order to dismiss suit unless: ∆’s counterclaim cannot be independently adjudicated

EFFECT: dismissal w/o prejudice unless:
-π previously dismissed federal or state action based on same claim or
-notice or stipulation states otherwise

Question 10

Involuntary Dismissal

Answer 10

∆ may move to dismiss suit if π failed to:
-prosecute own action or
-comply with rules or court order

∆ may move to dismiss suit via:
-pre-answer motion
judgment on the pleadings or
-summary judgment

EFFECT: Dismissal with prejudice unless:
-court order states otherwise or
-based on lack of jurisdiction, improper venue, or failure to join required party

Question 11

MSJ Deadline

Answer 11

Motion may be filed until 30 days after close of discovery OR time set by local rule or court

Question 12

Two-dismissal rule

Answer 12

This rule applies when:

the plaintiff’s first action was voluntarily dismissed without a court order in state or federal court

and

the plaintiff brought a second action on the same claim in federal court and filed a notice of voluntary dismissal.

Rationale: The two-dismissal rule’s purpose is to prevent the plaintiff from harassing the defendant by perpetually filing and dismissing the same claim. Since a court order or stipulation does not pose this risk, the rule does not apply when the second action is dismissed by these methods.

Question 13

When must a court clerk enter a default J

Answer 13

A court clerk must enter a default judgment when

(1) the plaintiff’s claim is for a sum certain or a sum that can be made certain by calculation,

(2) the plaintiff’s request for default judgment includes an affidavit establishing the amount due,

(3) the defendant failed to appear, and

(4) the defendant is not legally incompetent or a minor.

Question 14

Absent the parties’ stipulation, a party may voluntarily dismiss a crossclaim, counterclaim, or third-party claim without a court order…

Answer 14

by unilaterally filing a notice of dismissal …

(1) before a responsive pleading is served or

(2) if a responsive pleading is not served, before evidence is introduced at a hearing or trial.

Question 15

initial disclosures

Answer 15

Generally—subject to certain exceptions, must disclose:
1. information regarding individuals having discoverable information,
2. documents supporting claims/defenses,
3. computation and backup of damages,
4. relevant insurance agreement for satisfying judgment

==> Standard:
information reasonably available to it,
and
party not excused for not fully investigating case, challenges to insufficiency of another party’s disclosures, or
because another party failed to disclose

Timing—generally within 14 days after the parties’ discovery conference
==> parties may agree to modify the time in which initial disclosures must be made.

Question 16

Expert testimony

Answer 16

• Generally—identify expert witnesses and produce expert report subject to certain
  requirements
• Timing—at least 90 days before trial or 30 days after disclosure of opposing party’s
  expert evidence on same subject matter

Question 17

Pre-trial disclosures

Answer 17

evidence to be presented at trial other than for impeachment

• Generally—witness list by testimony or deposition, and documents and exhibits
• Timing—at least 30 days before trial
• Objections—within 14 days after disclosures are made or else waived unless excused by court for good cause or pursuant to relevance rules of the FRE

Question 18

What happens when a D files a notice of removal

Answer 18

==> the case is automatically transferred to federal court

==> subsequently, the court may remand a claim to the state court if the court determines that it lacks subject matter jurisdiction over the claim, or the defendant failed to follow proper procedures in removing the action to federal court

** in cases of removal based on federal question jurisdiction, only those defendants against whom the federal claim is asserted must join in or consent to the removal.

Question 19

FNC

Answer 19

Forum non conveniens is a common-law doctrine that allows a court to dismiss an action—even if PJ and venue are otherwise proper—if the court finds that the forum would be too inconvenient for parties and witnesses, and that another more convenient venue is available.

==> The appropriate way to enforce a forum-selection clause pointing to a state or foreign forum is to seek dismissal through the doctrine of forum non conveniens

Question 20

Review of remand orders

Answer 20

A remand order is generally not reviewable on appeal or otherwise

EXCEPT
- for an order remanding a civil rights case removed pursuant to § 1443
-or a remand order in a class action, (if the application for review is made to the court of appeals not more than 10 days after the entry of the order).

Question 21

A party may provide notice of and conduct an oral deposition without the court’s leave or the parties’ stipulation unless….

Answer 21

(1) the deposition **exceeds the 10-deposition limit, **

(2) the deposition is** sought before the initial planning conference**, or

(3) the deponent was already deposed in the case.

Question 22

Sanctions may be appropriate if a party failed to preserve electronically stored information (ESI) that:

Answer 22

a.** should have been preserved **in the anticipation or conduct of litigation

b. **is lost because the party failed to take reasonable steps **to preserve it

and

c. cannot be replaced or restored through additional discovery.

Question 23

If the court finds that the party intentionally deprived the requesting party of the ESI, the court may:

Answer 23

1. **presume **that the lost ESI was unfavorable to the party that failed to preserve it
2. instruct the jury that it may or must presume the lost ESI was unfavorable to that party

or
4. dismiss the action or enter a default judgment against that party

Question 24

If ESI destruction was NOT intentional

Answer 24

A court may order measures** no greater than necessary to cure prejudice **caused by a party’s failure to preserve electronically stored information

Question 25

Pretrial Order that formulates plan for trial

Answer 25

At the final pretrial conference, a federal district court judge will issue a final pretrial order that formulates a plan for trial.

The court may modify this order only to prevent manifest injustice.

Question 26

Prelim Injunction Grounds

Answer 26

Movant establishes that:

movant is likely to succeed on merits

movant is likely to suffer irreparable harm in absence of relief

balance of equities favors movant and

injunction is in public’s best interests

Question 27

Preliminary Injunction Content

Answer 27

Order granting injunction must:

state reasons for issuance

reasonably describe prohibited or commanded acts and

state terms specifically

Question 28

Preliminary Injunction Effect

Answer 28

Binds the following persons who **receive actual notice **of order:

parties

parties’ officers, agents, employees & attorneys and

anyone in active concert or participation with above-listed persons

Question 29

FRCP 611

Answer 29

**Court has reasonable control over mode/order of examining witnesses & presenting evidence **to:
-make procedures effective for determining truth
- avoid wasting time
-protect witnesses from harassment or undue embarrassment

Question 30

JMOL

Answer 30

Judgment as a matter of law (JMOL) = a request that the court enter a judgment in favor of the movant because the **evidence is legally insufficient for a reasonable jury to find in the nonmovant’s favor. **

==> a court should grant a defendant’s motion for JMOL if the plaintiff failed to present sufficient evidence at trial for a reasonable jury to issue a verdict in favor of the plaintiff.

Timing
-May be filed after nonmovant presents its case but before case is submitted to jury
-May be renewed within 28 days after entry of final judgment
==> ct cannot extend afterward

Procedural requirements
Movant must:
-specify judgment sought & law/facts entitling movant to judgment
Court must:
-view evidence & draw all reasonable inferences in nonmovant’s favor
-disregard evidence favorable to movant that jury is not required to believe
-not consider credibility of witnesses or evaluate weight of evidence

Question 31

MTD ==> MSJ

Answer 31

In ruling on a motion to dismiss for failure to state a claim upon which relief can be granted, the court may consider only the allegations in the complaint, any exhibits attached to the complaint, and any matters subject to judicial notice.

When a defendant files a motion to dismiss for failure to state a claim upon which relief can be granted and attaches materials outside the pleadings to the motion, the court must treat the motion as a summary judgment motion if the court considers such materials in reaching its decision on the motion.

Question 32

When no internationally agreed method of service or applicable federal law exists, an individual defendant in a foreign country can be served …

Answer 32

(1) by following the foreign **country’s service-of-process rules, **

(2) as the** foreign country directs** in response to a letter rogatory, or

(3) by delivering process to the defendant personally or by mail—if permitted by the foreign country.