Pretrial Procedure Flashcards
Yes or Not Obtainable
Discovering opinions of party opponents experts NOT testifying at trial
Not obtainable in disclovery, UNLESS party demonstrates exceptional circumstances.
The opinions of experts who are retained in anticipation of litigation but who are not expected to testify at trial may be discovered only upon a showing of exceptional circumstances under which it is impracticable to obtain facts or opinions by other means or when a medical report for an exam conducted under FRCP 35 is requested.
Relating Back Doctrine
For statute of limitations purposes, an amendment to a pleading that arises from the same conduct, transaction, or occurrence that was set forth (or was attempted to be set forth) in the original pleading generally is deemed filed on the date that the original pleading was filed. (In other words, the filing of the amendment relates back to the filing date of the original pleading.)
You usually only get 1 shot at this (even after the limitation has surpassed when amending).
Duty to Amend Responses on an Interragtory
A party is under a duty to amend a prior response if he knows that the response, though correct when made, is no longer true and the circumstances are such that a failure to amend the response is in substance a knowing concealment.
Submmitting to a Medical Examination
Under the Federal Rules, a party who submits to a medical examination (whether as a result of a court order or agreement of the parties) may request a copy of the examiner’s report, but if she does so, she waives any privilege and must produce, upon demand, copies of like reports of any other examinations of the same condition.
Summary:
If a party submits to medical examination, that party may request a copy of the report. That party must also reciprocrate related of the same condition.
Admissions Made Pursuant to a Request for Admissions
Although the information in all of these documents is relevant, the admissions made pursuant to the request for admissions MAY NOT be used in a subsequent proceeding.
An admission made pursuant to a request for admissions is an admission for the purpose of the pending action only; it may not be used against the party who made it in any other proceeding.
Thus, the deposition testimony, the answers to interrogatories, and the affidavit may be used in subsequent litigation, but the admissions of the bank made pursuant to the request for admissions are not.
Yes or No
Can a court grant a Partial Summary Judgment?
YES!
The court can grant partial summary judgment on the matter of liability and give the issue of damages to a jury. Summary judgment may be partial as well as complete. Because there is no genuine dispute of material fact regarding the cause of the car accident, the court can grant partial summary judgment on that issue.
I.E.: No genuine dispute on issue of fact, but dispute of 200k of damages vs. 50k of damages. Partial Summary Judgment can be granted then. (Granted for matter of liability, issue of damages to a jury).
Service of Process for a Corporation under the FRCP
Under the Federal Rules, a corporation may be served by serving any:
* corporate officer, (President, VP, Secretary, Treasurer)
* managing agent, or
* general agent.
Alternatively, service may be made under state rules or by mail under the waiver of service provision.
Third Party Claim: P v. 3rd Party D
P sues D. D brings in 3rd party D.
P may assert a claim against a 3rd party D brought in D’s third-party claim ONLY IF P’s claim against the 3rd party D arises from the same transaction or occurrence as P’s original claim.
SMJ must still be present. Total value of claim is taken into account (3rd party claim and original). P and 3rd party D must still be DIVERSE.
Impleader (3rd Party Practice)
D may implead a nonparty, BUT ONLY IF the nonparty is or may be liable to D for any part of a judgment that P may recover against D. Usually, such an impleader claim will be for INDEMNITY or CONTRIBUTION.
IMPORTANT TRICK!!
DO NOT DO NOT DO NOT….
Fall for the trick that P sued the wrong party, or D believes that liability lies with another party, so D impledes that other party. THAT IS NOT A PROPER 3RD PARTY CLAIM!!
True or False
Nonparties can be served and must answer interrogatories.
FALSE!
Interrogatories may be served only on another party. Other discovery methods must be used for nonparties. (Subpoenas, or a Deposition).
Work Product Doctrine
Documents (physical or electronic) prepared by a party or its representative, which includes its agent, made in anticipation of litigation, are protected from discovery.
Will only be discoverable IF:
the other party can show a substantial need for the document and an inability to obtain the information in an alternative way without undue hardship.
Look at facts carefully (knew litigation would occur, employees at accident still employed, manager who prepared it available to be deposed, etc.).
Requirements of a Complaint when a Minority Shareholder Sues on Behalf of Other Minority Shareholders
She must allege in a verified complaint that
1. She was a shareholder at the time of the transaction complained of (or received her shares thereafter by operation of law);
2. The action is not a collusive effort to confer jurisdiction on the court that it would otherwise lack; and
3. She made a demand on the directors and, if required by state law, on the shareholders, or if she did not make such a demand, she gives the reasons why she did not make such demands.
Joinder: 2 or More Ds
Under Rule 20, P may join two or more persons as Ds if P’s claims against them arise out of the same transaction, occurrence or series of transactions or occurrences and there is a common question of law or fact as to the defendants.
There are two steps when determining whether the joinder of parties or claims are permitted:
1. the joinder must be authorized by the Federal Rules; and
2. there must be subject matter jurisdiction over the action.
What does a failure to deny a claim (an admission) on an answer to a pleadings result in for P?
What can P file as a result?
Motion for Judgment on the Pleadings for Failure to…(state a legal defense, etc.) to the (battery, negligence, etc.) claim.
Once pleadings are complete, any party may move for judgment on the pleadings. [Fed. R. Civ. P. 12(c)] A motion for judgment on the pleadings may be filed only after all pleadings are complete, but early enough so as not to delay the trial. In reviewing the motion, the court accepts all facts alleged in all the pleadings as true, and a failure to deny allegations in the complaint constitutes an admission. If the court concludes a party is entitled to judgment as a matter of law, it will grant the motion and render judgment. Failure to state a legal defense to a claim is one listed reason for a motion for judgment on the pleadings. [Fed. R. Civ. P. 12(h)(2)]
Use of Deposition at Trial
A deposition:
* may be used at trial for any purpose if the deponent is at a distance greater than 100 miles from the place of trial;
* may be used at trial for any purpose if the deponent is unavailble for trial;
* be used for impeachment if deponent is testifying live at trial
Yes or No
Must notice be given to absent class members in a “common question” class action?
YES!
The shareholder MUST give notice to other absent class members. In a “common question” class action, there are questions of fact or law common to members of the class that predominate over individual issues and a class action is superior to the alternative methods of adjudication.
A “common question” class action can appear because fraud appears to have been inflicted on the class members in the same manner and during the same period of time. Because the class question is of the “common question” variety, notice to all members is required.
Notice is not required in the other types of class actions.
Class Action Fairness Act
CAFA SMJ Requirements
Requirements are:
1. ANY P class member is of diverse citizenship from any defendant;
2. The amount in controversy in the aggregate exceeds $5 million; and
3. There are at least 100 members in the proposed class or classes.
Remanding v Removal in Diversity
Generally:
* Notice of removal within 30 days after receipt by or service on the defendant of the initial pleading or summons (when he learns the case is removable)
* D MAY NOT remove if citizen of forum state.
* A motion to remand based on procedural defects in removal must be filed within 30 days of removal.
IMPORTANT
Although the notice of removal was untimely, the motion to remand was also untimely. A motion to remand on grounds other than a lack of subject matter jurisdiction (e.g., the notice of removal was untimely filed) MUST be filed within 30 days of removal. The failure to timely remand the case on procedural defects is fatal.
