pretrial procedure

Question 1

INVOLUNTARY DISMMISSAL RESULTS IN AN ADJUDICATION ON THE MERITS

Answer 1

A suit can be dismissed in two ways:

Voluntary dismissal – when the PLAINTIFF moves to dismiss the suit
Involuntary dismissal – when the defendant moves to dismiss the suit (as seen here)

An involuntary dismissal generally results in an adjudication on the merits.
This means that the plaintiff’s action is dismissed with prejudice, which precludes the PLAINTIFF from suing the same defendant on the same claim in the future (ie, claim preclusion).

Question 2

INVOLUNTARY DISMISSAL
BASED ON LACK OF JXN; IMPROPER VENU - FAILURE TO JOIN AN INDESPENSABLE PARTY

Answer 2

An involuntary dismissal is generally with prejudice, which precludes the plaintiff from suing the same defendant on the same claim in the future. However, an involuntary dismissal based on lack of jurisdiction, improper venue, or failure to join a (indispensable ) required party is WITHOUT PREJUDICE.

Question 3

different inv dismissal

Answer 3

-inv dismissal is with prejudice
- inv dismissal based on lack of jxn, improper venue, failure to join an indispensable party is without prejudice

Question 4

class action

notice required for common question clause action - option to opt out ( sue on their own)

notice not required for prejudicial risk and equitable relief - no option to opt out

Answer 4

Federal Rule of Civil Procedure 23 recognizes three types of class actions: prejudicial risk, final equitable relief, and common question.

The court certifies court (ie, authorized) a “common question” class action against the manufacturer because it determined that (1) common questions of law and fact predominated and (2) the class action was the best method to fairly and efficiently adjudicate the dispute.

In “common question” class actions, adequate notice must be provided to all class members because they have the right to opt out of the class action and sue on their own behalf.* If a class member fails to opt out, he/she cannot pursue an individual suit involving the same claim. Instead, that class member is bound by any resulting final judgment or court-approved settlement, compromise, or voluntary dismissal.

*In “prejudicial risk” and “final equitable relief” class actions, notice is not required because class members do not have a right to opt out. Instead, a court has the discretion to provide notice and an opportunity to opt out of such class actions.

Question 5

class action - common question -notice- opt out

Answer 5

A class member must opt out of a “common question” class action to pursue an individual suit involving the same claim. Otherwise, the class member is bound by any final judgment or court-approved settlement, compromise, or voluntary dismissal of the class action.

Question 6

class action prerequisites

Answer 6

A party seeking class action certification must establish four prerequisites: numerosity, commonality, typicality, and adequacy. A court deciding whether to certify a class action will not consider the merits of the underlying case.

Question 7

the defendant can challenge certification on all of the following 4 prerequisite

Answer 7

the court will not consider the MERITS of the underlying action when determining whether to certify a class, this is an invalid argument to challenge certification.

Numerosity – the class is so numerous that joining all the members as named plaintiffs is impracticable (usually met when there are over 40 members) (Choice B)

Commonality – the class shares common questions of law or fact (Choice A)

Typicality – the named plaintiffs’ claims are typical of the claims of the class (Choice D)

Adequacy – the named plaintiffs will fairly and adequately protect the interests of the class

Question 8

SUBPOENA

Answer 8

A subpoena is a written court order that commands a person to attend a trial, hearing, or deposition OR to produce documents or things in his/her possession. Federal Rule of Civil Procedure 45(c) limits a subpoena’s reach, so it may command attendance at a trial, hearing, or deposition:

• within 100 miles of where the subpoenaed person resides, is employed, or regularly transacts business or
  -within the state where the subpoenaed person resides, is employed, or regularly transacts business if the person is a party or a party’s OFFICER (or a person commanded to attend trial who would not incur substantial expense).

Question 9

enforceable subpoena

Answer 9

A subpoena is valid and enforceable when it (1) contains the contents required by the federal rules, (2) is signed and issued by the court clerk or an attorney AUTHORIZED to practice law in the court where the action is PENDING, and (3) is properly served.

RQ: the opposing party doesn’t need to sign it.

Question 10

motion to quash subpoena

Answer 10

REQUIRED- the court must
Court must quash or modify subpoena that:

fails to allow reasonable time to comply
requires person to comply beyond geographical limits
requires disclosure of privileged or protected matter or
subjects person to undue burden

PERMITTED - the court MAY
Court may quash or modify subpoena that requires disclosing:

unretained expert’s opinion or information that (1) does not describe occurrences in dispute & (2) results from expert’s study not requested by party
trade secret or confidential research, development, or commercial information

Question 11

motion to quash

Answer 11

court MAY
A court may modify or quash a subpoena that requires disclosing (1) an unretained expert’s opinion or information that does not describe specific occurrences in dispute and results from the expert’s independent study instead of a party’s request or (2) trade secrets or other confidential research, development, or commercial information.

Question 12

DISCOVERY

Answer 12

Discovery is the pretrial phase of a lawsuit during which the parties can use various methods to compel disclosure of information related to the case. Information is within the scope of discovery if it is relevant to any party’s claim or defense, proportional to the needs of the case, and not privileged. Although the scope of discovery is broad, a federal court must limit the frequency or extent of discovery pursuant to a party’s motion or on its own initiative when the discovery sough

Question 13

discovery request

Answer 13

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

Question 14

limit discovery

Answer 14

A court must limit the frequency or extent of discovery when the discovery sought (1) is unreasonably cumulative or duplicative, (2) can be obtained from a more convenient, less burdensome, or less expensive source, (3) contains information that the party has had time to obtain by other means, or (4) is outside the scope of discovery.

Question 15

deposition

Answer 15

A party may provide notice of and conduct an oral deposition without the court’s leave or the parties’ stipulation unless (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.
(1,2,3 needs a leave)

Question 16

Required discovery disclosures

Answer 16

Federal Rule of Civil Procedure 26(a) requires parties to automatically make
1-initial disclosures,
2-disclosures of expert testimony, and
3-pretrial disclosures

Question 17

sanction for failure to provide disclosures

Answer 17

!A court may impose the following sanctions on a party who fails to make required disclosures: (1) prohibit the use of the undisclosed evidence, (2) order the payment of the opposing party’s reasonable expenses, (3) inform the jury of the nondisclosure, and (4) impose any other appropriate sanction (except for contempt of court).!

To underscore the importance of such disclosures, a court has wide discretion to impose sanctions on a party who fails to make required disclosures. The most common sanction is to prohibit the use of the undisclosed information unless the nondisclosure was substantially justified or harmless. In addition to or in lieu of this sanction, the court may:

order the payment of the opposing party’s reasonable expenses, including attorney’s fees, caused by the nondisclosure
inform the jury of the party’s failure to disclose and
impose any other appropriate sanction (except for contempt of court).

Question 18

pretiral conference

Answer 18

!!During pretrial conferences, a trial judge has wide discretion to issue orders—eg, (1) requiring separate trials for different claims, (2) deciding the order of trials, and (3) establishing a reasonable time limit to present evidence. On appeal, such orders are reviewed for abuse of discretion and will only be reversed if unreasonable or arbitrary.!!

A federal district court judge may hold one or more pretrial conferences to help expedite litigation, improve the trial’s quality, and facilitate settlement. At these conferences, the judge has broad discretion to address and act on a wide range of issues, including:

requiring separate trials of a claim, counterclaim, crossclaim, third-party claim, or other issue (Choice B)
determining the order in which the separate trials will be heard (Choice D) and
establishing a reasonable time limit to present evidence at trial (Choice C).
On appeal, these discretionary orders are reviewed for abuse of discretion. Under this standard of review, the appellate court gives great deference to the district court judge and will only reverse an unreasonable or arbitrary order.

Here, the district court judge had authority to issue the pretrial conference orders, and there is no indication that those orders were unreasonable or arbitrary.

Question 19

final pretrial conference

Answer 19

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.

(exemple:At these conferences, the judge has broad discretion to address and act on a wide range of issues to help expedite litigation, improve the trial’s quality, and facilitate settlement.)

Question 20

PRETRIAL DISCLOSURE

• automatically made by parties
• requirement doesn’t apply to solely impeach

Answer 20

Federal Rule of Civil Procedure 26(a) requires parties to automatically make initial disclosures, disclosures of expert testimony, and pretrial disclosures.
A party’s pretrial disclosures must include (1) the name, address, and phone number of each witness, (2) deposition testimony that will be used at trial, and (3) all documents and exhibits. But these requirements do not apply to witnesses and evidence that will be used solely for impeachment.

Question 21

Purpose of PRETIRAL DISCLOSURES

Answer 21

The purpose of pretrial disclosures is to avoid SURPRISES at trial regarding substantive evidence—ie, evidence offered to help prove a material fact or issue.

As a result, these requirements do not apply to impeachment evidence—ie, evidence used solely to discredit a witness and not to prove a material fact or issue. Therefore, the homeowner’s strongest argument to avoid disclosing the friend’s identity is that his testimony will be used solely to impeach the fisherman’s testimony.

Question 22

initial disclosures

Answer 22

Under FRCP 26(a), parties are required to make initial disclosures WITHOUT a discovery request. A party’s initial disclosures must include all documents, electronically stored information, and tangible things in the party’s possession that the party may use to support its claims or defenses—NOT THOSE OF THE OPPOSING PARTY.

All of this information must be disclosed within 14 days after the initial planning conference or by a date set by the court or parties.

Here, the email reveals that the university refused requests to update its female athletic facilities because female sports provided the university with substantially less revenue than male sports. Disclosure of that document would likely support the female students’ claim that the university engaged in gender discrimination in violation of federal law. And since a party must only initially disclose documents that support its (not the opposing party’s) claims or defenses, this is the university’s best argument to withhold the email thread from its initial disclosures.*

Question 23

leave of court = permission

Answer 23

A federal court may alter the 10-deposition limit if a party requests the court’s leave (i.e., permission).*

*Leave of court is also required when (1) the deposition is sought before the initial planning conference, (2) the deponent has already been deposed in the case, or (3) the deponent is in prison.

Question 24

physical or mental examination

Answer 24

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

During discovery, the court where the lawsuit is pending may order a party to undergo a mental or physical examination by a suitably licensed or certified examiner. This court order is valid when:

that party’s mental or physical condition is in controversy—ie, a physical injury or mental disorder is the subject of a claim or defense in the suit

the motion for the order is based on good cause—eg, the information sought cannot be easily attained by other means—and

the order provides notice by specifying the time, place, manner, conditions, scope, and person who will perform the exam.

Here, the woman’s mental condition is in controversy since she claims that the man caused her to suffer post-traumatic stress disorder. There also is good cause for a mental examination because the man likely cannot obtain information about her true mental condition by other means. But since the suit is pending in the federal district court in State B, only that court may order the woman to undergo a mental examination (Choice A).

Question 25

PROVISIONAL REMEDIES

Answer 25

Provisional remedies* temporary remedies issued BEFORE trial
Provisional remedies are temporary remedies issued before trial that are designed to maintain the status quo until a final judgment is rendered.

1- Preliminary injunction: Court order commanding or prohibiting specified action while the case is pending

2-Temporary restraining order: Court order commanding or prohibiting specified action for 14 days or until preliminary-injunction hearing can take place (whichever occurs first)

3-Attachment: Seizure of person’s property to secure or satisfy future judgment

4-Replevin: Seizure of personal property in defendant’s possession that is transferred to plaintiff’s possession pending outcome of suit

5- Garnishment: Court order directing third party (bank; employer) to hold indebted party’s assets (eg, wages) until further judicial notice

6-Receivership: Appointment of neutral third party to manage & administer disputed assets/property (often used against companies in bankruptcy proceedings)

Question 26

THIRD PARTY PRACTICES

Question 27

IMPLEADER

Answer 27

Third-party practice (ie, impleader) allows a defendant to add a nonparty who may be liable to the defendant for all or part of the plaintiff’s claim (ie, derivative liability

A defendant may add a nonparty to a suit through third-party practice (ie, impleader). However, the third-party complaint must be based on derivative liability—ie, it must assert that the nonparty is LIABLE TO THE DEFENDANT for all (ie, indemnity) or part (ie, contribution) of the plaintiff’s claim. A third-party complaint should therefore be DISMISSED if it asserts that the nonparty is DIRECTLY liable to the plaintiff or liable to the defendant for another claim.

Question 28

INTERPLEADER ACTION IN FEDERAL COURT

Answer 28

An interpleader action is available in federal court when multiple persons claim an interest in the same property (known as the “stake”). This action allows the possessor of the stake (the “stakeholder”) to avoid multiple liability by joining the claimants to litigate the stake’s ownership among themselves. There are two types of interpleader, each with distinct subject-matter jurisdiction requirements that must be satisfied before a court can hear the dispute:

1-Rule interpleader requires an amount in controversy that exceeds $75,000 and complete diversity between the stakeholder (insurance) and the claimants ((i.e. sons wanting to benefit from the same insurance policy)—ie, they must be citizens of different states.*
*Subject-matter jurisdiction can also be established in a rule-interpleader action if the claim presents a federal question.

2-Statutory interpleader requires an amount in controversy of at least $500 and minimal diversity between the claimants—ie, at least two claimants must be citizens of different states.

i.e :Here, the insurance company filed a statutory-interpleader action in federal court against the three sons. The amount-in-controversy requirement is satisfied because the policy is worth $50,000. Additionally, minimal diversity exists between the claimants since two sons are domiciled in State A while one son is domiciled in State B. Therefore, the court has subject-matter jurisdiction over the action and will deny the sons’ motion to dismiss.

Question 29

MODIFY PLEADINGS

plrsding i.e amended answer

Answer 29

Parties can modify their pleadings in two ways:

Amended pleadings – to set forth a transaction, occurrence, or event that arose before the pleading to be amended was filed

Supplemental pleadings – to set forth a transaction, occurrence, or event that arose after the pleading to be supplemented was filed

Question 30

complaint - pleadings- damages - alleged generally or specifically

Answer 30

A complaint is a pleading that initiates the plaintiff’s lawsuit. It generally must contain a short and plain statement of the claim showing that the plaintiff is entitled to relief. However, there are special pleading requirements for certain claims, including compensatory damages. There are two main types of compensatory damages

!!!General damages (eg, pain and suffering) do not have a fixed value and may be alleged generally in a complaint. Special damages (eg, medical expenses) do have a fixed value and must be specifically stated in the complaint.!!

Question 31

amended vs supplemental pleadings

Answer 31

An amended pleading is used to set forth a transaction, occurrence, or event that arose BEFORE the pleading to be amended was filed. In contrast, a supplemental pleading is used to set forth a transaction, occurrence, or event that arose AFTER the pleading to be supplemented was filed.

Question 32

Amendment under the relation-back doctrine

Answer 32

pleading (e.g., complaint) cannot be amended after the statute of limitations has expired unless the relation-back doctrine applies. Under this doctrine, an amendment is treated as if it were filed on the same date as the original pleading so that the amendment “relates back” to the date of the original pleading. An amendment that changes a party relates back if the applicable statute of limitations allows.

Here, the statute of limitations on the man’s personal-injury claim expired on July 1, 2017—two years after his alleged injury. He moved to amend his complaint on January 1, 2018—six months after the statute of limitations had expired. But the applicable law allows relation back when the plaintiff made a mistake as to the proper defendant’s identity. Therefore, the amendment “relates back” to the date the man’s original complaint was filed on June 1, 2017—before the statute of limitations expired—and the man may amend his complaint (Choice B).

Question 33

if the statute of limitation is silent about relating back

Answer 33

Had the applicable statute of limitations been silent about relation back, the amendment would still relate back if:

1- the amendment concerned the same transaction or occurrence as the original pleading (Choice C)

2-the new party received notice of the suit within 90 days after the original pleading was filed (Choice A) and

3-the new party knew or should have known that the suit would have been brought against it but for a mistake concerning the proper party’s identity.

Question 34

sanction FRCP 11

Answer 34

A party cannot file a motion for sanctions until 21 days after serving that motion on the alleged violator. This safe-harbor rule gives a violator time to correct the violation.

Federal Rule of Civil Procedure (FRCP) 11 requires that every pleading, motion, or other document filed with the court be signed by an attorney or an unrepresented party. This signature certifies the following to the court:

The document is presented for a proper purpose—not to harass, cause unnecessary delay, or needlessly increase the cost of litigation.

All claims, defenses, and legal contentions are warranted by existing law or by a nonfrivolous argument for revising or establishing law.

All factual assertions have or will have evidentiary support.

All factual denials are warranted by evidence or are reasonably based on a belief or a lack of information.

Question 35

determining whether joinder is necessary

Answer 35

an absent party must be joined (ie, added) to a suit in certain circumstances. This required-joinder rule provides a three-step process for determining whether joinder is necessary. The first step requires the court to determine whether the absent party is a required (ie, indispensable) party because:

complete relief cannot be granted to the existing parties without that party’s presence

the party’s absence will subject existing parties to a substantial risk of multiple or inconsistent obligations or

the party’s absence will prejudice his/her ability to protect an interest related to the suit.

Question 36

Alleged TORTFEASOR facing joint and several liability

Answer 36

Alleged TORTFEASOR facing joint and several liability are not required parties because (1) complete relief can be granted in their absence, (2) the tortfeasors in the suit will not be subjected to multiple or inconsistent obligations, and (3) the absent tortfeasors can adequately protect their interests in a future action.

Question 37

DEFAULT JUDGMENT

Answer 37

A default refers to a defendant’s failure to timely serve an answer to a lawsuit, which is generally due within 21 days after the defendant is served with process. When the plaintiff shows this failure to the court clerk, the clerk must enter the defendant’s default into the record of the case (as seen here). The default can then be entered as a default judgment by the clerk OR the court

Question 38

default judgement MUST be entered

Answer 38

A court clerk must enter a default judgment when (1) the plaintiff’s claim is for a sum certain, (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.

The clerk must enter a default judgment when:

the plaintiff’s claim is for a sum certain—ie, a specified or set amount—or a sum that can be made certain by calculation

the plaintiff’s request for default judgment includes an affidavit establishing the amount due

the defendant failed to appear—ie, did not file a motion or otherwise act before the court—and

the defendant is not legally incompetent or a minor.