Pretrial Procedures

Question 1

Pleadings

Answer 1

Documents that set forth the claims and defenses to a case.

Question 2

Type of pleadings used by Federal/California courts

Answer 2

1. Federal courts use notice pleading, the goal of which is to provide the opposing party with reasonable notice of the nature and scope f the claims being asserted.
2. California courts use fact pleading which is also called code pleading and is more specific than notice pleading.

Question 3

Requirements for Pleadings

Answer 3

Rule 11 requires all attorneys or a party representing himself to sign all pleadings, written motions, and papers, certifying that the paper is proper, the legal contentions are warranted by law and the factual contentions have evidentiary support

Question 4

Rule 11 Safe harbor provision

Answer 4

Federal 21-day safe harbor: If a motion for sanctions is severed the party has 21 days to withdraw or correct the pleadings giving rise to sanctions.
CA does not have a safe harbor rule.

Question 5

Contents of Federal Complaint

Answer 5

a. Identification of the parties
b. A statement of proper subject matter jurisdiction
c. A statement of the claim showing the factual basis on which plaintiff is entitled to relief. Notice pleading typically only requires stating enough facts to support a plausible claim, however fraud, mistake, and special damages must be pled with specificity.

Question 6

Contents of California Complaint

Answer 6

a. Identification of the parties; although CA does allow fictious “Doe” defendants
b. A statement of the claim, including a “statement of facts consisting a cause of action, in ordinary and concise language.
c. A demand for judgment, including the amount of damages sought, unless the damages sought are for actual or punitive damages for a personal injury or wrongful death.
d. The signature of the plaintiff, or his attorney.

Question 7

Necessary parties

Answer 7

An absentee (A) who meets any of these tests:

(1) Without A, the court cannot accord complete relief among existing parties (worried about multiple suits);
(2) A’s interest may be harmed if he is not joined (practical harm); or
(3) A claims an interest which subjects a party (usually D) to multiple obligations.

Question 8

When is joinder “feasible”?

Answer 8

It is feasible if:

(1) there is PJ over him,
(2) joining him will not destroy diversity.

Question 9

What happens if joinder is not “feasible”?

Answer 9

Court must:

(1) proceed without joining the party OR
(2) dismiss the entire case.

Question 10

What factors does court consider when deciding whether or not to dismiss a case for lack of joinder of a necessary party?

Answer 10

(1) Is there an alternate forum (state court)
(2) What is the actual likelihood of harm to P without joinder
(3) Can the court shape relief to avoid the potential harm to plaintiff?

Question 11

Impleader

Answer 11

Allows a defendant to bring in a third party defendant. TPD may be liable to D for P’s claim against D (indemnity and contribution); After TPD is joined, P can assert claim against TPD, and TPD may assert claims against P and D (as long as the claim arises out of the same T/O). Look for SMJ/Supplemental jurisdiction for these claims.

Question 12

Intervention

Answer 12

Allows absentee party to join a pending suit.

Party choses to come in as either P or D. Court may realign later. Application to intervene must be “timely.”

Question 13

Intervention of Right

Answer 13

A’s interest may be harmed if she is not joined and her interest is not adequately represented now.

Question 14

Permissive intervention

Answer 14

A’s claim or defense and the pending case have at least one common question. Discretionary with court; OK unless delay or prejudice.

Question 15

Interpleader

Answer 15

One holding property forces all potential claims into a single lawsuit to avoid multiple litigation and inconsistency. Person with property is “stakeholder”; parties are claimants.
Rule interpleader: stakeholder must be diverse from every claimant;
Statutory interpleader: one claimant must be diverse from one other claimant (don’t care about stakeholder’s citizenship)
Min. under statutory $500 or more.

Question 16

Class Action requirements

Answer 16

A. Numerosity
B. Commonality
C. Typicality
D. Representative is adequate

Question 17

Types of Class Action Lawsuits (Federal)

Answer 17

Type 1: “Prejudice”
Type 2: Injunction or DJ
Type 3: Damages

Question 18

Type 1: “Prejudice”

Answer 18

class treatment necessary to avoid harm to either class members or to party opposing class. An example is many claimants to a fund. Individual suits might deplete the fund, leaving some without remedy.

Question 19

Type 2: Equitable

Answer 19

inunction or DJ (not damages) sought because class was treated alike by other party. Example: employment discrimination.

Question 20

Type 3: Damages

Answer 20

(1) common questions predominate over individual questions AND (2) class action is the superior method to handle the dispute. Example mass tort litigation.

Question 21

Type 3 Class Action Notice Requirement

Answer 21

the court must notify class members that they are in a class.  This means individual notice (usually by mail) to all reasonable identifiable members. The notice tells them various things, including: (a) they can opt out; (b) they'll be bound if they don't and; (c) they can enter a separate appearance through counsel.
Representative pays for notice.

Question 22

SMJ for class actions

Answer 22

1. federal question or
2. diversity of citizenship- consider only the class rep (ignore the other class member’s citizenship); For amount in controversy consider only the rep (must exceeed $75,000)

Question 23

Class Action Fairness Act (CAFA)

Answer 23

This grants SMJ separate from diversity of citizenship jurisdiction. It lets a federal court hear a class action (of at least 100 members) if any class member (not just a representative) is of diverse citizenship from any defendant and if the aggregated claims of the class exceed $5,000,000 It makes it easier for the interstate class action to go to federal court.

Question 24

When can clerk of court enter a default judgment?

Answer 24

1. D has made no response at all
2. The claim itself is for a sum certain in money
3. Claimant gives an affidavit (sworn statement) of the sum owed; AND
4. D is not a minor or incompetent
   If any of 4 is not true, the claimant must go to the court itself (the judge not the clerk) for the judgment. D gets notice only if she made some appearance in the case.

Question 25

What must a moving party show for summary judgment?

Answer 25

1. there’s no genuine dispute on a material fact and

(2) that she is entitled to judgment as a matter of law.

Question 26

Is a jury trial a matter of right?

Answer 26

No, must demand in writing no later than 14 days after service of the least pleading raising jury triable issues.

Question 27

During “voir dire” process how many preemptory challenges and how many for cause

Answer 27

Federal: 3 preemptory strikes (must be used in a gender/race neutral way- CA is broader)
CA: 6 preemptory strikes
Unlimited for cause

Question 28

What constitutes “for cause” during “voir dire”?

Answer 28

Bias, prejudice, juror is related to party.

Question 29

Renewed motion for judgment as matter of law (RJMOL)

Answer 29

1. Situation: judge did not grant JMOL, and the case went to the jury. Jury returns with verdict for one party, and the court enters judgment on the basis of the verdict. Now the losing party files a renewed motion for judgment as a matter of law.
2. If granted, the court enters judgment for the party that lost the jury verdict. Move within 28 days after the judgment.
3. Standard: Same as JMOL- Reasonable people could not disagree on result
4. If you did not move for JMOL, you cannot bring the RJMOL Motion.

Question 30

Ground for new trial

Answer 30

(1) prejudicial (not harmless) error at trial makes judgment unfair (e.g., wrong jury instruction, evidentiary ruling)
(2) new evidence could not have been obtained with due diligence for the original trial;
(3) prejudicial misconduct of party or attorney or juror
(4) judgment is against the weight of the evidence
(5) excessive or inadequate damages

Question 31

Grounds for Set aside verdict

Answer 31

1. Clerical error
2. Mistake, excusable neglect
3. New evidence that could not have been discovered with due diligence for a new trial motion
4. Judgment is void.

Question 32

Interlocutory appeals as a matter of right

Answer 32

1. Orders granting, modifying, refusing, etc. injunctions
2. Appointing, refusing to appoint receivers;
3. Findings of patent infringement where only an accounting is left to be accomplished by the trial court
4. Orders affecting possession of property (attachments)

Question 33

Interlocutory appeals Act

Answer 33

Allows appeal of nonfinal order if trial judge certifies that it involves a controlling issue of law as to which there is substantial ground for difference of opinion and the court of appeals agrees to hear it.

Question 34

“Collateral order” Exception

Answer 34

Appellate court has discretion to hear ruling on an issue if it (a) is distinct from the merits of the case, (b) involves an important legal question, and (c) is essentially unreviewable if parties must await a final judgment (e.g., claim of immunity from suit, such as a state’s claim under the Eleventh Amendment that it is immunity from suit, such as a state’s claim under the Eleventh Amendment that it is immune from being sued in the federal court.

Question 35

Extraordinary writ

Answer 35

Not technically an appeal, but an original proceeding in appellate court to compel the trial judge to make or vacate a particular order. Not a substitute for appeal; available only to enforce a clear legal duty.

Question 36

Appeal of class action

Answer 36

Court of appeals has discretion to review order granting or certifying class action. Must seek review at the court of appeals (not in the trial court) within 14 days of order. Appeal does not stay the proceeding at trial court unless trial court or judge so orders.