Pretrial Procedures Flashcards
Elements of the Complaint
In general, Complaint must contain:
- Statement of Jurisdiction (short/plain statement RE: basis for JX)
- Statement of Facts (short/plain statement RE: what happened)
- Demand for Relief (what damages you want)
*EXCEPTIONS: if Complaint is alleging Fraud OR Special Damages (unique money damages) → Complaint must be MORE SPECIFIC
What’s the effect of filing a Complaint?
When must a Complaint be served?
= filing Complaint with Court → commences Statute of Limitations
= MUST serve Complaint to other party within 90 days
Elements of the Answer
(and deadline?)
- Signed by Lawyer
- any Affirmative Defenses that Defendant pleads (e.g., Contributory Negligence, Statute of Frauds, Statute of Limitations, Illegality, Duress)
- Admit ORDeny ORSilent regarding each claim in the Complaint
**whatever’s not denied is admitted (Silent = an Admission)
= MUST serve Answer to other party within 21 days of date Complaint was served
Amendment as of Right
= party has right to amend its original Pleading WITHIN 21 DAYS** since serving the it (**do NOT need Court’s permission to do so)
**can only Amend as of Right ONE time
Amendment by Leave of Court
= if still within 21 DAYS since serving the original Pleading, you DO need Court’s permission for Leave to Amend – **Court will grant “when justice so requires” (Court usually says it’s ok)
Relation Back
(re: Claim / Defense)
*this is when a party wants its Amended Pleading (wherein it amended Claim or Defense) to “RELATE BACK” to have the DATE of the Original Pleading…
= an Amended Pleading “relates back” IF → the amended Claim or Defense “arose out of the same conduct, transaction, or occurrence”
*usually a concern re: Statute of Limitation
Relation Back
(re: Parties)
*this is when a party wants its Amended Pleading (wherein it added parties) to “RELATE BACK” to have the DATE of the Original Pleading…
= an Amended Pleading “relates back” IF the added party:
- “arose out of the same conduct, transaction, or occurrence” (i.e., was involved in what happened)
- knew OR should have known that the action would be brought BUT FOR a mistake in the party’s ID; AND
- received Notice within 90 DAYS of filing (so party wouldn’t be prejudiced)
Rule 11
= when an Attorney signs a document for Court, it means → there is a basis for the Claim to the best of his “knowledge, information, and belief” and that…
- their Arguments are “warranted by existing law”
- their Allegations have “evidentiary support” AND
- they’re NOT for an “improper purpose”
Counterclaim
= when D raises a Claim back at the P who’s suing him
*TWO types: (1) Compulsory Counterclaim (2) Permissive Counterclaim
Compulsory Counterclaim
Compulsory Counterclaim = a Claim that arises out of same transaction or occurrence as original Claim
*the Court will already have Supplemental Jurisdiction over a Compulsory Counterclaim → don’t need to establish JX over this Claim
Permissive Counterclaim
Permissive Counterclaim = a Claim that does NOT arise out of same transaction or occurrence as original Claim
*MUST establish an independent basis for Court’s JX over this Claim
Permissive Joinder
= MULTIPLE Plaintiffs can join together in lawsuit IF:
- Plaintiffs’ claims arise out of same transaction or occurrence; AND
- claims have common Question of Law OR Fact
= Plaintiffs have option to join together MULTIPLE Defendants in lawsuit IF: (*SAME ELEMENTS^)
- Plaintiffs’ claims arise out of same transaction or occurrence; AND
- claims have common Question of Law OR Fact
Compulsory Joinder
(and the types?)
= when a Party NEEDS TO BE JOINED b/c would be unfair to litigate w/o them - there are TWO types of Compulsory Joinder:
1) Necessary Party = a party who, if left out, would suffer “impair interest”
*if cannot join that party due to JX → Case MAY STILL PROCEED
2) Indispensable Party = a party who, if left out, would be “prejudiced”
*if cannot join that party due to JX → Case must be DISMISSED
How many Claims can a party join?
= a party can join as many Claims as it wants → so long as each Claim has SMJ!
Certification of a Class for a Class Action
requirements for certifying a Class:
- Size – must be so large that would be impractical to join individual claims together
- Common Question – the Question of Law/Fact is common b/t all P’s
- Typical – the claim of the Class’ Representatives is typical for all the other Class members
- Representation / Conflict – that Class’ Reps will fairly & accurately represent the Class’ interests → Reps don’t have any conflicts of interest
Types of Class Actions
Types of Class Actions:
- B1 Class Action = where it would impair the interests of the class members if you don’t have it
- B2 Class Action = where class members want injunctive relief – not $ damages
- *B3 Class Action* = where class members have a Common Question (e.g., mass tort suits)
^ B3 is the BEST method for Class Action
Can members of a Class Action opt out?
= if B1 ORB2 → Class members may NOT opt out
= if B3 → Class members MAY opt out
When is notice to all members of a Class Action required?
= if B1 ORB2 → notice to members NOT required – Court has discretion
= if B3 → notice to ALL members IS required
**CAN provide noticevia Mail to anyone whose info you can get by “reasonable effort”
For a Class Action based on Diversity JX…
how is diversity of citizenship determined?
and how is Amt. in Controv. satisfied?
if a Class Action is based on a Diversity claim,
- Citizenship will be based on named Rep’s Citizenship
- EITHER at least ONE named member has claim >$75kORsum of claims must be >$5 million
Intervening as of Right
someone who wasn’t originally a Party to a Suit can intervene WITHOUT Court’s permission IF…
- Intervenor has an interest in the property / transaction, AND
- not being involved would impair Intervenor’s interest
Permissive Intervention
someone who wasn’t originally a Party to a Suit can intervene WITH the Court’s permission IF…
- Court gives permission, AND
- Intervenor has a Claim or Defense with a Common Question of Law/Fact to the Suit
Interpleader
(and what are the types?)
= when ONE Party owes something to TWO or MORE people → the Party can force the TWO+ people to figure out amongst themselves how much the Party owes
TWO Types of Interpleader:
- Statutory Interpleader
- Rule Interpleader
Statutory Interpleader
Statutory Interpleader
- nationwide service of process is allowed (can serve ANYWHERE in US)
- to establish JX, at least TWO Claimants must be Diverse
- at least $500 must be at stake
- the Party that owns the claimed property starts the Suit and EITHER:
- deposits the money / property with the Court, OR
- posts a bond
Rule Interpleader
Rule Interpleader
- NO nationwide service of process is allowed
- to establish JX, must have COMPLETE Diversity b/t Claimant & ALL opponents
- at least $75k must be at stake
- NOT required to deposit money with Court
Impleader
= when a DEFENDANT brings in a 3rd Party to be a 3rd Party Defendant b/c the 3rd Party owes the Defendant part OR all of a Claim
Look for, e.g., contribution / indemnification
Crossclaim
= for a Party to sue a Co-Party, his Crossclaim must be from the same transaction or occurrence AND one co-party must be asking for actual damages
E.g., P suing another P, D suing another D
What info is Discoverable?
Information is Discoverable IF it’s…
- NOT privileged,
- Relevant, AND
- “proportional to needs of the case”
Work Product
Work Product = any documents prepared by Attorney (and Attorney’s legal assistants) in anticipation of trial
→ generally is IMMUNE from Discovery
EXCEPTION: Work Product IS Discoverable IF…
1) it does NOT include Attorney’s mental impressions, conclusions, or legal opinions / theories,
2) there’s a Substantial Need for the documents, AND
3) cannot obtain the info without Undue Hardship by any substantially equivalent means
*So, there is an ABSOLUTE IMMUNITY for Attorney’s mental impressions, conclusions, or legal opinions / theories
Are Witnesses discoverable?
→ the NAMES and LOCATIONS of all people who could be called as Witnesses ARE discoverable
Are Experts discoverable?
…if Expert will be TESTIFYING → must provide list identifying Expert(s) AND Expert must prepare a report of her expert opinions, data, exhibits she will use, and her compensation
…if Expert will NOT be Testifying → only discoverable in “exceptional circumstances” that make it impractical to obtain that info by other means
Duty to Supplement
= parties have duty to supplement incomplete or wrong info in a timely manner
Depositions
- can be written / oral
- can depose a Party automatically - if Party refuses, can get sanctions
- can depose a NON-Party by subpoenaing him
- can ONLY depose a person ONE Time – after that, NEED Court’s permission
- each side can do MAXIMUM of 10 Depositions
Interrogatories
- ONLY to a Party
- must be WRITTEN - and answered in writing
- Each Party gets MAXIMUM of 25 interrogatories
Request to Admit
= written request asking other Party to admit certain facts → if they DO admit, then that fact is conclusively established for Trial
Request to Produce
= can ask other Party for documents in its possession, control, or custody
Physical / Mental Exam
= can make other Party submit to a physical / mental exam IF…
- the physical / mental condition of a Party is at issue
- obtain a Court order, AND
- show good cause
Object to a Request
= Party can object to other Party’s request IF the info it seeks is not relevant
Protective Order
= Court ordering Discovery to STOP b/c of…
- embarrassment
- harassment, OR
- undue burden
Order to Compel
= Court ordering a Party that he MUST comply with Discovery requests
Sanctions
= Court MAY order sanctions IF a Party has acted unreasonably
→ start with minimal sanctions of fees / costs, and work up to larger sanctions
Is discoverable info admissible or inadmissible at trial?
= discoverable info IS admissible at trial
Conference of Parties
- Court MUST have conference
- Parties MUT submit a Discovery plan
Scheduling Conference
- Court MUST have conference to limit time
- Court MUST also issue a SCHEDULING ORDER within 90 DAYS of filing Complaint
- *the Scheduling Order CANNOT be modified UNLESS “Good Cause”
Final Pre-Trial Conference
- Court MAY hold a Final Pre-Trial Conference → it formulates a plan for the Trial
- IF there is a Conference, Court MUST issue a Pretrial Order
- *Pretrial Order can ONLY be modified to prevent “manifest injustice”
- IF there is a Conference, Court MUST issue a Pretrial Order
Temporary Restraining Order vs. Preliminary Injunction
-
Temporary Restraining Order
- Court issues to prevent IMMEDIATE IRREPARABLE HARM
- can be issued with NO Notice to other Party
- EXPIRES at time stated in order – MAX of 14 Days
-
Preliminary Injunction
- Court issues to prevent IRREPARABLE HARM
- must have Notice & Hearing involving other Party
- Can last for longer than 14 Days
