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”
