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MBE Civ Pro > Pretrial procedures > Flashcards

Pretrial procedures Flashcards

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1
Q

Complaint

A

filed with the court with a summons; ct of clerk signs a summons and served to other party

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2
Q

filing of complaint

A

commences action for sol purposes

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3
Q

service must be

A

within 90 days of filing

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4
Q

elements of complaint

A

1) short and plain statement with the grounds of jdx

2) statement of the claim (summary of the facts)

3) Some sort of demand for relief/ damages

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5
Q

complaint may need to be pled with specificity if

A

fraud, special damages

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6
Q

other side will

A

answer

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7
Q

a d may

A

deny everything, admit, etc.

if you do not deny, you admit

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8
Q

answer must be served within

A

21 days of service of process

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9
Q

affirmative defenses

A

have to be explicitly pled in the answer

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10
Q

examples of affirmative defenses

A

contributory negligence, sof, sol. illegality, durress

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11
Q

amend pleadings

A

courts are liberal with amending pleadings

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12
Q

can amend once

A

as of right, so long as its within 21 days after service of original pleading

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13
Q

leave of court

A

not within 21 days. courts will allow it if justice so requires

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14
Q

relation back

A

amended pleadings can relate back to date of original pleadings

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15
Q

if amending claim or defense

A

it will relate back if it arose out of same conduct, transaction or occurrence

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16
Q

relation back with a party

A

1) same t/o
2) within 90 days of filing complaint received enough notice that they would not be prejudice
3) new party knew or should have known they would be brought in, but for a mistake of ID

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17
Q

rule 11

A

lawyer signs a doc and is going to submit it to court; to best knowledge, info and belief is true

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18
Q

for rule 11, legal arguments are

A

warranted by existing law, evidentiary support or no improper

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19
Q

Counterclaim

A

d back against P–

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20
Q

compulsory counterclaim

A

arises from same t/o

court will already have supplemental jdx

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21
Q

permissive counterclaim

A

defendant brings counterclaim not from same t/o; it needs its own independent jurisdiction

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22
Q

permissive joinder

A

bunch of ps join together when
1) same t/o
2) question of law or fact is common

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23
Q

compulsory joinder

A

must be joined or it would be unfair to litigate without them

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24
Q

necessary party

A

necessary because complete relief could not be granted and would impair their interest

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25
Q

if you cannot join a necessary party,

A

case may continue without them

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26
Q

indispensable party

A

if you do not join them, it would prejudice them.

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27
Q

if you cannot join an indispensable party,

A

the case will be dismissed

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28
Q

parties can join as many claims as they wish so long as

A

they have subject matter jurisdiction

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29
Q

class action reqs (4)

A

1) size– so large that joining little claims would be impractical

2) common question of law or fact

3) typicality- claim of representative must be typical of the class

4) fair representation- representative will fairly and adequately represent the interests of the class

if meet this, it can be certified

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30
Q

b1 class action lawsuit

A

impairment of the interests of the class members

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31
Q

b2 class action lawsuit

A

injunctive relief is sought

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32
Q

b3 common question among all members

A

large tort claims (superior method)

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33
Q

in b1 and b2, class members

A

may not opt out

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34
Q

b3 members

A

may opt out

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35
Q

notice to all members of b1 and b2

A

are discretionary

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36
Q

b3

A

all members must receive notice

37
Q

can notice be obtained by mail?

A

yes if getting info by reasonable efforts

38
Q

if a class action is based on a diversity claim

A

citizenship of representative that counts

39
Q

if one named member has a case themselves that meets 75k

A

all the other members will be okay for diversity purposes

40
Q

exception

A

as long as there are 5 million or more at stake, it will be okay, even if not one has a claim over 75

41
Q

court will decide if a case will be

A

certied

42
Q

could there be a subclass?

A

ct. to certify, but they can

43
Q

if there is a denial of certification

A

it may be appealled

44
Q

any settlement in a class action

A

must be approved by the court; reasonable attorney fees and statement of agreement

45
Q

intervention

A

party wants to join the suit even though they were not involved in the first place

46
Q

intervention as of right

A

if you have an interest in property or subject matter of the suit and it will impede their ability to protect their interests

47
Q

permissive intervention

A

claim or defense that has a common question of law or fact and court must decide to allow them

48
Q

interpleader

A

one party– i owe something to two or more people, but i do not know who so i force people to figure it out among themselves

49
Q

two kinds of interpleader

A

statutory interpleader

50
Q

statutory interpleader

A

1) nationwide service of process is allowed
2) as long as any two claimants are diverse is okay and only 500 dollars needs to be at stake
3) person deposits with court or posts a bond

51
Q

rule interpleader

A

complete diversity is required, no nationwide service, 75k requirement, no requirement to deposit the money in the court

52
Q

3d party impleader

A

a defendant believes he is owed money for party or all of the claim and brings in another defendant (contribution or indemnification)

53
Q

cross-claims

A

one party against a co-party (same t/o and asking for actual damages)

54
Q

discovery

A

matter is not privileged, relevant and proportional to the needs of the case

55
Q

can something be immune from discovery?

A

yes. work product– docs prepared in anticipation of trial

56
Q

work product will be protected unless

A

substantial need and cannot obtain without undue hardship and other substantially equivalent means

57
Q

absolute immunity for

A

mental impression, legal theories, opinions, conclusions

58
Q

witnesses

A

names and locations are discoverable

59
Q

docs witnesses and what they are gonna use

A

must be given

60
Q

expert witness

A

data, report, compensation

61
Q

experts not to be used at trial

A

only discoverable if exceptional circumstances

62
Q

duty to supplement information

A

if what you supplied is incomplete or wrong

63
Q

methods of discovery

A

between party w/o court intervention

64
Q

deposition

A

between party and non party/written oral

65
Q

nonparty depo

A

subpoena

66
Q

party depo

A

limit to 10 and cant depose more than once without court permission

67
Q

interrogatory

A

only to party; written question; in writing; limit of 25

68
Q

rfa

A

serves written request to admit certain truths or fact and it is conclusively established

69
Q

rfp

A

papers, photos, in possession control or custody

70
Q

physical or mental exam

A

when condition of party is in controvery, but need court order and show good cause

71
Q

what if people are using discovery bad?

A

can get order or sanctions for failure to comply

72
Q

if using to harrass

A

1) object to request of discovery because it is not relevant

2) protective order- you think someone is going after you for undue burden or embarrass you

3) compel discovery- one party refuses to comply

73
Q

sanctions

A

court may order sanctions and you start low

get fees and costs, but certain facts can be established, bar certain offenses, dismiss, and hold in contempt

74
Q

discovery info at trial

A

yes and to impeach

75
Q

pretrial conferences or orders

A

1) conference of the parties- parties must meet to talk about case and settlement and submit a discovery plan to the court

2) scheduling conference- court must hold a scheduling conference limiting time for motions and within 90 days of complaint

3) FINAL pretrial conference- schedule to expedite and settle; court must submit an order and modifiable only to prevent manifest injustice

76
Q

tro vs preliminary injunction

A

tro- without notice of other party (trying to prevent immediate irreparable harm)– expires at time in order, but cannot be longer than 14 days

preliminary injunction- longer than 14 days and need notice and hearing

76
Q

parties can join as many claims as they wish so long as

A

they have subject matter jurisdiction

77
Q

parties can join as many claims as they wish so long as

A

they have subject matter jurisdiction

78
Q

parties can join as many claims as they wish so long as

A

they have subject matter jurisdiction

79
Q

parties can join as many claims as they wish so long as

A

they have subject matter jurisdiction

80
Q

parties can join as many claims as they wish so long as

A

they have subject matter jurisdiction

81
Q

parties can join as many claims as they wish so long as

A

they have subject matter jurisdiction

82
Q

parties can join as many claims as they wish so long as

A

they have subject matter jurisdiction

83
Q

parties can join as many claims as they wish so long as

A

they have subject matter jurisdiction

84
Q

parties can join as many claims as they wish so long as

A

they have subject matter jurisdiction

85
Q

parties can join as many claims as they wish so long as

A

they have subject matter jurisdiction

86
Q

parties can join as many claims as they wish so long as

A

they have subject matter jurisdiction

87
Q

parties can join as many claims as they wish so long as

A

they have subject matter jurisdiction

88
Q

parties can join as many claims as they wish so long as

A

they have subject matter jurisdiction

MBE Civ Pro (6 decks)

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