Pretrial procedures Flashcards
Complaint
filed with the court with a summons; ct of clerk signs a summons and served to other party
filing of complaint
commences action for sol purposes
service must be
within 90 days of filing
elements of complaint
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
complaint may need to be pled with specificity if
fraud, special damages
other side will
answer
a d may
deny everything, admit, etc.
if you do not deny, you admit
answer must be served within
21 days of service of process
affirmative defenses
have to be explicitly pled in the answer
examples of affirmative defenses
contributory negligence, sof, sol. illegality, durress
amend pleadings
courts are liberal with amending pleadings
can amend once
as of right, so long as its within 21 days after service of original pleading
leave of court
not within 21 days. courts will allow it if justice so requires
relation back
amended pleadings can relate back to date of original pleadings
if amending claim or defense
it will relate back if it arose out of same conduct, transaction or occurrence
relation back with a party
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
rule 11
lawyer signs a doc and is going to submit it to court; to best knowledge, info and belief is true
for rule 11, legal arguments are
warranted by existing law, evidentiary support or no improper
Counterclaim
d back against P–
compulsory counterclaim
arises from same t/o
court will already have supplemental jdx
permissive counterclaim
defendant brings counterclaim not from same t/o; it needs its own independent jurisdiction
permissive joinder
bunch of ps join together when
1) same t/o
2) question of law or fact is common
compulsory joinder
must be joined or it would be unfair to litigate without them
necessary party
necessary because complete relief could not be granted and would impair their interest
if you cannot join a necessary party,
case may continue without them
indispensable party
if you do not join them, it would prejudice them.
if you cannot join an indispensable party,
the case will be dismissed
parties can join as many claims as they wish so long as
they have subject matter jurisdiction
class action reqs (4)
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
b1 class action lawsuit
impairment of the interests of the class members
b2 class action lawsuit
injunctive relief is sought
b3 common question among all members
large tort claims (superior method)
in b1 and b2, class members
may not opt out
b3 members
may opt out
notice to all members of b1 and b2
are discretionary
b3
all members must receive notice
can notice be obtained by mail?
yes if getting info by reasonable efforts
if a class action is based on a diversity claim
citizenship of representative that counts
if one named member has a case themselves that meets 75k
all the other members will be okay for diversity purposes
exception
as long as there are 5 million or more at stake, it will be okay, even if not one has a claim over 75
court will decide if a case will be
certied
could there be a subclass?
ct. to certify, but they can
if there is a denial of certification
it may be appealled
any settlement in a class action
must be approved by the court; reasonable attorney fees and statement of agreement
intervention
party wants to join the suit even though they were not involved in the first place
intervention as of right
if you have an interest in property or subject matter of the suit and it will impede their ability to protect their interests
permissive intervention
claim or defense that has a common question of law or fact and court must decide to allow them
interpleader
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
two kinds of interpleader
statutory interpleader
statutory interpleader
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
rule interpleader
complete diversity is required, no nationwide service, 75k requirement, no requirement to deposit the money in the court
3d party impleader
a defendant believes he is owed money for party or all of the claim and brings in another defendant (contribution or indemnification)
cross-claims
one party against a co-party (same t/o and asking for actual damages)
discovery
matter is not privileged, relevant and proportional to the needs of the case
can something be immune from discovery?
yes. work product– docs prepared in anticipation of trial
work product will be protected unless
substantial need and cannot obtain without undue hardship and other substantially equivalent means
absolute immunity for
mental impression, legal theories, opinions, conclusions
witnesses
names and locations are discoverable
docs witnesses and what they are gonna use
must be given
expert witness
data, report, compensation
experts not to be used at trial
only discoverable if exceptional circumstances
duty to supplement information
if what you supplied is incomplete or wrong
methods of discovery
between party w/o court intervention
deposition
between party and non party/written oral
nonparty depo
subpoena
party depo
limit to 10 and cant depose more than once without court permission
interrogatory
only to party; written question; in writing; limit of 25
rfa
serves written request to admit certain truths or fact and it is conclusively established
rfp
papers, photos, in possession control or custody
physical or mental exam
when condition of party is in controvery, but need court order and show good cause
what if people are using discovery bad?
can get order or sanctions for failure to comply
if using to harrass
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
sanctions
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
discovery info at trial
yes and to impeach
pretrial conferences or orders
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
tro vs preliminary injunction
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
parties can join as many claims as they wish so long as
they have subject matter jurisdiction
parties can join as many claims as they wish so long as
they have subject matter jurisdiction
parties can join as many claims as they wish so long as
they have subject matter jurisdiction
parties can join as many claims as they wish so long as
they have subject matter jurisdiction
parties can join as many claims as they wish so long as
they have subject matter jurisdiction
parties can join as many claims as they wish so long as
they have subject matter jurisdiction
parties can join as many claims as they wish so long as
they have subject matter jurisdiction
parties can join as many claims as they wish so long as
they have subject matter jurisdiction
parties can join as many claims as they wish so long as
they have subject matter jurisdiction
parties can join as many claims as they wish so long as
they have subject matter jurisdiction
parties can join as many claims as they wish so long as
they have subject matter jurisdiction
parties can join as many claims as they wish so long as
they have subject matter jurisdiction
parties can join as many claims as they wish so long as
they have subject matter jurisdiction
