PRETRIAL PROCEDURES Flashcards
Complaint: what to know
- Is filed with the court with a summons (The filing of the complaint begins the stt of lims)
- Then it is served to the other party (Service must be within 90 days)
Elements of a Complaint
1) Statement of Jurisdiction;
2) Statement of Facts (not theory); and
3) Demand for Relief
Specific Complaint: (times the claim needs to be more specific: (pled with specificity))
- Fraud
- Special dmgs
Answer: what to know
1) Signed by lawyer;
2) Must Deny or Admit; (whatever is not denied is admitted); and
3) Must be filed after the complaint is served, within 21 days
What else can be included in the Answer?
Affirmative Defenses can be explicitly pled in the Answer
What are some Affirmative Defenses pled in the Answer?
- Contributory Negligence
- Statute of Frauds
- Statute of Limitations
- Illegality
- Duress
How are courts with Amendments?
Cts are very lenient with amendments
Amending the Pleadings: options
- Amendment as of Right
- Amendment by Leave of Court
Amendment As of Right: what to know
- does not need court permission
- MUST be filed 21 days after service of the OG pleading
Amendment by Leave of the Court
- Must be after the 21 day deadline of the OG pleading
- Need ct’s permission
- not hard to get, ‘when justice so requires’
Relation Back: (amending a claim or defense in the document)
Sometimes the amended pleadings can related back to the date of the original pleading
amendment will relate back if: it arose out of the same conduct, transaction, or occurrence
“Arose out of the same conduct, transaction, or occurrence”
Relation Back for PARTIES: (Changing/Amending Parties)
Elements
- Arose out of the same conduct, transaction, or occurrence,
- Within 90 days of filing the complaint, the party that is going to be brought in received enough notice so that they would not be prejudiced, and
- If the new party knew or should have known that the action should have been brough were it not for a mistake in the party’s i.d. (facts will tell you)
Definition – Rule 11
- Statement that what the lawyer is filing is true
- To the best of their knowledge, information, and belief, there is a basis for what they are saying
- That their legal arguments are ‘warranted by existing law’
- ‘Allegations have evidentiary support’
- Not being presented for ‘improper purpose’
Counterclaim
- Defendant raises a claim back at the Plaintiff. There are two kinds, Compulsory and Permissive
Compulsory Counterclaim:
1) Same transaction or occurrence of the OG claim
AND
2) ct already has Supplemental jurisdiction
Permissive Counterclaim:
- Not out of the same transaction or occurrence
AND - Needs its own independent juris to be established (find it in the facts) no new juris = no permissive cc
Permissive Joinder:
multiple P can join together if:
1) their claims come from a Single transaction or occurrence
AND
2) there is a Common questions of law/fact
Multiple Ps can join multiple Ds if:
1. the claim meets all the elements as above
AND
2. all Ps agree
Compulsory Joinder
- Party MUST be joined if:
It would be unfair to litigate without them
What kinds of joinder are there?
Compulsory and Permissive
What is joinder?
Joining multiple parties together on one claim
What kinds of parties are in Compulsory Joinder?
- Necessary parties
OR - Indispensable Party
Necessary Party: what to know
- Need to be joined
- Complete relief could not be afforded without having them join the action
- Because leaving them out would ‘impair their interests’
- If joining them would ruin or eliminate the jurisdiction > case can still move forward
Indispensable party, what to know:
- party would be unfairly prejudiced if not joined to the action
- If cannot join due to jurisdiction
Case must be DISMISSED
- If cannot join due to jurisdiction
Class certification requirements
- Size
^Case must be so large that joining all the little claims would be impossible- Common question of law or fact
- Typicality
^The claim of the representatives must be typical of the whole class - Fair representation
^Are the representatives really fairly protecting the interests of the class?
what are the 3 types of class actions?
- B1 = Impairment of Interests
- B2 = Injunctive Relief
- B3 = Common Question (the superior method
What are the things you need to know to distinguish class action lawsuits?
- what they mean,
- whether or not members can opt out
- notice requirements
Opting out for class actions
- B1 & B2 = Members MAY NOT OPT OUT
vs. - B3 = Member MAY OPT OUT
Notice requirements for class actions
Notice & Class Actions:
* B1 & B2 = Notice NOT required, in discretion
of Court
vs.
* B3 = Notice to ALL members (ie anyone whose contact information can be obtained by reasonable methods) - can send by mail
What is a B1 class action?
- there is going to be an impairment of the interests of the class members if you don’t have the action
B1 = impairment of interests of the class
What is a B2 class action?
- Injunctive relief
- Class wants an injunction
What is a class B3 action?
this is the most common
- large mass tort claims
- we are always looking for common question
how does diversity in class actions work?
- citizenship of the names representatives must be diverse
AND - one member must meet 75k+ OR the sum of the claims is 5mil
Appealability of class actions
if a certification of class is denied then it may be appealed
Intervention def:
when a part wants to join a suit even though on their own they weren’t involved in the first place
- someone wants to come in on their own
what kinds of intervention are there?
permissive intervention and intervention as of right
Intervention as a right
1) party has Interest in property/transaction AND
2) Interest is impaired
3) then NO Court permission required
Permissive intervention
1) Claim/defense has common question of law/fact
2) Court permission IS required (ie ct must decide whether to allow them to join)
What is interpleader?
interpleader is when 1 party owes something to 2 or more people
(ie: 1 party owes an amount of money to 2 or more people, the oweing party can force the others to fight it out amongst themselves
how many kinds of interpleader are there?
2, statutory interpleader and rule interpleader
what is statutory interpleader?
sttry interpleader occurs when 1 person owes property that may be claimed by 2 or more parties
what are the requirements for statutory interpleader?
- Nationwide service of process is allowed (person can be served no matter where they live)
2. As long as any 2 claimants are diverse > juris is ok
3. only 500$ needs to be at stake - The person that owns the prop starts the suit, and puts the property or deposits the money with the court or posts a bond
What are rule interpleader requirements?
- complete diversity is required
- no nationwide service
- 75k+ req.
- no requirement to deposit money in the court
What is impleader?
adding a 3rd party defendant who owes part or all of a claim
○ A D believes someone owes them money for part or all of the claim, then D can implead that person as a 3rd party D
This can go for a D who is insured by a3rd party for the claim (indemnification
what are cross claims?
when 1 party sues a coparty
cross claim requirements
- has to be based out of the same original transaction or occurrence
- party must be asking for actual relief (dmgs) from the other co-party
Discovery- what information is discoverable?
info that is:
1. not privileged
2. relevant
and
3. proportional to the needs of the case
What is work product?
anything prepared in anticipation of litigation by a lawyer or a lawyer’s assistant UNLESS
there is a substantial need for the material and one cannot, without undue burden/hardship, obtain the information by other substantially equivalent means
is work produt discoverable?
no, generally work product is not discoverable
what things have absolute immunity from discovery?
*Mental impressions
*Conclusions
*Legal opinions/theories
what are the rules for experts and discovery?
the rules depend on whether the expert is testifying or not
What is discoverable when the expert is testifying?
- MUST provide the other side with a list identifying each expert AND
- expert themselves must prepare a report including all the info they will be testifying to
What is discoverable/must be provided when the expert is NOT testifying
- info is discoverable only in ‘exceptional circumstances’ and
- it would be impractical to gain that information any other way
Duty to supplement discolsures
parties have a duty to supplement any information that is incomplete or incorrect in a timely manner
What are the methods of discovery?
- deposition
- interrogatories
- requests for admission
- request to produce documents
- physical or mental exams
Depositions
- can be written or oral
- each side has 10
- can be between a party of a non-party (you can use a subpoena to compel a non-party to a deposition)
- a single person cannot be deposed more than once without leave from the court
- depos take a day
interrogatories
- can only be posed between parties not non-parties
- these are written qs answered in writing
- ## there is a limit of 25
Request for admission
- 1 party serves another party with a written request
- to admit certain truths
- once admitted, is conclusively established at trial
Request to produce
request from 1 party to another for the production of documents, papers, photos, that may be required that are in the other party’s control
Physical/mental exam
you can request a physical or mental exam when:
1. the physical state or mental state of the person must be at issue
2. you need a court order
3. must show good cause
Is there a need for ct involvement for discovery requests?
no, generally this is something that the parties take care of themselves.
however, a party can get orders and sanctions if a party is not complying with discovery rules
a party is harassing another party using discovery, what can the harassed party do?
three things potentially:
1. object to a request
2. protective order
3. order to compel
Object to request
this is an objection to the request of discovery because it is not relevant to
protective order
can go to the court to get a protective order when:
- the other party is coming after you to cause:
1. embarrassment
2. create an undue burden
3. or to harass
court order to compel
ct can order a party to compel is a party is not complying with discovery
what is the rule for discovery and admissibility at trial?
discoverable information is admissible at trial
Pre trial conferences and orders
- conference of parties
- scheduling conference
- final pre-trial conference
conference of the parties
1) Court MUST have conference and discuss the case, settlement, etc.
and
2) Parties MUST submit Discovery plan
Scheduling conference
1) Court MUST have conference to limit time
2) Must issue SCHEDULING ORDER within 90
days of filing complaint
3) CANNOT be modified unless “Good Cause”
Final pretrial conference
1) Court MAY hold conference
2) IF there is a conference, Court MUST issue
Pretrial Order
3) ONLY modified to prevent
“Manifest Injustice”
what are two civil sanctions which can be awarded?
- temporary restraining orders
and - preliminary injunctions
temporary restraining order
1) No notice or hearing to other party required
2) requested to prevent IMMEDIATE IRREPARABLE HARM
3) Expires in no more than 14 days (any longer = prelim injunction)
preliminary injunction
1) Notice & Hearing required
2) trying to prevent IRREPARABLE HARM
