Pretrial Procedures

Question 1

Which 3 elements are required to grant a temporary restraining order WITHOUT notice to the adverse party?

Answer 1

A TRO may be granted WITHOUT advance notice to the adverse party IF:

1. there is an immediate risk;
2. giving notice is impractical; AND
3. the moving party provides security to pay for the costs if the TRO was wrongful

TIP: a TRO lasts only until court holds a hearing

Question 2

How long does a TRO remain in effect?

Answer 2

-lasts until court holds a hearing

-may NOT exceed 14 days unless court finds good cause for an extension

Question 3

What are the five required components of a federal complaint?

Answer 3

Complaint filed in fed court must contain:

1. name of parties
2. “short and plain statement” of the factual basis underlying the plaintiff’s claim entitling them to relief;
3. demand for the relief the π seeks
4. signature of π’s attorney or plaintiff if unrepresented
5. grounds that establish the court’s SMJ

Question 4

What is the rule for when a pleading may be amended?

Answer 4

A party has an absolute right to amend the pleading ONE time w/in 21 days of service of any pleading

After 21 days, parties may only amend pleadings by written consent or leave of the court which shall be freely given where justice so requires

Question 5

What are 2 ways a new claim or defense may “relate back” to the date of a timely-filed pleading?

Answer 5

A new claim or defense will “relate back” to the date of the OG pleading when:

1. the stat of limitations permits relation back; OR
2. the new claim/defense derives from the same transaction, conduct, or occurrence that was described in the timely-filed claim

Question 6

What are the TIMING and NOTICE requirements when adding or changing a party’s name to relate back to the date of a timely-filed complaint?

Answer 6

An amendment adding or changing the name of a party will relate back IF, w/in 90 days of the filing, the new party:

1. received notice of the COA against them such that they will not suffer prejudice in the merits of their defense; AND
2. knew or should have known they would have been sued but for the mistake as to the name

TIP: the claim against the newly added or changed party must involve the same transaction or occurrence as the timely-filed claim

Question 7

Which 4 certifications does an attorney make when presenting a pleading or motion in federal civil court?

Answer 7

An attorney who presents any paper to the court certifies that:

1. there is no improper purpose (i.e., harassment, unnecessary delay)
2. any claim, defense, or contention is either warranted by existing law or a non-frivolous argument for the modification, extension, or reversal of existing law;
3. all allegations have, or are likely to have, evidentiary support “after a reasonable opportunity for further investigation or discovery” AND
4. any denials of factual allegations “are warranted on the evidence” or reasonably based on a belief or lack of information

Question 8

What is the rule for the NUMBER and TYPES of claims a plaintiff may join against a defendant?

Answer 8

A plaintiff may join as many claims as they have against an opposing party, whether they are legal or equitable, regardless of whether there is any connection between those claims

Question 9

What are the two requirements for a plaintiff to permissively join other plaintiffs

Answer 9

The plaintiff may join other plaintiffs IF:

1. they assert any right to relief jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences AND
2. any question of law or fact common to all plaintiffs will arise in the action

Question 10

What is a counterclaim?

Answer 10

A responsive COA (an offensive claim) made by a DEFENDANT against a plaintiff (between opposing parties in the OG action) in a civil suit

TIP: a counterclaim is not a defense, answer, or denial, but an independent COA made to diminish or defeat the π’s claim

Question 11

What is the difference between “permissive and “compulsory” counterclaim?

Answer 11

PERMISSIVE: does NOT arise out of the subject matter of the claim against the defendant (i.e., not the same transaction or occurrence)

COMPULSORY: DOES arise out of the subject matter of the claim against the defendant (out of sam T&O)

Question 12

What is the consequence of failing to include a counterclaim in an answer?

Answer 12

-a compulsory counterclaim will be barred if not pleaded in the answer

-a permissive counterclaim may be pleaded in the answer or in a separate action

Question 13

What is “impleader”?

Answer 13

Allows the ∆ to join a 3rd party defendant who may be liable to the defendant for part or all of the ∆’s liability toward the plaintiff and thereby determine all liabilities in a single action

TIP: the ∆ may implead to seek indemnification, subrogation, or contribution

Question 14

What is “interpleader”?

Answer 14

An equitable proceedings that enables a person holding money or property to compel the claimants to litigate the matter among themselves forcing all potential claimants into a single action to a void multiple and potentially inconsistent lawsuits.

If the possessor doesn’t know who the rightful owner is and is sued to expects to be sued, the possessor may seek an order to “interplay” (i.e., have the plaintiffs try their claims among themselves to determine who is entitled to the property

TIP: two types of interpleader - statutory and Rule 22

Question 15

What is the difference between “rule” and “statutory” interpleader?

Answer 15

Rule Interpleader: implicates the usual diversity requirement sin fed court (diverse and AIC > 75k)

Statutory Interpleader: requires only $500 in controversy and minimal diversity (only one claimant must be diverse from one other claimant)

Question 16

What are the 4 requirements for certifying a class action?

Answer 16

REMEMBER –> you “CANT” certify a class without asking these 4 questions

Certification Requires:

C - commonality (common questions of law or fact exist)

A - adequacy of representation (the π will adequately represent the class interests)

N - numerosity (the class members are so numerous, usually more than 40, that it would be impracticable to join them all as plaintiffs) AND

T - typicality (the plaintiff’s claims or defenses are typical of class members)

Question 17

If a class action based on a common question seeks damages as a remedy which two showings are necessary?

Answer 17

When a class action is seeking damages based on common questions of law or fact:

1. common issues of law or fact must PREDOMINATE over those affecting individual members; AND
2. a class action must be a SUPERIOR method of adjudicating the claims

TIP: factors in this analysis include: individual members’ interests, other litigation in progress about the same controversy, whether the forum is desirable for consolidation, and difficulties in managing the class

Question 18

When is material considered “discoverable”?

Answer 18

To be “discoverable,” the material must be relevant (i.e., any information that might either disprove or prove issues raised by the pleadings)

TIP: material must be discoverable by proper method and scope, meaning non-privileged and no undue burden or expense in obtaining it

Question 19

What are the 4 initial mandatory disclosures in pretrial discovery?

Answer 19

The disclosing party must initially provide:

1. identities of all potential witnesses;
2. documents that will be used
3. details about any claims for damages; AND
4. if applicable, information regarding insurance policies that might cover liability

TIP: other (non-initial) mandatory disclosures, such as full expert names and reports, must be made 90 days before trial and lay witnesses 30 days before trial

Question 20

What is a deposition?

Answer 20

A deposition is the sworn testimony of a witness taken before trial and out of court in response to oral examination or written interrogatories and recorded in writing for use in court

Notice of a deposition will compel a party to the suit, but non-parties must be subpoenaed

TIP: during questioning the adversary is given an opportunity to cross-examine the deponent

Question 21

What are the two requirements of requesting an order for a mental/physical examination?

Answer 21

1. a mention w/ a showing of good cause AND
2. a court order permitting the examination

Question 22

What are the presumptive limits on electronic discovery?

Answer 22

the party in possession of the electronically-stored data will NOT be required to produce

Question 23

What is the duty to supplement discovery disclosures?

Answer 23

All parties who have disclosed material “must supplement or correct” such disclosures in a timely manner” when they learn that any prior disclosure was somehow materially incomplete or incorrect and the opposing party is unaware, or if ordered by the court

TIP: if an expert witness is relying on a report, the party offering such evidence must also supplement any info contained in the report or a deposition

Question 24

Which six factors apply in determining the scope of discovery?

Answer 24

Examine:

1. importance of the issues at stake in the action
2. AIC
3. parties’ relative access to relevant info
4. parties’ resources
5. importance of the discovery in resolving the issues AND
6. whether the burden or expense of the proposed discovery outweighs its likely benefit

TIP: info falling w/in this scope does not need to be admissible as evidence in order to be discoverable

Question 25

What is “work-product” material?

Answer 25

“work-product” is a class of materials exempted from discovery, such as work done by an attorney in the process of representing their client (i.e., in preparation for litigation)

TIP: the adverse party may obtain discovery only upon as showing of substantial need of the materials in preparation of their case and that they are unable to obtain the substantial equivalent by other means without undue hardship

Question 26

Which 3 types of work-product are NEVER discoverable?

Answer 26

1. mental impressions
2. legal conclusions AND
3. trial strategy

Question 27

What is required to show that work-product material IS discoverable?

Answer 27

The party seeking discovery of the work-product material may show a substantial need and an inability, absent substantial hardship, to obtain equivalent info by other means

Question 28

HYPO:

If one party believes another party has failed to properly respond to a discovery request, what action should the party seeking the material take?

Answer 28

After certifying a good faith attempt to obtain the materials, the party seeking the info should move to compel discovery

Question 29

When may the court impose sanctions on a party who fails to obey an order compelling discovery?

Answer 29

The court will impose sanctions if the party seeking the materials establishes that the opposing party’s discovery response was inadequate and in violation of the court order

TIP: sanctions may include holding the noncomplying party in contempt, striking the pleadings, imposing fees, and/or ordering a default judgment

Question 30

HYPO:

If a party fails to obey an order compelling discovery, will the undisclosed material be admissible at trial?

Answer 30

NO - the party who failed to obey the discovery order will be prohibited from using the undisclosed evidence at trial, absent a showing of substantial justification

Question 31

When may a π permissively join other ∆’s

Answer 31

IF:

1. any right to relief asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence or series of transactions or occurrences AND
2. any question of law or fact common to all defendants will arise in the action

Question 32

What is the notice requirement for members of a class action based on a common question?

Answer 32

must be afforded “the best notice that is practicable under the circumstances, including individual notice to all members who can be ID’d through reasonable effort

Question 33

What disclosures are required regarding expert testimony and when?

Answer 33

Disclosures about expert testimony include:

1. the identity of the expert; AND
2. a report containing the expert’s qualifications

TIP: these disclosures are required at least 90 days before trial

Question 34

Is confidential information exchanged between an attorney and a client discoverable?

Answer 34

NO

Question 35

What is the timing requirement of mandatory initial disclosures?

Answer 35

initial disclosures must be made w/in 14 days of the parties’ initial meet and confer

Question 36

Mandatory Pretrial Discovery

Answer 36

Parties must make initial pretrial discovery of a list of potential non-expert witnesses, docs, or exhibits that may be used at trial, and details about claims for damages

TIP: If applicable, parties must also disclose insurance policies that may cover liability

Question 37

What type of material is considered attorney work product?

Answer 37

material prepared in anticipation of litigation
-generally not discoverable unless there is substantial need and the inability to obtain the info through other means

Question 38

What is a “request for admissions”

Answer 38

request that another party admit the truth of any discoverable matter

the purpose is to identify areas not in controversy

TIP: responding party has 30 days to respond

Question 39

What is “compulsory joinder” of non-parties (absentees)?

Answer 39

Arises when an additional party or parties must be joined and allows the court to force them to join.

Compulsory joinder is broken down into 2 types:

1. necessary parties - must be joined to lawsuit if possible; and
2. indispensable parties - who are so vital that if their joinder is impossible, the whole action must be dropped

TIP: if a party is not considered “indispensable” a separate analysis will apply to determine whether a party is considered “necessary”

Question 40

When is a party considered necessary?

Answer 40

A party is deemed “necessary” if:

1. the court cannot provide complete relief without the party
2. judgment w/out the necessary party will impair that party’s interest; OR
3. expose the existing parties to inconsistent or multiple obligations

Question 41

What are the jurisdictional requirements of joining a necessary party?

Answer 41

Will be joined if:

1. the court has PJ over the absent, necessary party AND
2. joining the absentee doesn’t destroy diversity

Question 42

What is an indispensable party A

Answer 42

if their presence is so essential to determining an adequate judgment that any verdict rendered in that party’s absence would be incomplete or unjust

TIP: when party is deemed indispensable and cannot be joined, the case MUST be dismissed

Question 43

When must a ∆ implead 3rd party ∆’s?

Answer 43

∆ has an absolute right to implead a 3rd party ∆ w/in 14 days after serving its OG answer

–> after 14 days the ∆ must get permission from the court

Question 44

What are the ways additional parties may be brought into a lawsuit?

Answer 44

By using:

1. impleader
2. interpleader AND
3. intervention

Question 45

After impleaded, may a 3rd party ∆ assert claims against other parties?

Answer 45

YES.

3rd party impleaded ∆ may assert claims as long as SMJ exists

Question 46

What is intervention as a matter of right?

Answer 46

Intervention allows a non-party to join in an already pending lawsuit

A party may intervene as a matter of right if EITHER:

1. an absentee’s interest will be harmed if not joined and no existing party will adequately represent that interest; OR
2. the absentee had an unconditional statutory right

Question 47

What is permissive intervention?

Answer 47

The court may permit anyone to intervene who:

1. is given a conditional right to intervene by a fed statute; OR
2. has a claim or defense that shares with the main action a common question of law or fact

TIP: court must consider whether the intervention will unduly delay or prejudice the adjudication of the OG parties’ rights; a gov office or agency may permissively intervene if the existing claim or defense relates to the officer/agency

Question 48

Compulsory Counterclaim

Answer 48

arises from same T&O as the π’s claim and MUST be raised in pending action or claim is waived

Question 49

When may a π amend their OG complaint?

Answer 49

21 days of serving it or if the pleadings is one to which a responsive pleading is required, 21 days after service of a responsive pleading

-then after only by written consent of adverse party

Question 50

crossclaim

Answer 50

an offensive claim against a co-party and MUST arise from same transaction or occurrence

Question 51

When may ∆ amend an answer

Answer 51

w/on 21 days of serving their answer
-court may grant after

Question 52

Are crossclaims ever compulsory?

Answer 52

NO - always permissive

Question 53

Define “relation back”

Answer 53

Applies when pleadings are amended to add claims or ∆s after the stat of limitations has run

the amended pleading will be treated as if it was filed when the OG pleading was

Question 54

Complaint and answer

Answer 54

Complaint: filing by π that initiates lawsuit

Answer: ∆’s response
-∆ must respond to allegations by admitting or denying claims, or state they lack sufficient info to do either
-∆ must also assert ANY affirmative defenses

Question 55

What is the timing requirement for filing an answer?

Answer 55

An answer must be filed w/in 21 days of service (or w/in 60 if waived) or 14 days after a ruling on a Rule 12 motion

Question 56

What is the timing requirement for a response to an amended pleading?

Answer 56

a response to amended pleading must be made w/in the time remaining to respond to OG pleading OR w/in 14 days after service of the amended pleading whichever is later

Question 57

Which factors will the court consider in determining whether “justice sos requires” granting leave to amend?

Answer 57

Any delay that the amendment will cause, the potential for prejudice, AND the futility of the amendment