Pretrial Procedures Flashcards
Complaint
- Filing of Complaint commences Statute of Limitations (first)
- Service of the Complaint within 90 days
Elements of the Complaint
- Statement of Jurisdiction
- Statement of Facts (not legal theory)
- Statement for Relief
Specific Complaint
Fraud and Special Damages need specificity
Answer
- signed by lawyer
- whatever is not denied is admitted
- served within 21 days of service of Complaint
Affirmative Defenses
- Contributory Negligence
- Statute of Frauds
- Statute of Limitations
- Illegality
- Duress
Amending the Pleadings
Generally, courts are very liberal with a party wanting to amend
Amendment as of Right
Once within 21 days of service of original pleading
Amendment by leave of court (After 21 Days)
- Need cour’s permission
- not hard to get: when justice so requires
Relate Back (Claim)
For amended pleading to relate back to the original pleading:
(amended claim or defense) arose out of the same conduct, transaction, or occurrence (of the original)
Relate Back (Parties)
- same conduct, transaction, or occurrence
- new party had 90 days of notice
- new party knew/should have known, but for mistake of their ID
Rule 11
Attorney signs a document/pleading to the best of their “knowledge, information, and belief” that there is basis for a claim
Rule 11 Key Words
- Warranted by existed law
- Evidentiary support
- No improper purpose
Counterclaim
Defendant raises a claim back at the plaintiff
Compulsory Counterclaim
1) Same transaction or occurrence
2) (court is going to have) Supplemental jurisdiction
Permissive Counterclaim
1) NOT same transaction or occurrence
2) NEEDS independent jurisdiction
Permissive Joinder (multiple plaintiffs can join together when)
1) claims come from single transaction or occurrence
2) common questions of law/fact
Compulsory Joinder
Party must be joined because it would be unfair if not
1) Necessary Party
OR
2) Indispensable Party
Necessary Party
impair their interest
- complete relief could not be afforded without having them joined in the action.
- IF they cannot join due to jurisdictional issues, case may STILL PROCEED
Indispensable Party
Prejudice them
- If cannot join due to jurisdiction, case MUST BE DISMISSED
A party can join as many claims as they wish, as long as the new claim has…
subject matter jurisdiction
Class Action Prerequisites: 4 Elements for Certification
1) Size (must be large that joining little claims would be impractical)
2) Common Question of Law/Fact
3) Typical (claim is typical of all of the class)
4) Fair Representation/ Conflict (protect the interest of all of the class)
Types of Class Actions
B1 = Impairment of Interests of the class members
B2 = Injunctive Relief
B3 = Common Question (the superior method; large mass tort claims)
Opting Out in Class Actions
B1 & B2 members may NOT opt out
B3 members MAY opt out
Notice and Class Actions
B1&B2: notice NOT required (in discretion of the court)
B3: notice to ALL all possible members required
Diversity claim in Class Actions
1) Citizenship of the named REPRESENTATIVES
2) Just one member needs to meet $75K+ or the sum of the claims is $5 million
Who makes the decision to certify Class Action?
the Court.
If court denies, members can go by themselves and have what they call a sub class
Appealbility of Class Actions
If certification of Class is denied, it may be appealed
Any settlement of class action need to be approved by the…
Court. Reasonable attorney’s fee, statement detailing the agreement, etc.
Intervention as of Right
- Interest in property/transaction
- interest is impaired
- NO court permission required
Permissive Intervention
1) Claim/defense has common question of law/fact
2) Court permission IS required
Interpleader
1 Party owes something to 2 or more people
so that 1 Party can force them to fight it amongst themselves
1) Statutory Interpleader
1) Nationwide Service of process
2) ANY 1 of 2 claimants can be diverse
3) only $500 (or more) at stake
4) Deposit money/property in Court OR posts a bond
2) Rule Interpleader
1) NO nationwide service of process
2) COMPLETE diverrsity between claimant AND ALL opponents
3) $75K requirement
4) NOT required to deposit money
3) Third Party Interpleader
- If a defendant who believes a Third party owes THEM money (is liable for part or ALL of the claim)
- Defendant can IMPLEAD them
- look for contribution or indemnification
Cross Claim
1) co-party
2) claim has to be out of the same transaction or occurrence
3) one party must be asking for actual damage
Discovery
Discoverable:
- NOT privileged
- Relevant
- Promotional to needs of the case
Work Product
- any material prepared by the council for trial/ in anticipation of trial
- generally immune from discovery
When is Work Product discoverable?
- substantial need
- cannot obtain without UNDUE HARDSHIP
What Work Products have Absolute Immunity?
- Mental Impressions
- Conclusions
- Legal opinions/theories
Witnesses are discoverable
A list of all the documents or materials that they’re going to use in the case must be provided
Experts
1) called to trial: MUST provide ID and expert must prepare a report
2) not testifying: discoverable ONLY in EXCEPTIONAL CIRCUMSTANCES (impractical to get the information from other means)
Duty to Supplement
- Duty to supplement incomplete or wrong information
- must be done in a timely manner
Deposition
(usually without court intervention)
- party or non party
- written or oral
- non-party by subpoena (to force them to take deposition)
- limit = 10 deposiiton per side
- cannot depose the same person more than once without the court’s permission
Interrogatories
- ONLY to a party
- WRITTEN questions/answers
- limit = 25
Request for admission
- Written request to admit certain facts
- Once it is, it is conclusively established
Request to Produce
- Documents in the other side’s possession, control, custody
When is Physical/ Mental Exam possible?
- Must be at issue in the first place
- Court Order
- Good cause
What steps can you take when requests are made to bother you instead of in good faith
1) Objection to request
2) Protective Order
3) Order to comple
1) Object to a Request
When Information not relevant
2) Protective Order
to stop discovery for embarrassment, harassment, undue burden
3) Order to Compel
when Party is not complying with Discovery
When can court order Sanctions?
When one party has acted unreasonably.
*start with minimal sanctions of fee/costs and work up to larger sanctions
Admissibility at Trial
Discoverable information is admissible at trial (able to impeach someone at trial)
Pretrial Conferences
1) Conference of Parties
2) Scheduling Conference
3) Final Pretrial Conference
1) Conference of Parties
1) Court MUST have conference
2) Parties MUST submit Discovery plan
2) Scheduling Conference
1) Court MUST have conference limiting the time for motions, discovery
2) MUST issue SCHEDULING ORDER within 90 days of filing complaint
3) CANNOT be modified unless GOOD CAUSE
3) 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
Temporary Restraining Order
- No Notice Required
- Immediate Irreparable harm
- Expires in no more than 14 days
Preliminary Injunction
- Notice & Hearing required
- Irreparable harm
