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Grossman: Civil Procedure > Pretrial Procedures > Flashcards

Pretrial Procedures Flashcards

1
Q

Complaint

A
  • Filing of Complaint commences Statute of Limitations (first)
  • Service of the Complaint within 90 days
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2
Q

Elements of the Complaint

A
  • Statement of Jurisdiction
  • Statement of Facts (not legal theory)
  • Statement for Relief
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3
Q

Specific Complaint

A

Fraud and Special Damages need specificity

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4
Q

Answer

A
  • signed by lawyer
  • whatever is not denied is admitted
  • served within 21 days of service of Complaint
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5
Q

Affirmative Defenses

A
  • Contributory Negligence
  • Statute of Frauds
  • Statute of Limitations
  • Illegality
  • Duress
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6
Q

Amending the Pleadings

A

Generally, courts are very liberal with a party wanting to amend

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7
Q

Amendment as of Right

A

Once within 21 days of service of original pleading

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8
Q

Amendment by leave of court (After 21 Days)

A
  • Need cour’s permission
  • not hard to get: when justice so requires
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9
Q

Relate Back (Claim)

A

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)

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10
Q

Relate Back (Parties)

A
  • same conduct, transaction, or occurrence
  • new party had 90 days of notice
  • new party knew/should have known, but for mistake of their ID
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11
Q

Rule 11

A

Attorney signs a document/pleading to the best of their “knowledge, information, and belief” that there is basis for a claim

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12
Q

Rule 11 Key Words

A
  • Warranted by existed law
  • Evidentiary support
  • No improper purpose
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13
Q

Counterclaim

A

Defendant raises a claim back at the plaintiff

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14
Q

Compulsory Counterclaim

A

1) Same transaction or occurrence
2) (court is going to have) Supplemental jurisdiction

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15
Q

Permissive Counterclaim

A

1) NOT same transaction or occurrence
2) NEEDS independent jurisdiction

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16
Q

Permissive Joinder (multiple plaintiffs can join together when)

A

1) claims come from single transaction or occurrence
2) common questions of law/fact

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17
Q

Compulsory Joinder

A

Party must be joined because it would be unfair if not
1) Necessary Party
OR
2) Indispensable Party

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18
Q

Necessary Party

A

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

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19
Q

Indispensable Party

A

Prejudice them
- If cannot join due to jurisdiction, case MUST BE DISMISSED

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20
Q

A party can join as many claims as they wish, as long as the new claim has…

A

subject matter jurisdiction

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21
Q

Class Action Prerequisites: 4 Elements for Certification

A

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)

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22
Q

Types of Class Actions

A

B1 = Impairment of Interests of the class members
B2 = Injunctive Relief
B3 = Common Question (the superior method; large mass tort claims)

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23
Q

Opting Out in Class Actions

A

B1 & B2 members may NOT opt out
B3 members MAY opt out

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24
Q

Notice and Class Actions

A

B1&B2: notice NOT required (in discretion of the court)
B3: notice to ALL all possible members required

25
Q

Diversity claim in Class Actions

A

1) Citizenship of the named REPRESENTATIVES
2) Just one member needs to meet $75K+ or the sum of the claims is $5 million

26
Q

Who makes the decision to certify Class Action?

A

the Court.
If court denies, members can go by themselves and have what they call a sub class

27
Q

Appealbility of Class Actions

A

If certification of Class is denied, it may be appealed

28
Q

Any settlement of class action need to be approved by the…

A

Court. Reasonable attorney’s fee, statement detailing the agreement, etc.

29
Q

Intervention as of Right

A
  • Interest in property/transaction
  • interest is impaired
  • NO court permission required
30
Q

Permissive Intervention

A

1) Claim/defense has common question of law/fact
2) Court permission IS required

31
Q

Interpleader

A

1 Party owes something to 2 or more people
so that 1 Party can force them to fight it amongst themselves

32
Q

1) Statutory Interpleader

A

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

33
Q

2) Rule Interpleader

A

1) NO nationwide service of process
2) COMPLETE diverrsity between claimant AND ALL opponents
3) $75K requirement
4) NOT required to deposit money

34
Q

3) Third Party Interpleader

A
  • 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
35
Q

Cross Claim

A

1) co-party
2) claim has to be out of the same transaction or occurrence
3) one party must be asking for actual damage

36
Q

Discovery

A

Discoverable:
- NOT privileged
- Relevant
- Promotional to needs of the case

37
Q

Work Product

A
  • any material prepared by the council for trial/ in anticipation of trial
  • generally immune from discovery
38
Q

When is Work Product discoverable?

A
  • substantial need
  • cannot obtain without UNDUE HARDSHIP
39
Q

What Work Products have Absolute Immunity?

A
  1. Mental Impressions
  2. Conclusions
  3. Legal opinions/theories
40
Q

Witnesses are discoverable

A

A list of all the documents or materials that they’re going to use in the case must be provided

41
Q

Experts

A

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)

42
Q

Duty to Supplement

A
  • Duty to supplement incomplete or wrong information
  • must be done in a timely manner
43
Q

Deposition

A

(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

44
Q

Interrogatories

A
  • ONLY to a party
  • WRITTEN questions/answers
  • limit = 25
45
Q

Request for admission

A
  • Written request to admit certain facts
  • Once it is, it is conclusively established
46
Q

Request to Produce

A
  • Documents in the other side’s possession, control, custody
47
Q

When is Physical/ Mental Exam possible?

A
  • Must be at issue in the first place
  • Court Order
  • Good cause
48
Q

What steps can you take when requests are made to bother you instead of in good faith

A

1) Objection to request
2) Protective Order
3) Order to comple

49
Q

1) Object to a Request

A

When Information not relevant

50
Q

2) Protective Order

A

to stop discovery for embarrassment, harassment, undue burden

51
Q

3) Order to Compel

A

when Party is not complying with Discovery

52
Q

When can court order Sanctions?

A

When one party has acted unreasonably.
*start with minimal sanctions of fee/costs and work up to larger sanctions

53
Q

Admissibility at Trial

A

Discoverable information is admissible at trial (able to impeach someone at trial)

54
Q

Pretrial Conferences

A

1) Conference of Parties
2) Scheduling Conference
3) Final Pretrial Conference

55
Q

1) Conference of Parties

A

1) Court MUST have conference
2) Parties MUST submit Discovery plan

56
Q

2) Scheduling Conference

A

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

57
Q

3) Final Pretrial Conference

A

1) Court MAY hold conference
2) IF there is a conference, Court MUST issue Pretrial Order
3) ONLY modified to prevent MANIFEST INJUSTICE

58
Q

Temporary Restraining Order

A
  • No Notice Required
  • Immediate Irreparable harm
  • Expires in no more than 14 days
59
Q

Preliminary Injunction

A
  • Notice & Hearing required
  • Irreparable harm

Grossman: Civil Procedure (6 decks)

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