Pretrial Procedures Flashcards
Preliminary Injunctions and Temporary Restraining Orders
Preliminary Injunctions
A preliminary injunction is an equitable remedy that enjoins a person from engaging in specific behavior, or requires a party to engage in specified behavior, during the pendency of the action. It may be issued if the opponent is given notice and the court holds a hearing on the issue. A party seeking a preliminary injunction must establish that the party is likely to succeed on the merits, the party is likely to suffer irreparable harm in the absence of relief, the balance of equities is in his favor, and the injunction is in the best interest of the public. Additionally, the party seeking the preliminary injunction must provide a bond to cover the costs in the event the preliminary injunction is issued wrongfully.
Preliminary Injunctions and Temporary Restraining Orders
Temporary Restraining Orders
A temporary restraining order is an equitable remedy that may be issued ex-parte to prevent irreparable harm until the court has an opportunity to rule on a motion for a preliminary injunction. A temporary restraining order preserves the status quo of the parties until there is an opportunity to hold a full hearing on whether to grant a preliminary injunciton. A TRO has immediate effect and lasts no longer than 14 days unless good cause exists. A TRO can be issued without notice to the adverse party if the moving party can show that immediate and irreparable injury will result prior to hearing the adverse party’s arguments and the efforts made at giving notice and the reason why notice should not be required. Additionally, the party seeking a TRO must post a bond to cover the costs in the event that the TRO is issued wrongfully.
Pleadings and Amended and Supplemental Pleadings
Pleading and Amended Pleading
A pleading may be amended as a matter of right within 21 days after service (or if the pleading requires a responsive pleading, then 21 days after that responsive pleading). After 21 days, a party may amend its pleading with consent of the opposing party or the court. The court will freely give leave where justice so requires.
Pleadings and Amended and Supplemental Pleadings
Relation Back of Amendment
Relation back allows a new claim or party to be added after the Statute of Limitations has run and having this new claim or party be treated as if it was inlcuded originally. For this to be proper, the new party must receive notice of the lawsuit within 90 days of filing the original complaint, the new party knows or should have known that the lawsuit would have been brought against them except for a mistake concerning the proper party’s identity, and the new claim/amendment must arise from the same conduct, transaction, or occurrence.
Rule 11
Rule 11
Rule 11 Sanctions are made if an improper paper is presented to the court. However, if a motion is made by a party to impose Rule 11 sanctions, that party must give the opposing party 21 days to withdraw the offending paper prior to filing the motion with the court. This does not apply to discovery violations.
Joinder of Parties and Claims (Including Class Actions)
Joinder of New Claims - Rule 18
Once a party has one properly filed claim, it may bring all claims if the court has jursidiction. All added claims need an independent basis of subject matter jurisdiction. This applies to plaintiff’s cases as well as defendant’s counterclaims or crossclaims.
Joinder of Parties and Claims (Including Class Actions)
Joinder of Parties - Rule 20 - Impleader
A defendant may implead a new claim against a new party if that party may be liable for all or part of the recovery. This must be filed within 14 days of serving the answer, otherwise leave of court is required. This comes with the court’s supplemental jurisdiction, but a plaintiff cannot make a claim against the third party unless diversity is met.
Joinder of Parties and Claims (Including Class Actions)
Compulsory Joinder
Compulsory joinder applies to necessary and indispensable parties. A necessary party is a person whose participation in the lawsuit is necessary for adjust adjudication because absent that party, complete relief cannot be accorded to the existing parties, and the necessary party has an interest in the litigation which will be impeded if the litigation goes forward without that party (risk of prejudice to the absentee), or there is a substantial risk of double or inconsistent liability.
Joinder of Parties and Claims (Including Class Actions)
Permissive Joinder
Any number of plaintiffs may join if they assert claims arising out of the same transaction or occurrences of series of transactions or occurrences; and there was a common question of law or fact. Further, any number of defendants may be joined in the same action if the claims against them arise out of the same transaction or occurrence (or series); and there is a common question of law or fact (subject to Subject Matter Jurisdiction).
Joinder of Parties and Claims (Including Class Actions)
Interpleader
A holder of property subject to conflicting claims may file a lawsuit as a plaintiff and join all claimants to avoid the possibility of double liability - this is usually an insurance company that holds a common fund. Under statutory interpleader, minimal diversity and $500 are enough. Under rule interpleader, there must be an independent basis of subject matter jurisdiction, such as diversity or federal question. If the action is based upon diversity jurisdiction, the amount or value of the assets in question must exceed $75,000.
Joinder of Parties and Claims (Including Class Actions)
Intervention
A movant may intervene as a matter of right if it has an interest related to the property or transaction that is the subject of the action, disposition without the movant may impair or impede the movant’s ability to protect its interest, and its interests are not being adequately represented by existing parties. A court may grant permissive intervention if the party has a claim or defense that shares a common question of law or fact with the main action. Intervention must be timely, the standard is “reasonable promptness, and there is no supplemental jurisdiction for either kind of intervention when jurisdiction is based on diversity.
Joinder of Parties and Claims (Including Class Actions)
Plaintiffs Joining Plaintiffs
Plaintiffs may sue together if they assert a right to relief jointly, severally, or in the alternative with respect to claims arising out of the same transaction or occurrence and involving a common question of law or fact.
Joinder of Parties and Claims (Including Class Actions)
Counterclaims - Rule 13
Federal law recognizes compulsory counterclaims, where the defendant must bring a counterclaim if it arises out of the same transaction or occurrence or the defendant loses the right to bring the claim later. A permissive counterclaim (one not arising out of the same transaction or occurrence) may be filed, but does not have to be filed.
Joinder of Parties and Claims (Including Class Actions)
Crossclaims
A crossclaim is one asserted by one party against a co-party. It must arise out of the same transaction or occurrence as the initial claim and must ask for actual relief. A crossclaim is never compulsory and they are, by nature, always within the supplemental jursidiction of the court, so you do not need independent subject matter jursidiction.
Discovery (including E-discovery, disclosure, and sanctions)
Scope of Discovery
Parties may discover anything that is relevant (proportional to the needs of the case) and not privileged. Parties may use interrogatories (25 per side), depositions, and requests to admit. In general, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial or by for another party or its representative. Such materials will be subject to discovery, however, if the party shows that it has a substantial need for the materials and cannot, without undue hardship, obtain their substantial equivalent by other means. A party can never override the privilege to obtain mental impressions, opinions, conclusions, or other legal theories by a lawyer.
Discovery (including E-discovery, disclosure, and sanctions)
Electronically Stored Discovery
A party may request the other party to produce and permit the inspection of any discoverable documents or electronically stored information. Emails are discoverable if they relate to the foundation and may be relevant to the litigation. A party may be subject to sanctions for failing to take reasonable steps to preserve ESI that should have been preserved in the anticipation or conduct of litigation.
Discovery (including E-discovery, disclosure, and sanctions)
Sanctions
**If a party failed to preserve ESI that should have been preserved and it cannot be restored or replaced, the court may order sanctions against the wrongful party. **The court may: (i) upon finding prejudice to another party, order measures no greater than necessary to cure the prejudice, or (ii) upon finding that the party acted with the intent to deprive another party of the information, may presume the lost information was unfavorable to the party, instruct the jury that it may or must presume the information was unfavorable, or dismiss the action or enter a default judgment.
Discovery (including E-discovery, disclosure, and sanctions)
Attorney Client Privilege
Attorney client privilege exists when there are confidential communications between an attorney and their client for legal advice purposes. These are not discoverable unless the privilege has been waived.
Discovery (including E-discovery, disclosure, and sanctions)
Conferences and Disclosures
In federal court, the 26(f) conference is where intitial disclosures of damages calculations, insurance agreements, the identity of supporting witnesses, and supporting documents are made and a discovery plan is outlined. At the 16(b) conference, the court enters a scheduling order and deadlines for motions. Further, 30 days before trial, parties must disclose the identity and reports of experts, the names of witnesses to be called at trial, and documents and depositions the parties plan to offer at trial.
Discovery (including E-discovery, disclosure, and sanctions)
Depositions, Interrogatories, Physical/Mental Examinations, and Admissions
Each side is allowed 10 depositions, unless the court allows more. Each is limited to one day of seven hours. For interrogatories, each side is allowed 25 interrogatories and responses are required within 30 days. A failure to respond within 30 days is an admission. Physical and mental examinations are available only against a party and are only permitted when the parties physical or mental condition are in controversy.
Adjudication Without a Trial
Dismissals (Voluntary and Involuntary)
A plaintiff has a right to a voluntary dismissal (without prejudice) once at any time prior to the defendant serving an answer or motion for summary judgment. The defendant’s motion before filing an answer does not cut off the right to a voluntary dismissal. After a defendant has filed an answer or motion for summary judgment, or if the plaintiff has already voluntarily dismissed once, plaintiff must seek leave of court for dismissal without prejudice. An involuntary dismissal is typically with prejudice, unless the dismissal is for lack of jurisdiction, improper venue, or failure to join an indispensable party. Dismissal with prejudice is an adjudication on the merits, which means that, under federal law, given full res judicata (preclusive) affect, bars any attempt at re-litigation of same claims. May be imposed for plaintiff ’s failure to prosecute or for failure to comply with FRCP or any court order.
