Pretrial Procedures

Question 0

Statement of Facts

Answer 0

Statement sufficient to show P is entitled to relief

Statement must make wrongdoing appear plausible not hypothetical

Inconsistent claims are allowed

Question 1

Contents of a Complaint

Answer 1

1, Grounds for SMJ

2. Statement of Facts
3. Demand for judgement and relief

Question 2

ability to Amend (2)

Answer 2

As of Right

With permission

Question 3

Amendment as of Right

Answer 3

unilaterally within 21 days filing
of filing motion to dismiss
or after an answer

Question 4

Amendment with permission

Answer 4

With consent of opposing parties
consent of court
courts permission is liberally given

Question 5

Reasons court will allow amendment

Answer 5

delay was not blameworthy

no undue prejudice to other party

Question 6

Issue when amending a complaint

Answer 6

Can implicate SoL issues

Question 7

Amendment that adds new Claim

Answer 7

if claim arises out of the same transaction and occurrence,
amendment is considered filed on date of original complaint

Relation Back Rule

Related Claims are considered filed at time of original suit for SoL purposes

Question 8

Amendments that Add Parties

3 conditions for relation back to apply

Answer 8

1. Party knew soon enough so not prejudiced and
   no later than time permitted for service of process.
2. Party should expect to be named.
3. party was originally left out because of mistaken identity

Question 9

What is process?

Answer 9

copy of complaint and summons
summons informs D complaint is filed and
response is required or default

if summons and complaint have been served at the same time,
process is completed

Question 10

When must process be served

Answer 10

120 days
failure = dismissal w/o prejudice
court will give more time with showing good cause why not completed

Question 11

Who can serve process

Answer 11

any person 18+

not a party to the suit

Question 12

How can process be served

Answer 12

1. in manner prescribed by state court where federal suit is filed or state where D resides
2. Serve process in manner specified in fed rules civ pro 4

Question 13

Rule 4 Service on a Natural Person

Answer 13

1. deliver where he is
2. leave at usual place of abode with person of suitable age and discretion
3. registered agent
4. mail to D with letter requesting D waive service in person
   if he declines to waive in person service, he is responsible for costs of service.

Question 14

Rule 4 Service on a corporation

Answer 14

1. on an officer
2. on managing agent or general agent
3. on any agent authorized by appointment or law to receive service.

Question 15

Service and Due Process

Answer 15

Defendant has right to notice of charges, claims and opportunity to be heard

Service = notice.

Key is not whether process was served but
‘whether plaintiff took steps reasonably calculated to inform D of action against him.’

Question 16

New Claims Filed During Lawsuit

New Service of Process?

Answer 16

No. only need new service when new parties are added

Question 17

Responding to a complaint 3 ways

Answer 17

Answer
Motion for more definite statement
Motion to strike
Motion to dismiss

Question 18

Contents of an Answer

Answer 18

Admissions or denials for each allegation
failure to deny = admission
raise any and all defenses
Failure to raise defenses in answer will forfeit the defense

Question 19

Motion for More Definite Statement

Answer 19

complaint or answer is vague

responding party cannot reasonably prepare a response

Question 20

Motion to Strike

Answer 20

complaint containing redundant, immaterial, or scandalous material
may be stricken

Question 21

Timing of Initial Response

Answer 21

21 days if process actually served

60 days if process waived

Question 22

Timing of Secondary Response

Answer 22

motion to dismiss, more definitive statement, or strike is denied

must answer within 14 days

Question 23

Rule 11

Answer 23

Good Faith - submission is not for improper purpose
Good Facts - documents do or will have evidentiary support
Good Law - submissions warranted by existing law or argument to change existing law.

Question 24

how to seek sanctions for Rule 11 violation

Answer 24

1. draft motion for sanctions and serve on offending party
2. motion held for 21 days
   allow offending party ‘safe harbor’ to withdraw or modify submission alleged in violation of Rule 11

Question 25

Nature of Sanctions

Answer 25

may be monetary or non-monetary

object is to deter repetition of conduct by anyone similarly situated

Question 26

Who is subject to Rule 11 sanctions

Answer 26

Any person or entity who committed or is responsible for a rule 11 violation

Attorneys and their law firms

Question 27

Rule 11 and Discovery

Answer 27

Rule 11 obligations do not apply to discovery

covered by separate rule

Question 28

Requirements for a Preliminary Injuction

Answer 28

Notice
1.  Likely success on the merits
2.  irreparable harm
3.  balance of hardships
4.  public interest
5  payment of security

Question 29

Likelihood of success on the merits

Answer 29

law and facts on plaintiffs side are apparent from the outset

Question 30

irreparable harm

Answer 30

harm cannot be undone

Question 31

balance of hardships

Answer 31

whether harm if injunction is denied

greater than harm if granted.

Question 32

Public Interest

Answer 32

Court will not issue a PI if injurious to the public interest

ie injunction barring sale of flu vaccine

Question 33

payment of security

Answer 33

P seeking a PI must deposit enough $ to compensate D for losses it might suffer if suit is unsuccessful

Question 34

Temporary Restraining Order

Answer 34

Same 5 step analysis as PI

TRO expires in 14 days and can be extended for another 14 days with good cause.

May be granted ex-parte unlike PI

Question 35

Ex-Parte TRO showing

Answer 35

applicant needs to show he tried to notify opposing party
was unable to do so
will suffer immediate irreparable harm without TRO