Pretrial Procedures Flashcards
A complaint must have
3
- Grounds for SMJ
- A statement of facts
- Demand for Judgment and Relief
In a complaint, the statement of facts required are
Those sufficient to show plaintiff is entitled to relief > than a shot in the dark
In a complaint, the statement of facts alleging fraud or mistake, must
Describe with specific particularity
A party can unilaterally amend a complaint within
(a) A party can unilaterally amend a complaint within 21 days of filing it, or, if an answer or motion to dismiss has already been filed, within 21 days of that filing.
(b) A party can amend an answer within 21 days of filing it.
Ways to amend a complaint
- as a right
2. with permission
Ways to amend a complain with permission
If you cannot amend as of right (21 days), then
- permission of opposing parties
- Permission from the Court
Permission from the Court to amend a complaint factors to weigh
(2)
- Reason for the Amendment in the context of timing –> are they blameworthy?
- Will amendment prejudice the other party?
Whether an amendment has been filed within the statute of limitations depends upon
- Seeking to add a new claim
2. Seeking to add a new party
Filing date of amendments seeking to add a new claim
It will be the original filing date if arising out of the same transaction or occurance
Filing date of amendments seeking to add a new party
3
Will only relate back to filing date of complaint if:
(a) the party to be added knew of the lawsuit soon enough not to be prejudiced in defending it and in no case later than the time permitted for service and process
(b) the party to be added should have expected to be named as a defendant, AND
(c) the party to be added was originally left out of the case because of a mistake in identity
When was the party to be added was originally left out of the case because of a mistake in identity
Sued the wrong legal entity out of a group of entities
Process consists of
2
- copy of the complaint
- summons: a court document that informs the defendant that the complaint has actually been filed and that he must respond to it, or else be held in default.
If both are not served, then process has not been completed
When must process be served?
Within 120 days of filing the complaint
Who can serve process?
Any person at least 18 years old and who is not a party to the action can serve process
How can process be served?
2
Option 1-State Courts: Serve process in the manner prescribed by the state court in the state where the federal suit has been filed OR by the state court in the state where the ∆ will be served
Option 2: Serve process in the manner specified in Federal Rule of Civil Procedure 4.
How to serve process pursuant to FRCP 4 when suing human being
(4)
1) deliver the process to the defendant himself wherever he may be;
2) leave process at the defendant’s usual place of abode with someone of suitable discretion
3) serve the defendant’s registered agent; or
4) mail process to the defendant with a letter requesting that the defendant waive service in person.
a) If the defendant declines to waive in-person service, he is responsible for the cost of service
How to serve process pursuant to FRCP 4 when suing Business Entities
(3)
1) serve process on an officer;
2) serve process on a managing agent or general agent; or
3) serve process on any other agent authorized by appointment or by law to receive service (registered agent).
If the agent is one authorized by law to receive service and the law requires service by mail, then what must you do?
Serve by
- hand; and,
if a court has the power to assert PJ over a party, that power becomes active at the moment
∆ is served with process
the constitutional right to due process entitles a defendant to
(2)
- Notice of the claims against him
2. Opportunity to be heard
How can the “notice” requirement of due process be fulfilled
- Effective service and process; or
2. if plaintiff took steps that were reasonably calculated to inform the defendant of the action against him.
When new claims are filed during a lawsuit, when must process be served?
Service of process need only be accomplished when a new party has been added to the lawsuit
≠new claims
In an ANSWER
For each allegation in the plaintiff’s complaint, the defendant should
If the defendant fails to deny an allegation, it is:
- Specifically admit or deny the allegation + raise defenses
- Silence = guilt
After process is served, the party sued must decide how to respond. The Federal Rules offer several options:
- Answer
- file a motion for a more definite statement
- Motion to Strike
- Motion to Dismiss
If a ∆ fails to include a defense in his answer, then
in most cases, forfeit that defense
Defense not waived if failed to be included in answer
failure to state a claim upon which relief can be granted, failure to join a necessary party, and lack of subject matter jurisdiction.
A motion to strike is appropriate when
If a complaint or answer contains redundant, immaterial, or scandalous matter, the court may—on its own or by motion—order the improper material stricken.
A motion to dismiss is
We will discuss motions to dismiss more fully below, but for now, simply know that a motion to dismiss seeks the dismissal of a claim and can be filed by any party defending a claim.
If D was actually served with process (regardless of the method), D has ___ to repsond
21 days to respond
Service of Process Waived: If D waived service of process, D has: ___ to respond
60 days to respond
Suppose that D responds to P’s complaint by filing a motion for more definite statement, a motion to strike, or a motion to dismiss. What must D do if the motion is denied? D must file an answer within:
14 days of denial
Rule 11 sanctions are appropriate for violations of
3
Good Faith
Good Facts
Good Law; unless advocating for good faith change to existing law
How to seek sanctions for Rule 11 Violations
2
- Draft a motion and give it to offending party
2. Wait 21 days after service for offending party to withdraw, then file it
The goal of sanctions must be to
deter repetition of such conduct by anyone similarly situated
Who is subject to Rule 11 sanctions?
2
(1) Any person or entity that has committed a Rule 11 violation or is responsible for a Rule 11 violation is subject to sanctions, except that parties may not be subject to monetary sanctions for violating the “good law” requirement.
(2) When an attorney is found to have violated Rule 11, the attorney’s law firm must be held jointly liable absent exceptional circumstances.
When is a party not subject to Rule 11 sanctions?
Discovery
+
no monetary sanctions for violations of “good law”
When is a preliminary injunction (“PI”) is available?
6
- notice on adverse party
- Likelihood that π will succeed on the merits
- Irreparable Harm (any violation of the right)
- Balance of Hardships (harm to π if denied > harm to ∆ if granted)
- Public Interest (court will not issue if injurious to public interest)
- Payment of Security (πmust put security deposit to compensate ∆for harm against ∆ due to injunction)
When is a temporary restraining order available?
5
- Likelihood that π will succeed on the merits
- Irreparable Harm (any violation of the right)
- Balance of Hardships (harm to π if denied > harm to ∆ if granted)
- Public Interest (court will not issue if injurious to public interest)
- Payment of Security (πmust put security deposit to compensate ∆for harm against ∆ due to injunction)
Duration of a preliminary injunction
The entire lawsuit
Duration of a Temporary restraining order
14 days
Notice for a Temporary restraining order requirements
Unlike a PI, which can be granted only in an adversary proceeding, a TRO can be granted ex parte.
For ex parte: Must showed that they (1) tried to give notice; and (2) immediate irreparable harm
What does the rule of Joinder allow
If a plaintiff has numerous claims against a single defendant, she is free to bring all of those claims in the same lawsuit regardless of if they are related or not
Not required to bring them all
A permissive counterclaim is
a claim that does not arise out of the transaction or occurrence underlying any of P’s claims against D.
A defendant may file a permissive counterclaim:
A compulsory counterclaim is a claim that does? Failure to bring?
a claim that does arise out of the transaction or occurrence underlying any of P’s claims against D.
Failure to bring precludes ∆ from bringing it later from the law of joinder
If a party has multiple counterclaims, he may
he may bring them all together regardless of whether they are related.
A cross claim is a claim filed by
by a party against a co-party—i.e., someone on the same side of the “v.”
Cross claims may be filed only if they:
arise from the same transaction or occurrence of π’s underlying claims
Once a defendant files an appropriate cross claim against a co-defendant (i.e., a claim arising out of the same transaction or occurrence underlying P’s suit), the defendant may
join with that claim additional claims, even if those claims are unrelated to the transaction or occurrence underlying P’s suit.
Once a defendant files a cross claim against a co-defendant, that co-defendant is free
to respond with a counterclaim. Like an ordinary counterclaim, a counterclaim filed in response to a cross claim can be compulsory or permissive.
What is an impleader claim?
an impleader claim is brought against somebody not yet involved in the lawsuit