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
When may an impleader claim be brought?
may only be brought if the claim alleges that the third party is responsible for some or all of the liability facing the defending party.
What are classic impleader claims?
2
- Contribution claims
2. Indemnity claims (claims against insurer
Timing requirements of impleader
∆ may do so within 14 days of serving answer
or
with permission of court
After a party has been impleaded into a lawsuit, the party may?
The original plaintiff may?
bring claims of its own against other parties or implead additional parties.
Additionally, the original plaintiff in the suit may file a claim against the impleaded defendant provided the claim relates to original claims
Permissive Joinder (Rule 20) allowed when?
Multiple π’s or ∆’s can join if
- out of the same transaction or occurrence; and,
- Question of law or fact is common to all parties joined
Mandatory Joinder (Rule 19) must add when? (3-steps)
- the absent party necessary
- Join the party if avaialble
- If the necessary party cannot be joined, determine whether the necessary party is “indispensable.” If so, dismiss
A party is necessary if?
A party is “necessary” if
- the party has an interest that might be impaired if the party is left out of the litigation,
- if complete relief cannot be issued in the party’s absence, or
- if the current parties would be subject to duplicative or inconsistent liability.
Are joint tortfeasors necessary parties?
No
There are two reasons why a missing party cannot be joined in federal court:
- The court lacks personal jurisdiction over the missing party
or - Adding the party would destroy suit by diversity
If a missing party is indispensable, the court must
dismiss the suit; if not, the court may adjudicate the case in the party’s absence.
To determine whether a missing party is indispensable, the court will consider
at the dispute be resolved with as little prejudice as possible to the missing party.
Requirements for a class actions? (2)
(1) a class can be formed, and
(2) the action brought is of the sort proper for resolution via a class action
To form a “class” for the purposes of litigation, the following four requirements must be met.
(a) Numerosity: class is so numerous that joinder of all would be impractical
(b) Commonality: questions of law or fact common to the class
(c) Typicality: The claims of the representative parties are typical of those of the class, thus ensuring the rep will have incentive to litigate in a way that will protect the class
(d) Representativeness: The representative parties will fairly and adequately protect the interests of the class. The requirement of representativeness overlaps with typicality, but it spreads more broadly to any circumstance (such as an inexperienced attorney) that might adversely impact the interests of the class.
Class action adjudication is proper for?
3
- Where separate actions would create a risk of inconsistent judgments or judgments that would substantially impair the ability of a nonparty member to protect his interests.
- Where the party opposing the class has acted in ways generally applicable to the class (where injunctive relief is available)
- Where the court finds that common questions of law or fact predominate over individualized questions and that a class action is superior to other available methods for the fair/efficient adjudication of the controversy
In a class action case, the court must have personal jurisdiction
Each ∆
Only named π’s
A judgment in a class action will
bind all members of the class
Notice requirement in class actions
The notice must be reasonably calculated to apprise members of the class, and is often accomplished through mail or publication
When a class action alleges a violation of state law, it may appear in federal court only if (2)
- ∆s diverse from named plaintiffs; or,
2. if the class has over 100 members and seeks damages over $5,000,000 + any ∆ is diverse from any class π
How to remove a class action
can be made by
- Home state ∆; or,
- Any ∆ without full agreement
When can a party file an interpleader claim?
When a party fears that it will be caught in the middle
two different parties intend to sue for the same thing
What is rule 24 intervention?
when a non-party may attempt to join the lawsuit through her own initiative.
When does intervention as a right occur?
Court must allow if:
- claims an interest relating to the subject matter of the action
+ - is so situated that, absent intervention she may not be able to protect the interest
When does permissive intervention
Upon timely application and at the court’s discretion,
any person may be permitted to intervene in an action when the intervenor has a claim or defense that: shares with the main action a common claim or fact
What happens if the law of joinder allows a claim to be added but the additional claim is not consistent with the law of
- SMJ,
- PJ,
- or venue?
- Have to have SMJ for every claim
- PJ is a necessity for every party
- Is not necessary
What is the bulge rule?
An impleaded defendant will be subject to the personal jurisdiction of a federal court if, in addition to any other ground for personal jurisdiction, the impleaded defendant is:
Served with process within 100 miles of court house, when the person is outside the state where the court house is
Rule 26(f) Conference requires
to meet and discuss the likely content of discovery in the case and draft a discovery plan.
Within 14 days submit to court
The Rule 26(f) conference must be held
at least 21 days before a Rule 16(b) conference is held or order is issued.
Rule 16(b) requires the court to?
Time period for action?
issue a scheduling order.
within 120 days of when the defendant is served, or within 90 days of when the defendant appears, whichever is earlier.
Types of mandatory discovery disclosures
initial, expert, and pretrial.
Initial Discovery Disclosures must be made
made within 14 days after a Rule 26 conference.
Initial Discovery Disclosures must disclose
4
- Witnesses to use + contact info (unless using for impeachment)
- Documents that support a claim or defense
- Computation of damages
- Insurance Agreements
Expert Discovery Disclosures must be made
90 days before trial
Expert Discovery Disclosures must disclose
the name and contact information of the expert, as well as the expert’s final report Opinion Creditientals What they relied upon
Pretrial Discovery Disclosures must be made
30 days before trial
Pretrial Discovery Disclosures must include
(a) a list of the witnesses she expects to call at trial,
(b) the witnesses she may call if the need arises,
(c) a list of witnesses whose testimony will be presented through a deposition or deposition transcript, and
(d) a list of documents or physical evidence she expects to present.
What can you ask for in discovery?
5
Discovery: For when you Really Want Private Unknown Evidence.”
Relevance, Privilege, Work Product, Undue Burden, and Experts
Information is relevant if
if it is likely to make any fact in dispute more or less likely to be true, regardless of whether it is admissible or not
Is work product discoverable?
No, nothing prepared in anticipation of litigation
When is work product discoverable
2
- Party can always obtain a statement that it has made.
- A party can obtain work product for which it has a substantial need and can’t otherwise obtain without substantial hardship.
When can you not get something in discovery?
5
- not relevant
- Privileged
- Work Product
- Undue burdern
- Information pertaining to certain types of experts
When is attorney-client privilege applicable?
For communications between attorneys and clients
A discovery request imposes a undue burden if?
If it would be inefficient in context
When is information pertaining to experts undiscoverable?
a non-testifying expert; unless there is an extraordinary need to obtain the information
What information is discoverable for a testifying expert?
- Info in final report
(a) Communications relating to compensation for testimony
(b) Communications relating to the data provided by the attorney to the expert;
(c) Communications relating to any assumption the attorney asked the expert to make in developing the expert opinion.
Methods for discovery
6
- Interrogatories
- Request for Admissions
- Request for Documents, Tangible Items
- Requests for Mental or Physical Examinations
- Depositions
- Subpoenas
What are interrogatories?
question in writing submitted to another party
Limit on interrogatories
Up to 25 questions per parties
Can ask for facts or questions
A party served with interrogatories has ___ days to respond.
30 days
Response to interrogatories must
2
- be in writing
2. include objections with specificity
A request for admission is
Any party can submit to any other party a request to admit the truth of any fact (or a fact’s application to law) as well as the genuineness of any document. If the matter is admitted, it is deemed conclusively established for the purposes of the litigation
Documents used generally
A party served with request for admission has ___ days to respond.
30 days
Options when responding to admissions
The responding party may admit the contention, deny it, or state that:
it has made a reasonable attempt to acertain the truth of the matter but cannot confirm or deny
A party served with request for production of documents has ___ days to respond.
30 days
A party served with request for production of documents must provide documents
as they are maintained in the usual course of business and label them to correspond to the request.
When can a request for mental or physical examination be made?
A request for a mental or physical examination is used when a party’s mental or physical state is an issue in a case. Thus
How is a request for mental or physical examination be made?
Have to go to the court and show cause
How many depositions is a party entitled to
10 witnesses, court can grant more
depositions to perpetuate testimony are?
are available only if?
- all opposing parties are provided an opportunity to be present and ask questions
Depositions can only occur when?
during the pendency of the lawsuit
A party may use a deposition at a hearing or trial if
the party against whom the deposition is used had a reasonable opportunity to be present at the deposition
A deposition of a party or a party’s employee may be used at a hearing or trial for?
Any purpose
A deposition of a non-party may be used at a hearing or trial for?
1) Only to impeach the deponent, or,
2) if the deponent is unavailable (e.g., by reason of death, infirmity, or disappearance), the deposition can be used for any purpose.
What are subpoenas used for?
Subpoenas are used to obtain discovery from non-parties.
How can a person object to a subpoenas
- general exceptions to discovery
2. requires travel of 100 miles from residence or work
Enforcement of discovery if a person “sort of complies”
2
- Motion to compel, then, if ineffective,
2. Sanctions
Motions to compel are only made
the movant has in good faith attempted to confer with the person resisting discovery to see if judicial intervention can be avoided.
If a motion to compel succeeds? If it fails?
Success = movant entitled to legal fees Fails = non-movant legal fees unless justified
Courts options for discovery sanctions
4
1) a court order declaring that the facts sought are established in favor of the requesting party,
2) a court order prohibiting the disobedient party from presenting certain claims or defenses,
3) a stay or dismissal of the entire action, or
4) an order of contempt
Enforcement of discovery if a person does not comply at all?
Don’t start with motion to compel, go straight to sanctions
What is needed to file a reply to an answer?
Permission from the court
How many days after an answer does a ∆ have to files a 3rd party complaint?
14 days
Serving notice of deposition is required if?
- The deponent is a party
2. The deponent is a witness that is not a party
If a ∆ in their answer does not assert affirmative defenses, when can they bring them up
They are waived if they are not brought up in the first responsive pleading
If a summons and complaint are sent by mail, the ∆receives but does not acknowledge, what is the result?
∆ must be served as otherwise provided in that rule (even if he gets it, the mailing is procedurally defective)
How can the court impose sanctions on its own accord? And who can they impose sanctions on?
As long as there is a show cause order.
Can issue on anyone even if they are pro se.
Does showing up in court automatically consent to jurisdiction?
No, not if the party showing up objects.
When will someone with an interest in action not be allowed to intervene?
When permitting him to intervene would destroy diversity
