Pretrial Procedures Flashcards
A complaint must contain what three elements?
Grounds for Subject Matter Jurisdiction
+A Statement of Facts
+Demand for Judgment and Relief.
In a complaint, what do the statement of facts required need to contain?
Facts sufficient to show plaintiff is entitled to relief (> than a shot in the dark).
In a complaint, what must a statement of facts alleging fraud or mistake show?
The facts must describe the fraud with specific particularity.
How long does a party have unilaterally amend a complaint?
- A party can unilaterally amend a complaint within 21 days of filing;
- If an answer or motion to dismiss has been filed, then within 21 days of that filing; and,
- A party can amend an answer within 21 days of filing it.
What are the methods for amending a complaint?
- As a matter right; or,
- With permission.
What are the ways to amend a complaint with permission?
- Permission of the Opposing Party; or,
- Permission from the Court.
What will a court weighwhen grantingpermissionfrom the court toamendacomplaint?
- The reason for the amendment in the context of timing (≠ blameworthy); and,
- If the amendment will prejudice the other party.
Which types of amendment do not relate back to the original filing for statute of limitations purposes?
Amendments Seeking to add:
- a new claim;
- a new party.
When will the filing date of amendments seeking to add a new claim will relate back to the original filing date?
If the new claim arises out of the same transaction or occurrence.
When will the filing date of amendments seeking to add a new party relate back to the original filing date?
Will only relate back to filing date of complaint if:
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
+ The party to be added should have expected to be named as a defendant
+ The party to be added was originally left out of the case because of a mistake in identity.
When is a party to be added to a complaint originally left out of the case because of a mistake in identity?
When the π sued the wrong legal entity out of a group of entities.
Process for service and process requires?
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?
- 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; or,
- Serve process in the manner specified in Federal Rule of Civil Procedure 4.
List the ways to serve process pursuant to FRCP 4 when suing a human being?
- Deliver the process to the defendant himself wherever he may be;
- Leave process at the defendant’s home with someone of suitable discretion;
- Serve the defendant’s registered agent; or
- Mail process to the defendant with a letter requesting that the defendant waive service in person.
List the ways to serve process pursuant to FRCP 4 when suing a business entity?
- Serve process on an officer;
- Serve process on a managing agent or general agent; or
- Serve process on any other agent authorized by appointment or by law to receive service (e.g. 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,
- Mail.
If a court has the power to assert personal jurisdiction over a party, that power becomes activated at what moment?
When ∆ is served with process.
What does the constitutional right to due process entitle a defendant to?
- Notice of the claims against him; and,
- Opportunity to be heard.
How can the notice requirement of due process be fulfilled?
- Effective service and process; or
- 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).
What happens if a defendant fails to deny an allegation in a plaintiff’s complaint?
∆s must specifically admit or deny the allegation or raise defenses. If they do not, then the ruling will be fore the plaintiff.
After process is served, the party sued must decide how to respond. What options do the Federal Rules offer?
∆ can file:
- A answer;
- A motion for a more definite statement;
- A motion to strike; or,
- A motion to dismiss.
What happens if a ∆ fails to include a defense in his answer?
∆ forfeits that defense.
What defenses are not waived if not included in an answer?
- Failure to state a claim upon which relief can be granted;
- Failure to join a necessary party; and,
- Lack of subject matter jurisdiction.
When is a motion to strike appropriate?
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.
Define a motion to dismiss?
Motion that seeks the dismissal of a claim and can be filed by any party defending a claim.
If ∆ was actually served with process (regardless of the method), how long does ∆ have to respond to a complaint?
21 days to respond.
If ∆ has waived service of process, then how long does ∆ have to respond to a complaint?
60 days to respond.
If ∆ responds to π’s complaint by filing a motion for more definite statement, a motion to strike, or a motion to dismiss, what must ∆ do if the motion is denied? ∆ must file an answer within how long?
14 days of the motion’s denial.
Rule 11 sanctions are appropriate for violations what principles?
- Good Faith;
- Good Facts;
- Good Law; unless advocating for good faith change to existing law.
How should a party seek sanctions for Rule 11 violations?
- Draft a motion and give it to offending party;
- Wait 21 days after service for offending party to withdraw, then, if not withdrawn, file it with the court.
The goal of sanctions must be what?
Deter the repetition of such conduct by anyone similarly situated.
Who is subject to Rule 11 sanctions?
- 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;
- 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?
- When violation occurs in discovery; and,
- There are no monetary sanctions for violations of “good law.”
What elements are required for a preliminary injunction?
Notice on adverse party
+ Likelihood that π will succeed on the merits+Irreparable Harm to π imminent
+ Balance of Hardships favor injunction (harm to π if denied > harm to ∆ if granted)+Injunction is in the public interest
+ Payment of Security (π must put security deposit to compensate ∆ for harm against ∆ due to injunction).
What elements are required for a temporary restraining?
Notice on adverse party
+ Likelihood that π will succeed on the merits+Irreparable Harm to π imminent
+ Balance of Hardships favor injunction (harm to π if denied > harm to ∆ if granted)
+ Injunction is in the public interest
+ Payment of Security (π must put security deposit to compensate ∆ for harm against ∆ due to injunction).
What is the duration of a preliminary injunction?
The entire lawsuit.
What is the duration of a temporary restraining order?
14 days.
What are the notice requirements for a temporary restraining order?
A TRO can be granted ex parte. For ex parte: π must show that they:
- Tried to give notice; and
- There is immediate irreparable harm to π without TRO.
What does the joinder allow a plaintiff to do?
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. However, π is not required to bring them all.
What is a permissive counterclaim?
A claim that does not arise out of the transaction or occurrence underlying any of π’s claims against ∆. A defendant may file a permissive counterclaim against π.
What is a compulsory counterclaim?
What is the effect of failing to bring a compulsory counterclaim?
A claim that does arise out of the transaction or occurrence underlying any of π’s claims against ∆.
Failure to bring precludes ∆ from bringing it later from the law of joinder.
If a party has multiple counterclaims against a π, what can they do?
∆ may bring them all together regardless of whether they are related.
Who files a cross claim?
A party against a co-party (i.e., someone on the same side of the v).
Cross claims may be filed only if?
The cross claims arise from the same transaction or occurrence of π’s underlying claims.
Once a defendant files an appropriate cross claim against a co-defendant, the defendant may file what claims?
Join with that claim additional claims, even if those claims are unrelated to the transaction or occurrence underlying π’s suit.
Once a defendant files a cross claim against a co-defendant, that co-defendant is free to file what claims?
Counterclaims. 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.
