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T&D.Edits.Civil.Procedure > Pretrial Procedures > Flashcards

Pretrial Procedures Flashcards

1
Q

A complaint must contain what three elements?

A

1) Grounds for Subject Matter Jurisdiction
2) Statement of Facts
3) Demand for Judgment and Relief

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2
Q

In a complaint, what must the statement of facts contain?

A

Facts sufficient to show that the plaintiff is entitled to relief (> than a shot in the dark).

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3
Q

In a complaint, what must be shown in a statement of facts alleging fraud or mistake?

A

The facts must describe the fraud with specific particularity.

More Info: Fraud or Mistake

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4
Q

How long does a party have to unilaterally amend a complaint?

A
  1. A party can unilaterally amend a complaint within 21 days of filing
  2. If an answer or motion to dismiss has been filed, then within 21 days of that filing
  3. A party can amend an answer within 21 days of filing it
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5
Q

What are the methods for amending a complaint?

A
  1. As a matter right
  2. With permission
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6
Q

What are the ways to amend a complaint with permission?

A
  1. Permission of the Opposing Party

Or

  1. Permission of the Court
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7
Q

What factors will a court weighwhen grantingpermissionfrom the court toamendacomplaint?

A
  1. The reason for the amendment in the context of timing (≠ blameworthy)
  2. If the amendment will prejudice the other party
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8
Q

Which types of amendments do not relate back to the original filing for statute of limitations purposes?

A

Amendments seeking to add:

  1. A new claim

Or

  1. A new party
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9
Q

When will the filing date of amendments seeking to add a new claim relate back to the original filing date?

A

When the new claim arises out of the same transaction or occurrence.

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10
Q

When will the filing date of amendments seeking to add a new party relate back to the original filing date?

A

The filing date will only relate back to filing date of the complaint if all three of the following elements are met:

1) The party to be added knew of the lawsuit soon enough not to be prejudiced in defending against it and in no case later than the time permitted for service and process
2) The party to be added should have expected to be named as a defendant in the original complaint
3) The party to be added was originally left out of the case because of a mistake in identity
* More Info:* https://www.law.cornell.edu/rules/frcp/rule_15

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11
Q

When is a party to be added to a complaint originally left out of the case because of a mistake in identity?

A

When the plaintiff sued the wrong legal entity out of a group of entities

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12
Q

What does processfor service and processrequire?

A

1) A copy of the complaint
2) A 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.*

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13
Q

When must process be served?

A

Within 120 days of filing the complaint

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14
Q

Who can serve process?

A

Any person at least 18 years old and who is not a party to the action can serve process

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15
Q

How can process be served?

A
  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 defendant will be served

Or

  1. Serve process in the manner specified in Federal Rule of Civil Procedure 4
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16
Q

List the ways to properly serve process pursuant to Federal Rule of Civil Procedure 4 when suing a human being?

A
  1. Deliver the process to the defendant himself wherever he may be
  2. Leave process at the defendant’s home with someone of suitable discretion
  3. Serve the defendant’s registered agent
  4. Mail process to the defendant with a letter requesting that the defendant waive service in person
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17
Q

List the ways to serve process pursuant to Federal Rule of Civil Procedure 4 when suing a business entity?

A
  1. Serve process on an officer
  2. Serve process on a managing agent or general agent
  3. Serve process on any other agent authorized by appointment or by law to receive service (e.g. registered agent)
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18
Q

If the agent is one authorized by law to receive service and the law requires service by mail, then what must be done to properly serve process?

A

Serve by

  1. Hand

and by

  1. Mail
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19
Q

If a court has the power to assert personal jurisdiction over a party, that power becomes activated at what moment?

A

When the defendent is served with process

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20
Q

To what does the constitutional right to due process entitle a defendant?

A
  1. Notice of the claims against him

And

  1. Opportunity to be heard
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21
Q

How can the notice requirement of due process be fulfilled?

A
  1. Effective service and process

Or

  1. The plaintiff taking steps that are reasonably calculated to inform the defendant of the action against him
    * More Info:* Notice Requirement of DP
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22
Q

When new claims are filed during a lawsuit, when must process be served?

A

Service of process need only be accomplished when a new party has been added to the lawsuit (≠ new claims)

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23
Q

What happens if a defendant fails to deny an allegation in a plaintiff’s complaint?

A

Defendants must specifically admit or deny the allegations or raise defenses. If they do not, then the ruling will be for the plaintiff

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24
Q

After process is served, the party sued must decide how to respond. What options do the Federal Rules offer?

A

A defendant to a suit can file:

  1. An answer
  2. A motion for a more definite statement
  3. A motion to strike

Or

  1. A motion to dismiss
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25
Q

What happens if a Defendant fails to include a defense in his answer?

A

The defendant forfeits that defense.

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26
Q

What defenses are not waived if not included in an answer?

A
  1. Failure to state a claim upon which relief can be granted
  2. Failure to join a necessary party

And

  1. Lack of subject matter jurisdiction
    * More Info:* Unwaivable Defenses
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27
Q

When is a motion to strike appropriate?

A

If a complaint or answer contains redundant, immaterial, or scandalous matters, then the court may on its own or by motion order the improper material stricken.

More Info: Motion to Strike

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28
Q

Define a motion to dismiss.

A

A motion that seeks the dismissal of a claim and can be filed by any party defending against a claim.

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29
Q

If defendant was actually served with process (regardless of the method), how long does the defendant have to respond to a complaint?

A

21 days to respond

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30
Q

If the defendant has waived service of process, then how long does the defendant have to respond to a complaint?

A

60 days to respond.

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31
Q

If the defendant responds to the plaintiff’s complaint by filing a motion for a more definite statement, a motion to strike, or a motion to dismiss, then what must the defendant do if the motion is denied? The defendant must file an answer within what time period?

A

14 days of the motion’s denial

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32
Q

Rule 11 sanctions are appropriate for violations what principles?

A
  1. Good Faith
  2. Good Facts
  3. Good Law, unless advocating for good faith change to existing law
    * More Info:* Rule 11 Sanctions
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33
Q

How should a party seek sanctions for Rule 11 violations?

A
  1. Draft a motion and give it to offending party

Then

  1. Wait 21 days after service for offending party to withdraw. Then, if not withdrawn, file it with the court.
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34
Q

What must be the goal of sanctions?

A

To deter the repetition of such conduct by anyone similarly situated

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35
Q

Who is subject to Rule 11 sanctions?

A
  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.
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36
Q

When is a party not subject to Rule 11 sanctions?

A
  1. When the violation occurs in discovery
  2. There are no monetary sanctions for violations of the rule requiring “good law”
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37
Q

What elements are required for a preliminary injunction?

A

1) Notice on adverse party
2) Likelihood that the plaintiff will succeed on the merits
3) Irreparable Harm to the plaintiff is imminent
4) Balance of hardships favors an injunction (harm to plaintiff if denied > harm to defendant if granted)
5) Injunction is in the public interest
6) Payment of security deposit (plaintiff must put up a security deposit to compensate the defendant for harm against him due to the injunction).

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38
Q

What elements are required for a temporary restraining order?

A

1) Notice on adverse party
2) Likelihood that the plaintiff will succeed on the merits
3) Irreparable harm to the plaintiff is imminent
4) Balance of hardships favors the injunction (harm to plaintiff if denied > harm to defendant if granted)
5) Injunction is in the public interest
6) Payment of a security deposit (plaintiff must put up a security deposit to compensate the defendant for harm against defendant due to the restraining order).

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39
Q

What is the duration of a preliminary injunction?

A

The entirety of the lawsuit

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40
Q

What is the duration of a temporary restraining order?

A

14 days

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41
Q

What are the notice requirements for a temporary restraining order (TRO)?

A

A TRO can be granted ex parte. For ex parte granting of a TRO, the plaintiff must show that they:

  1. Tried to give notice

And

  1. There will be an immediate irreparable harm to the plaintiff without the TRO.
    * More Info:* TRO Notice Requirements
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42
Q

What does joinder allow a plaintiff to do?

A

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, the plaintiff is not required to bring them all at once in the same lawsuit.

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43
Q

What is a permissive counterclaim?

A

A claim that does not arise out of the transaction or occurrence underlying any of the plaintiff’s claims against the defendant. A defendant may file a permissive counterclaim against a plaintiff.

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44
Q

What is a compulsory counterclaim?

What is the effect of failing to bring a compulsory counterclaim?

A

A claim that does arise out of the transaction or occurrence underlying any of the plaintiff’s claims against the defendant.

Failure to bring a compulsory counterclaims precludes the defendant from bringing it later from the law of joinder.

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45
Q

If a party has multiple counterclaims against a plaintiff, what can that party do?

A

The defendant may bring them all together regardless of whether they are related.

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46
Q

Who files a cross claim?

A

A party against a co-party (i.e., someone on the same side of the v).

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47
Q

Cross claims may be filed only for what types of claims?

A

The cross claims must arise from the same transaction or occurrence of the plaintiff’s underlying claims.

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48
Q

Once a defendant files an appropriate cross claim against a co-defendant, the defendant may file what claims?

A

Join with the appropriate cross claims any additional claims, even if those claims are unrelated to the transaction or occurrence underlying the plaintiff’s suit.

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49
Q

Once a defendant files a cross claim against a co-defendant, that co-defendant is free to file what claims?

A

Counterclaims. Like an ordinary counterclaim, a counterclaim filed in response to a cross claim can be compulsory or permissive.

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50
Q

What is an impleader claim?

A

An impleader claim is brought against somebody not yet involved in the lawsuit.

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51
Q

When may an impleader claim be brought?

A

Only if the claim alleges that the third party is responsible for some or all of the liability facing the defending party.

More Info: Impleader

52
Q

What are classic impleader claims?

A
  1. Contribution claims
  2. Indemnity claims (claims against insurers)
53
Q

What are the timing requirements of impleader claims?

A

The defendant may file impleader claims:

  1. Within 14 days of serving an answer

Or

  1. With permission of court
54
Q

After a party has been impleaded into a lawsuit, the impleaded party may file what claims?

The original plaintiff may file what claims?

A

The impleaded party 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 the original claims.

55
Q

When is permissive joinder (Rule 20) allowed?

A

Multiple plaintiffs or defendants can join if:

  1. Claims arise out of the same transaction or occurrence

And

  1. There is a common question of law or fact to all parties joined
    * More Info:* Permissive Joinder
56
Q

What are the steps if joinder is mandatory?

A

If the absent party is necessary:

Step 1: Join the party if available

Step 2: If the necessary party cannot be joined, determine whether the necessary party is indispensable

Step 3: If the party is indispensable, dismiss the case

57
Q

When is a party necessary?

A

A party is necessary if:

  1. The party has an interest that might be impaired if the party is left out of the litigation
  2. If complete relief cannot be issued in the party’s absence

Or

  1. If the current parties would be subject to duplicative or inconsistent liability if the party is not joined
    * More Info:* Necessary Party
58
Q

Are joint tortfeasors necessary parties?

A

No.

59
Q

What are two reasons why a missing party cannot be joined in federal court?

A
  1. The court lacks personal jurisdiction over the missing party

Or

  1. Adding the party would destroy suit diversity
60
Q

If a missing party is indispensable, what must the court do?

A

Dismiss the suit

61
Q

What will the court consider to determine whether a missing party is indispensable?

A

Whether the dispute can be resolved without prejudicing the missing party.

62
Q

What are the requirements for a class action suits?

A
  1. That a class can be formed
  2. That the claim brought is proper for resolution via a class action
63
Q

What four requirements must be met to form a class for the purposes of litigation?

A
  1. Numerosity: the class is so numerous that joinder of all would be impractical
  2. Commonality: there is a question of law or fact common to the class
  3. 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;
  4. Representativeness: the representative parties will fairly and adequately protect the interests of the class
64
Q

When is class action adjudication proper?

A
  1. Where separate actions would create a risk of inconsistent judgments or judgments that would substantially impair the ability of a non-party member to protect his interests
  2. Where the party opposing the class has acted in ways generally applicable to the class

And

  1. 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.
65
Q

In a class action case, who must the court have personal jurisdiction over?

A

Each defendant and only the plaintiffs named in the case

66
Q

What is the effect of a judgment in a class action on the class members?

A

The judgement binds all members of the class

67
Q

What are the notice requirement in class action suits?

A

The notice must be reasonably calculated to apprise members of the class of the action, and it is often accomplished through mail or publication.

68
Q

When a class action alleges a violation of state law,when can it appear in federal court?

A
  1. The defendants are diverse from the named plaintiffs

Or

  1. If the class has over 100 members and seeks damages over $5,000,000 + any defendant is diverse from any class plaintiff.
69
Q

How can a class action be removed?

A

Removal can be requested by

  1. The home state defendant

Or

  1. Any defendant without full agreement
70
Q

When can a party file an interpleader claim?

A

When a party fears that it will be caught in the middle of two different parties suing for the same thing.

More Info: Interpleader Claims

71
Q

What is a Rule 24 intervention?

A

When a non-party attempts to join a lawsuit through its own initiative

72
Q

When does intervention as a right occur?

A

The court must allow for intervention if:

1) The party claims an interest relating to the subject matter of the action

And:

2) Absent intervention, the party may not be able to protect their interest

73
Q

When is permissive intervention available?

A

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.

74
Q

What happens if the law of joinder allows a claim to be added but the additional claim is not consistent with the law of subject matter jurisdiction, personal jurisdiction, or venue?

A

The claim will not be allowed without proper subject matter jurisdiction or personal jurisdiction; however, improper venue will not keep a joinder claim out.

75
Q

What is the bulge rule?

A

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.

More Info: Bulge Rule

76
Q

What does a Rule 26(f) conference require?

A

The parties to meet and discuss the likely content of discovery in the case and draft a discovery plan. Parties must submit the plan within 14 days to the court.

77
Q

When must a Rule 26(f) conference be held?

A

At least 21 days before a Rule 16(b) conference is held or order is issued.

78
Q

What does Rule 16(b) require the court to do?

What is the time period for action?

A

Issue a scheduling order which must be issued within 120 days of when the defendant is served, or within 90 days of when the defendant appears, whichever is earlier.

79
Q

List the types of mandatory discovery disclosures.

A
  1. Initial
  2. Expert
  3. Pretrial
80
Q

When must initial discovery disclosures be made?

A

Within 14 days of a Rule 26 conference.

81
Q

What must initial discovery disclosures contain?

A
  1. Witness list and contact info
  2. Documents that support a claim or defense
  3. Computation of damages
  4. Insurance agreements
82
Q

When must expert discovery disclosures occur?

A

90 days before trial

83
Q

What must expert discovery disclosures contain?

A
  1. The name and contact information of the expert
  2. The expert’s final report
  3. The experts opinion and creditientals
  4. What the expert relied upon
    * More Info:* Expert Discovery Requirements
84
Q

When must pretrial discovery disclosures be made?

A

30 days before trial

85
Q

What must pretrial discovery disclosures contain?

A
  1. A list of the witnesses she expects to call at trial
  2. The witnesses she may call if the need arises
  3. A list of witnesses whose testimony will be presented through a deposition or deposition transcript
  4. A list of documents or physical evidence she expects to present
86
Q

What can not be asked for in discovery?

A

Information that

  1. Is irrelevant
  2. Violates privilege
  3. Is considered work product

Or

  1. Causes an undue burden
87
Q

When is information relevant for discovery?

A

If it is likely to make any fact in the dispute more or less likely to be true, regardless of whether it is admissible

88
Q

Is work product discoverable?

A

No, nothing prepared in anticipation of litigation is discoverable.

89
Q

When is work product discoverable?

A
  1. A party can always obtain a statement that it has made
  2. A party can obtain work product for which it has a substantial need and cannot otherwise obtain without substantial hardship
90
Q

When is attorney-client privilege applicable?

A

Only for private communications between attorneys and clients

91
Q

When does a discovery request impose an undue burden?

A

When it would be inefficient in the context of the request (weigh: burden v. relevance).

92
Q

When is information pertaining to experts undiscoverable?

A

When the expert is a non-testifying expert unless there is an extraordinary need to obtain the information.

93
Q

What information is discoverable for a testifying expert?

A

1) Information related to the final report
2) Communications relating to compensation for testimony
3) Communications relating to the data provided by the attorney to the expert
4) Communications relating to any assumption the attorney asked the expert to make in developing the expert opinion

94
Q

What are the methods for discovery?

A
  1. Interrogatories
  2. Request for Admissions
  3. Request for Documents and Tangible Items
  4. Requests for Mental or Physical Examinations
  5. Depositions
  6. Subpoenas
    * More Info:* Discovery Methods
95
Q

What are interrogatories?

A

Questions in writing submitted to another party to answer

96
Q

What is the limit on interrogatories?

A

A party can ask a maximum of 25 questions

97
Q

A party served with interrogatories has how many days to respond?

A

30 days.

98
Q

What must responses to interrogatories include?

A

The response to an interrogatory must:

  1. Be in writing

And

  1. Include objections with specificity
99
Q

What is a request for admission?

A

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.

100
Q

A party served witha request for admission has how many days to respond?

A

30 days

101
Q

What are a party’s options when responding to admissions?

A

The responding party may:

  1. Admit the contention
  2. Deny the contention

Or

  1. State that he has made a reasonable attempt to ascertain the truth of the matter but cannot confirm or deny
102
Q

A party served with a request for production of documents has how many days to respond?

A

30 days.

103
Q

How must a party served with a request for production of documents provide the documents?

A

As they are maintained in the usual course of business and labeled to correspond to the request

More Info: Request for Production of Documents

104
Q

When can a request for a mental or physical examination be made?

A

A request for a mental or physical examination is used when a party’s mental or physical state is at issue in a case.

105
Q

How is a request for a mental or physical examination be made?

A

The requesting party must go to the court and show cause

106
Q

How many depositions is each party entitled to?

A

10; however, a court can grant more.

107
Q

What do depositions to perpetuate testimony require?

A

That all opposing parties are provided an opportunity to be present and ask questions.

108
Q

Depositions can only occur when?

A

During the pendency of the lawsuit.

109
Q

When can a party use a deposition at a hearing or trial?

A

If the party against whom the deposition is used had a reasonable opportunity to be present at the deposition.

110
Q

What may a deposition of a party or a party’s employee be used for at a hearing or trial?

A

Any purpose.

111
Q

What may a deposition of a non-party may be used for at a hearing or trial?

A
  1. Only to impeach the deponent

Or

  1. If the deponent is unavailable, (e.g., by reason of death, infirmity, or disappearance), the deposition can be used for any purpose
112
Q

What are subpoenas used for?

A

Subpoenas are used to obtain discovery from non-parties.

113
Q

How can a person object to a subpoena?

A
  1. General exceptions to discovery
  2. Subpoena requires travel of 100 miles from residence or work
114
Q

What should you do to enforce discovery if a person “sort of complies” with a request?

A

File for:

  1. Motion to compel

Then, if ineffective,

  1. Sanctions
    * More Info:* Motion to Compel
115
Q

What is required to file a motion to compel?

A

The movant must have made a good faith attempt to confer with the person resisting discovery to see if judicial intervention can be avoided.

116
Q

If a motion to compel succeeds, what is the result?

If it fails?

A

If successful, the movant is entitled to legal fees. If it fails, then the non-movant is entitled to legal fees unless the the motion was justified.

117
Q

What are the court’s options for discovery sanctions?

A
  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
  4. An order of contempt
    * More Info:* Discovery Sanctions
118
Q

How do you enforce a discovery request if the opposing party does not comply at all?

A

File for sanctions.

119
Q

What is needed to file a reply to an answer?

A

Permission from the court.

120
Q

How many days after an answer does a defendant have to file a 3rd party complaint?

A

14 days

121
Q

When is serving a notice of deposition required?

A
  1. The deponent is a party
  2. The deponent is a witness that is not a party
122
Q

If a defendant in their answer does not assert affirmative defenses, when can they bring them up?

A

Affirmative defenses are waived if they are not brought up in the first responsive pleading.

123
Q

If a summons and complaint are sent by mail and the defendant receives but does not acknowledge the complaint, what is the result?

A

The defendant must be served as otherwise provided in that rule (even if he gets it, the mailing is procedurally defective)

124
Q

How can the court impose sanctions on its own accord and who can they impose sanctions on?

A

As long as there is a show cause order, the court can impose sanctions on anyone even if they are pro se.

More Info: Court Imposed Sanctions

125
Q

Does appearing in court automatically consent a party to jurisdiction?

A

No, not if the party showing up is doing so to object to jurisiction.

126
Q

When will someone with an interest in an action not be allowed to intervene?

A

When permitting him to intervene would destroy diversity

T&D.Edits.Civil.Procedure (5 decks)

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