Pretrial Procedures

Question 1

What are the types of pleadings?

Answer 1

Complaints, answers to complaints, answers to counterclaims, answers to cross-claims, third-party complaints, answers to third-party complaints, and relies to answers, if ordered by the court.

Question 2

What are the rules for pleadings?`

Answer 2

A pleading that states a claim for relief, must contain:

1. a short and plain statement of the grounds for the court’s jurisdiction;
2. a short and plain statement of the claim showing that the pleader is entitled to relief; and
3. a demand for the relief sought.

It can make inconsistent claims or defenses.

It must contain sufficient factual matter to set out a plausible claim for relief.

These matter must be pleaded with particularity:

1. capacity/authority to sue;
2. fraud, mistake, or condition of the mind;
3. conditions precedent;
4. time and place; and
5. special damages.

Question 3

What is an amendment?

Answer 3

A party may amend a complaint within 21 days of filing, or if no answer or motion has been filed, and an answer within 21 days of filing it as a matter of course.

In a situation where a party does not have the right to amend. a pleading may be amended with the written consent of the opposing party, or with the leave of court. The court will consider: a. the reason for the delay in raising the matter to be raised by the amendment; and b. the prejudice to the opposing party cause by the delay.

Under the relation back doctrine, the court will treat an amendment to a pleading as though it had been filed with the original pleading.

An amendment to a pleading that adds a new claim will be considered filed on the date in which the original complaint was filed as long as the amendment asserts a claim or defense that arose out of the same conduct, transaction, or occurrence as the original claim.

An amendment to a pleading that adds a new party will be considered filed on the date in which the original complaint was filed as long as:

1. the amendment asserts a claim or defense that arose out of the same conduct, transaction, or occurrence as the original claim;
2. the party to be added by the amendment received notice of the original action within 90 days of service of the claim such that it will not be prejudiced in defending on the merits; and
3. the party to be added knew, or should have known, that the original action would have been asserted against it, but for a mistake concerning the proper party’s identity.

Question 4

How does one respond to a complaint?

Answer 4

An answer is a pleading in which the responding party admits or denies the opposing party’s allegations and lists any defenses he might have.

The answer must be filed within 21 days of service of process. If a motion is filed, an answer must be filed within 14 days of the motion being denied.

The responding party must admit those allegations, or parts of allegations, that are true, and deny the others.

A general denial is appropriate only when the responding party intends in good faith to deny all the allegations in the pleading.

If the D fails to deny an allegation, it is deemed admitted.

A party must plead certain affirmative defenses in its answer or reply to a counterclaim.

An affirmative defense is a defense that relies on factual issues not presented in the complaint. It does not necessarily deny the allegations of the complaint, but pleads additional facts. The include: accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, licenses, payment, release, res judicata, statute of frauds, statute of limitations, and waiver.

Affirmative defenses that raise objections based on jurisdiction or procedural matters may be raised either in a responsive pleading. These include: SMJ, PJ, venue, insufficient process, insufficient service of process, failure to state a claim, or failure to join.

Question 5

What is Rule 11?

Answer 5

A pleading in court must be signed by at least one attorney or personally by a party.

The pleading must be in good faith, good facts, and good law.

If there is a violation, a complaining party must draft a motion and send it to the party unfiled. Then, if there is no change, file it with the court.

The court may order to show cause under Rule 11.

Sanctions should be ordered to deter repetition of such misconduct by others in a similar position.

Rule 11 does not apply to discovery.

Question 6

What is provisional relief?

Answer 6

For a preliminary injunction, it is available upon notice to the adverse party and satisfaction of the following elements:

1. substantial likelihood of success - P is likely to win. Law and facts are on the P’s side.
2. irreparable harm - Modernly, any violation of rights satisfies this.
3. balance of the hardships - Whether the harm to the P if the injunction is denied is greater than the harm to the D if the injunction is granted.
4. public interest - the injunction does not hinder a public interest.
5. payment of security.

For a temporary restraining order, it must meet the above elements. This however only lasts for 14 days. An additional 14 days can be granted upon good cause. Notice is not necessary, however, attempt at notice must be shown.

Question 7

What rules govern multiple claims by one party against another single party?

Answer 7

A party may join as may claims in a single action as the party has against an opposing party. There is no requirement that all of the claims be related.

If the joinder of claims would lead to jury confusion or some other prejudice, the court may sever the claims for separate trials.

The multiple claims still must meet jurisdictional requirements.

Question 8

What is a counterclaim?

Answer 8

It is a claim brought in response to another’s claim.

A compulsory counterclaim is one that arises out of the same transaction or occurrence as the original claim in the lawsuit. Failure to raise this results in a waiver of the claim. Federal courts have supplemental jurisdiction.

A permissive counterclaim is any claim that a party has against an opposing party that does not arise out of the same transaction or occurrence that is the subject matter of the opposing party’s claim. Federal courts do not have supplemental jurisdiction. Must have independent grounds for federal jurisdiction.

Question 9

What is a cross-claim?

Answer 9

It is a claim filed by a party against a co-party. This claim must be a claim arising out of the same transaction or occurrence as the original claim or a counterclaim. Federal courts have supplemental jurisdiction.

Question 10

What is an impleader claim?

Answer 10

After a D to an action has served her answer, that D may proceed against a non-party who may be liable for all or part of the P’s claim against the D. There are contribution claims and indemnity claims.

An impleader claim must be made within 14 days of filing the answer.

An impleader may be severed if the court finds that the controversy would unduly delay the determination of the original action or prejudice a substantial right of one of the other parties.

Question 11

What is permissive joinder of parties?

Answer 11

It allows multiple Ps to join together in a single action and allows multiple Ds to be sued in a single action.

Multiple persons may be joined if:

1. the joined parties claim relief or face liability that arises out of the same transaction or occurrence and
2. any question of law or fact is common to the joined parties.

Question 12

What is mandatory joinder of parties?

Answer 12

A person who is subject to service of process and whose joinder will not deprive the court of subject matter jurisdiction must be joined as a necessary party if:

1. in that party’s absence, the court cannot grant complete relief among existing parties; or
2. the party claims an interest relating to the subject of the action, and an adjudication without the party may:
   a. as a pratical matter, impair or impede that party’s ability to protect his interests; or
   b. leave an existing party subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations.

If a person who is required to be joined cannot be joined fro jurisdictional reasons, the court must determine whether, in equity and good conscience, the action should proceed among the existing parties or be dismissed. The factors include:

1. the extent to which a judgment rendered in the person’s absence might prejudice that person or the existing parties;
2. the extent to which any prejudice could be lessened or avoided by: a. protective provisions in the judgment, shaping the relief, or other measures;
3. whether a judgment rendered in the person’s absence would be adequate; and
4. whether the P would have an adequate remedy if the action were dismissed nonjoinder.

Question 13

What is interpleader?

Answer 13

It is used where a P has some holding that would expose the P to multiple liability from adverse claims. The stakeholder can commence an action for interpleader to resolve liability where there are two or more adverse claimants. Interpleader is only applicable where multiple claims demand the same thing or obligation.

Rule interpleader (given by the FRCP) may be initiated by any person who may be exposed to multiple liability. Jurisdictional and venue requirements must still be met.

Statutory interpleader (given by a statute) may interplead all possible claimants. Statutory interpleader allows nationwide service of process, minimal diversity with an amount over $500, and venue is established where any one of the adverse claimants resides.

Question 14

What is intervention?

Answer 14

It allows a non-party to assert a right or interest in an ongoing action.

A non-party may intervene as a matter of right if:

1. a federal statute confers an absolute right of the party to intervene; or
2. a non-party asserting a protectable interest relating to the property or transaction involved in the lawsuit, and:
   a. the non-party is so situated that disposing of the action may as a practical matter impair or impede its ability to protect its interest; and
   b. the non-party’s interests are not adequately represented by existing parties.

A non-party may intervene with the permission of the court if:

1. a federal statute allows a conditional right to intervention; or
2. the non-party has a claim or defense that shares a common question of law or fact with the primary action.

Question 15

How is a class certified?

Answer 15

Four requirements are necessary:

1. Numerosity - The class needs to be so numerous that separate joinder would be impracticable.
2. Commonality - There are questions of law or fact common to the class. This means that the class must have suffered the same injury.
3. Typicality - The claims or defenses of the representative party are typical of those raised by each member of the class.
4. Adequacy of representation - The representative party can fairly and adequately protect and represent the interests of each member of the class.

Question 16

What other requirements are there for class certification?

Answer 16

1. The prosecution of separate actions would create a risk of inconsistent or varying judgments for individual class members that would establish incompatible standards of conduct for the party opposing the class;
2. Judgments for individual members of the class that would substantially impede or impair the ability of other members to protect their interests, or
3. The court finds that common questions predominate over individual questions, and class presentation is superior to other methods for adjudicating the controversy.

Question 17

What rules govern class actions?

Answer 17

A motion to certify a class action must be made at an early practicable time after the suit is commenced.

The court may direct appropriate notice to class members. For common questions/law class actions, notice is required and must include:

a. the nature of the action;
b. the definition of the certified class;
c. the class claims, issues, or defenses;
d. the ability of a class member to make an appearance;
e. the ability of a class member to request exclusion from the class; and
f. the binding effect of a judgment on all members of the class.

For injunctive relief class actions, notice need not be give to the class unless the court finds it necessary in order to protect the class.

In every type of class action, the court must have personal jurisdiction over all Ds and every named P.

The federal court is not required to have personal jurisdiction over absent members of the P class as long as they receive adequate notice of the pendency of the action and are afforded the opportunity to opt out of the class.

Minimal diversity is required where the class has more than 100 persons, at least one member is diverse from at least one D, and the total amount in controversy exceeds $5,000,000.

Class actions may be dismissed or compromised without court approval. In evaluating a settlement proposal, a court must consider whether it is fair, reasonable, and in the best interests of the individuals affected by it.

Class certification must be accompanied with suitable counsel.

Attorney’s fees may be awarded to the class counsel.

A court of appeals may permit an appeal from an order granting or denying class action certification if the petition for appeal is filed within 14 days after the order is entered.

Question 18

What is a Rule 26(f) conference?

Answer 18

This is a discovery planning conference. It requires the parties to meet and have a discovery planning conference as soon as practicable, but at least 21 days before a scheduling order is to be held or is due under Rule 16(b).

A written report outlining the proposed discovery plan must then be submitted to the court within 14 days after the discovery conference.

Question 19

What is a Rule 16(b) conference?

Answer 19

After a Rule 26(f) conference, the court may order the parties to confer again to discuss the litigation and the most efficient way to proceed and any possibilities for a settlement.

After such a conference, the court must issue a scheduling order. It must be issued within 90 days of the D being served or within 60 days of when the D appears.

Question 20

What are initial disclosures?

Answer 20

A party must disclose the following information:

1. the name, number, and address of individuals likely to have discoverable information, along with the subject of that information, that the disclosing party may use to support its claims or defenses;
2. a copy or description of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses;
3. a computation of damages claimed by the disclosing party, together with supporting materials; and
4. insurance agreements under which an insurance company may be liable to satisfy all or part of a possible judgment.

They must be made within 4 days of the Rule 26 discovery conference, and they must be based on the information then reasonably available.

Question 21

What are expert disclosures?

Answer 21

A party must disclose the identity of any witness that may testify at trial. If it is an expert who is to provide testimony, then the disclosure must be accompanied by the expert’s final written report.

If the witness does not need to provide a written report, the disclosure must state:

1. the subject matter on which the witness will testify; and
2. a summary of the facts and opinions that the witness will testify to.

These disclosures must be made at least 90 days before trial or if for impeach only within 30 days after the party’s disclosure.

Question 22

What are pretrial disclosures?

Answer 22

At least 30 days before trial each party must provide to the other parties and promptly file:

1. the name for each witness the party expects to present and those it may call if needed;
2. a lest of witnesses whose testimony will be presented through a deposition; and
3. a list of documents or physical evidence the party expects to present and may present if need be.

Question 23

What is the scope of discovery?

Answer 23

Any matter that is non-privileged, relevant, and proportional to the needs of the case. This includes any information that is reasonably calculated to lead to the discovery of any admissible evidence.

Privilege
Privileged information is not discoverable.

Work Product
A party may not discover documents and tangible objects prepared in anticipation of litigation or for trial by or for another party or its representative, including an attorney, consultant, surety, indemnitor, insurer, or agent.

However, it is still discoverable if:

1. they are otherwise discoverable under Rule 26(b)(1); and
2. the party shows both substantial need for the material to prepare its case and it cannot, without undue hardship, obtain their substantial equivalent elsewhere.

Experts
A party may depose any person who has been identified as an expert who is expected to testify at trial, but only to a limited extent because communications between an attorney and his expert are considered work product.

Additionally, a party can also obtain communications relating to:

1. compensation for the expert’s study or testimony;
2. any facts or data provided by the attorney to the expert that the expert considers in forming his opinion; and
3. any assumption the attorney provided and the expert relied on in forming his opinion.

Undue burden

If the request imposes an undue burden on the party from whom the information is sought, then the information may be undiscoverable.

Undue burden exists when:

1. the discovery sought is unreasonably cumulative or can be obtained from a less burdensome source or in a less burdensome way.
2. the party seeking the discovery has already had ample opportunity to obtain the information.
3. the burden or expense of the proposed discovery outweighs its benefits, considering the nature of the evidence sought, amount in controversy, and the parties’ resources.

Question 24

How should an attorney object to a discovery request?

Answer 24

Parties who receive discovery requests that are beyond the scope of discovery can either object to the requests or request a protective order.

In the event of an objection, a party must either:

1. abandon or reframe the discovery request; or
2. bring the dispute to the attention of the court filling a motion to compel.

Question 25

What are depositions?

Answer 25

Direct questioning of a party or witness under oath. The witness is given an opportunity to review the transcript and make technical corrections.

Question 26

What are interrogatories?

Answer 26

Written questions that must be answered by another party in writing under oath.

Question 27

What are document requests?

Answer 27

A request for a party to produce documents or property for inspection and copying.

A subpoena may be used to get documents and tangible documents.

Question 28

What are requests for admissions?

Answer 28

A request for admission of any matter within the scope of discovery.

Question 29

What are physical and mental examinations?

Answer 29

When a party’s condition is in controversy, a physical or mental examination of the person may be requested. Court approval is required.

Question 30

What are the discovery sanctions?

Answer 30

Motion to Compel

A party may move for an order compelling disclosure or discovery. The motion must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action.

Failure to Comply with Court Order

Where a party or witness fails to follow a court order, the court has the discretion to issue necessary orders.