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Civil Procedure > Procedures Once in the Right Court > Flashcards

Procedures Once in the Right Court Flashcards

1
Q

What must a complaint include?

A

A statement of the grounds for jurisdiction, a short and plain statement of the claim showing the plaintiff is entitled to relief, and a demand for relief.

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2
Q

What is the pleading standard?

A

The plaintiff must sufficient grounds to support a plausible claim. Fraud, mistake, and special damages have a heightened standard which requires particularity or specificity.

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3
Q

How and when must a defendant respond to the complaint?

A

The defendant must respond by a motion or answer within 21 days of the complaint being served (60 days if service is waived).

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4
Q

Which defenses are waived if not raised in the defendant’s answer or first motion?

A

(1) personal jurisdiction
(2) improper process
(3) improper service of process
(4) venue

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5
Q

Which Rule 12 motions address issues of form?

A

Rule 12(e) - motion for a more definite statement - used when a complaint is so vague or ambiguous that the defendant cannot respond

Rule 12(f) - motion to strike - any party can ask the court to remove redundant or immaterial things from a pleading

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6
Q

What defenses under Rule 12 can be raised after the defendant’s answer or first motion?

A

Failure to state a claim or failure to join an indispensable party can be raised as late as at trial.

Lack of subject matter jurisdiction can be raised at any time.

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7
Q

When must a defendant answer if her motion to dismiss is denied?

A

14 days after the notice of denial.

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8
Q

What does the defendant do in the anwer?

A

(1) admit, deny, or state she does not have sufficient knowledge to admit or deny
(2) raise affirmative defenses

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9
Q

What happens if a defendant does not deny an allegation in the complaint?

A

The failure to deny is deemed an admission, except regarding the amount of damages.

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10
Q

Does a plaintiff need to respond to a defendant’s assertion of an affirmative defense?

A

No. The allegations in the answer are deemed denied by the plaintiff.

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11
Q

When does a plaintiff have a right to amend the complaint?

A

A plaintiff has a right to amend the complaint once of course no later than 21 days after the defendant serves the first Rule 12 response.

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12
Q

When does a defendant have a right to amend the answer?

A

The defendant has a right to amend the answer no later than 21 days of serving it.

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13
Q

May an amended answer include the waivable Rule 12(b) defenses?

A

Yes, if the defendant’s first response was an answer.

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14
Q

May a pleading be amended after the period for of right amendment has expired?

A

Yes, if the court gives leave to amend or if the other party gives written consent.

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15
Q

What is a variance?

A

A variance exists when the evidence at trial does not match what was pleaded.

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16
Q

When may a pleading be amended in response to a variance?

A

When the other party fails to object to the evidence at trial and the proponent moves to amend.

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17
Q

When does an amended pleading relate back to join a claim to the original complaint?

A

An amended pleading relates back when the pleadings concern the same transaction, occurrence, or conduct as the original pleading.

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18
Q

When does an amended pleading relate back to join a defendant to the action?

A

An amendment relates back if:
(1) the amendment concerns the same conduct, transaction, or occurrence, and

within the time period for service of process,
(2) the defendant had such knowledge of the case that she will be able to avoid prejudice, and
(3) the defendant knew or should have known that but for a mistake, she would have been named as a defendant.

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19
Q

What is a supplemental pleading and is there a right to file them?

A

A supplemental pleading sets forth things that happened after the pleadings were filed. There is no right to file a supplemental pleading.

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20
Q

What is the Rule 11 signature requirement?

A

When a lawyer or pro se party signs documents, she certifies that to the best of her knowledge and belief and after a reasonable inquiry,
(1) the document is not for an improper purpose,
(2) the legal contentions are warranted by law or a nonfrivolous argument for a change in law, and
(3) the factual contentions and their denials have evidentiary support or are likely to after further investigation.

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21
Q

Who may Rule 11 sanctions be assessed agaist?

A

Rule 11 sanctions may be assessed against a party, lawyer, or the lawyer’s firm.

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22
Q

Who files a request for Rule 11 sanctions?

A

A party may file by motion or the court may raise the issue sua sponte via an order to show cause.W

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23
Q

Who are monetary sanctions under Rule 11 paid to?

A

Monetary sanctions are paid to the court.

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24
Q

What is the Rule 11 safe harbor provision?

A

A party cannot immediately file for Rule 11 sanctions. She must serve the motion on the other parties and give them 21 days to fix the problem before filing the motion with the court.

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25
When may a plaintiff join additional claims?
A plaintiff may join any claims she has against an adverse party, even if the additional claim is unrelated, as long as there is subject matter jurisdiction for the claim.
26
Which claims are proper when there are multiple plaintiffs or defendants?
Claims by multiple plaintiffs or against multiple defendants must arise from the same transaction or occurrence ad raise at lease on common question of law or fact.
27
When is an absentee a necessary party?
An absentee is a necessary party when the court cannot accord complete relief among the parties without the absentee, the absentee's interest may be harmed if she is not joined, or the absentee claims an interest that subjects a party to a risk of multiple obligations.
28
When is joinder feasible?
Joinder is feasible if there is personal jurisdiction over the absentee and there will be subject matter jurisdiction over the claim by or against the absentee.
29
When is there personal jurisdiction over an absentee?
When the absentee is served within a district of the United States and is not more than 100 miles from where the summons was issued. If these criteria are not met, a traditional contacts analysis is needed.
30
What factors does a court consider when deciding whether to proceed with a case without an absentee party?
The court will consider whether there is an alternate forum available, the likelihood of actual harm to the absentee, and whether the court can shape relief to avoid harm to the absentee.
31
What is an indispensable party?
An absentee is indispensable when the case cannot proceed without joining him.
32
What is a counterclaim?
A counterclaim is a claim against an opposing party.
33
Where is a counterclaim asserted?
A counterclaim is asserted in the defendant's answer.
34
Does a plaintiff have to respond to a counterclaim?
Yes, within 21 days of service of the counterclaim.
35
Which counterclaims are compulsory?
A compulsory counterclaim is one that arises from the same transaction or occurrence as the plaintiff's claim.
36
What happens if a compulsory counterclaim is not asserted?
It is waived.
37
What is a permissive counterclaim?
A permissive counterclaim is one that does not arise from the same transaction or occurrence as the plaintiff's claim.
38
Must a permissive counterclaim be asserted in the same action as the plaintiff's claim?
No, it can be asserted in a separate action.
39
What is a crossclaim?
A crossclaim is a claim against a coparty that arises from the same transaction or occurrence as the underlying action.
40
Is a crossclaim compulsory?
No.
41
Can a crossclaim be asserted in a separate action?
Yes.
42
What is an impleader claim?
An impleader claim is one where a defending party is bringing in a new party to shift to the new party the liability that the defendant will owe the plaintiff (indemnity or contribution).
43
May a plaintiff assert claims against an implead defendant and vice versa?
Yes, as long as the claims arise out of the same transaction or occurrence and there is subject matter jurisdiction.
44
When is there personal jurisdiction over an impleaded party?
There is personal jurisdiction if the impleaded party is served in a district of the United States, not more than 100 miles from where the summons was issued. Otherwise, personal jurisdiction is determined based on the traditional contacts analysis.
45
What is intervention?
Intervention is when a nonparty brings herself into the case as a plaintiff or defendant.
46
Is there a timeframe for intervention?
Intervention must be timely.
47
What is intervention of right?
Intervention of right is when an absentee's interest may be harmed if he is not joined and the interest is not adequately represented by the current parties.
48
What is permissive intervention?
Permissive intervention is when the absentee's claim or defense and the pending case have at least one common question of law or fact.
49
Is permissive intervention allowed?
Usually yes, as long as there is subject matter jurisdiction, unless it would cause delay or prejudice someone.
50
Is an intervenor plaintiff a plaintiff for the purpose on the limitation of supplemental jurisdiction in diversity cases?
Yes.
51
What is interpleader?
Interpleader permits a stakeholder to require two or more adverse claimants to litigate the claim among themselves to determine which claims are valid.
52
What is Rule 22 interpleader?
Rule 22 requires complete diversity between the stakeholder and all adverse claimants and over $75,000 in controversy.
53
What is statutory interpleader?
Statutory interpleader requires only diversity between any two contending claimants and $500 to be in issue.
54
What is a class action?
A class action is a case in which representatives sue on behalf of a group.
55
What are the requirements to qualify as a class action?
(1) numerosity - too many class members for practical joinder (2) commonality - some issue common to all class members (3) typicality - the class rep's claims are typical of the claims of the class (4) representative adequate - the class rep will fairly and adequately represent the class
56
What is a type 1 class action?
In a type 1 class action, class treatment is necessary to avoid prejudice to either class members or a non-class party.
57
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61
When is a case a class action?
A case is a class action when the court grants the motion certifying the class, defines the class and the class claims, issues, or defenses and appoints class counsel.
61
What is a type 2 class action?
A type 2 class action seeks declaratory or injunctive relief because the defendant treated the class members alike.
61
Is certification of a class appealable?
The losing party may seek review of the decision to certify the class, but the appeal is discretionary with the court of appeals.
62
What is a type 3 class action?
A type 3 class action requires (1) common questions predominate over individual questions and (2) the class action is the superior method to handle the dispute.
63
Must class members be notified of the class action?
In a type 3 class action, reasonably identifiable class members must be individually notified by the court.
64
What does notice of a class action include?
The notice includes: -that the member can opt out -that the member will be bound by the judgment -that the member can enter a separate appearance
65
Is there a right to opt out of a class action?
Only in type 3 class actions.
66
How is a class action settled?
A class action may only be settled with the approval of the court. In all 3 types, the court must give notice to class members to get their feedback.
67
When might a court refuse to approve a class action settlement?
A court might refuse settlement of a type 3 class action if the members have not been given a second chance to opt out.
68
When is there subject matter jurisdiction in a class action?
When there is a federal question, when the class representative's citizenship is diverse from all defendants and her claim exceeds $75,000, or when the Class Action Fairness Act applies.
69
When does the Class Action Fairness Act grant subject matter jurisdiction?
The CAFA grants subject matter jurisdiction over class actions if there are at least 100 class members, any class member is diverse from any defendant, and the aggregated claims amount exceeds $5 million.
70
Who may remove a class action under the Class Action Fairness Act?
Any defendant may remove the class action to federal court.
71
What are the initial required disclosures?
The initial required disclosures are (1) the identies and contact information for people with discoverable information (2) documents and tangible things the party may use to support claims or defenses that are in the party's control (3) a computation of monetary relief with supporting documents for the amount sought (4) insurance coverage that might cover all or part of the claim
72
When must initial disclosures be made?
Initial disclosures must be made within 14 days of the Rule 26(f) conference.
73
What is the penalty for failure to make initial disclosures?
If a party fails to disclose material, that party cannot use the undisclosed material in the case unless the failure was substantially justified or harmless.
74
What disclosures are required for expert witnesses?
Each party must identify expert witnesses who may provide testimony at trial and provide copies of the expert witness's report.
75
Must a party disclosure information prepared by a consulting witness?
No, unless there are exceptional circumstances.
76
What must an expert witness report include?
The report must include -the basis for opinions -the facts used to form the opinions -the expert witness's qualifications -how much the expert witness is being paid
77
May an expert witness be deposed?
Yes, with a subpoena to compel appearance.
78
What is the penalty for failing to disclose an expert witness or the report?
If a party fails to disclose required material, she cannot use the expert witness at trial unless the failure was justified or harmless.
79
When are pretrial disclosures required?
30 days before trial
80
What are pretrial disclosures?
Pretrial disclosures are information about trial evidence, including the identity of witnesses who will testify, ESI, and other things that will be produced at trial
81
When can discovery requests be served?
Requests for discovery can't be sent until after the Rule 26(f) conference, except requests to produce, which can be served once 21 days have passed since service of process.
82
Who pays the cost of discovery?
The party who is responding to discovery.
83
What is a deposition?
In a deposition, a person gives live testimony, under oath, which is recorded for transcription.
84
May nonparties give depositions?
Yes, both parties and nonparties may be deposed.
85
Is a subpoena require for a deposition?
A subpoena is not required if the deponent is a party. It is required if the deponent is a nonparty.
86
What is a subpoena duces tecum?
It requires a deponent to bring requested materials to a deposition.
87
How far must a nonparty travel to attend a deposition?
Unless the nonparty agrees otherwise, the farthest she can be required to travel is 100 miles from when she resides or is employed.
88
How is an organization deposed?
An organization is given notice describing the facts to be discovered in the deposition. The organization then must designate a person to testify on the matter.
89
What are the limits on depositions?
A party cannot take more than 10 depositions or depose the same person twice without court approval. Depositions cannot last longer than 1 day of 7 hours.
90
How may depositions be used?
(1) to impeach the deponent (2) for any purpose if the deponent is an adverse party (3) for any purpose if the deponent is unavailable for trial, unless the absence was procured by the deposition's proponent.
91
What are interrogatories?
Interrogatories are written questions answered in writing under oath.
92
Can interrogatories be sent to nonparties?
No.
93
What is the maximum number of interrogatories?
25, including subparts.
94
When must interrogatories be answered?
Interrogatories must be answered within 30 days of service.
95
Must a party look up answers to interrogatories?
Yes, a party must answer interrogatories with information reasonably available. However, if the answers can be found in business records and the burden of finding the answer would be the same for either party, the responding party can allow the requester to access the records.
96
Are interrogatories about legal contentions permitted?
Yes.
97
What is a request to produce?
A request to produce is a request to a party to make available for review and copying documents and ESI, or to permit a party entry onto property to inspect it.
98
How must ESI be produced?
ESI must be produced in the form requested by the requesting party.
99
When must a party respond to a request to produce?
A party must respond to the request in writing within 30 days of service stating that the material will be produced or objecting to the request.
100
Can nonparties be sent requests to produce?
No, but they can be sent subpoenas to require disclosures of the same types of information.
101
May a party be required to submit to a medical exam?
Yes, if the court orders a medical examination.
102
What is required for an order for a medical exam?
The requesting party must show that the person's health is in actual controversy and good cause.
103
Who chooses the doctor for a court-ordered medical exam?
The requesting party chooses the medical professional to perform the exam.
104
Does the person undergoing the medical exam have a right to see the resulting report?
Yes, but only if the person requests the report and, on request, produces all medical reports by her own doctors about the same condition and waives doctor-patient privilege regarding that condition.
105
What is a request for admission?
A request for admission is a written request that someone admit certain matters.
106
How long does a responding party have to respond to a request for admission?
30 days from the date of service.
107
What happens if a party fails to deny a proper request for admission?
The matter is deemed admitted.
108
What is the signature requirement for discovery?
Every discovery request and response is signed by counsel certifying it is warranted, not interposed for an improper purpose, and not unduly burdensome.
109
What is the duty to supplement discovery?
The party must supplement the response to discovery if new facts come to light after responding to a discovery request that would make the disclosure, interrogatory, request for production or request for admission incomplete or incorrect.
110
What is the scope of discovery?
A party can discover anything that is relevant to a claim or defense and proportional to the needs of the case.
111
Does information need to be admissible to be discoverable?
No.
112
How does privilege affect discovery requests?
A party may object to discovery on the basis of privilege.
113
What is work product?
Work product is material prepared in anticipation of litigation.
114
When is work product discoverable?
Work product is sometimes discoverable if the requesting party can show a substantial need and undue hardship in obtaining the materials in an alternate way.
115
What work product is absolutely protected?
Opinion work product is absolutely protected.
116
Is a party's own statement discoverable?
Yes, a party has the right to demand discovery of any statement she has made.
117
How is privilege asserted in discovery?
If a party withholds discovery or seeks a protective order based on work product, she must clam protection expressly and describe the materials in detail in a privilege log.
118
Does inadvertently disclosed information lose privelege?
No.
119
What do the parties need to do if information is inadvertently disclosed?
The party should notify the other of the inadvertent disclosure. The recipient must return, sequester, or destroy the material pending the court's decision on whether privilege has been waived.
120
How does a party request a protective order?
If a party thinks a discovery request subjects her to annoyance, embarrassment, undue burden or expense, she can request a protective order. The request must certify the party tried in good faith to resolve with the requestor without court involvement.
121
What happens if a party only responds to some discovery questions?
If a party fails to answer all of the questions, she may be compelled to answer the rest by court order.
122
What happens if a party does not respond at all to a discovery request?
If a party completely fails to respond to a discovery request, she may be subject to sanctions.
123
How is a party compelled to answer the remaining discovery questions when she has not responded fully?
(1) the requesting party moves for an order compelling the answer plus costs of bringing the motion (2) if the producing party violates the order, she could be held in contempt and the court can enter merits sanctions along with costs
124
What is the penalty for failure to respond at all to discovery requests?
The court can enter merits sanctions plus costs.
125
Must a party move to compel answers to discovery questions if the other party completely fails to respond?
No.
126
What are merits sanctions?
(1) establishment order (2) strike pleadings of the disobedient party (3) disallow evidence from the disobedient party (4) dismiss the plaintiff's case (if bad faith shown) (5) enter a default judgment against the defendant (if bad faith shown)
127
What is a litigation hold?
When litigation is reasonably anticipated, parties must preserve discoverable information, including ESI.
128
Can a court enter merits sanctions or give an adverse instruction if a party fails to preserve ESI as part of a litigation hold?
Yes, but only if the party who lost the ESI acted with the intent to deprive the other party of the ESI.

Civil Procedure (4 decks)

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