Rules part 2 Flashcards
rule 22
interpleader
what do you still need with rule 22 (interpleader)
jurisdiction
what is interpleader related to?
property, don’t know who’s property it is. Don’t want to have separate cases or divide property.
ways to invoke a interpleader:
1) rule (diversity case and so diversity requirements apply. stakeholders must be diverse from all claimants)
2) statutory interpleader (1 claimant needs to be diverse from 1 claimant)
what kind of service does statutory interpleader allow?
nationwide (never have a problem with PJ as long as each claimant is in US)
Rule 23
class actions
what do plaintiff’s need for a class action?
1) numerosity (such the traditional joinder is impracticable)
2) commonality (common question or fact)
3) typicality (claims of rep p’s are typical of class)
4) adequacy (rep need to adequately protect the class)
Rule 24
3rd party intervention
what is 3rd party intervention? (24)
additional parties who want to be joined (intervention).an outsider wants to come into the case voluntarily
2 types of 3rd party interventions
1) of right
2) permissive
characteristics of of right 3rd party interventions
1) higher burden on intervener
2) court has less discretion
3) if case goes forward w/o outsider, outsider agrees that his/her interest would be harmed and existing parties won’t adequately represent outsider’s interest
characteristics of permissive 3rd party interventions
1) generally freely granted based on court’s discretion unless in a weird fact pattern
2) as long as party is seeking to intervene has a claim or question that gods along with the underlying case
rule 26
duty to disclose/general provisions governing discovery
what are initial disclosure under rule 26?
1) must disclose information before discovery even starts
2) names and addresses
3) basic info
4) disclose insurance that might cover party
5) enforcement of incentive to parties to disclose req info b/c they might not be allowed to introduce it at trial
what do you need for disclosure of expert testimony?
names, opinions, credentials, if being paid how much?, basis for testimony. Give other party opportunity to counter expert’s opinion
when should the plea for trial disclosures be made?
no later than 30 days before trial
what is the scope of allowing discovery (26)?
1) non-privelaged matter that is relevant to any party’s claims or defense
2) has to be worth the expense and helpful (proportionality)
3) leads to permissible evidence
what is the scope of not allowing discovery (26)?
1) hearsay is not admissible but may be discoverable
why may hearsay be disoverable?
b/c it can lead to other witnesses and info
are privileged matters discoverable/
no even if it’s relevant (attorney/client privilege)
who can discovery be obtained by?
parties and nonparties
what is discoverable material closely tied to
pleadings
is work product discoverable?
no, it’s protected from discovery to avoid a freeloader problem. get advantage of the work you have done and paid for.
when can work product protection be waived?
1) if you can show a substantial need
2) if you could show that info is not otherwise easily available
4 ways courts may become involved in discovery?
1) respondent part asks for a protective order (court has discretion)
2) respondent responds incomplete, answers some q’s and objects to other b/c they may invade privilege
3) respondent fails to attend deposition
4) interrogatories - no show (party seeks motion for serious sanctions)
Rule 33
interrogatories
what is the limit one can serve interrogatories (33)?
may serve any other party no more than 25 written interrogatories
what happens to any ground no stated in a timely objection to an interrogatory?
it is waived unless the court, for good cause excuses the failure.
rule 34
request to produce
rule 35
physical and mental exams
how must rule 35 be enforced?
by court order, ONLY FOR PARTIES’ or parties in custody (children)
when can someone request an exam under rule 35?
when the person’s physical or mental condition is in controversy and the requester must show good cause to compel exam. Person being examined waives doctor/patient privilege to make exam eligible for evidence
rule 36
request for admission
what is request for admission?
party may serve on another party to admit facts the application of law to fact, or opinions about either
Rule 56
Summary Judgement
why can a case move to summary judgment?
b/c it survived a rule 12 motion to dismiss for failure to state a claim
does summary judgement mean that the P will prevail in he action?
no b/c it can still be dismissed under rule 56
in order to win a summary judgement what must P do?
meet trial burden of production and burden of persuasion
what does summary judgement allow?
a way to avoid full-dress trial in unwindable cases, freeing court to utilize scarce resources in more beneficial ways.
who may move for summary judgement?
any party (P/D/claimant/crossclaimant/ counterclaimant
when does the court grant summary judgment?
if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgements as a matter of law (JMOL)
at the stage of summary judgement when do we regard pleadings as true?
something was admitted against a party’s interest
rule 50
judgement as a matter of law (JMOL) (pre-verdict)
requirements for JMOL (directed verdict)
no rational jury could find for the party opposing the motion on that issue
in order to find in favor of the moving party in JMOL what needs to happen?
the judge needs to say that even though we have a jury and have heard the evidence, no reasonable jury could find in favor of the nonmoving party.
when can JMOL be brought?
after the opposing party has had an opportunity to be fully heard on the issue. D has to wait until P has been heard, P has to wait until D has been heard
rule 50(b)
post-verdict JMOL (RJMOL)
how can a RJMOL be filed?
JMOL must have already been filed previously
what kind of standard is there for RJMOL compared to JMOL?
a higher standard b/c judge has already denied one JMOL and this is after the jury already gave a verdict.
is a judge likely to take a verdict away from a jury with RJMOL?
not likely, especially b/c jury was able to make decision based on evidence
rule 59
new trial
when may the court grant a new trial (59)?
on motion on all or some of the issues and to any party after the jury trial and after the a nonjury trial
when must a motion for a new trial be filed?
no later than 28 days after the entry of judgement
how long does the opposing party of motion for new trial have to file opposing affidavits?
14 days after being served
when can a motion to alter or amend a judgement be filed?
no later than 28 days after the entry of judgement
