Stages of Litigation Flashcards
What commences an action?
Filing the complaint (unless the state law says otherwise in a diversity case – e.g., that commencement for purposes of the statute of limitations occurs at service of process)
How is time counted for purposes of filing requirements etc in litigation?
A time periods expressed in days excludes the day of the triggering event and includes the last day of the period. Holidays and weekends are included unless the last day of the period falls on one, in which case the due date is the next workday. Add three days to any period if triggered by service by mail or leaving the paper with the clerk. On the exam, assume that the last day is not a weekend/holiday.
What time periods may never be extended?
renewed motions for judgment as a matter of law
motions to amend judgment
motions for a new trial
motion for relief from judgment
What must be stated in the complaint?
Grounds for subject matter jurisdiction
Short plain statement of the claim (pleading facts supporting a plausible claim more than mere speculation – higher bar than the old notice pleading standard)
Demand for relief sought
PJ and venue needn’t be alleged
What matters must be pleaded with special particularity?
Fraud, mistake, and special damages
What are a defendant’s two response options to a complaint and when must the defendant respond?
An answer or a motion within 21 days of service of process or, if process waived, 60 days from when the plaintiff mailed the waiver form
What are the grounds for a pre-answer motion to dismiss?
Rule 12(b)
(1) Lack of subject matter jurisdiction
(2) Lack of personal jurisdiction
(3) Improper venue
(4) Insufficiency of process
(5) Insufficiency of service of process
(6) failure to state a claim
(7) failure to join an indispensable party
Which defenses must be raised by the defendant the first time they file a motion or answer or they will be waived?
(2)-(5) – personal jurisdiction, improper venue, insufficiency of process and insufficiency of service of process
Which defenses may be made at any time prior to trial?
(6) and (7) – failure to state a claim and failure to join ani indispensable party
What defense may be raised at any time during litigation – even during appeal?
(1) Lack of subject-matter jurisdiction
Which motions raise issues of form?
12(e) – motion for a more definite statement (complaint is too vague for D to respond to)
12(f) – motion to strike (asks the court to remove redundant or immaterial things from pleadings/either party may move for)
If defendant does not make a pre-answer motion or makes one and is denied, what do they do?
Answer within 14 days of notice of denial
What is an answer and what must it contain?
A pleading.
Must (1) respond to the allegations of the complaint by admitting, denying or stating that you lack sufficient information to admit or deny (an effective denial). If you do not specifically deny, it will be an admission!
and (2) raise affirmative defenses adding new facts to the case. Includes all rule 12(b) defenses. If not raised in the answer may be deemed to be waived.
What must plaintiff do in response to the answer?
No requirement of reply unless court ordered. Defendant’s allegations are deemed denied.
What is the effect of failure to answer?
Default or default judgment
When can a plaintiff amend pleadings as of right?
Plaintiff has a one-time right to amend the complaint no later than 21 days after service of a pre-answer motion or responsive pleading
When can defendant amend pleadings as of right?
Defendant has a one-time right to amend the answer no later than 21 days after serving it. Any defenses not raised in the original answer may be asserted on the amendment and will not be deemed waived.
If there is no right to amend, what must parties do?
Seek leave of the court, which will grant leave to amend “if justice so requires,” looking at the delay, prejudice and potential futility of amendment
What is a variance?
Occurs when evidence at trial does not match pleadings.
If defendant did not object: court will allow retroactive amendment to match pleadings to conform to the evidence offered.
If defendant does object: evidence outside the scope of pleadings will be inadmissible because it is at variance with the pleadings.
What if an amendment to add a claim to a pleading occurs after the statute of limitations has run?
An amendment to a pleading that arises from the conduct, transaction, or occurrence that was set forth or attempted to be set forth in the original timely filed pleading will be deemed filed on the date that the original pleading was filed because it “relates back.” (relation back doctrine)
What if an amendment to a pleading seeks to add/change the adverse party after the running of the statute of limitations?
An amendment naming a new adverse party will relate back to the original timely filed pleading where it arises from the conduct transaction or occurrence and, within the time for service of process (90 days of filing), the new party had sufficient notice of the action (to avoid prejudice), and knew or should have known that but for a mistake of identity they would have been the named defendant originally.
What are supplemental pleadings?
Set forth facts occurring after the pleading is filed. Requires leave of court after a motion to file supplemental pleadings. Granted within court’s discretion.
Is there a right to supplemental pleadings?
No
What does Rule 11 require of all non-discovery filings?
When the lawyer or pro se party signs papers presented to the court, they certify to the best of their knowledge and belief that, after reasonable inquiry:
(1) the paper is not for an improper purpose
(2) its legal contentions are warranted by law or are a nonfrivolous argument for a change in the law
(3) the factual assertions have evidentiary support or are likely to after further investigation
(4) any denials are warranted on the evidence or reasonably based on a lack of information and belief
What is the consequence of a Rule 11 violation?
Party may move for sanctions or court may independently impose sanctions – which can be monetary or nonmonetary and imposed on the party, the lawyer, or the firm involved. EXCEPTION: no monetary sanctions on a party for violation of certification of legal contentions
When the other side violates Rule 11, what may you do?
Serve a motion for sanctions on the proponent, who gets a 21 day safe harbor period to correct/withdraw the offending document, after which point it may be filed with the court
Can a court raise Rule 11 violations sua sponte?
Yes – and there is no safe harbor period. Usually done by issuing order to show cause why sanctions should not be imposed, giving the party/attorney a chance to be heard
Can a party assert inconsistent claims or defenses?
Yes
What are joinder rules generally?
Define the scope of the case: how many parties and claims can be involved
When can plaintiff join claims against a defendant?
Plaintiff (and anyone asserting a claim) may join any additional claim against the defendant, even if unrelated to the original claim (all must have SMJ!)
What is compulsory joinder of parties generally?
Some parties are deemed necessary to an action and must be joined
What are the three questions in compulsory party joinder analysis?
(1) should the absentee party be joined?
(2) can they be joined?
(3) if they cannot be joined, should the action proceed?
When should an absentee be joined (are they a necessary party)?
(1) without the party, the court could not accord complete relief among the existing parties, or
(2) the absentee’s own interest in the subject matter will be harmed if decided without them, or
(3) the absentee’s interest could subject someone to the substantial risk of multiple or inconsistent obligations if not joined
When must an absentee be joined?
(1) the court has personal jurisdiction over them
(2) joining them will not undo diversity jurisdiction or venue
If the absentee cannot be joined, what should the court do?
Determine whether the action can still proceed without the necessary party by looking at
(1) the extent of prejudice to the absentee or parties
(2) the extend to which relief could be shaped to avoid this prejudice
(3) the adequacy of a judgment rendered without them
(4) whether the parties would have an adequate remedy in another forum if it is dismissed for nonjoinder
What is permissive party joinder?
Parties may join as plaintiffs or be joined as defendants whenever (1) some claim is made by each p and against each d arising out of the same series of occurrences or transactions and (2) there is a common question of fact or law (must have SMJ or Supp jd)
What is a counterclaim?
A counterclaim is a claim raised against the opposing party (usually by D against P, often as part of the answer. P must respond under Rule 12 within 21 days of service. 2 types – compulsory and permissive
What is a compulsory counterclaim?
Arises from the same transaction or occurrence as plaintiff’s original claim. Unless you have already filed the claim in a previous case, you must assert it in this case or forfeit the right to assert it at all. This is the ONLY compulsory claim. The requirement to assert it is triggered once defendant is required to answer (so if A sues B and B gets it dismissed under 12(b) without ever answering, the compulsory counterclaim has not been triggered)
What is a permissive counterclaim?
Does not arise from the same transaction and occurrence as P’s claim. May sue separately/not compulsory.
What is a crossclaim?
This is a claim against a co-party and must arise from the same transaction/occurrence as the underlying action but is not compulsory.
**once a cross claim is asserted, the 2 also become opposing parties and a claim back against the cross claimant becomes a counterclaim
What is impleader?
A defending party brings in a new party, the third-party defendant, to shift to third party defendant in whole or in part liability the defendant is found to owe to the plaintiff. (These are claims for indemnity and contribution)
Not compulsory.
Also called third party practice
Will always have SMJ because, even absent FQ or diversity, there will be supplemental jurisdiction because it arises from the same CNOF
What are the steps for impleading a third party defendant?
(1) D files a third party complaint against TPD
(2) serves process on TPD (must have PJ)
**and must always have SMJ, but P’s citizenship is irrelevant for determining diversity
Can a third party defendant assert a claim against the original plaintiff?
Yes, there’s no name for this, but the TPD may assert this claim if it arises from the same transaction or occurrence.
Does venue have to be proper for the third-party defendant?
No
Can the original defendant join any other claims she has against the third-party defendant?
Yes
Can the court sever a third party claim to be tried separately?
Yes, if that is just
What defenses may the third-party defendant assert?
Defenses to third-party liability in the impleader suit and defenses against the plaintiff in the original suit
What is intervention?
A non-party adds themselves to the ongoing case either as a plaintiff or defendant (subject to realignment by the court). Must be timely (determination in court’s discretion). Two types – of right and permissive.
What is intervention of right?
Intervention of right exists where the intervening party’s (1) has an interest in the subject matter of the action (2) that may be harmed if they are not joined and (3) the current parties do not adequately represent the intervenor’s rights. (This is basically one of the indispensable party tests)
Is there supplemental jurisdiction over claims by original plaintiffs against intervening defendants or claims by intervening plaintiffs?
No, it needs an independent basis of jurisdiction
What is permissive intervention?
Applicant/intervenor’s claim or defense ant the main action have a common question of fact or law even absent direct personal or pecuniary interest. Discretionary with court and requires independent basis for jurisdiction
What are three types of class action?
(1) Separate actions would create a risk of inconsistent results or impair the interests of unnamed parties. (e.g., successive individual suits could deplete a fund before all claimants got to court)
(2) Defendant’s actions or omission are applicable to the class as a whole and the class seeks appropriate declaratory/injunctive relief (e.g., employment discrimination)
(3) Common questions of law or fact predominate over individual issues and a class action is superior to other methods of adjudication (e.g., mass tort)
Besides presence of one of the three types of class-action situation, what makes a class action proper?
(1) numerosity (too many class members for practicable joinder)
(2) commonality (some issue in common to all class members such that a decision on the issue will singlehandedly generate answers for all)
(3) typicality (representative’s claims are typical of the class)
(4) adequacy (representative will fairly and adequately represent the class)
When may the court determine class action is inappropriate?
At any time though should do it as early as practicable
What factors go in to certification of a class action?
Interest of individual control, extent and nature of litigation elsewhere on the subject, desirability of joint trial, difficulties in managing a class action
Once a class action is certified, what does a court do?
Appoints class counsel, which must fairly and adequately represent the interests of the class
Is denial of class certification reviewable?
yes, discretion of court of appeals?
What notification requirements exist for class action?
In common question suits, but not the other 2 types of suit, notice to members of the class is required to allow them to opt out. The representative pays for notice to class members. Notice is optional in other 2 types. Must state the nature of the action, the definition of the class, the claims, issues and defenses, and the binding effect of a class judgment
What must a court do when certifying the class?
define the class, claims, issues and defenses
What is the effect of a judgment in a class action?
All members of a class will be bound except those members of a common question class action who notify the court that they do not wish to be bound
How is diversity determined in class action cases?
Only the citizenship of the named reps are taken into account for diversity purposes, and any named rep’s claim exceeding 75K works for AIC (rare to allow aggregation) and class members with smaller claims may use supplemental jurisdiction
What is required for dismissal or settlement of a class action?
Court approval In common question cases, the court may give a second opt out chance to parties Fairness hearing -- considering fair and adequate representation of the class, arms length settlement negotiation, adequacy of relief, effectiveness of distributing relief, attorneys' fees and whether the settlement treats all class members equitably
What actions does the Class Action Fairness Act allow federal courts to hear?
If:
(1) any class member is of diverse citizenship from any defendant
(2) the amount in controversy in the aggregate exceeds $5m
(3) there at least 100 members in the proposed class
(any defendant may individually remove to federal court even if a defendant is a citizen of the forum
What actions are excluded under CAFA?
If the primary defendants are states, state officials or other government entities against whom court may be foreclosed from ordering relief
Action solely involved federal securities laws or the internal affairs of a corporation based on state incorporation laws
What local considerations require mandatory decline of jurisdiction provided in CAFA?
1 -more than 2/3 of the proposed class are citizens of the state in which the action was filed 2 - a defendant from whom significant relief is sought is a citizen of that state 3 -principal injuries occurred in state where filed 4 - no similar class action was filed w/in previous 3 years
What local considerations give rise to discretionary decline of jurisdiction provided in CAFA?
1 - between 1/3 and 2/3 of the proposed class are citizens of the state in which the action was filed 2 - the primary defendants are also citizens of that state 3 - considering the factors: (1) involvement of matters of national interest, (2) whether the claims are governed by that state's law, (3) whether the state has a distinct nexus with the harm, class members or defendants
What are the requirements of a shareholder derivative suit?
Shareholders may sue to enforce the rights of a corporation that those in control may refuse to assert if:
(1) shareholder at the time of the complained of transaction (or received shares thereafter by operation of law)
(2) not a collusive effort to confer jurisdiction
(3) made a demand on directors (and on shareholders if required by state law) or gave reasons why they did not (particularity required here)
(4) fairly and adequately represents the class
When is venue proper in a derivative suit?
Wherever the corporation could have sued the same defendants
How is the jurisdictional amount determined in a derivative suit?
look to the corporation’s damages
What is interpleader?
Instituted by a person in the position of a stakeholder to require adverse claimants to determine which has the valid claim
What is Rule 22 interpleader?
Requires complete diversity between stakeholder and all adverse claimants and excess of 75K in issue or a federal question claim. Normal service and venue rules apply
What is Section 1335 interpleader?
only diversity between any two contending claimants and $500 in issue. Service may be nationwide v=and venue is proper where any claimant resides
What are the three types of required disclosure?
Initial
Expert testimony
Pre-trial
What is required in initial disclosures?
1 - names addresses and numbers of individuals likely to have discoverable info that the disclosing party might use to support its claims or defenses
2 - Documents, ESI and tangible items that may be used by the disclosing party to support its claims or defenses
3 - Computation of relief and supporting documents
4 - Insurance coverage - defendant must disclose any insurance that could cover part or all of a judgment
When must initial disclosures be made?
w/in 14 days after the 26(f) discovery conference unless a different time set by order or stipulation
What disclosures are required in relation to expert testimony?
identities of experts to be used at trial
Written report by expert witness including their opinions, the basis for their opinions and facts used to form them, their qualifications and payment as well as cases in which they have recently testified
When must expert testimony disclosure be made?
At a time directed by the court, but otherwise at least 90 days before trial
After disclosure, may a party depose an expert witness?
Yes, should subpoena
What are the required pretrial disclosures?
No later than 30 days before trial must give detailed info about trial evidence, including identity of witnesses testifying live or by deposition and real and documentary evidence to be used at trial
Evidence/witnesses used solely for impeachment need not be disclosed
14 day period for objections, waived if not made except for objections about irrelevance, prejudice or confusion
What is the format for producing electronically stored information?
Requesting party may specify format — disclosing party may object and court will determine if objection valid
If not specified — any form reasonably usable by requesting party
When must a party preserve ESI?
Once litigation is reasonably foreseeable
What are the remedies for failure to preserve ESI?
If it can be restored or adequately replaced, no further remedy necessary. If it cannot and there will prejudice to the discovering party, the court can shape relief to cure the prejudice
If the disclosing party acted with intent to deprive, the court may presume the evidence was unfavorable to them and give an adverse inference instruction or dismiss the case
What is the scope of disclosure and discovery?
Any relevant nonprivileged material proportional to the needs of the case
What is work product and when is it discoverable?
Work product of a party or their rep made in anticipation of litigation is not discoverable except on showing of substantial need and undue hardship in obtaining the materials in an alternative manner. If disclosure ordered, steps must be taken to exclude impressions, opinions and conclusions. Includes drafts by testifying experts
