CIv Pro 3 - Pretrial Flashcards Preview

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Flashcards in CIv Pro 3 - Pretrial Deck (59)
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A D in a suit file a counterclaim against the P.


Permissive Counterclaim

Is a claim that does not arise out of the transaction or occurrence underlying any of the P's claims against D. D may file, but doesn't have to.


Compulsory Counterclaim

A claim those does arise out of the transaction or occurrence underlying any of P's claims against D. D must file the claim or the claim is forfeited.


Cross Claim

A claim filed by a party against a co-party on the same side of the v. Can only be filed if they arise from the same transaction or occurence as one of the P's underlying claims.


Claims Joined with Cross Claims

Once a D files an appropriate cross claim against a co-D, the D can join with that claim additional, unrelated claims.


Counterclaiming a Cross Claim

Once a D has cross claimed a D2, the D2 can counterclaim against D1 and the counterclaim can be permissive or compulsory.


Impleader Claim

Claim brought by a party defending a claim against someone not yet involved in the suit. May only be brought if the claim alleges the 3rd party is responsible for some or all of the liability facing the D.
1. Joint tortfeasor
2. Insurer


Impleader Claim - Timing

A D has an automatic right to implead a 3rd party within 14 days of serving an answer. After that you need permission of the court.


Impleader Claim - Subsequent Claims

After a party has been impleaded into a suit, that party may bring claims of its own against other parties. The original P may file a claim against the impleaded party as long as it relates to one of the P's original claims.


Permissive Joinder of Parties

Multiple P's can join and multiple D's can be sued as long as:
(1) The joined parties claim relief (P's) or face liability (D's) that arises out of the same transaction or occurrence, and
(2) There will arise in the action common questions of law or fact.


Mandatory Joinder of Parties

Absent parties must be joined if they are:
(1) Necessary. If they have an interest that might be impaired if they are left out of the litigation, if complete relief cannot be issued in their absence, or if the current parties would be subject to duplicative or inconsistent liability.
(2) Jrdx. If necessary, the party must be joined if court has jrdx over them.
(3) But if (a) ct lacks personal jrdx or (b) adding would destroy diversity jrdx, then court must determine whether party is indispensable, considering the extent of prejudice to missing party, whether prejudice can be avoided, whether P could find relief in another forum.


Class Actions - 4 Requirements

1. Numerosity. Class is so numerous joinder is impracticable.
2. Commonality. Common questions of law or fact in the class.
3. Typicality. The reps will have incentive to litigate in ways to protect class.
4. Representativeness. The reps will fairly and adequately protect the class.


3 Instances where Class Action is Proper

1. Separate actions would create risk of inconsistent judgments or judgments that would substantially impair the ability of a nonparty to protect his interests.
2. Where the party opposing the class has acted in ways generally applicable to the class. (unlikely if seeking monetary relief)
3. 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 and efficient adjudication of the controversy.


Class Actions - Personal Jrdx

Court must have PJ over every D and only the named P's.


Class Actions - Binding Effect

A judgment in a class action will bind all members of the class unless they opt out of the class.


Class Actions - Notice

In common-question class actions, class members must be given notice of the pendency of the suit. The notice must be reasonably calculated to apprise members of the class. Often by mail or publication.


Class Actions - Diversity

1. Normally requires D's and named P's to be diverse.
2. If over 100 members and over $5 mil, only 1 class member has to be diverse from only 1 D.
3. If removal, no need for agreement of all D's, and a home state D can still remove.


Interpleader Claims

A party may file one when the party fears that it will be exposed to multiple and inconsistent liability, caught in the middle.


Intervention of Right

A person must be permitted to intervene in an action when the person:
(1) Claims in interest relating to the subject matter of the action, and
(2) Is so situated that, absent the intervention, there is a risk that the person will not be able to protect their interest.


Permissive Intervention

Person may be permitted to intervene in an action when they have a claim or defense that shares with the main action a common question of law or fact.


Joinder and SMJ

SMJ is need for every claim that is put forward.


Joinder and PJ

PJ is need for every party.


Bulge Rule

An impleaded D will be subject to PJ if they are served with process within 100 miles of the courthouse.


Joinder and Venue

Venue need only be worried about when the lawsuit is filed.


Discovery Planning Conference (Rule 26f)

1. Parties must meed and discuss likely content of discovery and draft a discovery plan.
2. Plan must be submitted to court within 14 days of conference.
3. Must be held at least 21 days before a pre-trial conference.


Pretrial Conference (Rule 16)

1. After discovery planning conference, court can order parties to discuss litigation and most efficient way for it to proceed and any possibilities for settlement.


Pretrial Scheduling Order

Court must issue scheduling order dictating schedule on which litigation will proceed. Period in which parties can be joined, motions made, amended, completion of discovery, etc. Order must be issued within 120 days of D being served or within 90 days of when D appears, whichever is earlier.


Initial Discovery Disclosures

Within 14 days after discovery meeting:
(1) Witness name and contact info.
(2) Documents or objects that a party may use to support a claim or defense.
(3) Computation and explanation of damages.
(4) Copies of insurance agreements.


Discovery Expert Disclosures

90 days before trial:
1. Name and contact info of experts.
2. Expert's final report that explains qualifications, opinion, and info relied on


Discovery Pretrial Disclosures

30 days before trial
(1) List of all witnesses expected to call at trial
(2) Witness you may call at trial if the need arises
(3) List of witnesses whose testimony will be through deposition
(4) List of documents and physical evidence you indent to present