Warranted by existing law Evidentiary support No improper purpose

Civil Procedure _ PreTrial Procedures Flashcards by Shyam Patel

Complaint:

PLEADINGS, ANSWERS, & COMPLAINTS

Filing of Complaint commences Statute of Limitations
Service of the Complaint within 90 days

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Elements of the Complaint:

PLEADINGS, ANSWERS, & COMPLAINTS

1) Statement of Jurisdiction
2) Statement of Facts (not theory)
3) Demand for Relief

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Specific Complaint:

PLEADINGS, ANSWERS, & COMPLAINTS

Fraud & Special Damages

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Answer: (3)

PLEADINGS, ANSWERS, & COMPLAINTS

1) Signed by lawyer
2) Whatever is not denied is admitted
3) Served within 21 days of service of
Complaint

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(5 things)

Affirmative Defenses – Pled in Answer:

PLEADINGS, ANSWERS, & COMPLAINTS

Contributory Negligence
Statute of Frauds
Statute of Limitations
Illegality
Duress

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Amendment as of Right:

AMENDMENT

Once within 21 days of service of pleading

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Amendment After 21 Days:

AMENDMENT

Need Court’s permission
* “When justice so requires”

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Relation Back:

AMENDMENT

* “Arose out of the same conduct, transaction, or occurrence”

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Relation Back (for PARTIES): (3)

AMENDMENT

1) Same conduct, transaction, or occurrence
2) Within 90 days of filing the party had notice
3) Knew/should have known but for mistake of ID

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Definition – Rule 11

RULE 11

Attorney signs to best of “knowledge, information, and belief” there is a basis for the claim

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Key Words:

RULE 11

Warranted by existing law
Evidentiary support
No improper purpose

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Counterclaim:

ADDING OR CHANGING PARTIES & CLAIMS

Defendant raises a claim back at the plaintiff

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Compulsory Counterclaim:

ADDING OR CHANGING PARTIES & CLAIMS

1) Same transaction or occurrence
2) Supplemental jurisdiction

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Permissive Counterclaim:

ADDING OR CHANGING PARTIES & CLAIMS

1) NOT same transaction or occurrence
2) Needs independent jurisdiction

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Permissive Joinder:

ADDING OR CHANGING PARTIES & CLAIMS

Single transaction or occurrence
Common questions of law/fact

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Compulsory Joinder

ADDING OR CHANGING PARTIES & CLAIMS

Party needs to be joined or unfair

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Compulsory Joinder:

(1) Necessary Party =

ADDING OR CHANGING PARTIES & CLAIMS

1) Necessary Party = Impair Interest
* If cannot join due to jurisdiction – Case may STILL PROCEED

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Compulsory Joinder:

(2) Indispensable Party =

ADDING OR CHANGING PARTIES & CLAIMS

2) Indispensable Party = Prejudice
* If cannot join due to jurisdiction –
Case must be DISMISSED

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Class Certification: (4)

ADDING OR CHANGING PARTIES & CLAIMS

1) Numerosity
2) Common Questions of law or fact
3) Typicality
4) Representation/Conflict

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B1,B2, B3

Types of Class Actions:

ADDING OR CHANGING PARTIES & CLAIMS

B1 = Impairment of Interests
B2 = Injunctive Relief
B3 = Common Question (the superior method)

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B1, B2, B3

Opting Out:

ADDING OR CHANGING PARTIES & CLAIMS

B1 & B2 = Members *MAY NOT *OPT OUT
vs.
B3 = Member MAY OPT OUT

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B1, B2, B3

Notice & Class Actions:

ADDING OR CHANGING PARTIES & CLAIMS

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B1 & B2 = Notice NOT required, in discretion of Court
B3 = Notice to ALL members

Diversity in Class Actions:

ADDING OR CHANGING PARTIES & CLAIMS

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1) Citizenship of the named representatives
2) One member must meet $75K+
OR the sum of claims is $5 million

Appealability of Class Actions:

ADDING OR CHANGING PARTIES & CLAIMS

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If Certification of Class is denied – May be appealed

Intervention as of Right: (3) | ADDING OR CHANGING PARTIES & CLAIMS

1. *Interest* in **property/transaction** 2. *Interest* is **impaired** 3. **NO Court permission required**

Permissive Intervention: | ADDING OR CHANGING PARTIES & CLAIMS

1) Claim/defense has **common question of law/fact** 2) Court permission ***IS required***

Interpleader: | ADDING OR CHANGING PARTIES & CLAIMS

* 1 party owes something to 2 or more people

Statutory Interpleader: | ADDING OR CHANGING PARTIES & CLAIMS

1) **Nationwide Service** 2) **ANY 2 claimants** can be **diverse** 3) **$500 or more at stake** 4) **Deposit money**/property in Court/bond

Rule Interpleader: | ADDING OR CHANGING PARTIES & CLAIMS

1) **NO Nationwide Service** 2) **Complete Diversity** between **claimant & ALL opponents** 3) **$75K+ requirement** 4) ***NOT required to deposit money***

Impleader: | ADDING OR CHANGING PARTIES & CLAIMS

* Adding a 3rd party defendant who owes part or all of claim

Cross Claim: | ADDING OR CHANGING PARTIES & CLAIMS

1) Co-party 2) Same transaction or occurrence 3) Actual damage

Discoverable: | DISCOVERY

1) Not privileged 2) Relevant 3) “Proportional to needs of the case”

Work Product: | DISCOVERY

* Generally immune from discovery * Documents prepared in anticipation of trial

Work Product – Discoverable: | DISCOVERY

1) **Substantial need** 2) Cannot obtain without **UNDUE HARDSHIP**

Absolute Immunity: | DISCOVERY

* Mental impressions * Conclusions * Legal opinions/theories

EXPERT – Testifying: | DISCOVERY

1) MUST provide ID 2) Expert must prepare report

EXPERT – NOT Testifying: | DISCOVERY

* Discoverable only in “EXCEPTIONAL CIRCUMSTANCES”

Duty to Supplement: | DISCOVERY

* Duty to supplement incomplete or wrong information * Must be done in a timely manner

Depositions: | DISCOVERY

* Party or non-party * Written or oral * Non-party by subpoena * Limit = 10

AdaptiTip You {CAN / CANNOT} depose the same person more than once without the court's permission? | DISCOVERY

You **cannot** depose the same person more than once without the court’s permission

Interrogatories: | DISCOVERY

* Only to a PARTY * Written/Answered in writing * Limit = 25

Request to Admit: | DISCOVERY

* Written request * Conclusively established

Request to Produce: | DISCOVERY

* Documents in the other side’s possession, control, custody

Physical/Mental Exam: | DISCOVERY

1) Must be at issue 2) Court Order 3) Good Cause

Object to a Request: | DISCOVERY

* Information not relevant

Protective Order: | DISCOVERY

* Stop Discovery for embarrassment, harassment, undue burden

Order to Compel: | DISCOVERY

* Party not complying with Discovery

AdaptiTip: Court {MAY or MAY NOT} order {WHAT} if one party has acted unreasonably. Start with minimal {WHAT} of fees/costs and work up to larger {WHAT} | DISCOVERY

Court may order sanctions if one party has acted unreasonably. Start with minimal sanctions of fees/costs and work up to larger sanctions

Admissibility at Trial: | DISCOVERY

* Discoverable information is admissible at trial

Conference of Parties: | PARTY CONFERENCES

1) **Court MUST have conference** 2) **Parties MUST submit Discovery plan**

Scheduling Conference: | PARTY CONFERENCES

1) Court **MUST** have conference to limit time 2) **Must issue SCHEDULING ORDER** within **90 days of filing complaint** 3) **CANNOT be modified** unless “***Good Cause”***

Final Pretrial Conference: | PARTY CONFERENCES

1) **Court MAY hold conference** 2) *IF there is a conference*, **Court MUST issue Pretrial Order** 3) **ONLY modified to prevent “*Manifest Injustice*”**

Temporary Restraining Order: | TEMPORARY RESTRAINING ORDER & PRELIMINARY INJUNCTION

1) **No notice** 2) **IMMEDIATE IRREPARABLE HARM** 3) **Expires** in no more than ***14 days***

Preliminary Injunction: (4) | TEMPORARY RESTRAINING ORDER & PRELIMINARY INJUNCTION

1) **Notice & Hearing required** 2) **IRREPARABLE HARM** 3) LIKELIHOOD TO SUCCEED ON THE MERITS 4) HARM TO MOVING PARTY GREATER THAN OTHER PARTY

Civil Procedure _ PreTrial Procedures Flashcards

(54 cards)