Civil procedure - Pre-trial procedures

Question 1

what is the first thing you do when you want to file a complaint before you serve the person

Answer 1

you file it with the court with a summons

Question 2

When does the SOL commences

Answer 2

when you file the complaint

Question 3

How long do you have to serve the complaint

Answer 3

90 days

Question 4

What must a complaint have?

Answer 4

Statement of JDX
Statement of facts - NOT theory
Demand for relief
Fraud and special damages if they have it

Question 5

The statement of facts basically

Answer 5

describes what happened

Question 6

what cant the statement of facts have

Answer 6

be inconsistently factual

Question 7

Answer must be signed by a lawyer and whatever is not denied is

Answer 7

admitted

Question 8

When must the answer be served on the other side

Answer 8

21 days

Question 9

What type of affirmative defenses be pleaded in the answer

Answer 9

contributory negligence
SOF
SOL
Illegality
Duress

Question 10

A motion to dismiss cannot come before an answer when you have a

Answer 10

affirmative defense

Question 11

what are the 2 ways to amend a pleading

Answer 11

once as of right if w/n 21 days and
with the courts permission

Question 12

Amendement as of right needs to happen within

Answer 12

21 days of pleading

Question 13

To amend with the courts permission, the court will apply the standard of

Answer 13

When justice so requires

Question 14

Relation back to the date of the orginal pleadings is usually applied when

Answer 14

there is a SOL issue

Question 15

Relation back for a pleading will apply when

Answer 15

it arose out of the same conduct, transaction, or occurrence

Question 16

Relations back for parties elements

Answer 16

Same conduct, transaction or occurrence

w/n 90 days of filling the complaint

the party had notice so they would not be prejudiced
knew/should have known but for mistake of ID

Question 17

Rule 11

Answer 17

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

Question 18

Rule 11 will not apply if

Answer 18

Legal arguments are Warranted by existing law

Allegations have Evidentiary support

Not being presented for improper purpose

Question 19

Counterclaim

Answer 19

D raises a claim back to the P

Question 20

When is a counterclaim considered compulsory

Answer 20

Same transaction or occurrence

Court will already have Supplemental jdx

Question 21

Permissive counterclaim

Answer 21

Not same t/o
Needs independent JDX

Question 22

Joinder is used to add

Answer 22

parties

Question 23

Permissive Joinder is usually used when

Answer 23

joining multiple p

Question 24

Permissive joinder elements

Answer 24

Same t/o
Common q of law / fact

Question 25

Complusory joinder is usually used by which party

Answer 25

D

Question 26

Complusory joinder argues that

Answer 26

a party needs to be joined or its unfair

Question 27

Necessary party means that the interest will be

Answer 27

impaired

Question 28

A necessary party means an interest will be impaired. If that part cannot join due to JDX issues, the court

Answer 28

may still proceed

Question 29

An indepensible party means that the party by not joining will be

Answer 29

prejudiced

Question 30

An indispensable party will be prejudiced if not joined this means that if they cannot join due to JDX requirements, the court case

Answer 30

must be dismissed

Question 31

If a potential D is jointly and severally liable then the party who is to be joined is considered

Answer 31

not a necessary party

Question 32

Elements to qualify as a class action

Answer 32

Size Common q Typicality Representation / conflict

Question 33

Size for a class action

Answer 33

A case must be so large that joining all these little claims are impractical

Question 34

Typicality for a class action means

Answer 34

The claim of the representatives is typical of the class

Question 35

Representation / Conflict for a class action

Answer 35

representatives of the class will fairly and adequately represent and protect the interests of the class

Question 36

For Representation / Conflict for a class action you have to watch out for any

Answer 36

COI

Question 37

For impairment of interests class actions and injunctive relief can members opt out

Answer 37

Yes

Question 38

For common question class actions can members opt out

Answer 38

no

Question 39

For impairment of interests class actions and injunctive relief is notice required

Answer 39

no because it is left with the discretion of the court

Question 40

Fo common question class actions is notice required

Answer 40

yes

Question 41

For common question class action is mail okay

Answer 41

yes as long as it is done by reasonable relief

Question 42

Diversity in class action means

Answer 42

Citizenship of the named representatives that counts One named member must meet the 75k + Or the sum of the claims is 5 mill even if the named member doesnt mean the 75k

Question 43

Who has the responsibility to certify a class

Answer 43

court

Question 44

what happens if the court does not certify the class

Answer 44

members can go and make their own sub class

Question 45

If a class action certification is denied is it appealable

Answer 45

yes

Question 46

What does the court also have to approve in a class action lawsuit other than the class itself

Answer 46

Any settlement Reasonable attorney fees based on the size of the court

Question 47

What else needs to be supplied to the court with a class action

Answer 47

statement detailing the agreement

Question 48

Intervention as of right means a party wants to be

Answer 48

joined to the suit even though they were not invited

Question 49

For intervention as of right, court permission is not required if

Answer 49

Interest in property transaction Interest is impaired or impede if they didn't join

Question 50

When is court permission required for intervention

Answer 50

permission intervention

Question 51

For permissive interventions, you need to show and get

Answer 51

Claim / defense has common question of law / fact Court permission IS required

Question 52

Interpleader is when

Answer 52

1 party owes something to 2 or more people

Question 53

what are the 2 types of interpleader

Answer 53

statutory and rule

Question 54

Example of interpleader

Answer 54

One person owes property claimed by two or more people

Question 55

Statuory interpleader requires what type of service

Answer 55

nationwide service

Question 56

statutory interpleader elements

Answer 56

Nationwide service Any 2 claimants can be diverse $500 or more is at stake the person that owns the property starts the suit, puts the property or the money... deposits it in the court, or posts a bond

Question 57

Rule interpleader does not require

Answer 57

nationwide service

Question 58

Rule interpleader elements

Answer 58

No nationwide service Complete diversity between claimant and all opponents 75k requirement Not required to deposit $

Question 59

Impleader is when the D

Answer 59

adds a 3rd party who owes part or all of the claim

Question 60

Cross claim

Answer 60

co -party Same t/o Actual damages

Question 61

What is considered discoverable

Answer 61

Not privileged Relevant Proportional to the needs of the case

Question 62

Work Product is generally immuned from discovery and it must be documents that were

Answer 62

prepared in anticipation of litigation

Question 63

Who does work product protect

Answer 63

Lawyer and anyone else working under the lawyer

Question 64

When is work product not privileged

Answer 64

Substantial need Cannot obtain w/o undue hardship

Question 65

What has absolute immunity from being discoverable

Answer 65

Mental impressions Conclusions Legal opinions / theories

Question 66

What are the basic discoverable information of witnesses

Answer 66

Names and locations of all people List of all the documents or materials that witness will be using in the case

Question 67

Must a lawyer provide an ID of each expert

Answer 67

yes

Question 68

Testifying experts must prepare a report that includes

Answer 68

Opinions the basis for their expert opinions any data or exhibits that they're going to use and their compensation

Question 69

Experts who are not testifying will only be discoverable in

Answer 69

exceptional circumstances making it impractical for obtaining the information

Question 70

Duty to supplement

Answer 70

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

Question 71

is discoverable information admissible at trial

Answer 71

yes

Question 72

Depos can be asked to whom and what is the limit

Answer 72

party/nonparty and 10 per side

Question 73

How can you ask depos

Answer 73

either written or oral

Question 74

Can you depose the same person more than once

Answer 74

not w/o court permission

Question 75

What happens if a party does not want to comply with depos

Answer 75

sanction

Question 76

Interrogatories can be asked of

Answer 76

parties only

Question 77

What are the methods you can use for interrogatories

Answer 77

writting

Question 78

Limit on interrogatories

Answer 78

25

Question 79

Request to admit is a written request to admit

Answer 79

certain truths and facts

Question 80

Once the request to admit is admitted it is

Answer 80

conclusively established

Question 81

Request to produce documents

Answer 81

Docs in other sides possession, control or custody

Question 82

What must you do in order to get a physical/mental exam ordered for the other party

Answer 82

Must be at issue Court order Show Good cause

Question 83

If you use discovery for an improper purpose you could

Answer 83

get orders or sanctions

Question 84

What if the other side is using discovery to harass you

Answer 84

Object to a request Protective order Order to compel

Question 85

Object to a request is when

Answer 85

info is not relevant

Question 86

Protective order is ordered when it

Answer 86

Stop discovery for embarrassment, harassment, or undue burden

Question 87

order to compel is appropriate when

Answer 87

party not complying with discovery

Question 88

A court may order sanctions if one party has acted unreasonably. Generally the first thing you can get is what and then list by ascending order

Answer 88

fee and costs court can order certain facts to actually be established can bar certain defenses totally dismiss an action, or hold somebody in contempt.

Question 89

Safe harbor period

Answer 89

Where you cannot file the motion if the challenged paper, claim or defense is withdrawn or appropriately corrected w/n 21 days of service

Question 90

During the conference of parties court orders the parties to talk about what and then do what

Answer 90

to talk about discovery, possible settlement, and case Parties must submit discovery plan

Question 91

A court must have a what conference to limit the time for motions and discovery

Answer 91

scheduling conference

Question 92

What must be issued within 90 day of the compliant

Answer 92

scheduling order

Question 93

When can you get a scheduling order pushed after the 90 days

Answer 93

if there is good cause

Question 94

Is final pretrial conference mandatory

Answer 94

no

Question 95

Motion to sever

Answer 95

When you attempt to join 2 claims against 2 separate D and no facts indicate that either claims arise out of the same transaction or that there is a common q of law or fact

Question 96

Motion to attach

Answer 96

A process by which someone's property is seized in accordance with a writ or judicial order for the purpose of securing a judgement yet to be rendered

Question 97

When can you motion for a motion to attach

Answer 97

any time following the commencement of an action

Question 98

Standard for a TRO

Answer 98

immediate irreparable harm

Question 99

Standard for a prelim

Answer 99

irrepable harm

Question 100

Which of the following requires notice: TRO or prelim

Answer 100

Prelim

Question 101

How long can a TRO last

Answer 101

14 days