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Flashcards in Joinder Deck (42):

Permissive Joinder (of Parties)

A. Requirements
1. claims arise form same transaction or occurrence AND
2. claims share a common question of law or fact
B. Federal court: must have SMJ over each of the joined claims: independent SMJ or supplemental SMJ


Compulsive Joinder

II. Compulsory Joinder (of Parties): if a necessary and indispensable party (∆ will usually file a motion to dismiss for failure to join a party)

A. Necessary Parties: if joinder feasible and
1. complete relief cannot be afforded without absentee; or
2. the absentee’s interest will be harmed if he isn’t joined (practical harm); or
3. the absentee claims an interest which subject a party (usually the ∆) to multiple obligations

B. Indispensable Parties: if absentee is “necessary” but joinder not feasible, then the court must determine whether, in equity & good conscience (1) the action should proceed among the existing parties or (2) should be dismissed
1. factors: whether an alternative forum available where everybody can be joined, actual likelihood of prejudice, and whether the court can shape relief to avoid that prejudice


Joinder of Claims

III. Joinder of Claims: freely allowed in state court, in federal court you need SMJ


Counter Claims

IV. Counterclaims: offensive claims against an opposing party; filed with the answer

A. Permissive Counterclaims: ∆ can assert ANY claim they have against the π

B. Compulsory Counterclaims: MUST assert the claim in the pending case or it will be later barred if it arises from the same transaction or occurrence as π’s claim

1. Exceptions: claims pending in other courts or claim requires parties beyond court’s jx
2. Federal Supplemental JX is available for compulsory counterclaims, but not for permissive counterclaims (for permissive counterclaims you need an independent ground for jx)
3. Relation Back: compulsory counterclaims relate back to the time π filed the original complaint so they’re not barred by SOL


Cross Claims

V. Cross-Claims: offensive claims against co-parties; arise from the same transaction/occurrence as the original action or a counterclaim therein; are never compulsory
A. Fed Supplemental Jx will always exist for cross claims because out of same transaction/occurrence


Third Party Practice (Impleader)

VI. Third Party Practice (Impleader): a third party ∆ (TP∆) is brought in for indemnity or contribution, if I’m liable, then TP∆ is liable to me for all or part of it→ derivative liability

A. as of right 10 days in SC, 14 days in federal court
B. after that, court permission is required
C. the TP∆ can assert claims against the π, and the π can assert claims against the TP∆ as long as it arises from the same transaction or occurrence
D. Federal Supplemental Jx: the court will always have supplemental jx over the third-party claim/impleader and claims by TP∆ against the π; but for claims by the π against the TP∆, federal court must either have
1. independent SMJ or
2. supplemental jx over the claim only if same transaction/occurrence of a federal question



VII. Intervention: absentee WANTS TO JOIN a pending suit
A. As of right: when three requirements are met
1. applicant claims an interest in the property or transaction that is the subject of the action
2. the action may as a practical matter impair the applicant’s ability to protect that interest; and
3. applicant’s interest is not adequately represented by existing parties
B. Permissive Intervention: her claim and the pending claim have at least one commone question; intervention discretionary with the court; watch out for delay and prejudice
C. Supplemental Jx:
1. intervention as of right: as a ∆: always have supplemental jx; as a π: never have supplemental jx unless independent grounds for SMJ



VIII. Interpleader: a party facing claims from diff. claimants that might expose that party to double or multiple liability, may interplead all potential claimants to avoid multiple litigation and the risk of inconsistent results

A. Federal Courts: have both rule and statutory interpleader:
1. Rule:
a) requires complete diversity (stakeholder (holding interest in prop.) must be completely diverse from every claimant)
b) amount in controversy must exceed $75,000
c) normal territorial limits on service of process
2. Statutory:
a) requires minimal diversity (one claimant must be diverse from one other claimant)
b) amount in controversy must exceed $500
c) nationwide service of process


Class Actions

Class Actions: a joinder device in which representative parties sue or are sued on behalf of others similarly situated

A. South Carolina: 5 prerequisites
B. Federal Court: 4 prerequisites and must be one of three types of class actions
C. Prerequisites
1. Numerosity: too many for practicable joinder
2. Commonality: some questions of law or fact are shared by all class members
3. Typicality: named representatives’ claims/∆ses are typical of class members AND
4. Representation: representative(s) will fairly and adequately represent class
5. Jx amount > $400 for each member: SC only: when not seeking inj. or declaratory relief


Types of Class Actions (Federal Only)

D. Types of Class Actions- federal court only
1. Rule 23(b)(1) “Prejudice”: CA necessary to prevent prejudice where ind. actions create risk of either independent standards of conduct or impairing the ability of absentees to protect their interest
2. Rule 23(b)(2) “Injunction” or “Declaratory Judgment”: party opposing the class acted in a way generally applicable to the class as a whole making it appropriate to render injunction or declaratory relief as to class as a whole
3. Rule 23(b0(3) “Damages”: 3 requirements: (1) action seeks money damages, (2) common questions predominate, (3) CA treatment is a superior way to handle the dispute


Procedure for Class Action

1. ask court to allow you to have CA; have a hearing, if you meet the requirements the court will certify as Class Action
a) in federal court, order certifying a class action must:
(1) define the class and the class claims, issues, or ∆ses
(2) appoint class counsel


Notice for Class Action

a) SC: court may order notice as it deems appropriate
b) federal: depends on type of CA
(1) prejudice & injunction: may direct appropriate notice to the class
(2) the court must direct appropriate notice to the class members, best notice practicable including individual notice to all members who can be identified through reas. effort; notice must tell members they can opt out


Class Counsel

3. Class Counsel (federal only): when ct. certifies CA, must appoint class counsel, considering the work done by the attorney, the attorney’s experience with class actions and knowledge of the applicable law, and the resources that the attorney will devote to the case


Class Actions - Federal SMJ

5. Federal SMJ
a) Diversity:
(1) need diversity based on citizenship of the named parties
(2) amount in controversy in damages CA: one of the π class members claim must exceed $75,000
(3) amount in controversy in other CA’s: consider total amounts at stake



b) Federal Class Action Fairness Act of 2005 (CAFA)
(1) SMJ exists if there’s minimal diversity, total AIC > $5 million, and proposed class has at least 100 members
(2) easier to remove from state court to federal court: all ∆’s don’t have to consent, being in one of ∆’s home states doesn’t matter, and one year limitation on removal of diversity n/a

(3) no SMJ if the primary ∆s are state or state officials; or the CA solely involves a claim that arises under fed. securities statutes or relates to the internal affairs or governance of a corporation or other business entity and arises under state law

(4) must decline jx under CAFA if:
(a) more than 2/3 of the π class are citizens of the state it was removed from
(b) a “significant” ∆ is a citizen of that state and
(c) principal injuries were incurred in that state
(5) may decline jx under CAFA if:
(a) more than 1/3 but less than 2/3 of the π class are citizens of the state it was removed from and
(b) the primary ∆’s are citizens of that state


Federal Discovery Initial Disclosure

Federal Only: requires parties to meet after discovery is filed for a discovery meeting
Required disclosures (FEDERAL ONLY):
o Initial disclosures (w/I 14 days of discovery conference or 30 days after joinder)
o 1. identity of individuals (names, addresses, and phone numbers) likely to have discoverable information that the disclosing party may use to support its claims or defenses
o 2. documents, electronically stored information, or things in the disclosing party’s possession that they may use to support its claims or defenses
o 3. a computation of damages claimed
o 4. insurance agreements


Federal Discovery - Expert Witnesses

o Expert Witnesses: at least 90 days before trial or as directed by court
o 1. Identity of experts “who may be used at trial” and
o 2. Written reports for each such expert containing the expert’s opinions, data considered, exhibits, qualifications, compensation and previous expert testimony


Federal Discovery Pretrial Disclosures

o Pretrial Disclosures: no later than 30 days before trial, parties must give detailed information about trial evidence, including
o document and exhibit lists; and
o lists of witnesses


Discovery Limitations

Discovery Limitations:
o work product
o privilege

A. describe the nature of the things not produced ina manner that enables others to assess the applicability of the privilege or protection

B. claw-back provision (accidentally hand over privileged material):
• 1. notify the party that received the info.
• 2. the receiving party must then return, sequester, or destroy the privileged material/work product
• 3. the receiving party can present the info. to court under seal for determination of the claim
o protective orders
o unreasonably duplicative or obtainable from another source that is less burdensome or expensive; or
o party seeking discovery already has had ample opportunity to obtain the info. sought
o burden or expense of proposed discovery outweighs its likely benefit
o Electronically Stored Information (ESI): don’t have to provide discovery if stored info. is not reas. accessible because of undue burden or expense


Federal Signature Requirement for Discovery

Federal Signature Requirement for Discovery: every discovery request and response must be signed by counsel certifying that it is (1) warranted, (2) not interposed for improper purpose, and (3) not unduly burdensome
-SC: no special signature req. for discovery- use Rule 11 signature requirement



Depositions: taken of sworn testimony outside of court before a court recorder. permitted
o federal court: ALL cases
o South Carolina: when amount in controversy is $10,000 or more; or in cases with lesser amounts with consent or a showing of good cause


Depositions - Serve

o party: written notice of deposition
o non-party: service of written notice AND subpoena


Depositions - Use at Trial

use at trial:
o to impeach the deponent
o for any purpose if the deponent is an adverse party
o for any purpose if deponent (whether a party or not) is unavailable for trial
o SC: any purpose if the deponent is a licenses physician, psychologist, chiropractor or dentist who provided actual treatment to a party


Depositions - Conduct & Procedure

o direction not to answer ONLY:
• when asserting a privilege
• a court-ordered limitation on discovery (already exists)
• or a motion to terminate the deposition (to seek a protective order)
o SC only: if a counsel directs a witness not to answer, must seek a protective order within 5 days of the suspension or termination; or you waive your objection and depo can be reconvened
o SC only: no counsel/witness conferences off-the record except for deciding whether to assert a privilege, if a conference is required, counsel will state on the record the reason for the conference and the decision made after the conference
o SC only: must give opposing counsel a copy of all documents to be shown to the witness during the deposition at least 2 business days before depo; if not given at least 2 days before, then counsel and witness get a reas. amt. of time to privately discuss the documents before the witness answers questions concerning the document


Depositions Upon Written Questions

Depositions Upon Written Questions: serve on another party a notice of deposition and a complete list of questions to be asked; the other party can serve cross-questions; deposition takes place live with court reporter and the only questions that can be asked are the ones given ahead of time



Interrogatories: written questions served on a party to the lawsuit that require written responses; anything that is properly within the scope of discovery- anything reasonably calculated to lead to admissible evidence (relevant to the SM involved in the pending action (SC); relevant to the claim or ∆ses of any party (federal)
o respond within 30 days (except ∆ gets 45 days after service of process in SC)


Limitations on Interrogatories

o limitations: tested on past bar exams!
o federal: 25 interrogatories (or more with leave of court)
o state:
• cases of $25,000 or more: up to 50 “general interrogatories” (or more w/ leave of court)
• cases under $25,000: limited to 7 standard interrogatories- duty to automatically update:


South Carolina Interrogatories

• 1. names and addresses of witnesses, existence of any statements taken from the witnesses, and the person who has possession of any such statements
• 2. photographs, sketches, or other prepared documents
• 3. personal injury action: names and addresses of all physicians and hospitals that treated a party and a statement of all medical costs
• 4. relevant insurance companies, policy #s, and amts of coverage
• 5. itemized statement of damages, exclusive of pain and suffering
• 6. names and addresses of expert witnesses; and
• 7. a summary of facts known to or observed by the witnesses listed


Requests for Production or Entry on Land:

Requests for Production or Entry on Land: request to produce and permit inspection, or request to enter land; just serve a request on a party, for a non-party you have to use a subpoena duces tecum

o respond within 30 days (except ∆ gets 45 days after service of process in SC)

o SC: can serve request any time after commencement of the action (can serve w/ summons & complaint)

o in federal court: only after the required discovery conference


Physical or Mental Examination

Physical or Mental Examination: may be required
1. only of a party
2. only with a court order
3. SC only: only in cases in which the amount in controversy exceeds $100,000

o showing required: (1) party’s health in ACTUAL controversy and (2) good cause
o procedures- SC only:
o can have your own doctor present
o must be in the county of the examined party or her physician (absent agreement otherwise)
o can request a copy of the examination report, but then you waive your doctor-patient privilege of other exams regarding the same condition


Requests for Admission

Requests for Admission: requests by one party to another to admit the truth of any discoverable matter, including to admit the authenticity of documents

o respond within 30 days (except ∆ gets 45 days after service of process in SC)
o failure to respond timely constitutes an admission
o SC: limited to 20 requests for admission, except unlimited requests to admit authenticity of documents or tangible items – tested on past bars


Enforcement of Discovery - Motions

Enforcement of Discovery Rules:

Motion for Protective Order: for court to protect something from discovery; court can issue an order limiting or denying discovery

Motion to Compel Discovery because of:

• Partial Violation: when responding party answers some questions but objects to others, can only get info. objected to by filing motion to compel

• Total Violation: receiving party fails completely to attend a depo. or respond→ or a motion for sanctions

Federal court only: effort to confer before filing motion: motion must certify that the movant has in good faith tried to confer with the opposing party to resolve the discovery dispute


Enforcement Against a Party


Partial Violation:

Order Compelling Discovery: compel responses, and award costs of bringing the motion (including attorney’s fees)

Violation of Order Compelling Discovery: sanctions plus costs & hold party in contempt

Total Violation: sanctions + costs of brining the motion (including attorneys’ fees)


Sanctions for Discovery Violations


• Establishment order (establishes facts as true)
• Strike pleadings of the disobedient party
• Disallow evidence from the disobedient party
• Dismiss π’s case
• Enter default judgment against the ∆

Enforcement Against Nonparty: Contempt

Enforcement Against Attorney: Liable for all expenses (including attorneys’ fees) incurred by the other side if she counseled one of these bad acts


Temporary Restraining Order

1. 4 substantive factors for preliminary injunctions
1. substantial likelihood of prevailing on the merits
2. irreparable harm
3. balance of the hardships in π’s favor
4. public policy considerations
2. π’s reasons for seeking the TRO without the full notice and opportunity to be heard w/ a preliminary injunction
o bond required
o expiration: unless extension
o federal : 14 days
o SC: 10 days


Preliminary Injunction

Preliminary Injunction: exists throughout trial, until judgment
o 4 factors:
o substantial likelihood of prevailing on the merits
o irreparable harm to π
o balance of hardships
o public policy
o procedural requirements:
o motion with complaint and affidavits
o notice and opportunity to be heard
o security bond


Default Judgement

Default Judgment: for failure to defend or answer, comply w/ rules or orders of the court
o Entry of Default: clerk of court first makes an entry of default on the docket, then you make motion for default judgment
o Default Judgment
o Federal
• clerk of court can enter DJ if:
• ∆ did not appear AND
• judgment is for a sum certain
• judge must enter DJ if ∆ has appeared or judgment not for a sum certain
o South Carolina: judge must enter DJ

o Notice:
o ∆’s who appeared:
• SC: 3 days notice
• federal: 7 days notice
o No sum certain
• federal: no notice if ∆ did not appear
• SC: have to have hearing to determine sum, then notice must be given to ∆ regardless of whether they appeared

o Relief:
o Motion to Set Aside Entry of Default: showing of good cause and viable defense
o Setting Aside Default Judgment: same limited grounds as any other judgment
• mistake, inadvertence, or excusable neglect AND
• establishment of a meritorious defense



FAILURE TO STATE A CLAIM: motion to dismiss for failure to state a claim tests only legal sufficiency of π’s ALLEGATION→ look only at the pleadings and assume all allegations to be true


Summary Judgement

SUMMARY JUDGMENT: EVIDENCE to support your allegations
1. no genuine issue of material fact
2. movant is entitled to judgment as a matter of law

o Timing
o Federal: any time until 30 days after the close of discovery
• opponent gets 21 days to file response
• movant can file reply w/I 14 days
• federal court can grant SJ on its own motion
o South Carolina:
• ∆: may file for SJ any time
• π: may file for SJ anytime (1) after the expiration of 30 days from the start of the action or (2) after a motion for SJ by the ∆

o Movant has burden: must support or oppose with affidavits, depositions, pleadings, admissions, and answers to interrogatories
o Affidavits: must be based on personal knowledge, set forth such facts as would be admissible in evidence, and show the affiant is competent to testify
• when a motion for SJ is supported by affidavits, an adverse party can’t rest on mere pleading allegations or denials. his response must be shown by affidavits or otherwise and must set forth specific facts showing there is a genuine issue


Directed Verdict

DIRECTED VERDICT (SC) / JUDGMENT AS A MATTER OF LAW (federal): when evidence on an essential issue permits only one conclusion
o raised: at close of π’s evidence (by ∆ only) or at the close of all the evidence (by either party)
o motion for non-suit (same thing as directed verdict or JMOL in non-jury trial)


Renewed Motion for JMOL

verdict has been rendered and judgment has been entered, verdict-loser seeks JNOV; same standard as directed verdict or JMOL: evidence is so one-sided that there is only one conclusions

o SC: move for directed verdict at close of al the evidence
o federal: move for JMOL at close of π’s evidence OR at close of all the evidence

o SC: promptly after the jury is discharged or in the discretion of the court not later than 10 days thereafter
o federal: within 28 days after entry of judgment


Motion for New Trial

o Timing: same as JNOV: SC: promptly after jury discharged or in court’s discretion not later than 10 days thereafter; federal: within 28 days after entry of judgment
o Grounds:
o error during trial
o prejudicial misconduct of a party or juror
o judgment against the weight of the evidence
• federal: serious error of judgment by the jury
• SC: “Thirteenth Juror” Standard: trial judge has great discretion to grant new trial if trial judge would’ve reached a different result that the jury