Pre-trial procedures

Question 1

What begins the action?

Answer 1

The filing of the complaint.

It is filed along with the summons, and is given to and signed by the clerk of the court. Within 120 days the complaint is actually served.

TIP: Look for statute of limitations concerns

Question 2

Requirements for Complaint?

Answer 2

1. For Jx, there should be a short and plain statement for the grounds for Jx
2. Short and plain statement of the facts
   1. Doesn’t need to be legal theory,. Just need basic plain facts.
3. demand for relief.
   1. claims for damages

Question 3

When do you need to be specific with the facts in the complaint?

Answer 3

When trying to prove fraud, then the complaint needs to be plead with specificity

Question 4

Answer of the complaint?

Answer 4

1. The answer is signed by the defendants lawyer and must be served within 21 days of the complaint.
2. It can admit or deny any of the claims, but if you do not deny the claims are deemed admitted
3. Can provide any affirmative defense, and they must be explicitly plead to use them.

                EX: Contributory negligence, statute    of limitations, statute of frauds, etc.

Question 5

Can you amend pleadings?

Answer 5

Yes, you can always amend pleadings once without the court so long as it is within 21 days of the service of the original pleading.

After that, you just need to get the courts permission to do it. They typically allow it.

Question 6

Relation back?

Answer 6

In certain instances, the time of the amending will relate back to the original complaint. This is important for statute of limitations.

Question 7

When will it relate back?

Answer 7

It will relate back as long as it arose out of a conduct, transaction, or occurrence set out in the original pleading.

As long as what you’re now amending comes out of the same transaction as original complaint it will always go back to as it was from day one.

Question 8

relation back for change of party?

Answer 8

Change of party will still relate back, so long as;

1. Comes out of same transaction or occurrence
2. If within 120 days of filing the party had enough notice
3. New person knew or should have known that the action would be brought against them but for a mistake in their ID

Question 9

Rule 11?

Answer 9

Comes up when attorney signs a document that says to the best of their knowledge, information and belief what they are saying is plausible. Basically, they promise they aren’t making stuff up.

judge can impose sanctions if they are making stuff up.

Question 10

Two types of counterclaims?

Answer 10

1. Compulsory counterclaim
2. Permissive counterclaim

Question 11

Compulsory counterclaim?

Answer 11

1. when claims rises out of the same transaction or occurrence that is subject to the suit against you
2. Have to make the claim now, because if you wait you will lose it
3. You can use Supplemental jx

Question 12

Permissive counterclaim?

Answer 12

1. Not compulsory, so it does not arise out of the same events.
   2. Can still bring claim, but, need new and independent Jx
   1. Diversity, Fed Question, ETC

Question 13

Adding parties to a claim?

Answer 13

1. permissive Joinder
2. Compulsory Joinder

Question 14

Permissive Joinder with multiple plaintiffs joining together?

Answer 14

If claims come from the same transaction or occurrence and a question of law or fact is in common then multiple Plaintiffs can join together

Question 15

Permissivle counterclaims with multiple defendants?

Answer 15

Same as with plaintiffs, but you need the permission of the defendants.

Question 16

Kinds of Compulsory joinder?

Answer 16

Necessary party and Indispensable

Question 17

Necessary joinder?

Answer 17

1. If leaving them out would impair their interests to move forward without them
2. If we cant because of jurisdictional grounds, we can move forward without them

Question 18

Indespinsible joinder?

Answer 18

1. Their absence would cause prejudicial effect
2. If Jx issues arise and they would destroy diversity and we cant have them in this group then the case should be dismissed

Question 19

adding claims to an action?

Answer 19

1. Each party can add as many claims as they want
2. If youre adding new claims they require new SMJ

Question 20

Diversity for Class Action Law suits?

Answer 20

1. Only the named representatives plaintiffs need to satisfy the Jx requirement
2. as long as one of the class members has a claim over $75,000 then the rest can join

EXCEPTION: if over 5 million total at stake, then the action is okay even if no one has one $75,000 claim

Question 21

Prerequesites for class action?

Answer 21

1. Class is so large that joining all of them is impractical
2. Question of law or fact is in common
3. Claims o the named parties are typical of class as whole
4. Representation of the class will fairly protect the interest of everyone in the class

Question 22

B1 class action?

Answer 22

Allowed if risk of inconsistent decisions would bring impairment to the interests of the members

Members may not opt out of representation once they are in

Question 23

Types of class actions?

Answer 23

B1, B2, B3

Question 24

B2 class action?

Answer 24

looking for injunctive relief

members cannot opt out

Question 25

B3 class action?

Answer 25

Most commonly tested Common question and the class action is a superior method to all other methods May opt out

Question 26

Notice for a class action?

Answer 26

aLl members of the class must be given notice in a B3 action Can be done by mail if you can get info with reasonable effort notice is discretionary for B1 and b2

Question 27

does the court have to certify for a class action?

Answer 27

yes. and if they deny it it cannot be appealed. However, the named parties may continue the suit.

Question 28

settlement of a class action?

Answer 28

Must be okayed by a court. reasonable attorneys fees based on class size. statement detailing elements of the settlement.

Question 29

What is intervention?

Answer 29

Allows people who are not part of the original lawsuit to join on their own

Question 30

Intervention as a right ?

Answer 30

No court permission needed, the person can just intervene if 1. They have an interest in the transaction that is subject to the case 2. Their lack of intervention would impair their protection their interest

Question 31

Permissive intervention?

Answer 31

Where they have to have a claim or a defense that has a common question of law or fact. The court will decide whether not to allow this.

Question 32

Interpleader law suit?

Answer 32

when one party owes some amount to two to more people but we do not know who is owed what. Jumping the gun to start the race. It forces the other people to fight it out amongst themselves.

Question 33

when does interpleader happen?

Answer 33

Statutory and Rule

Question 34

Statutory interpleader?

Answer 34

1. As long as claimants are diverse, that is ok. Plaintiff and any one defendant. 2. $500 at stake. 3. Nationwide service of process is okay. Can serve someone anywhere in the country. 4. If you owe the money, you put the money into an account or post a bond.

Question 35

Rule interpleader?

Answer 35

1. Complete diversity 2. No nationwide service 3. $75,000 at stake at lease 4. Not required to deposit in court

Question 36

Third party interpleader?

Answer 36

d believes that a third party is liable to him for all or part of the claim. he can implied the third person when; 1. You have to pay, but other guy owes you part or all the money

Question 37

Crossclaim?

Answer 37

1. Where one D may sue co-defendants as long as Claim is out of same occurance as OG suit AND you are seeking actual damages

Question 38

for discovery, what is discoverable?

Answer 38

Any matter that is not privileged and relevant UNLESS there is a substantial need for the material and you can not without undo hardship obtain it without equivalent other means

Question 39

Witness discoverability

Answer 39

Attornys must turn over the named and locations of parties who have discoverable items along with the items they'll discuss

Question 40

expert discoverability

Answer 40

experts must give other side iD of expert and must prepare a report with info they'll testify about IF they won't testify, info is only discoverable in exceptional circumstances

Question 41

duty to supplement?

Answer 41

if you realize you left stuff out, you must update it in a timely manner

Question 42

methods of discoverability

Answer 42

Deposition, interrogatories, request for admission, request to produce documents, physical or mental exam

Question 43

Deposition?

Answer 43

can depose a party or non party If you want a non part depo, you can subpoena them You have a limit of 10 demos and cannot do the same person once without the court approval

Question 44

Interrogatories

Answer 44

Written Qs and As only to a party Limit of 25 to any one party

Question 45

Request for admission

Answer 45

Request to submit the truth about a matter If you admit it, it is conclusively established at trial If you d not admit it and its proven later you can have sanctions put on you

Question 46

Request to produce documents

Answer 46

Only from a party

Question 47

Physical or mental exam

Answer 47

has to be when the condition is in controversy Need a court order and show good cause for the exam

Question 48

Failure to abide by discovery rules?

Answer 48

Court can order sanctions for failure to comply with the rules if you act crazy in response to other discipline methods.

Question 49

when will court object to a discovery request?

Answer 49

Information not relevant

Question 50

Protective order

Answer 50

court stops discovery if there is any embarrassment, burden, or youre trying to annoy the other party

Question 51

compel discovery

Answer 51

court can compel info to make you provide the info

Question 52

Pre-trial conferences

Answer 52

Judges use different meetings to maintain control of the timing and expediting the trial itself 1. Conference of the parties 2. Scheduling conferences 3. FInal pretrial conference

Question 53

Conference of the parties?

Answer 53

where parties submit to meeting to talk about the case, discovery, and submit discovery plans

Question 54

Scheduling conferences.

Answer 54

Limiting time for th emotion Issue scheduling order within 120 days of complaint cannot be modified except for good cause

Question 55

Final pre-trial conference

Answer 55

They are option and seek to expedite trial or push for settlement. If it happens, the court must issue pretrial order laying to all the details an can be modified for good cause

Question 56

Temp restraining order and preliminary injunctions

Answer 56

1. Temp restraining order can be granted without notice 2. Can last longer than 14 days 3. If you already have th restraining order you can get a preliminary injunction