Pretrial Procedure Flashcards
(28 cards)
Pleadings
Complaint, Answer, Counterclaim, Reply
Complaint
(3 elements)
Elements: short and plain statement of jx, statement of facts, and demand for relief
* Filing commences the SOL
* Serve within 90 days of filing
* Fraud and special damages must be plead with particular specificity
Answer
Signed by lawyer
Anything not denied is admitted
Serve within 21 days of complaint service
Affirmative defenses must be plead in the answer
* contributory negligence
* statute of frauds
* statute of limitations
* illegality
* duress
Amendments
(as of right, by leave of court, relation back)
Amendment as of Right: Amend once within 21 days of service of pleading
Amendment by Leave of Court: Court allows when justice so requires
Relation back: can add an amended claim or defense as if it were part of the original pleading if
* same conduct, transaction, or occurrence of original pleading
* within 90 days of complaint filing
* new party knew or should have known the action would be brought but for a mistake in their ID
Rule 11
When submitting a document: to the best of their knowledge, information, and belief, what they are submitting is true
Nonfrivolous = warranted by existing law, evidentiary support, no improper purpose
* safe harbor is 21 days after service
* sanctions are discretionary and limited to what is sufficient to deter repetition of conduct
Adding/Changing parties
Permissive Joinder: Multiple Ps can join together if their claims come from a single transaction or occurrence AND same question of law or fact. Same elements to join Ds at P discretion
Compulsory Joinder: Party must be joined because it would be unfair to litigate without them
* Required party: leaving the party out impairs their interest. Still add even if joining destroys jx
* Indispensable party: not joining the party would prejudice them. If joining would ruin jx, dismiss unless “in equity and good conscience” case should proceed
Adding/Changing claims
Counterclaim: D raises a claim back at P
* Compulsory counterclaim: arises out of the same transaction or occurrence as original claim
* Permissive counterclaim: not the same facts; needs independent jx
* Unlimited claims joinable with SMJ
Class Actions
4 elements
* Size - case must be so large that joining them all together would be impractical
* Common Question - question of law or fact among all Ps is same
* Typicality - claim of representatives is typical of the class
* Fair Representation - class reps fairly and adequately represent and protect the interests of the class; conflict of interest issues
3 types
* B1: impairment of the class members’ interests. Can’t opt out and notice req is discretionary
* B2: injunctive relief sought. Can’t opt out and notice req is discretionary
* B3: common question. Opt out available, all members need notice, mail okay if their info is obtainable through reasonable effort
Settlement and reasonable attorneys’ fees must be court approved, must supply a statement detailing the agreement
Intervention
Party wants to join on their own
* Intervention as of right: don’t need court permission if you have an interest in a property or transaction that is the subject of the suit and interest is impaired by not joining
* Permissive Intervention: claim or defense that is a common question of law or fact to the suit; court’s discretion
Interpleader
Where a party owes money to two or more people but don’t know which, interpleader forces them to adjudicate the dispute
Statutory interpleader:
* nationwide service of process allowed
* Jx if any two claimants are diverse
* Only $500 need be at stake
* Person in debt starts the suit and deposits money with the court
Rule Interpleader
* Requires complete diversity
* No nationwide service
* 75k requirement
3rd Party interpleader: D believes TPD is liable to them
Crossclaims
Claim against a co-party
* same transaction or occurrence
* one party must be asking for damages from the other
Discovery
Information is discoverable if:
* not privileged
* relevant
* proportional to the needs of the case
Burdensome ESI
Do not provide if not reasonably accessible because of undue burden or cost
* likely benefit to the parties
* needs of the case
* amount in controversy
* parties’ respective resources
* importance of issues and discovery in resolving those issues
Work Product
Anything prepared for litigation is not discoverable
* exception: substantial need and can’t obtain info otherwise without undue hardship
Absolute Immunity
mental impressions, conclusions, opinions, or legal theories of the case
Witnesses
Discoverable: names, locations, and documents or materials going to be used
Experts:
* Testifying: ID expert and expert report
* Non-testifying: only discoverable under exceptional circumstances that make obtaining the info impractical any other way
Duty to supplement info if original informaiton is incomplete or wrong
Discovery Methods (DIRRP)
Generally done without court intervention
Deposition, Interrogatory, Request for Admission, Request to Produce Documents, Physical/Mental Exam
Deposition
- Written or oral
- party or nonparty (subpoena)
- 10 depositions per party
- Cannot depose someone more than once without court permission
Interrogatory
- only parties
- written questions and answers in writing
- 25 per party
Request for Admission
written request to admit facts; admitted = conclusively established
Request to Produce Documents
Any documents that may be required in the other party’s possession, control, or custody
Physical/Mental Exam
at issue, court order, good cause
Orders
Object to request: info requested not relevant
Protective Order: stops discovery for embarassment, harassment, undue burden
Compel Discovery: party not complying
Sanctions
- fees and costs
- establish facts
- bar defenses
- dismiss action
- contempt of court
