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MBE Civ Pro > Pretrial procedures > Flashcards

Pretrial procedures Flashcards

(89 cards)

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1
Q

Complaint

A

filed with the court with a summons; ct of clerk signs a summons and served to other party

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2
Q

filing of complaint

A

commences action for sol purposes

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3
Q

service must be

A

within 90 days of filing

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4
Q

elements of complaint

A

1) short and plain statement with the grounds of jdx

2) statement of the claim (summary of the facts)

3) Some sort of demand for relief/ damages

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5
Q

complaint may need to be pled with specificity if

A

fraud, special damages

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6
Q

other side will

A

answer

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7
Q

a d may

A

deny everything, admit, etc.

if you do not deny, you admit

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8
Q

answer must be served within

A

21 days of service of process

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9
Q

affirmative defenses

A

have to be explicitly pled in the answer

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10
Q

examples of affirmative defenses

A

contributory negligence, sof, sol. illegality, durress

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11
Q

amend pleadings

A

courts are liberal with amending pleadings

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12
Q

can amend once

A

as of right, so long as its within 21 days after service of original pleading

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13
Q

leave of court

A

not within 21 days. courts will allow it if justice so requires

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14
Q

relation back

A

amended pleadings can relate back to date of original pleadings

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15
Q

if amending claim or defense

A

it will relate back if it arose out of same conduct, transaction or occurrence

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16
Q

relation back with a party

A

1) same t/o
2) within 90 days of filing complaint received enough notice that they would not be prejudice
3) new party knew or should have known they would be brought in, but for a mistake of ID

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17
Q

rule 11

A

lawyer signs a doc and is going to submit it to court; to best knowledge, info and belief is true

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18
Q

for rule 11, legal arguments are

A

warranted by existing law, evidentiary support or no improper

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19
Q

Counterclaim

A

d back against Pā€“

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20
Q

compulsory counterclaim

A

arises from same t/o

court will already have supplemental jdx

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21
Q

permissive counterclaim

A

defendant brings counterclaim not from same t/o; it needs its own independent jurisdiction

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22
Q

permissive joinder

A

bunch of ps join together when
1) same t/o
2) question of law or fact is common

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23
Q

compulsory joinder

A

must be joined or it would be unfair to litigate without them

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24
Q

necessary party

A

necessary because complete relief could not be granted and would impair their interest

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25
if you cannot join a necessary party,
case may continue without them
26
indispensable party
if you do not join them, it would prejudice them.
27
if you cannot join an indispensable party,
the case will be dismissed
28
parties can join as many claims as they wish so long as
they have subject matter jurisdiction
29
class action reqs (4)
1) size-- so large that joining little claims would be impractical 2) common question of law or fact 3) typicality- claim of representative must be typical of the class 4) fair representation- representative will fairly and adequately represent the interests of the class if meet this, it can be certified
30
b1 class action lawsuit
impairment of the interests of the class members
31
b2 class action lawsuit
injunctive relief is sought
32
b3 common question among all members
large tort claims (superior method)
33
in b1 and b2, class members
may not opt out
34
b3 members
may opt out
35
notice to all members of b1 and b2
are discretionary
36
b3
all members must receive notice
37
can notice be obtained by mail?
yes if getting info by reasonable efforts
38
if a class action is based on a diversity claim
citizenship of representative that counts
39
if one named member has a case themselves that meets 75k
all the other members will be okay for diversity purposes
40
exception
as long as there are 5 million or more at stake, it will be okay, even if not one has a claim over 75
41
court will decide if a case will be
certied
42
could there be a subclass?
ct. to certify, but they can
43
if there is a denial of certification
it may be appealled
44
any settlement in a class action
must be approved by the court; reasonable attorney fees and statement of agreement
45
intervention
party wants to join the suit even though they were not involved in the first place
46
intervention as of right
if you have an interest in property or subject matter of the suit and it will impede their ability to protect their interests
47
permissive intervention
claim or defense that has a common question of law or fact and court must decide to allow them
48
interpleader
one party-- i owe something to two or more people, but i do not know who so i force people to figure it out among themselves
49
two kinds of interpleader
statutory interpleader
50
statutory interpleader
1) nationwide service of process is allowed 2) as long as any two claimants are diverse is okay and only 500 dollars needs to be at stake 3) person deposits with court or posts a bond
51
rule interpleader
complete diversity is required, no nationwide service, 75k requirement, no requirement to deposit the money in the court
52
3d party impleader
a defendant believes he is owed money for party or all of the claim and brings in another defendant (contribution or indemnification)
53
cross-claims
one party against a co-party (same t/o and asking for actual damages)
54
discovery
matter is not privileged, relevant and proportional to the needs of the case
55
can something be immune from discovery?
yes. work product-- docs prepared in anticipation of trial
56
work product will be protected unless
substantial need and cannot obtain without undue hardship and other substantially equivalent means
57
absolute immunity for
mental impression, legal theories, opinions, conclusions
58
witnesses
names and locations are discoverable
59
docs witnesses and what they are gonna use
must be given
60
expert witness
data, report, compensation
61
experts not to be used at trial
only discoverable if exceptional circumstances
62
duty to supplement information
if what you supplied is incomplete or wrong
63
methods of discovery
between party w/o court intervention
64
deposition
between party and non party/written oral
65
nonparty depo
subpoena
66
party depo
limit to 10 and cant depose more than once without court permission
67
interrogatory
only to party; written question; in writing; limit of 25
68
rfa
serves written request to admit certain truths or fact and it is conclusively established
69
rfp
papers, photos, in possession control or custody
70
physical or mental exam
when condition of party is in controvery, but need court order and show good cause
71
what if people are using discovery bad?
can get order or sanctions for failure to comply
72
if using to harrass
1) object to request of discovery because it is not relevant 2) protective order- you think someone is going after you for undue burden or embarrass you 3) compel discovery- one party refuses to comply
73
sanctions
court may order sanctions and you start low get fees and costs, but certain facts can be established, bar certain offenses, dismiss, and hold in contempt
74
discovery info at trial
yes and to impeach
75
pretrial conferences or orders
1) conference of the parties- parties must meet to talk about case and settlement and submit a discovery plan to the court 2) scheduling conference- court must hold a scheduling conference limiting time for motions and within 90 days of complaint 3) FINAL pretrial conference- schedule to expedite and settle; court must submit an order and modifiable only to prevent manifest injustice
76
tro vs preliminary injunction
tro- without notice of other party (trying to prevent immediate irreparable harm)-- expires at time in order, but cannot be longer than 14 days preliminary injunction- longer than 14 days and need notice and hearing
76
parties can join as many claims as they wish so long as
they have subject matter jurisdiction
77
parties can join as many claims as they wish so long as
they have subject matter jurisdiction
78
parties can join as many claims as they wish so long as
they have subject matter jurisdiction
79
parties can join as many claims as they wish so long as
they have subject matter jurisdiction
80
parties can join as many claims as they wish so long as
they have subject matter jurisdiction
81
parties can join as many claims as they wish so long as
they have subject matter jurisdiction
82
parties can join as many claims as they wish so long as
they have subject matter jurisdiction
83
parties can join as many claims as they wish so long as
they have subject matter jurisdiction
84
parties can join as many claims as they wish so long as
they have subject matter jurisdiction
85
parties can join as many claims as they wish so long as
they have subject matter jurisdiction
86
parties can join as many claims as they wish so long as
they have subject matter jurisdiction
87
parties can join as many claims as they wish so long as
they have subject matter jurisdiction
88
parties can join as many claims as they wish so long as
they have subject matter jurisdiction

MBE Civ Pro (6 decks)

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