Pretrial Procedures Flashcards
(126 cards)
1
Q
A complaint must contain what three elements?
A
Grounds for Subject Matter Jurisdiction
+A Statement of Facts
+Demand for Judgment and Relief.
2
Q
In a complaint, what do the statement of facts required need to contain?
A
Facts sufficient to show plaintiff is entitled to relief (> than a shot in the dark).
3
Q
In a complaint, what must a statement of facts alleging fraud or mistake show?
A
The facts must describe the fraud with specific particularity.
4
Q
How long does a party have unilaterally amend a complaint?
A
- A party can unilaterally amend a complaint within 21 days of filing;
- If an answer or motion to dismiss has been filed, then within 21 days of that filing; and,
- A party can amend an answer within 21 days of filing it.
5
Q
What are the methods for amending a complaint?
A
- As a matter right; or,
- With permission.
6
Q
What are the ways to amend a complaint with permission?
A
- Permission of the Opposing Party; or,
- Permission from the Court.
7
Q
What will a court weighwhen grantingpermissionfrom the court toamendacomplaint?
A
- The reason for the amendment in the context of timing (≠ blameworthy); and,
- If the amendment will prejudice the other party.
8
Q
Which types of amendment do not relate back to the original filing for statute of limitations purposes?
A
Amendments Seeking to add:
- a new claim;
- a new party.
9
Q
When will the filing date of amendments seeking to add a new claim will relate back to the original filing date?
A
If the new claim arises out of the same transaction or occurrence.
10
Q
When will the filing date of amendments seeking to add a new party relate back to the original filing date?
A
Will only relate back to filing date of complaint if:
The party to be added knew of the lawsuit soon enough not to be prejudiced in defending it and in no case later than the time permitted for service and process
+ The party to be added should have expected to be named as a defendant
+ The party to be added was originally left out of the case because of a mistake in identity.
11
Q
When is a party to be added to a complaint originally left out of the case because of a mistake in identity?
A
When the π sued the wrong legal entity out of a group of entities.
12
Q
Process for service and process requires?
A
copy of the complaint
+ summons: a court document that informs the defendant that the complaint has actually been filed and that he must respond to it, or else be held in default.
If both are not served, then process has not been completed.
13
Q
When must process be served?
A
Within 120 days of filing the complaint.
14
Q
Who can serve process?
A
Any person at least 18 years old and who is not a party to the action can serve process.
15
Q
How can process be served?
A
- State Courts: Serve process in the manner prescribed by the state court in the state where the federal suit has been filed OR by the state court in the state where the ∆ will be served; or,
- Serve process in the manner specified in Federal Rule of Civil Procedure 4.
16
Q
List the ways to serve process pursuant to FRCP 4 when suing a human being?
A
- Deliver the process to the defendant himself wherever he may be;
- Leave process at the defendant’s home with someone of suitable discretion;
- Serve the defendant’s registered agent; or
- Mail process to the defendant with a letter requesting that the defendant waive service in person.
17
Q
List the ways to serve process pursuant to FRCP 4 when suing a business entity?
A
- Serve process on an officer;
- Serve process on a managing agent or general agent; or
- Serve process on any other agent authorized by appointment or by law to receive service (e.g. registered agent).
18
Q
If the agent is one authorized by law to receive service and the law requires service by mail, then what must you do?
A
Serve by
- Hand; and,
- Mail.
19
Q
If a court has the power to assert personal jurisdiction over a party, that power becomes activated at what moment?
A
When ∆ is served with process.
20
Q
What does the constitutional right to due process entitle a defendant to?
A
- Notice of the claims against him; and,
- Opportunity to be heard.
21
Q
How can the notice requirement of due process be fulfilled?
A
- Effective service and process; or
- If plaintiff took steps that were reasonably calculated to inform the defendant of the action against him.
22
Q
When new claims are filed during a lawsuit, when must process be served?
A
Service of process need only be accomplished when a new party has been added to the lawsuit (≠ new claims).
23
Q
What happens if a defendant fails to deny an allegation in a plaintiff’s complaint?
A
∆s must specifically admit or deny the allegation or raise defenses. If they do not, then the ruling will be fore the plaintiff.
24
Q
After process is served, the party sued must decide how to respond. What options do the Federal Rules offer?
A
∆ can file:
- A answer;
- A motion for a more definite statement;
- A motion to strike; or,
- A motion to dismiss.
25
What happens if a **∆ fails to include a defense** in his **answer**?
∆ forfeits that defense.
26
What **defenses** are **not waived** if not included in an **answer**?
1. Failure to state a claim upon which relief can be granted;
2. Failure to join a necessary party; and,
3. Lack of subject matter jurisdiction.
27
When is a **motion to strike** appropriate?
If a complaint or answer contains redundant, immaterial, or scandalous matter, the court may on its own or by motion order the improper material stricken.
28
Define a **motion to dismiss**?
Motion that seeks the dismissal of a claim and can be filed by any party defending a claim.
29
If ∆ was actually served with process (regardless of the method), how long does **∆ have to respond to a complaint**?
21 days to respond.
30
If **∆ has waived service of process**, then how long does **∆** have to **respond** to a **complaint**?
60 days to respond.
31
If **∆ responds to π's complaint by filing a motion** for more definite statement, a motion to strike, or a motion to dismiss, what must ∆ do if the motion is **denied**? **∆ must file an answer within** how long?
14 days of the motion's denial.
32
**Rule 11 sanctions** are appropriate for violations what **principles**?
1. Good Faith;
2. Good Facts;
3. Good Law; unless advocating for good faith change to existing law.
33
How should a party **seek** **sanctions for Rule 11 violations**?
1. Draft a motion and give it to offending party;
2. Wait 21 days after service for offending party to withdraw, then, if not withdrawn, file it with the court.
34
The **goal of sanctions** must be what?
Deter the repetition of such conduct by anyone similarly situated.
35
Who is subject to Rule 11 sanctions?
1. Any person or entity that has committed a Rule 11 violation or is responsible for a Rule 11 violation is subject to sanctions, except that parties may not be subject to monetary sanctions for violating the good law requirement;
2. When an attorney is found to have violated Rule 11, the attorney's law firm must be held jointly liable absent exceptional circumstances.
36
When is a party not subject to Rule 11 sanctions?
1. When violation occurs in discovery; and,
2. There are no monetary sanctions for violations of "good law."
37
What **elements** are required for a **preliminary injunction**?
Notice on adverse party
+ Likelihood that π will succeed on the merits+Irreparable Harm to π imminent
+ Balance of Hardships favor injunction (harm to π if denied \> harm to ∆ if granted)+Injunction is in the public interest
+ Payment of Security (π must put security deposit to compensate ∆ for harm against ∆ due to injunction).
38
What **elements** are required for a **temporary restraining**?
Notice on adverse party
+ Likelihood that π will succeed on the merits+Irreparable Harm to π imminent
+ Balance of Hardships favor injunction (harm to π if denied \> harm to ∆ if granted)
+ Injunction is in the public interest
+ Payment of Security (π must put security deposit to compensate ∆ for harm against ∆ due to injunction).
39
What is the **duration** of a **preliminary injunction**?
The entire lawsuit.
40
What is the **duration** of a **temporary restraining order**?
14 days.
41
What are the **notice** requirements for a **temporary restraining order**?
A TRO can be granted ex parte. For ex parte: π must show that they:
1. Tried to give notice; and
2. There is immediate irreparable harm to π without TRO.
42
What does the **joinder** allow a **plaintiff** to do?
If a plaintiff has numerous claims against a single defendant, she is free to bring all of those claims in the same lawsuit regardless of if they are related or not. However, π is not required to bring them all.
43
What is a **permissive counterclaim**?
A claim that does not arise out of the transaction or occurrence underlying any of π's claims against ∆. A defendant may file a permissive counterclaim against π.
44
What is a **compulsory counterclaim**?
What is the effect of **failing to bring** a compulsory counterclaim?
A claim that does arise out of the transaction or occurrence underlying any of π's claims against ∆.
Failure to bring precludes ∆ from bringing it later from the law of joinder.
45
If a party has **multiple counterclaims against a π**, what can they do?
∆ may bring them all together regardless of whether they are related.
46
Who files a **cross claim**?
A party against a co-party (i.e., someone on the same side of the v).
47
**Cross claims** may be filed **only** if?
The cross claims arise from the same transaction or occurrence of π's underlying claims.
48
Once a defendant files an **appropriate cross claim** against a co-defendant, the defendant **may file what claims**?
Join with that claim additional claims, even if those claims are unrelated to the transaction or occurrence underlying π's suit.
49
Once a defendant files a **cross claim against a co-defendant**, that **co-defendant** is free to file what **claims**?
Counterclaims. Like an ordinary counterclaim, a counterclaim filed in response to a cross claim can be compulsory or permissive.
50
What is an **impleader claim**?
An impleader claim is brought against somebody not yet involved in the lawsuit.
51
**When** may an **impleader claim** be brought?
Only if the claim alleges that the third party is responsible for some or all of the liability facing the defending party.
52
What are **classic impleader claims**?
1. Contribution claims; and,
2. Indemnity claims (claims against insurer).
53
What are the **timing requirements** of **impleader** claims?
∆ may do so
1. Within 14 days of serving answer; or
2. With permission of court.
54
After a party has been impleaded into a lawsuit, the **impleaded party may file what claims**?
The **original plaintiff** may file what **claims**?
The impleaded party may bring claims of its own against other parties or implead additional parties.
Additionally, the original plaintiff in the suit may file a claim against the impleaded defendant provided the claim relates to original claims.
55
When is **permissive joinder** (Rule 20) allowed?
Multiple π's or ∆'s can join if:
1. Claims arise out of the same transaction or occurrence; and,
2. There is a common question of law or fact to all parties joined.
56
What are the **steps** if **joinder is mandatory**?
If the absent party is necessary,
Step 1: Join the party if available;
Step 2: If the necessary party cannot be joined, determine whether the necessary party is indispensable;
Step 3: If the party is indispensable, dismiss the case.
57
When is a **party necessary**?
A party is necessary if:
1. The party has an interest that might be impaired if the party is left out of the litigation;
2. If complete relief cannot be issued in the party's absence; or
3. If the current parties would be subject to duplicative or inconsistent liability.
58
Are joint tortfeasors necessary parties?
No.
59
What are two **reasons** why a **missing party cannot be joined** in federal court?
1. The court lacks personal jurisdiction over the missing party; or
2. Adding the party would destroy suit diversity.
60
If a **missing party is indispensable**, what must the court do?
Dismiss the suit.
61
What will the **court consider** to determine whether a **missing party is indispensable**?
Whether the dispute can be resolved without prejudicing the missing party.
62
What are the **requirements** for a **class action** suits?
1. That a class can be formed; and
2. The claim brought is proper for resolution via a class action.
63
What **four requirements** must be met to form a **class** for the purposes of litigation?
1. **Numerosity**: the class is so numerous that joinder of all would be impractical;
2. **Commonality**: there is a question of law or fact common to the class;
3. **Typicality**: the claims of the representative parties are typical of those of the class, thus ensuring the rep will have incentive to litigate in a way that will protect the class;
4. **Representativeness**: the representative parties will fairly and adequately protect the interests of the class.
64
When is **class action** adjudication **proper**?
1. Where separate actions would create a risk of inconsistent judgments or judgments that would substantially impair the ability of a non-party member to protect his interests;
2. Where the party opposing the class has acted in ways generally applicable to the class; and,
3. Where the court finds that common questions of law or fact predominate over individualized questions and that a class action is superior to other available methods for the fair/efficient adjudication of the controversy.
65
In a **class action** case, who must the court have **personal jurisdiction** over?
Each ∆ and only π's named in the case.
66
What is the effect of a judgment in a class action on the class members?
The judgement binds all members of the class.
67
What are the **notice requirement** in **class action** suits?
The notice must be reasonably calculated to apprise members of the class and is often accomplished through mail or publication.
68
When a **class action** alleges a violation of **state law**,when can it appear **in Federal court**?
1. ∆s diverse from named plaintiffs; or,
2. IIf the class has over 100 members and seeks damages over $5,000,000
+ any ∆ is diverse from any class π.
69
How can a **class action** be **removed**?
Removal can be requested by
1. The home state ∆; or,
2. Any ∆ without full agreement.
70
When can a party file an **interpleader claim**?
When a party fears that it will be caught in the middle of two different parties suing for the same thing.
71
What is a Rule 24 **intervention**?
When a non-party may attempt to join the lawsuit through her own initiative.
72
When does **intervention as a right** occur?
The court must allow if:
The party claims an interest relating to the subject matter of the action
+ absent intervention, the party may not be able to protect their interest.
73
When is **permissive intervention** available?
Upon timely application and at the court's discretion, any person may be permitted to intervene in an action when the intervenor has a claim or defense that: shares with the main action a common claim or fact.
74
What happens if the **law of joinder allows a claim** to be added but the additional **claim is not consistent** with the law of:
1. SMJ;
2. personal jurisdiction; or,
3. Venue?
The claim will not be allowed without proper SMJ or personal jurisdiction; however, proper venue will not keep a joinder claim out.
75
What is the **bulge rule**?
An impleaded defendant will be subject to the personal jurisdiction of a federal court if, in addition to any other ground for personal jurisdiction, the impleaded defendant is:Served with process within 100 miles of court house.
76
What does a **Rule 26(f) conference** require?
The parties to meet and discuss the likely content of discovery in the case and draft a discovery plan. Parties must submit plan within 14 days to the court.
77
**When** must a **Rule 26(f) conference** be held?
At least 21 days before a Rule 16(b) conference is held or order is issued.
78
What does a **Rule 16(b) require the court** to do?
What is the **time period** for action?
Issue a scheduling order.
The order must be issued within 120 days of when the defendant is served, or within 90 days of when the defendant appears, whichever is earlier.
79
List the types of **mandatory discovery disclosures**.
1. Initial;
2. Expert; and,
3. Pretrial.
80
**When** must **initial discovery** disclosures be made?
Within 14 days after a Rule 26 conference.
81
What must **initial discovery** disclosures **contain**?
1. Witness list and contact info;
2. Documents that support a claim or defense;
3. Computation of damages; and,
4. Insurance Agreements.
82
**When** must **expert discovery** disclosures occur?
90 days before trial.
83
What must **expert discovery** disclosures **contain**?
1. The name and contact information of the expert;
2. The expert's final report;
3. The experts opinion and creditientals; and,
4. What the expert relied upon.
84
**When** must **pretrial discovery** disclosures be made?
30 days before trial.
85
What must **pretrial discovery** disclosures **contain**?
1. A list of the witnesses she expects to call at trial;
2. The witnesses she may call if the need arises;
3. A list of witnesses whose testimony will be presented through a deposition or deposition transcript; and,
4. A list of documents or physical evidence she expects to present.
86
What can you **not ask for in discovery**?
Information that
1. Is irrelevant;
2. Violates privilege;
3. Considered work product; or,
4. Causes an undue burden.
87
When is **information relevant** for discovery?
If it is likely to make any fact in dispute more or less likely to be true, regardless of whether it is admissible or not.
88
Is **work product** discoverable?
No, nothing prepared in anticipation of litigation is discoverable.
89
When is work product discoverable?
1. Party can always obtain a statement that it has made; and,
2. A party can obtain work product for which it has a substantial need and cannot otherwise obtain without substantial hardship.
90
When is **attorney-client privilege** applicable?
Only for private communications between attorneys and clients.
91
When does a **discovery request** impose an **undue burden**?
If it would be inefficient in context of the request (weigh: burden v. relevance).
92
When is information pertaining to **experts undiscoverable**?
When the expert is a non-testifying expert; unless there is an extraordinary need to obtain the information.
93
What information is **discoverable** for a **testifying expert**?
Information related to the final report:
1. Communications relating to compensation for testimony;
2. Communications relating to the data provided by the attorney to the expert;
3. Communications relating to any assumption the attorney asked the expert to make in developing the expert opinion.
94
What are the **methods for discovery**?
1. Interrogatories;
2. Request for Admissions;
3. Request for Documents and Tangible Items;
4. Requests for Mental or Physical Examinations;
5. Depositions; and,
6. Subpoenas.
95
What are **interrogatories**?
Question in writing submitted to another party to answer.
96
What is the **limit** on **interrogatories**?
Can ask a max of 25 questions.
97
A party served with **interrogatories** has how many **days to respond**?
30 days.
98
What must **responses** to **interrogatories include**?
1. Be in writing; and,
2. Include objections with specificity.
99
What is a **request for admission**?
Any party can submit to any other party a request to admit the truth of any fact (or a fact's application to law) as well as the genuineness of any document. If the matter is admitted, it is deemed conclusively established for the purposes of the litigation.
100
A party served with **request for admission** has how many **days to respond**?
30 days.
101
What are a party's **options** when **responding to admissions**?
The responding party may:
1. Admit the contention;
2. Deny it; or,
3. State that he has made a reasonable attempt to ascertain the truth of the matter but cannot confirm or deny.
102
A party served with **request for production** of documents has how many **days to respond**?
30 days.
103
How must a party served with **request for production** of documents **provide the documents**?
As they are maintained in the usual course of business and label them to correspond to the request.
104
When can a **request** for **mental** or **physical examination** be made?
A request for a mental or physical examination is used when a party's mental or physical state is an issue in a case.
105
How is a request for mental or physical examination be made?
The requesting party must go to the court and show cause.
106
**How many depositions** is each party entitled to?
10; however, a court can grant more.
107
What do **depositions to perpetuate testimony** require?
That all opposing parties are provided an opportunity to be present and ask questions.
108
Depositions can only occur when?
During the pendency of the lawsuit.
109
When can a party **use** a **deposition** at a **hearing** or **trial**?
If the party against whom the deposition is used had a reasonable opportunity to be present at the deposition.
110
What may a **deposition** of a **party or a party's employee** be used for at a **hearing or trial**?
Any purpose.
111
What may a **deposition of a non-party** may be used for at a **hearing or trial**?
1. Only to impeach the deponent; or,
2. If the deponent is unavailable, (e.g., by reason of death, infirmity, or disappearance), the deposition can be used for any purpose.
112
What are **subpoenas** used for?
Subpoenas are used to obtain discovery from non-parties.
113
How can a person **object to a subpoena**?
1. General exceptions to discovery; and,
2. Subpoena requires travel of 100 miles from residence or work.
114
What should you do to **enforce discovery** if a person "sort of complies" with a request?
File for:
1. Motion to compel; then, if ineffective,
2. Sanctions.
115
What is the required to file a **motion to compel**?
The movant must have in good faith attempted to confer with the person resisting discovery to see if judicial intervention can be avoided.
116
If a **motion to compel succeeds**, what is the result?
If it **fails**?
Success = movant entitled to legal fees.
Fails = non-movant legal fees unless the the motion was justified.
117
What are the **courts** **options** for **discovery sanctions**?
1. A court order declaring that the facts sought are established in favor of the requesting party;
2. A court order prohibiting the disobedient party from presenting certain claims or defenses;
3. A stay or dismissal of the entire action; or,
4. An order of contempt.
118
How do you **enforce** a **discovery** request if the opposing party does not comply at all?
File for sanctions.
119
What is needed to file a **reply to an answer**?
Permission from the court.
120
How many **days after an answer** does a ∆ have to file a **3rd party complaint**?
14 days.
121
When is **serving notice of deposition** required?
1. The deponent is a party; or,
2. The deponent is a witness that is not a party.
122
If a ∆ in their **answer** **does not assert affirmative defenses**, when can they bring them up?
Affirmative defenses are waived if they are not brought up in the first responsive pleading.
123
If a **summons and complaint are sent by mail** and the **∆** receives but **does not acknowledge** the complaint, what is the result?
∆ must be served as otherwise provided in that rule (even if he gets it, the mailing is procedurally defective).
124
How can the **court impose sanctions on its own** accord?
And **who** can they impose sanctions on?
As long as there is a show cause order and they can impose on anyone even if they are pro se.
125
Does appearing in court automatically consent to jurisdiction?
No, not if the party showing up objects.
126
When will someone with an interest in action **not be allowed to intervene**?
When permitting him to intervene would destroy diversity.
