Pretrial Procedures Flashcards
1
Q
A complaint must contain what three elements?
A
1) Grounds for Subject Matter Jurisdiction
2) Statement of Facts
3) Demand for Judgment and Relief
2
Q
In a complaint, what must the statement of facts contain?
A
Facts sufficient to show that the plaintiff is entitled to relief (> than a shot in the dark).
3
Q
In a complaint, what must be shown in a statement of facts alleging fraud or mistake?
A
The facts must describe the fraud with specific particularity.
More Info: Fraud or Mistake
4
Q
How long does a party have to 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
- 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
- With permission
6
Q
What are the ways to amend a complaint with permission?
A
- Permission of the Opposing Party
Or
- Permission of the Court
7
Q
What factors will a court weighwhen grantingpermissionfrom the court toamendacomplaint?
A
- The reason for the amendment in the context of timing (≠ blameworthy)
- If the amendment will prejudice the other party
8
Q
Which types of amendments do not relate back to the original filing for statute of limitations purposes?
A
Amendments seeking to add:
- A new claim
Or
- A new party
9
Q
When will the filing date of amendments seeking to add a new claim relate back to the original filing date?
A
When 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
The filing date will only relate back to filing date of the complaint if all three of the following elements are met:
1) The party to be added knew of the lawsuit soon enough not to be prejudiced in defending against it and in no case later than the time permitted for service and process
2) The party to be added should have expected to be named as a defendant in the original complaint
3) The party to be added was originally left out of the case because of a mistake in identity
* More Info:* https://www.law.cornell.edu/rules/frcp/rule_15
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 plaintiff sued the wrong legal entity out of a group of entities
12
Q
What does processfor service and processrequire?
A
1) A copy of the complaint
2) A 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 defendant will be served
Or
- Serve process in the manner specified in Federal Rule of Civil Procedure 4
16
Q
List the ways to properly serve process pursuant to Federal Rule of Civil Procedure 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
- 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 Federal Rule of Civil Procedure 4 when suing a business entity?
A
- Serve process on an officer
- Serve process on a managing agent or general agent
- 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 be done to properly serve process?
A
Serve by
- Hand
and by
19
Q
If a court has the power to assert personal jurisdiction over a party, that power becomes activated at what moment?
A
When the defendent is served with process
20
Q
To what does the constitutional right to due process entitle a defendant?
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
- The plaintiff taking steps that are reasonably calculated to inform the defendant of the action against him
* More Info:* Notice Requirement of DP
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
Defendants must specifically admit or deny the allegations or raise defenses. If they do not, then the ruling will be for the plaintiff
24
Q
After process is served, the party sued must decide how to respond. What options do the Federal Rules offer?
A
A defendant to a suit can file:
- An answer
- A motion for a more definite statement
- A motion to strike
Or
- A motion to dismiss
25
What happens if a Defendant **fails to include a defense** in his **answer**?
The defendant 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
* More Info:* [Unwaivable Defenses](https://www.law.cornell.edu/rules/frcp/rule_12)
27
When is a **motion to strike** appropriate?
If a complaint or answer contains redundant, immaterial, or scandalous matters, then the court may on its own or by motion order the improper material stricken.
*More Info:* [Motion to Strike](https://www.law.cornell.edu/rules/frcp/rule_12)
28
Define a **motion to dismiss.**
A motion that seeks the dismissal of a claim and can be filed by any party defending against a claim.
29
If defendant was actually served with process (regardless of the method), how long does the defendant **have to respond to a complaint**?
21 days to respond
30
If the defendant **has waived service of process**, then how long does the defendant have to **respond** to a **complaint**?
60 days to respond.
31
If the defendant **responds to the plaintiff's complaint by filing a motion** for a more definite statement, a motion to strike, or a motion to dismiss, then what must the defendant do if the motion is **denied**? The defendant **must file an answer within what time period**?
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
* More Info:* [Rule 11 Sanctions](https://www.law.cornell.edu/rules/frcp/rule_11)
33
How should a party **seek** **sanctions for Rule 11 violations**?
1. Draft a motion and give it to offending party
Then
2. Wait 21 days after service for offending party to withdraw. Then, if not withdrawn, file it with the court.
34
What must be the **goal of sanctions**?
To 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 the violation occurs in discovery
2. There are no monetary sanctions for violations of the rule requiring "good law"
37
What **elements** are required for a **preliminary injunction**?
1) Notice on adverse party
2) Likelihood that the plaintiff will succeed on the merits
3) Irreparable Harm to the plaintiff is imminent
4) Balance of hardships favors an injunction (harm to plaintiff if denied \> harm to defendant if granted)
5) Injunction is in the public interest
6) Payment of security deposit (plaintiff must put up a security deposit to compensate the defendant for harm against him due to the injunction).
38
What **elements** are required for a **temporary restraining order**?
1) Notice on adverse party
2) Likelihood that the plaintiff will succeed on the merits
3) Irreparable harm to the plaintiff is imminent
4) Balance of hardships favors the injunction (harm to plaintiff if denied \> harm to defendant if granted)
5) Injunction is in the public interest
6) Payment of a security deposit (plaintiff must put up a security deposit to compensate the defendant for harm against defendant due to the restraining order).
39
What is the **duration** of a **preliminary injunction**?
The entirety of the lawsuit
40
What is the **duration** of a **temporary restraining order**?
14 days
41
What are the **notice** requirements for a **temporary restraining order (TRO)**?
A TRO can be granted ex parte. For ex parte granting of a TRO, the plaintiff must show that they:
1. Tried to give notice
And
2. There will be an immediate irreparable harm to the plaintiff without the TRO.
* More Info:* [TRO Notice Requirements](https://www.law.cornell.edu/rules/frcp/rule_65)
42
What does **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, the plaintiff is not required to bring them all at once in the same lawsuit.
43
What is a **permissive counterclaim**?
A claim that does not arise out of the transaction or occurrence underlying any of the plaintiff's claims against the defendant. A defendant may file a permissive counterclaim against a plaintiff.
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 the plaintiff's claims against the defendant.
Failure to bring a compulsory counterclaims precludes the defendant from bringing it later from the law of joinder.
45
If a party has **multiple counterclaims against a plaintiff**, what can that party do?
The defendant 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** for what types of claims?
The cross claims must arise from the same transaction or occurrence of the plaintiff's underlying claims.
48
Once a defendant files an **appropriate cross claim** against a co-defendant, the defendant **may file what claims**?
Join with the appropriate cross claims any additional claims, even if those claims are unrelated to the transaction or occurrence underlying the plaintiff'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.
*More Info:* [Impleader](http://nationalparalegal.edu/public_documents/courseware_asp_files/researchLitigation/PreTrialPractice/AddingParties.asp)
52
What are **classic impleader claims**?
1. Contribution claims
2. Indemnity claims (claims against insurers)
53
What are the **timing requirements** of **impleader** claims?
The defendant may file impleader claims:
1. Within 14 days of serving an 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 the original claims.
55
When is **permissive joinder** (Rule 20) allowed?
Multiple plaintiffs or defendants 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
* More Info:* [Permissive Joinder](http://www.west.net/~smith/joinder.htm)
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 if the party is not joined
* More Info:* [Necessary Party](http://www.west.net/~smith/joinder.htm)
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
2. That 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 defendant and only the plaintiffs 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 of the action, and it 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. The defendants are diverse from the named plaintiffs
Or
2. If the class has over 100 members and seeks damages over $5,000,000 + any defendant is diverse from any class plaintiff.
69
How can a **class action** be **removed**?
Removal can be requested by
1. The home state defendant
Or
2. Any defendant 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.
*More Info:* [Interpleader Claims](http://nationalparalegal.edu/public_documents/courseware_asp_files/researchLitigation/PreTrialPractice/AddingParties.asp)
71
What is a Rule 24 **intervention**?
When a non-party attempts to join a lawsuit through its own initiative
72
When does **intervention as a right** occur?
The court must allow for intervention if:
1) The party claims an interest relating to the subject matter of the action
And:
2) 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 subject matter jurisdiction, personal jurisdiction, or venue?
The claim will not be allowed without proper subject matter jurisdiction or personal jurisdiction; however, improper 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.
*More Info:* [Bulge Rule](http://www.tba.org/journal/the-third-100-mile-rule)
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 the 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 **Rule 16(b) require the court** to do?
What is the **time period** for action?
Issue a scheduling order which 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
3. Pretrial
80
**When** must **initial discovery** disclosures be made?
Within 14 days of 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
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
4. What the expert relied upon
* More Info:* [Expert Discovery Requirements](https://www.law.cornell.edu/rules/frcp/rule_26)
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
4. A list of documents or physical evidence she expects to present
86
What can **not be asked for in discovery**?
Information that
1. Is irrelevant
2. Violates privilege
3. Is 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 the dispute more or less likely to be true, regardless of whether it is admissible
88
Is **work product** discoverable?
No, nothing prepared in anticipation of litigation is discoverable.
89
When is work product discoverable?
1. A party can always obtain a statement that it has made
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**?
When it would be inefficient in the 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**?
1) Information related to the final report
2) Communications relating to compensation for testimony
3) Communications relating to the data provided by the attorney to the expert
4) 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
6. Subpoenas
* More Info:* [Discovery Methods](http://federalpracticemanual.org/node/34)
95
What are **interrogatories**?
Questions in writing submitted to another party to answer
96
What is the **limit** on **interrogatories**?
A party can ask a maximum of 25 questions
97
A party served with **interrogatories** has how many **days to respond**?
30 days.
98
What must **responses** to **interrogatories include**?
The response to an interrogatory must:
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 witha **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 the contention
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 a **request for production** of documents has how many **days to respond**?
30 days.
103
How must a party served with a **request for production** of documents **provide the documents**?
As they are maintained in the usual course of business and labeled to correspond to the request
*More Info:* [Request for Production of Documents](http://www.rotlaw.com/legal-library/what-is-a-request-for-production-of-documents/)
104
When can a **request** for a **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 at issue in a case.
105
How is a request for a 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
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
* More Info:* [Motion to Compel](https://www.law.cornell.edu/rules/frcp/rule_37)
115
What is required to file a **motion to compel**?
The movant must have made a good faith attempt 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**?
If successful, the movant is entitled to legal fees. If it fails, then the non-movant is entitled to legal fees unless the the motion was justified.
117
What are the **court's** **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
4. An order of contempt
* More Info:* [Discovery Sanctions](http://www.ilnd.uscourts.gov/LEGAL/frcpweb/FRC00040.htm)
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 defendant have to file a **3rd party complaint**?
14 days
121
When is **serving a notice of deposition** required?
1. The deponent is a party
2. The deponent is a witness that is not a party
122
If a defendant 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 **defendant** receives but **does not acknowledge** the complaint, what is the result?
The defendant 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, the court can impose sanctions on anyone even if they are pro se.
*More Info:* [Court Imposed Sanctions](http://federalpracticemanual.org/node/25)
125
Does appearing in court automatically consent a party to jurisdiction?
No, not if the party showing up is doing so to object to jurisiction.
126
When will someone with an interest in an action **not be allowed to intervene**?
When permitting him to intervene would destroy diversity
