Pre-trial Procedures

What generally must a complaint contain?

(1) grounds for subject matter jdx;

(2) a short and plain statement of the claim, which must be plausible and supported by sufficient facts; and

(3) a demand for relief sought.

What types of claims require a heightened complaint requirement? What is the requirement?

Fraud, mistake, and special damages must be plead with particularity and specificity.

By when must a defendant file his first response to a complaint? What are the specific exceptions?

Generally, a defendant must respond to complaint within 21 days after service of process. However, this time is extended to 60 days from when the plaintiff mailed the waiver if service was waived (90 days for foreign defendants).

When is a motion for a more definite statement appropriate? Time to file?

A defendant should file a motion for a more definite statement if the complaint is so vague or ambiguous that he simply cannot respond. The motion must be made before the defendant answers.

When is a motion to strike appropriate?

Any party may file a motion to strike to remove any redundant or immaterial things from a pleading.

What defenses are waived if not raised in the first response?

(1) improper venue;

(2) lack of personal jdx;

(3) improper service or process;

(4) improper process.

What Rule 12(b) defenses are not waived if not raised in the first reponse?

(1) failure to state a claim;

(2) lack of subject matter jdx;

(3) failure to join an indispensable party.

If the defendant’s first response to a complaint is a Rule 12 motion, which the court denies, what must the defendant do next?

The defendant must file an answer within 14 days after notice of the denial.

When can a complaint be amended?

A complaint can be amended once as a matter of course no later than 21 days after service of defendant’s first response. If the time has expired, plaintiff may amend only if he gets either leave of court or consent from opposing parties.

When can an answer be amended?

Defendant can amend his answer once as a matter of course no later than 21 days after serving it. If the period has expired, an answer can be amended only if defendant gets leave of court or consent by opposing parties.

When will a court grant leave of court to amend a pleading?

The court will grant leave of court if justice so requires. In making this determination, the court looks at length of delay, prejudice to the other party, and futility of amendment.

How does variance affect the right to amend rules?

If a party relies on evidence at trial that does not match the pleadings, the party can amend the pleadings to conform to the evidence if the opposing party fails to object to the evidence at trial.

What must be established for the relates back doctrine to apply to an additional claim?

An amended pleading to add a claim relates back if it concerns the same conduct, transaction, or occurrence as the original pleading.

What does the relates back doctrine mean?

The amended pleading is treated as if it was filed when the original complaint was filed, meaning that it could avoid statute of limitations issues.

What must be established for the relates back doctrine to apply to an additional party?

An amended pleading to add an additional party relates back if: (1) the amendment concerns the same conduct, transaction, or occurrence as the original pleading; (2) the additional party had knowledge of the case; and (3) the additional party knew or should have known that, but for a mistake, he would have been named originally.

What is a supplemental pleading? And how is it different from an amendment?

A supplement pleading sets forth things that happened after the pleadings were filed. Whereas, an amendment simply corrects or amends based on things that happened before the pleading was filed.

When can a party file a supplemental pleading?

A party must file a motion with the court. There is no right to file a supplemental pleading.

What does Rule 11 apply to?

Rule 11 applies to pleadings, motions, and other papers, but it does not apply to discovery.

The Rule 11 signature requirement certifies what?

When a lawyer or self-represented party signs a document, he certifies that to the best of his knowledge and belief, after reasonable inquiry: (1) the paper is not for an improper purpose; (2) the legal contents are warranted by law or nonfrivolous argument for a change in law; and (3) the factual contentions and denials have evidentiary support or are likely to after further investigation.

What is the continuing certification requirement of Rule 11?

A party cannot later advocate for a position set forth in a document that violates the Rule 11 certification requirements.

Who can be sanctioned under Rule 11?

Party, Attorney, and/or Attorney’s firm

How can a Rule 11 issue come before the court?

(1) An opposing party can move for Rule 11 sanctions or

(2) the court can raise Rule 11 violations on its own by issuing an order to show cause why sanctions should not be imposed.

What must be done before a court can impose Rule 11 sanctions?

The sanctioned party must be provided an opportunity to be heard.

What are the limitations on Rule 11 monetary sanctions?

A court may not impose a monetary sanction against a represented party if their claim or defense is not warranted by existing law or not supported by a nonfrivolous argument for a change in law.

What is the Safe Harbor Rule for Rule 11 sanctions?

If a party seeks to move for Rule 11 sanctions, it must first serve the motion on the other party. The other party will have 21 days to fix the problem. The party may file the motion only if the other party fails to remedy the problem within the time stated.

In what circumstances can multiple claims by a single plaintiff be joined against a single defendant?

ermissive joinder allows a plaintiff to bring any claim against the sole defendant, even if unrelated, so long as the court has SMJ over each claim.

Under what circumstances can claims by multiple plaintiffs be joined against a single defendant

Permissive joinder allows claims by multiple plaintiffs to be joined against a single defendant if: (1) the claims arise out of the same transaction or occurrence; and (2) there is at least one common question of law or fact.

Under what circumstances can multiple claims by a single plaintiff be joined against multiple defendants?

Permissive joinder allows the plaintiff to join multiple defendants if: (1) the claims arise out of the same transaction or occurrence; and (2) there is at least one common question of law or fact.

When should a motion to sever be filed?

When a party is improperly joined.

When is an absent party considered a necessary party?

A nonparty is considered necessary to the case if: (1) without the party, the court cannot accord complete relief among the existing parties; (2) the party’s interest may be harmed if he is not joined; and (3) the party claims an interest that subjects a party to a risk of multiple obligations.

What types of defendant are never considered necessary parties?

Joint tortfeasors are never considered necessary parties.

When should a nonparty be joined in the case?

A nonparty should be joined in the case if: (1) they are a necessary party and (2) joinder is feasible.

When is joinder of a necessary party feasible?

Joinder of a necessary party is feasible if: (1) the court has personal jdx over the party; and (2) subject matter jdx over the claims by or against the party.

Must a court dismiss the case if a necessary party cannot be joined?

No, the court has discretion to hear the case without the necessary party. In making this determination, the court should consider the following factors: (1) whether there is an alternative forum available; (2) what the actual likelihood of harm to the nonparty; and (3) whether the court can shape relief to avoid harm to the nonparty.

How long does plaintiff have to respond to a counterclaim?

Plaintiff has 21 days of service of the counterclaim to respond.

What is a compulsory counterclaim?

A counterclaim is compulsory if it arises out of the same transaction or occurrence as plaintiff’s claim. Compulsory counterclaims must be brought in the present action or it is waived.

What is a permissive counterclaim?

A permissive counterclaim is one that does not arise out of the same transaction or occurrence as the plaintiff’s claim. A party is not required to, but may, file permissive counterclaims in the present action.

What is a cross claim?

A cross claim is a claim brought against a coparty. Crossclaims must arise out of the same transaction or occurrence as the underlying action. Counterclaims are not compulsory and may be brought in a separate action.

What is an impleader? and when should an impleader claim be filed?

An impleader claim is brought by a defendant against a third party so that if the defendant is found liable, the third party may be responsible for paying all or part of plaintiff’s damages. A defendant may bring an impleader claim if the third party either: (1) contributed to plaintiff’s harm; or (2) is responsible for indemnifying the defendant.

Are impleader claims compulsory or permissive?

An impleader claim is permissive, meaning that it does not need to be brought in the current suit.

What procedural requirements must be met to filed an impleader claim?

The defendant must: (1) file a third party complaint naming the third party within 14 days of serving his answer; and (2) serve the complaint on the third party. If the time expired, the defendant needs court permission.

When can a plaintiff bring a claim against a third party defendant, and vice versa?

A plaintiff can bring a claim against a third party defendant that arises out of the same transaction or occurrence as the underlying case, and vice versa.

When does a court have personal jdx over a necessary party or a third party defendant?

A court can have personal jurisdiction if either: (1) the defendant has sufficient contacts with the state through general or specific jdx; or (2) the defendant is served in any US district that is not more than 100 miles from the federal court that issued the summons.

What is intervention? When is intervention proper?

Intervention is when a nonparty brings himself into the case as a plaintiff or defendant. A nonparty may intervene as a matter of right if: (1) his interest may be harmed if not joined; and (2) that interest is not adequately represented by the current parties. If intervention is not as a matter of right, the court has discretion to approve intervention if the claim or defenses shares at least one common question of law or fact as the underlying case. Permissive intervention is usually granted unless it would cause delay or prejudice to someone.

What is an interpleader?

An interpleader suit permits a stakeholder to require two or more adverse stakeholders to litigate among themselves to determine which, if any, has a valid claim to it.

To qualify for a class action, what requirements must be met?

(1) the class must be so numerous that joinder would be impracticable;

(2) the must be some issue in common to all class members that resolution could be made in one stroke;

(3) the class representative’s claim must be typical of the claims of the class; and

(4) the class representative must fairly and adequately represent the interests of the class; and

(5) one of any of the following: (a) class action is necessary to avoid harm to class members or nonparties; (b) the relief sought is for injunctive or declaratory relief; or (c) common questions predominate over individual ones and class action is a superior method.

Is a decision on class certification immediately appealable?

The appellate court has discretion to immediately review a decision on class certification.

When is notification of a class action required? And what must be included in the notice?

Notification is required only if the class is certified under the third type; that is, the common questions predominate over individual ones and class action is a superior method. The class representative must provide notice to all reasonably identifiable members, which should include that they: (1) can opt out; (2) will be bound by the judgment if they do not opt out; and (3) can enter a separate appearance through counsel.

Can you opt out of a type 1 (prejudice) or type 2 (equitable relief)?

No, the opt out option is only available to class 3 cases.

What happens after the parties agree to settle a class action?

The court must approve the settlement. Before approval, the court must send give notice to class members to get their feedback on whether the case should be settled. In a type 3 (predominance), the court may decline to approve settlement unless the class members are given a second opportunity to opt out.

When are initial disclosures due?

14 days after the Rule 26(f) conference

What must be disclosed in initial disclosures?

(1) identities of persons with discoverable information that the party may use to support a claim or defense;

(2) documents and things that the party may use to support a claim or defense that are in the party’s control;

(3) if seeking monetary damages, documents or things to support the amount sought; and

(4) any insurance that might cover all or part of the judgment.

What is the penalty for failing to disclose in an initial disclosure?

If a party fails to make an initial disclosure, they cannot use that information unless the failure to disclose was substantially justified or harmless.

When is information from consulting experts discoverable?

Information from consulting experts is not discoverable unless the party shows exceptional circumstances under which it would be impracticable to obtain the facts or opinions by other means.

What must be included in a testifying expert report?

(1) opinions that the expert will express;

(2) the bases for the opinions;

(3) the facts used to form those opinions;

(4) the expert’s qualifications; and

(5) the expert’s compensation from the case.

What is the penalty to failing to disclose an expert witness requirement?

The party may not rely on the expert unless the failure was justified or harmless.

When are pre-trial disclosures due? And what must it include?

Pre-trial disclosures are due 30 days before trial and must include detailed descriptions about their trial evidence.

Can discovery request be made before the Rule 26(f) conference?

Discovery request cannot be made before the Rule 26(f) conference except for requests for production of documents so long as 21 days have passed since service of the complaint.

Who can be deposed? And how?

Both parties and nonparties can be deposed. Notice of deposition is sufficient to compel a party to a deposition. Nonparties can be compelled only through a subpoena.

What is a subpoena duces tecum?

A subpoena duces tecum is a subpoena that requires the deponent to bring requested materials with her to the deposition.

What is the limitation on nonparty depositions?

Nonparty cannot be required to attend a deposition more than 100 miles from her residence.

What is the procedure for deposing an organization?

The noticing party should include in the notice the facts that he would like to discover in the deposition. Then, the organization should designate an persons to testify to that matter.

What are the amount and time limitations on depositions?

A party cannot take more than 10 depositions, the depositions must not exceed 7 hours each, and a party cannot depose the same person twice without court approval or stipulation.

Interrogatories can be sent to who?

Interrogatories can be sent only to parties.

How many interrogatories can be sent?

A maximum of 25 interrogatories, including subparts, unless court approval or stipulation.

When is a response to interrogatories due?

A party must respond to interrogatories within 30 days from service of them.

What must a party do to answer interrogatories accurately?

The party must answer based on information reasonably available. If the answer to interrogatories can be found in business records, and the burden of finding the answer would be the same for the answering party and requesting party, the answering party can instead allow the requesting party to have access to the records.

When are responses to requests for production of documents due?

A response to a request for production of documents is due within 30 days of its service.

Who can be sent requests for production of documents?

Only parties can be sent requests for production of documents. You can request nonparties to produce documents through a subpoena.

What is required for a party to submit to a medical examination?

A court order is required to compel a party to a medical examination. The party must show that: (1) the person’s health is in actual controversy; and (2) good cause.

Who gets to choose the medical provider to conduct a court ordered medical examination?

The requesting party gets to choose the medical examiner for a court ordered medical examination.

Can the party who underwent a court ordered medical examination request the report from the exam? If so, what happens?

Yes, the examined party may request the report. However, if they do, the opposing party may request all medical reports from her own doctors relating to the same condition.

When must a party respond to requests for admission?

A party must respond within 30 days of its service.

What is the consequence of failing to respond to an admission request?

By failing to respond to a question, the matter is deemed admitted.

Who may be sent requests for admission?

Only parties may be sent requests for admissions.

By signing a discovery request, what is being certified?

(1) that the request is warranted;

(2) that it is not being imposed for an improper purpose; and

(3) the it is not unduly burdensome.

What if new facts come to light that make a discovery response or disclosure incorrect or incomplete?

The party should supplement its request or response to correct its earlier response.

What is within the scope of discoverable information?

A party may discover: (1) any unprivileged information; (2) that is relevant to a claim or defense; and (3) proportionate to the needs of the case.

What is considered work product?

Any material that is prepared in anticipation of litigation.

What is qualified work product?

Work product that is not opinion work product is qualified, meaning that can be discoverable if the requesting party can show: (1) a substantial need and (2) undue hardship in obtaining the information by other means.

What is absolute work product?

Work product that contains opinions is absolutely protected, which means that it can never be discoverable?

What should a party do if it wants to claim a privilege or work product over information requested?

The party should complete a privilege log that expressly identifies the protection claimed and describes the materials in detail.

What happens if privileged or work product information is inadvertently disclosed?

The responding party should immediately notify the requesting party of the mistake, and the requesting party should immediately return or destroy the information.

When would a motion for a protective order be filed?

A party may move for a protective order if it thinks a discovery request subjects it to annoyance, embarrassment, or undue burden or expense. The party must first certify that they tried in good faith to resolve the issue without court involvement.

What can a court do in granting a protective order?

(1) deny discovery;

(2) limit discovery; or

(3) permit discovery on specified terms

When should a party move to compel?

A party should move to compel discovery when the opposing party fails to sufficiently respond to a discovery request.

When can a court order discovery sanctions against a party? What kind of sanctions may be imposed?

A court may order discovery sanctions if a party: (1) violates an order compelling discovery; or (2) fails to respond to requests at all. The court may impose merit sanctions and expenses for bringing sanctions motion.

What must a party do to request discovery sanctions against the opposing party?

The party must meet and confer to resolve the issue without court involvement. If the issue cannot be resolved on their own, the party then may move for discovery sanctions certifying their good faith attempt to resolve the issue first.

What merit sanctions are available for discovery sanctions?

(1) order establishing a fact as true;

(2) strike pleadings of issues regarding the discovery;

(3) disallow evidence of issues regarding the discovery;

(4) dismissal or default judgment if bad faith is shown.

When do parties have a duty to preserve discoverable information?

Parties have a duty to preserve discoverable information once litigation is reasonably anticipated.

What happens if ESI is lost because of a party’s failure to preserve?

The court can impose an adverse inference order or merit sanctions if the party that lost the ESI acted with the intent to deprive the other party.

What is the standard for issuing a TRO?

A party may be entitled to a TRO if they can show that they will suffer irreparable harm before a preliminary injunction hearing.

When may a court issue an ex parte TRO?

A court may issue an ex parte TRO if: (1) the applicant shows that, if a TRO is not issued, she will suffer irreparable harm before a preliminary injunction hearing; (2) certifies her efforts to give notice or why notice should not be required; and (3) the applicant posts bond.

What should a party do after a TRO is issued?

The party must serve the TRO on the defendant.

Is an order granting or denying a TRO immediately appealable?

No, an order granting or denying a TRO is not immediately appealable.

What must a TRO or preliminary injunction include?

(1) state its terms specifically;

(2) describe in detail what the defendant must do or refrain from doing;

(3) state why it was issued; and

(4) state why the threatened injury to plaintiff was irreparable.

For a preliminary injunction, the court must also make specific findings of fact and conclusions of law.

What is the ordinary duration of a TRO? When can it be extended and for how long?

TRO is effective for 14 days. A party can extend a TRO up to an additional 14 days if the plaintiff shows good cause.

What must be shown for a court to issue a preliminary injunction?

Plaintiff must show:

(1) likelihood of success on the merits;

(2) likelihood of suffering irreparable harm;

(3) the balance of equities tips in his favor; and

(4) the preliminary injunction is in the public interest.

When must a party post bond?

The plaintiff must post bond when a court grants their TRO or preliminary injunction to cover damages in the instance the grant was improper.

Is an order granting or denying a preliminary injunction immediately appealable?

Yes, preliminary injunctions are subject to interlocutory appeal.