B: Pretrial Procedures

TEMPORARY RESTRAINING ORDER

1. Definition

2. Factors Considered

1. (i) issued before trial
   (ii) lasts until a preliminary injunction hearing can be held (capped at 14 days)
   (iii) D is not entitled to notice and a hearing

2. (i) injury to P
   (ii) likelihood of success on the merits
   (iii) balancing of hardships
   (iv) public interest

PRELIMINARY INJUNCTION

1. Definition

2. Factors Considered

1. (i) issued before or during trial
   (ii) lasts until the end of trial
   (iii) D is entitled to notice and a hearing

2. (i) injury to P
   (ii) likelihood of success on the merits
   (iii) balancing of hardships
   (iv) public interest

AMENDMENTS TO THE PLEADINGS

1. As a matter of right

2. With permission

1. one time within 21 days after service of…
   (i) original pleading, OR
   (ii) responsive pleading OR pre-answer motion to original pleading

2. in all other cases…
   (i) w/ opposing party’s written consent, OR
   (ii) w/ leave of court upon motion (granted when justice so requires)

What defenses must be included in the first response (or otherwise be considered waived)?

• lack of PJ

• improper venue

• insufficient process

• insufficient service of process

RELATION BACK DOCTRINE

1. Adding a new claim

2. Adding a new party

1. IF…
   (i) amending a pleading to add a new claim
   (ii) after the statute of limitations has run
   THEN the amendment is deemed to assume (i.e. relate back to) the date the original pleading was filed if…
   (i) original pleading was timely filed
   (ii) new claim arises out of the same conduct, transaction, or occurrence as the claim set out in the original pleading

2. IF…
   (i) amending a pleading to add a new party
   (ii) after the statute of limitations has run
   THEN the amendment is deemed to assume (i.e. relate back to) the date the original pleading was filed if…
   (i) new claim arises out of the same conduct, transaction, or occurrences as the claim set out in the original pleading
   (ii) new party receives notice of the action within 90 days of the original complaint
   (iii) new party KSK that the action would have been brought against him, but for a mistake concerning the proper party’s identity

COUNTERCLAIM

a claim by an opposing party, usually D against P

COMPULSORY COUNTERCLAIM

(i) arises out of the same transaction or occurrence as the original action
(ii) does not require adding another party out of the court’s jxn
(iii) must be pled in the current action; otherwise barred from being raised in a subsequent lawsuit

PERMISSIVE COUNTERCLAIM

(i) does not arise out of the same transaction or occurrence
(ii) requires an independent jurisdictional basis

CROSS-CLAIM

(i) claim asserted against a co-party
(ii) arises out of the same transaction or occurrence as the original claim or counterclaim

Rule 11

• All papers served in a litigation must be signed by an attorney of record (or by the party if unrepresented).

• When presenting papers to the court, the party certifies, to the best of their knowledge formed after a reasonable inquiry, the following:

  • It is not being presented for any improper purpose

  • Legal contentions are warranted and non-frivolous

  • Factual contentions have evidentiary support or likely will after discovery

  • Denials of factual contentions are warranted or reasonably based on a lack of info

• IF a party fails to comply with Rule 11, THEN the court may impose sanctions (by motion OR on its own).

Motion for Rule 11 Sanctions

1. Requirements

2. Procedure

1. (i) motion made separately from any other motion
   (ii) describes the specific conduct alleged to violate Rule 11

2. The motion must be served on the opposing party. The opposing party them must be give 21 days to withdraw or correct the challenged pleading. If this “safe harbor” period passes w/o the opposing party withdrawing or correcting the pleading, then the party seeking sanctions may then filed the motion with the court.

COMPULSORY JOINDER

A person must be added as party to an action if…
(i) the party is necessary
(ii) joinder is feasible

PERMISSIVE JOINDER

A person/entity may be added as party to an action if…
(i) the claim(s) they assert arises out of the same transaction or occurrence
(ii) the claim(s) they assert involves a common question of law or fact

IMPLEADER

D can bring a 3P into the action if…
(i) 3P is liable to D
(ii) for all or part of a judgment against D in the action

INTERVENTION

a nonparty moves to become a party to the action

INTERPLEADER

a lawsuit used to resolve competing claims to the same property; holder of a property subject to conflicting claims files a lawsuit and joins all claimants

What is required for a person to sue on behalf of a class?

(i) commonality
(ii) adequacy of representation
(iii) numerosity
(iv) typicality

TIMING OF DISCOVERY

1. General Rule

2. Exception

1. Before discovery can take place, the parties must “meet and confer” to…
   (i) arrange for initial disclosures
   (ii) develop a proposed discovery plan

2. Discovery can take place before a complaint is filed only if delay of discovery is likely to result in a loss of evidence.

SCOPE OF DISCOVERY

• A party may obtain…
  (i) all non-privileged info
  (ii) relevant to a party’s claim or defense
  (iii) proportional to the needs of the case

• Info need not be admissible into evidence to be discoverable.

ATTORNEY WORK PRODUCT DOCTRINE

Privileged from discovery are…
(i) all materials prepared by an atty (or his agents)
(ii) in anticipation of or during litigation
UNLESS…
(i) a substantial need for the materials exist
(ii) a substantial equivalent cannot be obtained w/o undue hardship

INTERROGATORIES

1. How many?

2. Timing for response

1. 25 for each party

2. within 21 days of service

DEPOSITIONS — How many?

10 per person deposed UNLESS…
(i) parties stipulated otherwise, OR
(ii) leave of court

Who can be subject to an ORDER FOR MEDICAL EXAMINATION?

only if the order is made in good faith…
(i) party, OR
(ii) someone under a party’s legal control (e.g. employee)

MANDATORY DISCLOSURES

1. Initial Disclosures

2. Expert Disclosures

3. Pretrial Disclosures

1. (i) names and contact info of anyone w/ potentially discoverable info
   (ii) copies or descriptions of relevant documents or things
   (iii) computation of the damages claimed
   (iv) applicable insurance agreement(s)

2. (i) name and contact info of any experts
   (ii) expert’s final report (includes qualifications, opinions, info relied upon)

3. (i) list of witnesses expected to be called at trial
   (ii) list of documents or physical evidence expected to be presented at trial

SUPPLEMENTING/CORRECTING DISCLOSURES

IF a party learns that in some material respect a disclosure is incomplete/incorrect, THEN the party must supplement/correct it, UNLESS…
(i) substantially justified, OR
(ii) harmless

PRETRIAL CONFERENCE

1. Definition

2. When can a court impose sanctions?

1. a hearing before trial to control the management or scheduling of the case; attendance is mandatory

2. When a party…
   (i) fails to attend, OR
   (ii) is substantially unprepared, OR
   (iii) does not participate in good faith, OR
   (iv) fails to obey a scheduling/pretrial order