PHASES OF LITIGATION

What commences an action?

The complaint

Complaint – Contents

A complaint must contain (1) a statement of the grounds of subject matter jurisdiction, (2) a short and plain statement of the claim showing that the plaintiff is entitled to relief, and (3) a demand for relief sought

Complaint – Pleading Requirements

In stating the claim, the plaintiff must plead sufficient facts to support a plausible claim. For cases involving fraud, mistake, and special damages, the plaintiff must use a heightened pleading standard of particularity or specificity

Defendant’s Response – Options

A defendant can respond by either (1) a motion or (2) an answer

Defendant’s Response – Timing

The defendant must file their motion or answer no later than 21 days after being served with process. If the defendant waived service, they have 60 days from when the plaintiff mailed the waiver form.

Defendant’s Response – Motion for More Definite Statement

The complaint is so vague or ambiguous the defendant simply cannot respond. The defendant must make this motion before answering.

Defendant’s Response – Motion to Strike

Asks the court to remove redundant or immaterial things from a pleading. Any party can move to strike.

Defendant’s Response – Waivable Defenses

The defendant must include the following defenses in their first motion OR answer or else they are waived: (1) lack of personal jurisdiction, (2) improper venue, (3) improper process, (4) improper service of process

When can the defenses of Failure to State a Claim and Failure to Join an Indispensable Party be raised?

As late as trial

When can the defense of Lack of Subject Matter Jurisdiction be raised?

At any time

What must a defendant do if their motion to dismiss is denied?

They must serve their answer no later than 14 days after notice of the denial

What must the defendant do in their answer?

(1) Respond to the allegations in the complaint by admitting, denying, or stating they have insufficient knowledge, and (2) Raise affirmative defenses

What happens if a defendant fails to deny an allegation?

It is treated as an admission except regarding the amount of damages

Amended Pleadings – Four Fact Patterns

(1) Right to amend, (2) Amendment after the right to amend has expired, (3) Variance, and (4) Relation back

Amended Pleadings – Plaintiff’s Right to Amend

The plaintiff has a right to amend their complaint ONCE no later than 21 days after the defendant serves their first response

Amended Pleadings – Defendant’s Right to Amend

The defendant has the right to amend their answer ONCE no later than 21 days after serving it. If the first response was an answer, and if the defendant forgot to include waivable defenses or an affirmative defense, they have the right to amend the answer to include them.

Amended Pleadings – Amendment After Right to Amend has Expired

After the period to amend as of right, the amending party must seek leave of court or get written consent from the opposing party. The court will grant leave to amend if justice so requires based on length of delay, prejudice to the other party, and futility of amendment.

Amended Pleadings – Variance

If evidence at trial does not match what was in the pleading, and if the other party fails to object, the party introducing the evidence may move to amend the pleading to conform to the evidence

Amended Pleadings – Relation Back to Join a Claim Not Originally Asserted

An amended pleading relates back if it concerns the same conduct, transaction, or occurrence as the original pleading. Relation back means you treat the amended pleading as though it was filed when the original was filed, so it can avoid a statute of limitations problem.

Amended Pleadings – Relation Back to Change a Defendant

The amendment will relate back if: (1) The amendment concerns the same conduct, transaction, or occurrence as the original, (2) The defendant had such knowledge of the case such that they will be able to avoid prejudice, and (3) The defendant knew or should have known that, but for a mistake, they would have been named originally

Supplemental Pleadings

Supplemental pleadings set forth things that happened after the pleadings were filed. There is no right to file a supplemental pleading. You must make a motion, and whether that motion is granted is within the discretion of the trial court.

Rule 11 Signature Requirement

For all papers except discovery, the lawyer or pro se party must sign the documents to certify that to the best of their knowledge and belief, after reasonable inquiry, (1) The paper is not for an improper purpose, (2) The legal contentions are warranted by law or a nonfrivolous argument for a law change, and (3) The factual contentions and denials of factual contentions have evidentiary support or are likely to after further investigation

Sanctions – General Rules

The purpose of a sanction is to deter a repeat of conduct. If there is a violation, sanctions may be imposed against the party, the lawyer, or the lawyer’s firm. The court can raise violations sua sponte by issuing an order to show cause why sanctions should not be imposed. Before imposing a sanction, the court must give the sanctioned party an opportunity to be heard

Sanctions – Safe Harbor

An opposing party cannot immediately file a motion for sanctions. They must serve the motion on the other party without filing with the court and give the violating party 21 days to fix the problem and avoid sanctions.

Can a single plaintiff join unrelated claims against a single defendant?

YES

What must be true for every single claim or party joined to a case?

There must be SMJ

What must be true of claims by multiple plaintiffs or against multiple defendants?

The claims must (1) arise from the same transaction or occurrence and (2) raise at least one common question of law or fact

Necessary and Indispensable Parties – General Rule

A defendant can move to force a nonparty to join in the case if they are necessary or if it is feasible

What three questions do you need to ask when determining whether to force an absentee to join the case?

(1) Is the absentee necessary or required? (2) If the absentee is necessary, can the absentee be joined? (3) If the absentee cannot be joined, can the case proceed anyway?

Necessary and Indispensable Parties – When is an Absentee Necessary?

(1) Without the absentee, the court cannot accord complete relief among the existing parties OR (2) The absentee’s interest may be harmed if they are not joined OR (3) The absentee claims an interest that subjects a party to a risk of multiple obligations

Are joint tortfeasors ever a necessary party?

NO

Necessary and Indispensable Parties – Can the Necessary Absentee be Joined?

If an absentee is necessary, the joinder must be feasible. Joinder is feasible if (1) there is PJ over the absentee AND (2) there will be federal SMJ over the claim by or against the absentee

Necessary and Indispensable Parties – Bulge Rule

If the absentee is served within a district of the United States and not more than 100 miles from where the summons was issued, there is PJ over the absentee regardless of contacts with the forum.

Necessary and Indispensable Parties – What if the Absentee Cannot be Joined?

If an absentee cannot be joined, the court must determine whether to proceed without the absentee or dismiss the entire case. This is determine through the factors: (1) Is there an alternative forum available? (2) What is the actual likelihood of harm? (3) Can the court shape relief to avoid that harm? If the court decides to dismiss, the absentee is indispensable

Counterclaims – Timing

After the defendant serves a counterclaim against the plaintiff, they must respond within 21 days of service

Counterclaims – Types

Compulsory and Permissive

Compulsory Counterclaims

A compulsory counterclaim is one that arises out of the same transaction or occurrence as the plaintiff’s claim. A defendant must file the compulsory counterclaim in the pending case or the claim is waived.

What is the ONLY compulsory claim?

Compulsory counterclaim

Permissive Counterclaims

A permissive counterclaim is one that does not arise from the same transaction or occurrence as the plaintiff’s claim. A defendant is not required to file a permissive counterclaim in the present case and can sue on the claim in a separate case

What is ALWAYS required for counterclaims?

SMJ or supplemental

Crossclaims

A crossclaim is a claim against a coparty. It must arise from the same transaction or occurrence as the underlying action. It is not compulsory, so it can be asserted in another case

Impleader

An impleader claim is one where a defending party brings in a new party as a third-party defendant

Impleader – What Types of Claims

Impleader is used for indemnity and contribution to shift to the TPD the liability that the defendant will owe to the plaintiff

Must a defendant implead a TPD?

NO

Process for Impleading a TPD

To implead a third party, the defendant must (1) file a third party complaint naming the TPD and (2) have that complaint formally served on the TPD

Impleader – Timing

There is a right to implead within 14 days of serving the answer. Court permission is needed after that.

Impleader – Claims Asserted by TPD and Plaintiff

After a TPD is joined, the plaintiff may assert claims against the TPD, and the TPD may assert claims against the plaintiff, so long as the claims arise out of the same transaction or occurrence as the underlying case

What MUST be present for ALL claims to and by an impleaded party?

There must be SMJ or supplemental

Impleader – Personal Jurisdiction

There is PJ over an impleaded party if they are served in a district in the United States and are not more than 100 miles from the federal court that issued the summons, regardless of contacts with the forum. If more than 100 miles, the traditional contacts test must be met

Intervention – General Rule

A nonparty absentee can use intervention to bring themselves into a case either as a plaintiff to assert a claim or as a defendant to defend a claim

Intervention – Timing

Application to intervene must be timely

Intervention of Right

If the absentee’s interest may be harmed if they are not joined, and that interest is not adequately represented by the current parties, then intervention is of right

Permissive Intervention

If the absentee’s claim or defense and the pending case have at least one common question of law or fact, intervention would be permissive and discretionary with the court unless it would cause undue delay or prejudice to someone

What MUST be present for claims by or against an intervenor?

SMJ or Supplemental

Interpleader

Interpleader applies if separate actions might result in double liability against a stakeholder and it permits a stakeholder to require two or more adverse claimants to the stake litigate among themselves to determine which has the valid claim to the stake

Rule 22 Interpleader

There must be (1) complete diversity between the stakeholder and all adverse claimants and in excess of $75,000, or (2) federal question

Statutory Interpleader

Requires only diversity between any two contending claimants and $500 be in issue

Class Actions – Requirements

(1) Numerosity (2) Commonality (3) Typicality (4) Representative Adequate

Class Actions – Numerosity

There must be too many class members for a practicable joinder

Class Actions – Commonality

There must be some issue in common to all class members so that resolution of that issue will generate answers for everybody in one stroke

Class Actions – Typicality

The class rep’s claims are typical of the claims of the class

Class Actions – Representative Adequate

The class rep will fairly and adequately represent the class

Types of Class Actions

(1) Prejudice (2) Injunctive or Declaratory Relief (3) Common Question or Damages

Class Actions – Type 1 Prejudice

For Type 1 class actions, class treatment is necessary to avoid harm either to class members or to the non-class party

Class Actions – Type 2 Injunctive or Declaratory Relief

Type 2 class actions seeks an injunction or a declaratory judgment because the defendant treated the class members alike and the plaintiffs generally cannot seek damages

Class Actions – Type 3 Common Question or Damages

For Type 3 class actions, (1) common questions must predominate over individual questions and (2) the class action is a superior method to handle the dispute. This is frequently used for mass torts.

How Does a Court Certify the Class?

The court must (1) grant the motion to certify the case as a class action, (2) define the class and the class claims, issues, or defenses, and (3) appoint class counsel of who must fairly and adequately represent the interests of the class

Class Actions – Notice

Notice is only required in Type 3 class actions, and the court must notify class members that they are in the class through individual notice to all reasonably identifiable members. Notice is paid for by the rep and tells the class members that (1) they can opt out, (2) they will be bound by the judgment if they do not opt out, and (3) they can enter a separate appearance through counsel

Is there a right to opt out of Type 1 and Type 2 class actions?

NO

Class Actions – Settlement

Parties can settle or dismiss a certified class action ONLY with court approval, and the court must give notice to the class members to get their feedback on whether the case should be settled or dismissed

Settlement in a Type 3 Class Action

In a Type 3 class, the court may refuse to approve a settlement unless members are given a second chance to opt out

Class Actions – SMJ

If the class actions asserts right under federal law, then FQJ applies. In diversity cases, ONLY the citizenship of the class rep is considered, and the class rep’s claim must exceed $75,000C

Class Action Fairness Act (CAFA)

CAFA lets a federal court hear a class action if (1) there are at least 100 members, (2) any class member is of diverse citizenship from any defendant, and (3) the aggregated claims of the class exceed $5 million

CAFA – In-State Defendant Removal

For claims under CAFA, any one defendant, even an in-state defendant, may remove the case from state to federal court

CAFA – Local Class Actions

If most class members and the primary defendants are citizens of the same state, the case may not stay in federal court and can get dismissed or remanded to state court

Initial Required Disclosures – General Rule

Initial required disclosures are information that each party must give to other parties even though the parties have not asked for it unless a court order or stipulation says otherwise

Initial Required Disclosures – Timing

Each party must disclose certain information within 14 days of the Rule 26 Conference

What TYPE of information is discoverable in initial required disclosures?

Only information that the disclosing party may use to support their claim or defense

What MUST be disclosed in an initial required disclosure?

(1) The names, telephone numbers, and addresses of persons with discoverable information and they topics on which they have discoverable information, (2) Documents and tangible things including photographs, records, videos, and ESI that are in the party’s control, (3) a computation of the amount of damages sought if claiming monetary relief, AND (4) any insurance that might cover all or part of the judgment

What happens if a party fails to disclose material that was required to be disclosed?

That party cannot use the undisclosed material in the case unless the failure to disclose was substantially justified or harmless

Required Disclosures About an Expert Witness – Timing

Each party must identify expert witnesses who may provide opinion testimony at trial at any time directed by the court

Consulting Experts

If a party hired an expert to help with preparing a case, but does not intend to call that expert to testify at trial, then they are merely a consulting expert, and their opinions and known facts are not discoverable absent exceptional circumstances

Expert Witness Report

Each party must disclose to the other parties the identify of the expert witness and a written report including (1) opinions that the expert witness will express, (2) the bases for the opinion, (3) the facts used to form the opinions, (4) the expert’s qualifications, AND (5) how much they are being paid

Who pays for the expert witness’s deposition?

The deposing party

What happens if a party fails to disclose required material related to an expert witness?

They cannot use the expert witness in the case unless the failure was justified or harmless

Required Pretrial Disclosures – Timing

No later than 30 days before trial

Required Pretrial Disclosures – General Rule

The parties must give detailed information about their trial evidence, including identity of witnesses who will testify live or by deposition, and documents, ESI, and other things that they intend to introduce at trial

When can a party begin sending discovery requests?

After the Rule 26 conference, unless it is a request to produce, then once 21 days have passed since service of process

WHO can be deposed?

Both parties and nonparties

How do you alert a party and a nonparty of a deposition?

A party must be sent a notice of appearance and a nonparty must be served with a subpoena

Subpoena Duces Tecum

Requires the deponent to bring requested materials to the deposition

What is the farthest a nonparty can be required to travel for a deposition?

100 miles from where the nonparty resides or is employed

Deposition Limits

A party cannot take more than 10 depositions or depose the same person twice without court approval or stipulation

Deposition Uses

Depositions may be used at trial (1) to impeach the deponent, (2) for any purpose if the deponent is an adverse party, AND (3) for any purpose if the deponent is unavailable for trial unless the absence was procured by the party seeking to introduce the evidence

Who can interrogatories be sent to?

ONLY to parties and never to nonparties

What is the maximum number of interrogatories

25, including subparts, subject to court order or stipulation

Interrogatories – Timing

Interrogatories must be answered within 30 days from their service

Interrogatories – General Rule for Answering

A party must answer interrogatories based upon information reasonably available. If the answers can be found in business records, and the burden of finding the answers would be about the same for either party, the responding party can allow the requesting party to have access to the records

Are legal contention interrogatories permitted?

YES

Request to Produce – General Rule

A request to produce asks a party to make documents or things available for review and copying, or to permit entry on a designated property