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Civ Pro

Terms in this set (88)

1
Just, speedy, and inexpensive
3
Commence action by filing a complaint
What goes in a complaint?
-subject matter jurisdiction
-short and plain statement showing entitlement to relief.
-demand for relief sought
4
Service of process; Summons
4(d) Waiver of Service rules
Send waiver by mail. Party has 30 days to return. Then gets 60 days to answer after request was sent. If party doesn't return waiver, he must pay expenses for formal service. Policy: to reduce expenses.
5
Serving and Filing Pleadings
-Less stringent than Rule 4 standards.
6
Computing Time
7
Types of Pleadings
8
General Rule of Pleading
"Four Corners" Rule
Court will judge the sufficiency of the complaint based solely on the paper pleading.
Twombly standard
-Claim of relief merely needs to be plausible, not conceivable.
-Only well-pleaded allegations allowed; no conclusory statements.
9
Pleading Special Matters
What matters are pleaded with particularity? (3 things)
-Fraud or mistake: (1) easy to make an accusation of fraud. (2) need to give parties notice. fraud is very broad, and the party needs to know what type of fraud is supposed to have occurred. (3) fraud accusation can damage reputation.
-Special damages
-Any motions for court orders
10
Form of Pleadings
11
Signing Papers; Representations to the Court; Sanctions
11(b) Representations to the Court rules
-Representations cannot be for improper purpose
-must be warranted by existing law or good argument for extending/modifying existing law
-factual contentions must have evidentiary support
11(c) Sanctions rules
-If 11(b) is violated, the court MAY impose sanctions by issuing a "show cause" order, where party must describe why their conduct hasn't violated rule 11.
-Opposing party may move for sanctions. Must describe specific conduct.
-Does not apply to discovery.
"Safe Harbor" Rule
If a party moves for Rule 11 sanctions, they must serve the other party with notice 21 days before filing motion in court. This gives the other party time to withdraw or correct the challenged paper to avoid sanctions.
12
Defenses; Motion for more definite statement; Motion to strike; Waiving defenses
12(b) Motions
-Lack of subject matter jurisdiction (CAN BE RAISED ANY TIME, EVEN ON APPEAL)
-Lack of personal jurisdiction (MUST BE RAISED IN FIRST RESPONSE)
-Improper venue (MUST BE RAISED IN FIRST RESPONSE)
-Insufficient process (MUST BE RAISED IN FIRST RESPONSE; problem with with the actual documentation)
-Insufficient service of process (MUST BE RAISED IN FIRST RESPONSE; problem with service)
-Failure to state a claim (CAN BE RAISED AT ANY TIME THROUGH TRIAL)
Motion for more definite statement
-Must be made before filing a responsive pleading; otherwise waived
-Must explain how the statement is insufficient
-Other party has 14 days to revise statement, or the court may strike the pleading
Waiving 12(b) defenses
-Only applies to 12(b)(2)-(5)
-You waive those defenses if you make a motion (or include a defense in a responsive pleading) and choose not to bring up the other defenses available to you
-Exception: if information later becomes available that would then warrant making a motion, the court will allow it
38
Demand for jury trial
41
Voluntary/involuntary dismissal
55
Default judgment
56
Summary judgment
15
Amendments
-"As of right": once within 21 days of service
-Otherwise, court must approve "when justice requires"
26(f)
Meet and Confer
26(d)
Moratorium
26(a)
Required disclosures
16
Scheduling Order and Conference
26(b)(1)
Scope of Discovery
What is attorney-client privilege? (4 components) Why do we have it?
(1) Communications
(2) Made in confidence
(3) Between attorney and client
(4) For the purpose of obtaining or providing legal assistance for the client.
POLICY: attorney-client trust is necessary for effective representation.
26(b)(2)
Limits on Discovery
What is the scope of Discovery? (3 components)
(1) Relevant: "Anything that bears on a material issue"
(2) Non-privileged
(3) Doesn't have to be admissible; but must be reasonably calculated to lead to discovery of admissible evidence
26(b)(3)
Work Product
Define "work product" (3 components)
(1) Docs or tangible things
(2) Prepared in anticipation of litigation
(3) By or for another party or its representative
30
Depositions
33
Interrogatories
34
Document Request
35
Examinations
36
Request for Admission
29
Stipulations about Discovery Procedures
26(c)
Protective Orders
Protective Order rules?
(1) Movant must have made good faith attempt to confer with the other party and resolve the dispute without court action.
(2) Court must show good cause to issue the order. This gives court a lot of discretion.
(3) Court may COMPEL party to disclose information when denying their protective order, even if the other party hasn't moved to compel.
Types of Protective Orders? (8 types)
(1) Forbidding disclosure or discovery
(2) Specifying terms for disclosure or discovery
(3) Prescribing discovery method other than the one selected by the party seeking discovery
(4) Limiting scope of discovery or disclosure
(5) Designating persons who may be present while discovery is conducted
(6) Requiring that a deposition be sealed and opened only on court order
(7) Requiring confidential information not be revealed
(8) Requiring filing to be done in sealed envelopes
37(a)
Motion to Compel
Motion to Compel rules?
(1) Movant must have conferred in good faith with other party to resolve dispute without court action
(2) Must give notice to other parties and all "affected persons"
(3) An incomplete or evasive response MUST be seen as a failure to respond, and other party can move to compel
(4) When failure to respond is in a deposition, party may wait until deposition is over to move
Discovery Sanctions (5 sanctions)
-26(g)
-30(d)
-37(b)
-37(c)
-37(d)
26(g)
Signature on disclosures, etc., certifies that they are complete to the best of your knowledge, information, and belief
30(d)
Impeding or delaying deposition
37(b)
Failure to comply with court order unless substantially justified
37(c)
-Failure to make required disclosures, supplement an earlier response, or make a Rule 36 admission.
-Court MUST award expenses UNLESS request was "held objectionable" under 36(a), the admission sought wasn't substantially important, or the party failing to request had good reason.
37(d)
Failure to attend a deposition, answer interrogatories, or respond to request
What are the purposes of the pretrial conference? (5 purposes)
(1) Expedite disposition of the action
(2) Prevent the case from getting out of control
(3) Discourage wasteful pretrial activities
(4) Improving quality of trial through preparation
(5) Facilitating settlement
16(e)
Final Pretrial Conference and Orders
51
Jury instructions
47/48
Voir Dire/ # of Jurors
50(a)
JMOL
What are the requirements for JMOL? (4 requirements)
(1) Reasonable jury would not have legally sufficient evidence to find for a party on an issue
(2) Motion may be made by any party at any time before case is submitted to jury
(3) Must specify judgment sought and the facts that entitle movant to judgment
(4) Non-moving party must be fully heard on an issue
50(b)
Renewed JMOL (AKA JNOV)
What are the requirements for renewed JMOL? (4 requirements)
(1) Same standard as 50(a) motion
(2) Must have already made 50(a) motion
(3) Must be made NO LATER than 28 days after entry of judgment
(4) Must make 50(b) motion if you want to appeal
49
Verdict Forms
General Verdict
Jury says who wins and how much is awarded in damages. Must be unanimous.
Special Verdict
-Jury makes finding on individual conclusions of fact, and then the court applies the law.
-If a party wants to object to the form of the questions, he must do so before the questions are submitted to the jury.
Hybrid Verdict
-Jury gives a general verdict and also answers specific questions concerning facts of the case.
-Policy: ensures that jury properly considered the most important issues.
Summary Judgment analysis checklist (6 steps)
(1) What is the rule of substantive law?
(2) Which facts are material to applying that rule of law?
(3) What evidence may the court consider in ruling on such a motion?
(4) Has movant met his burden of showing there is no genuine dispute of material fact and that he is entitled to judgment by law?
(5) If movant has met burden, has non-movant shown there IS a genuine dispute of material facts?
(6) What is the proper disposition of the motion?
What are the requirements for summary judgment? (3 requirements)
(1) No genuine dispute of material fact
(2) Showing that party is entitled to judgment as a matter of law
(3) May be filed any time until 30 days after the close of discovery
"Two Dismissal Rule"
Voluntary dismissal is without prejudice UNLESS you have already had that claim voluntarily dismissed previously
15(c)
Relation Back
When is Relation Back allowed? (3 factors)
(1) The law allows it
(2) The amendment asserts a claim or defense (not involving new parties) that arose from the event in the original pleading
(3) The amendment changes the opposing party IF: (a) The party to be brought in received notice of the action in the proper time; (b) Claims arise out of the same event as original pleading; AND (c) The party knew or should have known the action would be brought against it, but for a mistake concerning the proper party's identity.
How long do you have to respond to a complaint?
21 days after being served.
If you make a motion instead of respond to a complaint, and that motion is denied, how long do you have to respond?
14 days.
What disclosures are required under 26(a)?
-Must be made within 14 days of meet and confer
-Names, addresses... of individuals with discoverable information that it will use to support its claims or defenses
-Copies of doc, ESI, and tangible things in party's control that it will use to support claims or defenses
-Computation of damages
-Insurance information
When may a court modify a final pretrial order?
ONLY to prevent manifest injustice.
When must process be served?
Within 120 days of filing complaint, unless you can show good cause for failure. If no good cause, court can extend the time or dismiss.
When computing time, do you exclude the day of the event that triggers the period?
Yes.
When computing time, do you include intermediate weekends and holidays?
Yes.
When computing time, do you include the last day of the period?
Yes, unless it's a saturday, sunday, or holiday.
What is covered at a meet and confer? (4 things)
(1) discuss claims and defenses
(2) possible settlement
(3) determine method of initial disclosures
(4) put together discovery plan
How many depositions can you have?
No more than 10
Must non-parties be subpoenaed for depositions?
Yes.
How many interrogatories can you have?
No more than 25.
Can non-parties be served interrogatories?
No.
Can interrogatories ask for opinions or applications of law to the facts?
Yes.
Must non-parties be subpoenaed for Document Requests?
Yes
Do Rule 35 examinations HAVE to be ordered by the court? Why?
Yes. To avoid harassment.
Can Rule 36 Requests of Admission be served on non-parties?
No.
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