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Civil Procedure
Pleadings
Temm 111-114 :
Answer
- if no MTD or MTD denied
- admit or deny every allegation in complaint
- incl. previous 12(b) defenses and all affirmative defenses or waived
Rule 8 (c)(1) affirmative defenses:
- accord & satisfaction
- arbitration & award
- assumption of risk
- contributory negligence
- discharge in bankruptcy
- duress
- estoppel
- failure of consideration
- fraud
- illegality
- injury by fellow servant
- laches
- licenses
- payment
- release
- res judicata
- Statute of Frauds
- statute of limitations
- waiver
Amendments
- P may amend once /in 21 days service on D
- after that must file leave to amend (granted freely by court when justice requires)
- must relate back to date of timely filed complaint (derive from same transaction or occurrence (or if new party, acquired knowledge w/in 21 days of earlier timely filed complaint that, but for mistake in name, it would have been sued)
First responsive pleading
- responsive motion or answer (whichever filed first)
- w/in 21 days service of complaint (or next business day if falls on w/end or holiday)
Rule 12(b) defenses must be included or waived:
- lack of personal jurisdiction
- insufficient service or process or insufficient process
- improper venue
- failure to state a claim
- failure to join indispensable party
Joinder
of claims = all claims have against a D, regardless of whether connected
3rd parties =
- impleader (D may bring in 3rd party if 3rd party may be liable to D for all or part of D's liability to P)
- interpleader (holder of common fund may file lawsuit as P and join as D all rival claimants to its common fund)
- intervention = non-party moves to enter lawsuit
of parties = if claims involving those parties derive from same transaction/occurrence or same series of common transactions/occurrences
Complaint = sufficient facts to put adversary on notice of plausible claims
- short & plain stmt of jurisdiction
- stmt of claim that would entitle claimant to relief
- demand for relief
Counterclaim
- if arises from same transaction or occurrence, must be brought in that action = mandatory/compulsory; waived if fail to file
- D may bring when seeks to join claims that do not arise from same transaction or occurrence = permissive; not waived if fail to file
Cross-claim
- any party may bring against any co-party if arises out of same transaction/occurrence as original claim/counterclaim
- Supp SMJ for compulsory counter-/crossclaims if arise out of same transaction/occurrence and no independent basis for fed jurisdiction
- No supp jurisdiction for permissive claims/need independent grounds for fed jurisdiction
Class Action
- named P represents class of commonly-situated absent Ps
- certification requirements (CANT):
- Commonality = common issues of fact or law incl. common claims & injuries
- Adequacy = named P & class counsel lawyers must fairly & adequately represent the class
- Numbers = class so numerous that joinder of them all would be impracticable (at least 40)
- Typicality = claims of named P are typical of the class
Discovery
Temm 114-115
Mandatory disclosures = w/in 2 weeks of initial discovery conference; duty to supplement or be subject to exclusion of the evidence at trial
- All supporting witnesses
- All supporting documents
- Damages computation
- Relevant insurance coverage
Traditional
- Depositions = direct questioning of party or witness under oath
- Interrogatories = written questions that must be answered by another party in writing under oath w/in 30 days; only parties, not witnesses
- Request for admissions = any request admitted deemed established for all purposes in the litigation
- Production of docs = request to party to produce documents or property for inspection & copying
- Request for physical or mental examination; only when person's condition in controversy; advance court approval w/ showing of "good cause" required
Scope = relevant info that is not privileged; need not be admissible at trial; parties can object or request protective order
Work-product doctrine = any material an atty or someone at their discretion prepared for litigation not in ordinary course of business; NOT discoverable if incl. atty's mental impressions; all other only w/ showing of substantial need & undue hardship
Sanctions for refusing to produce = can't use withheld info at trial; striking of claim; dismissal of case
Jurisdiction
Temm 107-111
-
Personal jurisdiction
-
quasi in rem = over real or personal property attached to satisfy judgment in the action (part of relief requested
-
D had minimum contacts
Does not offend notions of fair play & substantial justice
D purposely availed themselves of benefits of forum state
Service of process
- proper if follows forum's rules and method is constitutional
- not required for action to be considered commenced, but must occur w/in 120 days filing complaint
- proper methods:
- abode service
- waiver
- agent service
- state methods
- personal service
- summons served w/ complaint
- if insufficient, D must raise that defense in 1st responsive pleading or waived
Venue
- limit on P's choice of where to file
- required in addition to SMJ and PJ
improper = file motion to transfer
- forum non conveniens; convenience of parties & witnesses, interest of justice, district court may transfer civil action to any other district court where action might have been brought (substantial deference to P's choice of forum)
proper:
- where any D resides, if all Ds reside in that state
- in fed district where substantial part of claim arose or where property located
- where D can be found provided court has PJ, if no other district in which action may be otherwise brought
Motions
Temm 115-116
Judgment as a matter of law
(Formerly called directed verdict) made at close of opponent's case on grounds legally insufficient evidentiary basis from which reasonable jury could find for non-moving party
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Summary judgment
- Filed w/in 30 days after close of discovery
- May be granted if no genuine issues of material fact & movement entitled to judgment as matter of law
- Movant must produce evidence to support each element of cause of action
- All inferences drawn in favor of non-movant
Post-trial motions
- Renewed motion for judgment as matter of law = (formerly called judgment notwithstanding verdict) w/in 28 days judgment; identical to that made at close of opponent's case
- Motion for new trial = w/in 28 days; granted if, in court's discretion, either errors at trial affected parties' substantive rights or verdict against manifest weight of evidence
-
-
Preclusion
Temm 116
Res judicata = claim preclusion; claim cannot be relitigated if:
- arises between same parties or those in privity with them;
- arises out of same transaction or occurrence;
- and that court decided on merits & had proper SMJ & PJ
an affirmative defense; waived if not asserted in answer
Collateral estoppel= issue preclusion; issue that cannot be litigated
- may be used offensively by one not a party to fist action against one who was
- courts look to see if P in 2nd suit could have joined 1st; whether procedural opportunities available to D in 2nd that weren't in 1st; and whether D had incentive to litigate issue in 1st action
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