Az Civil Procedure

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AZ Ct. System Jurisdiction

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Justice Cts: general j, exclusive original J over civil cases under $5K, concurrent J for forcible entry and detainer where rent <$1K and damages <$5K.
Sup. Cts: Courts of general J, civil cases where amount in issue is >$5K
Tax Court: Branch of Sup.Ct of Maricopa designated to hear tax matters.
Ct. of Appeals: Hears all cases where appeal is of right
Supreme Ct: Hears cases ONLY on discretionary basis.

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Jurisdiction: SMJ + In Personam / In Rem / Quasi In Rem

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Ct must have SMJ + Jurisdiction over the person or thing.

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Jurisdiction over the Person / Thing

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1) Does a statute or rule of procedure authorize this basis of jurisdiction?
2) Does this basis of J meet fed. Q requirements of DP?
(Judgment in case must conform to the jurisdiction actually acquired)

3 Types of J:
Personal, In Rem, Quasi in Rem

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Personal J

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Generally: PJ leads to personal obligation or liability. Such J may be Q'ally acquired by:
-Presence of D within the state at the moment of service (even if transient, so long as not induced by fraud, and presence not privileged)
-Voluntary appearance by D
-Consent (voluntarily by K--D appoints someone to take service for him in AZ, or involuntarily by statute-fails to )
-Sufficiency of contacts out of which case arose--e.g. doing business, owning property or committing a tort within the state.
-Domicile

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Major Consequences of PJ:

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1) Judgment may be satisfied out of any property owned by D.
2) Adjudication is res judicata on the cause of action, and collateral estoppel raised on all issues that were litigated or COULD have been litigated and upon which the judgment actually rests.
3) Judgment receives full faith and credit in other states.

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AZ Long-Arm Statute

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Any person, corporation or other organization that "caused an event to occur in the state out of which the claim which is the subject of the complaint arose" may be served outside the state by direct service by an authorized process server OR by any form of mail which requires a signed, return receipt.

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DP Limits on Long-Arm

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1) Minimum contacts required
2) Reasonable
3) SCOTUS: More than mere foreseeability is necessary. Balancing test: Are D's contacts and conduct such that he should anticipate being haled into the forum state.
WW Volkswagen: AZ had no PJ over out-of-state corp not authorized do to business in AZ, did not selling or distributing in AZ, had no offices in AZ, sold its product exclusively in another state to residents of that state, even tho' P told agents of D that he was going to AZ, and D's alleged negligence caused an injury in AZ.
COMPARE: foreign corp doing business in U.S. selling revolver designed for western states, revolver accidentally discharged in AZ. Ct found sufficient contacts b/c D intended to sell guns across U.S.

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In Rem J

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NO personal liability or obligation of any person, affects interests of ALL persons in a particular thing.
Ct has power over thing itself: E.g. quiet-title actions, condemnation actions and foreclosure actions.
Status Suits: court may adjudicate the status of a citizen of that place even w/o PJ over other interested persons (e.g. divorce actions, adoption proceedings)
Res Judicata Limited: In rem and quasi in rem actions gen. not res judicata, except as to the property itself, and do not have collateral estoppel effect. If ANOTHER person should com ein to defend his interest, there may be collateral estoppel as to factual issues actually litigated and decided.

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Quasi In Rem

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Affects interests of a particular person in a thing. SCOTUS frowns on quasi-in-rem J. St. cannot obtain J over a controversy merely because of the presence of a piece of property in the state where the property is unrelated to the controversy, UNLESS contacts meet the requirements of the fairness standard set out under International Shoe.
International Shoe: defendant cannot be brought before a court of a particular state unless that person has: Minimum contacts . . . such that maintenance of the suit does not offend "traditional notions of fair play and substantial justice."
J appropriate in this case b/c International Shoe Co. engaged in substantial activities in Washington, enjoyed the benefits & protections of the state through the ability to sell there, and had access to Washington’s courts to resolve its disputes.

Front 10

Acquisition of J: Service
Issuance and Form of Summons

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Clerk of Sup. Ct issues summons which must include:
1) Signature of clerk
2) Seal of ct.
3) Name of court and parties
4) Name of person to be served
5) Name & address of P's atty (if any) otherwise name & address of P.
6) Time limits under AZ Rules to appear and defend
7) Notification that if he fails to appear, default judgment will be entered against him for relief demanded in complaint.

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Time Limit on Service

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120 days from filing of the complaint (ex. when service in foreign country required) If P fails to comply with this provision, ct. may direct that service be made within a specified time, OR may, absent a showing of good cause, dismiss the case without prejudice after notice to P.

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Personal Svc. w/in State

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1) Personal delivery
2) Leaving copy at D's home or usual abode with a person of suitable age and disrection then residing therein.
3) Delivery to D's agent authorized by law or appointment for service.
4) Mailing a copy of complaint and request for waiver of service to D.
SERVICE ON A MINOR:
1) Minor served personally if over 16
2) Minor AND parent/guardian/person having care and control over minor OR a person who resides with the minor.
SERVICE ON INCOMPETENT:
1) Personal service plus service on guardian or other person designated by the ct.

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Personal Svc. w/in state on Foreign or Domestic Corporation or Partnership:

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Unless waiver obtained & filed, partnership or corporation can be served by delivery of process to a partner, officer, managing or general agent, or to any other agent authorized by appointment or law to receive service.
AZ law requires corporations doing business in AZ appoint an agent for service of process.
--IF corporation has failed to do so, service may be accomplished by sending two copies of summons and pleadings to AZ Corporations Commission. Commission will then mail a copy to the D's corporate office.

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Personal Service on State, City or County

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State: Can be made by service of process to AG, unless waiver obtained and filed.
City or County: Can be made by delivery of process to CEO, secretary, clerk or recoding officer thereof unless a waiver has been obtained and filed.

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Waiver of Service for State or Municipality

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P may mail D a copy of the complaint w/written request that D waive personal service. D has at least 30 days from date request was sent to return the waiver. If D fails to return the waiver, and cannot show good-cause, ct. shall impose the costs of personal svc.
If D timely returns waiver, he has 60 days from sending waiver to answer the complaint.
By waiving, D does NOT waive objections to venue or PJ.

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Service on Other Gov't Entities

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Service may be made on person, officer, group or body responsible for administration of the entity or the appropriate legal officer representing the entity. Svc on any person who is a member of the administering group or body is sufficient.

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Service on Non-Resident Motorist

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Can be served in action arising from MVA within AZ by delivery of process to office of Motor Vehicle Superintendent and by P mailing a copy to D by registered mail, return receipt requested.

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Service by Publication

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Allowed if person to be served either has
1) Unknown residence, but last known residence was in the state; or
2) Has avoided service and service by publication is the best means practicable for providing notice. Service is complete 30 days from first publication.

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How to Serve by Publication

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Publication of summons, and statement of how to obtain copy of pleading at least once a week for 4 weeks in a newspaper in the county where the action is pending (or the adjoining county if the county where the action is pending does not have a newspaper) AND in the county of the D's last known residence, if different from forum county.
When residence of D is known, a copy of the summons and pleading shall be mailed to D prior to publication date.

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In Rem / Quasi In Rem Service

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When personal service is not required, service can be accomplished by direct service, by first class mail with a return envelope for notice and acknowledgment of receipt of summons and complaint, or by publication. Unknown heirs in real property actions may be served by publication in the county where the action is pending.

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Waiver of Jurisdictional Defects

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SMJ: Cannot be waived. It can be raised at any time up to and through the appeal.
Basis of J: Defects in the basis of J are waived if not raised in the answer or in a motion to dismiss prior to answer, if such is filed.
Defective Service: Waived if not raised in the answer or in a motion to dismiss prior to answer, if one is filed.

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Alternative or Substituted Service

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When service by ordinary means impracticable, ct. may allow alt. or sub. form of service to ensure actual notice of the action. Summons and pleading must also be mailed to last known business or residence address of D.

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VENUE: Generally

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D must be sued in county of residence, with six exceptions.
Ct. has J to hear & decide on merits objections to improper venue.

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Venue Exception: Non-Residents of State

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-Non-residents of the state (may be sued in P's county of residence)

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Venue Exception: K Actions

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-K actions: may be brought where K was made or K is to be performed.
s parties agree to another county.

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Venue Exception: Multiple D's Multiple Counties

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-Several Ds in different counties: May be sued in any county in which a D resides.

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Venue Exception: Actions Involving Real Property

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-Actions in Real Property: Must be brought in county where property located.

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Venue Exception: Divorce

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-Divorce: Must be brought in county where P resides.

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Venue Exception: Actions Against Corporations

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-Actions against Corporations: In any county where:
---Cause of action arose
---In which corp has an agent or representative, owns property or conducts business.

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Objections to Venue

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Objections to improper venue waived if not raised in an affidavit alleging D's residence and praying for relief.
AZ R. 12 motion may be made only where statute is inapplicable.
When change in venue is ordered, Ct. must transfer case to most convenient adjoining county unless parties agree to another county.

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Change of Judge:

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Peremptory Challenge: Each side has one peremptory challenge. A side with two or more parties on a side have adverse or hostile interests, more than one peremptory challenge may be granted to that side.

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Challenge to Change of Judge

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Notice of change of judge not effective unless filed at least 60 days before date set for trial.
Right to challenge waived when party agrees to assignment or after notice:
1) J rules on any contested issue
2) J grants or denies motion to disposes of one or more contested issues
3) J holds a scheduled conference or hearing; or
4) Trial commences.

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Reassignment to New Judge

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If parties agree on new judge who is willing and able to hear case, case must be assigned to that judge. After an agreement and transfer, no more peremptory challenges permitted unless agreed upon judge becomes unavailable. Presiding judge or his designee conducts the hearing on the challenge and rules on it.

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Challenges for Cause

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Parties always retain the right to challenge for cause. Challenges must be filed within 20 days after grounds for challenge discovered. Presiding judge or designee conducts hearing and makes decision.

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Pleadings Allowed:

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1) complaint
2) answer
3) reply to a counterclaim denominated as such, third-party complaint, third-party answer.
Court may order a reply to an answer or a third-party answer.
Motion is NOT a pleading, it is an application to the court for an order.

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Formalities of a Pleading: Pleading must include

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1) Name of the court
2) Title of Action, including names of all the parties.
3) File number
4) Caption identifying whether the pleading is a complaint, answer, reply, etc.
5) Each claim or defense in separate counts or defenses.
6) Substance of any necessary written instrument. A written instrument may be pled by attaching copy of the pleading as an exhibit, by setting forth the text of the instrument in the body of the pleading, or by alleging the substance of the writing.

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Function of Pleading

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Function of pleading is to give general notice, not factual details. Issue formulation and fact revelation come later.

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Form of Pleading

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Pleadings should be simple, concise and direct--they may be inconsistent, hypothetical or stated in the alternative
Signatures: If party represented by atty, atty must sign pleadings--atty's signature certifies that she has read the pleadings, that to the best of her knowledge and belief, there are grounds to support it, and that it is not interposed for delay. A pro per petitioner must sign and include her address. Violation of this rule may result in opposing party being ordered to pay reasonable expenses for filing of the pleading.

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Verification of Pleading

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Unnecessary unless required by statute or rule. However, where equitable relief is demanded and claim is verified, responsive pleading must be under oath. Material allegations not denied under oath are deemed admitted.

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Pleading Special Matters:

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General rule is for short, plain statements. Exceptions exist.

Front 41

Pleading Special Matters:
Capacity or Authority to be Sued

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Capacity or authority to be sued need not be alleged. A person wishing to question capacity has the duty to raise the issue by specific negative averments, including such particulars as are within her knowledge.

Front 42

Pleading Special Matters:
Fraud or Mistake

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Circumstances of fraud or mistake must be stated with particularity. AZ rules require that the following elements of an action for fraud must be particularly stated: *Representation, falsity and materiality thereof,
*Speaker's knowledge of the falsity or his ignorance of the truth,
*Intent that it should be acted upon
*Hearer's ignorance of its falsity and reliance on its truth
*Hearer's reasonable right to rely thereon
*Resultant injury.

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Pleading Special Matters:
State of Mind

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Malice, intent, knowledge or other condition may be averred generally.

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Pleading Special Matters:
Condition Precedent

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Performance of conditions precedent can be alleged generally. A denial of performance or occurrence must be made specifically and with particularity

Front 45

Pleading Special Matters:
Official Document or Act

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It is sufficient to aver that an official document or official act was issued or that the act was done in compliance with the law.

Front 46

Pleading Special Matters:
Judgments

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Judgments or decisions of domestic or foreign courts or judicial or quasi judicial tribunals or of a board of officer can be pled without averring proper J to render the judgment or decision.

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Pleading Special Matters:
Time and Place

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Time and place averments are material for purposes of testing the sufficiency of a pleading

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Pleading Special Matters:
Special Damages

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When claimed, special damages must be specifically stated.

Front 49

Claims for Relief: ELEMENTS
Complaints, Counterclaims, Third-Party Complaints and Cross-Claims

Back 49

Each claim for relief should contain:
-Short and plain statement of ground of jurisdiction (unless court already has J)
-Short and plain statement of the claim showing that the pleader is entitled to relief.
-Demand for judgment for the relief to which the pleader deems himself entitled. Demand may be in the alternative (i.e. different types of relief may be demanded.)
-ANY CLAIM FOR ATTY'S FEES must also be made in a pleading.
-Relief NOT limited by claim--party can always get relief to which he's entitled, even if he has not demanded it, except in DEFAULT cases.

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Arizona R. 12 Defensive Motions

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-Motion for more definite statement
-Motion to strike
-Motion for Judgment on the Pleadings
-Motion to Dismiss
-Speaking Motions

Front 51

R. 12 Defensive Motions:
Motion for More Definite Statement

Back 51

Pleading vague and ambiguous, party cannot reasonably be required to frame a responsive pleading, a motion for more definite statement can be filed before a responsive pleading is filed.

Front 52

R. 12 Defensive Motions:
Motion to Strike

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Motion to strike any redundant, immaterial or scandalous matter may be made before the filing of a responsive pleading, if no responsive pleading is required, then 20 days after service of pleading. Ct. may strike matters on its own initiative.

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R. 12 Defensive Motions:
Motion for Judgment on the Pleadings

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Party contends that pleadings on their face show that she is entitled to judgment. May be made at any time after the close of pleadings so as not to delay the trial.

Front 54

R. 12 Defensive Motions
Motion to Dismiss: Grounds and Time Limits

Back 54

Grounds:
-Lack of SMJ
-Lack of PJ
-Improper venue
-Insufficient service of process
-Failure to state a claim on which relief can be granted;
-Failure to join a party under R. 19.
TIME: Motions to dismiss must be filed within time permitted for responsive pleading and before responsive pleadings are filed.

Front 55

R.12 Defensive Motions
Motion to Dismiss: Consolidation of Defenses and Waiver

Back 55

If any motion is made on any of the R. 12 Motion to Dismiss grounds, then ALL such defenses or objections then available to the movant must be raised.

Front 56

R. 12 Defensive Motions: Motions to dismiss:
Waivable Defenses:

Back 56

Motions waived if not raised prior to answer (if made) or if no motion, if not raised in the answer or in an amended answer as a matter of right:
-Lack of PJ
-Improper venue
-Insufficiency of process
-Insufficiency of service of process.

Front 57

R. 12 Defensive Motions: Motions to dismiss:
Non-Waivable Defenses:

Back 57

These defenses are not waived even if they are not raised at the first opportunity:
-Lack of SMJ
-Failure to state a claim on which relief may be based.
-Failure to join an indispensable party under R. 19; and
-Failure to state a legal defense to a claim.
These defenses may be raised at any subsequent motion for judgment on the pleadings or at the trial on the merits regardless of previous motions that may have been made.

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R. 12 Defensive Motions: Speaking Motions

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Motions to dismiss for failure to state a claim upon which relief might be granted, motion for judgment on the pleadings: Both treated as motions for summary judgment under R. 56, if accompanied by matters outside the pleading and considered by the court.

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Answers:

Back 59

Including replies to counter-claims, answers to 3rd party complaints and answers to cross-claims.

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Answers: Admissions or Denials to Each Allegation

Back 60

Must admit or deny the allegations of the pleading to which it responds, or say that party is without enough knowledge to form a belief as to the truth of the allegation.
Undenied allegations are admitted.
Defenses should be stated in short, plain terms.
General denials good if made in good faith, pregnant denials (negatives implying an affirmative) are sufficient allegations fo denial in AZ. Allegation "I deny owing the P the amount stated in his complaint" is a pregnant denial.

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Answers: Grounds to Dismiss

Back 61

Answers may contain the grounds of motion to dismiss, option is that of the pleader until she waives the defense.

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Answers: Affirmative Defenses

Back 62

MUST be pleaded specifically in the answer:
-Accord and satisfaction
-Arbitration and award
Assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, laches, license, payments, release, res judicata, SOF, SOL, waiver and any other matter constituting an avoidance or affirmative defrense. Omitted affirmative defenses may be raised in an amended answer or a reply.

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Answers: Mistakenly Designated Defenses

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When party has mistakenly designated a defense as a counterclaim, or a counterclaim as a defense, the court shall treat it as though there had been a proper designation.

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Time for Answer:

Back 64

If served within the state, D has 20 days to answer and otherwise plead. Outside the state she has 30 days after completion fo service in which to move.
If service has been properly waived, then answer must be filed within 60 days after the date the request was sent OR within 90 days if D's address was outide U.S. judicial aspect
If a pre-answer motion is denied, or a motion for more definite statement is granted, the D must respond within 10 days

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Counterclaims:
Compulsory

Back 65

Any claim that a pleader has against an opposing party at the time of filing a responsive pleading, arising out of the same transaction or occurrence as the pleading responded to must be asserted or it's forever lost, with 4 exceptions.

Front 66

Counterclaims:
Exceptions to compulsory counterclaim expiration and Omitted Counterclaim.

Back 66

1) Where counterclaim requires presence of third parties over whom the court cannot acquire J.
2) Where the action was the subject matter of another pending action when THIS action was commenced.
3) Where the claim to which a responsive pleading is being filed was not based on PJ.
4) Where the action accrues after service of answer.
Omitted counterclaim may be set up in an amended pleading by leave of the court when it was the result of oversight, inadvertence, or excusable neglect OR where justice so requires.

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Counterclaims:
Permissive

Back 67

A claim not arising out of the same transaction or occurrence as the pleading responded to is a permissive counterclaim. It may be asserted, but it does not have to be.

Front 68

Counterclaims: Affirmative Judgment

Back 68

An affirmative judgment may be obtained on the counterclaim; thus, the counterclaim may exceed the amount prayed for in the complaint.

Front 69

Counterclaims: Separate Trials and Judgment

Back 69

Separate trials and judgments may be ordered by the court on any claim raised in the various pleadings in furtherance of convenience or to avoid prejudice.

Front 70

Counterclaims:
Roles of Parties

Back 70

P assumes the role of the D as far as a counterclaim is concerned, and the appropriate procedural rules for answer, etc. apply.

Front 71

Counterclaims:
Arising after Party Service Pleading

Back 71

A counterclaim arising after a party has served her pleading is not compulsory, it may be served as a supplemental pleading by permission of the court.

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Reply:

Back 72

Where required: Only required where the answer contains a counterclaim denominated as such, and then only to the counterclaim or on court order.
Where no Reply required: Allegations of the answer are deemed denied where no reply is required.
Time for Reply: Must be filed iwthin 20 days, after the service of the answer or counterclaim.

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Cross-Claim

Back 73

Claim by one party against co-party arising out of the same transaction or occurrence that is the subject matter of either the original complaint or of a counterclaim., or that relates to property that is the subject matter of the original claim.
Cross claims are permissive and need not be asserted, but the compulsory counterclaim rule applies to pleadings responding to cross-claims.

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Third Party Practice

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Refers to a device where a D may (but is not required to) bring in a person not a party to the action who is or may be liable to him for all or part of the P's claim against him.

Front 75

Third Party Practice: Basis of Liability

Back 75

3rd party D may be brought in where 3rd party D is liable to the 3rd party P for the claim on which the first 3rd party P may be liable to the P.

Front 76

Third Party Practice: EX

Back 76

3rd party practice applies where D seeks indemnity either in cases sounding in K or in product liability cases (e.g. retailers seeking indemnity against a manufacturer) or where D is only passively negligent and the 3rd party D is actively negligent.

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Third Party Practice: Exceptions:

Back 77

3rd Party Practice does not occur where (1) D asserts taht he is not liable to the P but the third party is the guilty one; (2) D asserts an entirely unrelated claim against 3rd party OR (3) D seeks contribution for tort where liability is joint and several.

Front 78

Third Party Practice: Form of Pleading

Back 78

D may both deny (in his answer) liability to the P and assert (in his 3rd party complaint) that if he is liable, then 3rd party is liable to him for that defect.

Front 79

Third-Party Practice:
Motion

Back 79

NO leave of court is necessary for 3rd party practice if D files a 3rd party complaint within 10 days of filing his answer. Otherwise a motion is necessary and ct. may grant or deny.

Front 80

3rd Party D: Service

Back 80

Must be served with a summons and a copy of the complaint, the same as if original process were involved.

Front 81

3rd Party Practice:
Defenses:

Back 81

3rd Party D may defend third party action by asserting that she is not liable to D. She may also assert against the P any defense that the D has against the P, whether or not the D uses it.

Front 82

3rd Party Practice:Other Claims

Back 82

1) 3rd party D may counterclaim against 3rd party P (a defendant) Normal counterclaim rules, including compulsory counterclaim apply.
2) 3rd Party D may file a claim against P, but the claim must arise out of the transaction or occurrence that is the subject matter of the P's claim against the D.
3) P may assert a claim against 3rd party D, but claim also must arise out of transaction or occurrence that is the subject matter of P's claim against D.
Normal counterclaim and cross-claim rules apply to these claims between 3rd party D and P.

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Further Third Party Claims Rules:

Back 83

1) 3rd party claims by 3rd party Ds are infinitely possible.
2) Ct. may order separate trials on any of the claims raised by a 3rd party.
3) Res Judicata: 3rd party D is bound by the adjudication of D's liability to the P.

Front 84

Joinder of Claims

Back 84

A party may assert as many claims--equitable or legal--as she has against an opposing party either as independent or alternative claims.

Front 85

Amendment of Pleadings: AZ R. 15
Generally

Back 85

Pleadings may be amended once before a responsive pleading is served. Or, if no responsive pleading is required, within 20 days after service of the pleading.

Front 86

Amendment of Pleadings: AZ R. 15
By Consent or Leave of Court

Back 86

A pleading may be amended by written consent of the adverse party or by leave of court thereafter. Leave of court shall be "freely given when the interests of justice so require."

Front 87

Amendment of Pleadings: AZ R. 15
Relation Back

Back 87

Amendments relate back to the date of the original pleading, when the conduct, transaction or occurrence was set forth or attempted to be set forth in the original pleading. Denial of leave to amend is generally considered an abuse of discretion where the amendment merely seeks to add new legal theories supported by factual issues already in the case.

Front 88

Amendment Changing Party Against Whom Claim Is Asserted

Back 88

Relates back, if:
1) Conduct, transaction or occurrence was set forth or attempted to be set forth in the original pleading.
2) Party to be brought in by amendment (1) has received such notice of the action that she will not be prejudiced in maintaining her defense on the merits; and (2) knew or should have known that but for a mistake, the action would have been brought against her.
--Mistake: When P knows of the existence and identity of D before the SOL has run, and consciously decides not to sue, P's choice cannot be considered mistake. A mistake in the identity of a party such as will permit relation back ofthe amended pleading to defeat the SOL defense. Where there is no mistake as to identity, the mere failure to add this party will not allow relation back either.

Front 89

Response of Adverse Party

Back 89

May be made within time still remaining, if any, to respond to the original pleadings or 10 days, whichever is longer.

Front 90

Supplemental Pleadings

Back 90

Relate to matters occurring after original pleading.. Litigant must move for ct. permission to introduce supplemental proceedings. Adverse party need not respond unless ordered to do so by the court.

Front 91

PARTIES: Capacity to Sue or Be Sued

Back 91

1) Minors and Incompetents have capacity to sue or be sued through guardian; if the minor or incompetent has no guardian, she may sue through a next friend or GAL. If minor is not represented in an action, a next friend or GAL, the court may supply a GAL or make such other order as it deems proper for her protection.

Unions / Corporations: May sue and be sued as entities

Partnerships: Any partnership may sue and be sued in the name which it has assumed or by which it is known.

Front 92

Real Party In Interest

Back 92

Every action must be prosecuted in the name of the real party in interest, and D may contest the status of the P by motion. However, the following persons may sue despite the fact that they are not the ultimate beneficiaries of a K and party authorized by the state:
-executor, administrator, guardian, bailee, trustee, third-party beneficiary of a K, or party authorized by statute.
No action will be dismissed on the ground of lack of real party in interest until a reasonable time has been allowed after objection for ratification or commencement of the action by or joinder or substitution of the real party in interest (relating back to the commencement of the action.)

Front 93

Permissive Joinder

Back 93

P: Any may join in action for joint, several or in-the-alternative relief respecting or arising from the same occurrence/transaction/etc.if there are common questions of law or fact.
Ds: All persons may be joined in an action if joint/several/in-the-alternative relief is asserted against them respecting or arising from the same occurrence/transaction/etc.if there are common questions of law or fact.
Parties joined do not have to be interested in obtaining or defending against all the relief demanded, and judgment may be entered in accordance with the respective rights of the parties.
Rather than joining the parties, J can order separate trials for new parties, or make other orders to avoid delay and prejudice.

Front 94

Compulsory Joinder: R. 19
"If Feasible"

Back 94

Must be joined "if feasible"
-Those in whose absence complete relief can't be accorded to those already parties.
-Persons claiming interest relating to subject of action, and situated so that their absence may make it impractical or difficult to protect their interests, or leave those who are already parties subject to substantial risk of inconsistent or double liability

Front 95

Compulsory Joinder: R. 19
Feasible Means

Back 95

Feasible if it will not deprive the court of SMJ AND party is subject to service of process

Front 96

Compulsory Joinder: R. 19
Joinder not Feasible

Back 96

If person in whose absence in a suit would leave their interests unprotected or person whose absence in a suit would subject parties in a suit to multiple or inconsistent liability can't be made a party, ct. must consider whether case should go on and whether in equity or in good conscience it should be dismissed.
Factors:
-Extent to which judgment rendered in absentia would prejudice non-joined party's interests
-Availability of alternatives: defense interpleader, suggesting to absent party that he intervene or appear voluntarily.
-Extent to which the prejudice might be lessened by protective provisions in the judgment (i.e. impounding part of P's recovery, or making him trustee for absent person's interests)
-Whether judgment in the person's absence will be adequate for litigants
-Whether P will have an adequate remedy elsewhere if the action is dismissed.

Front 97

Compulsory Joinder: R. 19
Indispensible Party

Back 97

One who is needed for just adjudication, and without whom court concludes the case should not proceed.

Front 98

Compulsory Joinder: R. 19
Pleading Requirements

Back 98

Every pleading asserting a claim for relief must state the name, if known, of any person who fits the definition of those needed for just adjudication, and if that person is not joined, the reasons why.

Front 99

Compulsory Joinder: R. 19
Counter-claims, cross-claims, etc.

Back 99

These are claims for relief, Claimant is treated as a plaintiff, the adverse parties are defendants.

Front 100

Intervention: R .24
Of Right

Back 100

A way for a non-party to enter a case on motion.
Non-party may intervene when they are statutorily permitted to do so, or whne the applicant claims an interest in the property or transaction that is the subject of the action, and disposition of the pending action in the applicant's absence may impair or impede his ability to protect that interest, unless interest is adequately represented by the existing parties.

Front 101

Intervention: R .24
Permissive Intervention

Back 101

MAY be accomplished when AZ statute confers such a right, OR when applicant's claim or defense and the main action have a question of law or fact in common.
Permissive intervention is within the discretion of the trial court.

Front 102

Intervention: R .24
Timely Motion to Intervene

Back 102

Timely motion must be filed by parties seeking intervention on either theory, accompanied by a pleading setting forth the claim or defense for which intervention is sought. Intervention after judgment is rare, but possible in order to permit intervenor to take an appeal.

Front 103

Interpleader: R. 22

Back 103

A device which allows persons with claims against P to be joined as D's, and be required to interplead because their claims are such that P could be exposed to double liability.
E.G.: Insurance co obligated to pay out, but there are several claimants--Co may file an interpleader action and pay money into court and have court decide which of the parties, if any will be entitled to money.
P can bring interpleader action even if she claims a right to the money or property even if she is not a mere stakeholder. (this differs from fed. law which requires P to disavow any interest in the res)
Any party invoking interpleader may move the court for an order discharging her from liability to any of the parties upon depositing the disputed property or funds into court.

Front 104

Class Actions:
Prerequisites

Back 104

1) 1 or more members of a class may sue or be sued as representative on behalf of all members of a class ONLY IF:
a) Class is so numerous that joinder of all is impractical
b) Common question of fact or law exists
c) Claims / defenses of representative are typical of the class
d) Representatives will fairly and accurately protect the interests of the class;;if class is of P's, representatives select themselves. If class is of D's representatives selected by P's.

Front 105

Class Actions:
Additional Requirements: Risk of Inconsistent Adjudication or impairing ability of non-parties to protect their interests

Back 105

1) Individual actions would create a risk of inconsistent adjudication establishing incompatible standards for the party opposing the class; or 2) impairing as a practical matter, the ability of nonparties to protect their interests OR totally disposing of those interests.

Front 106

Class Actions:
Additional Requirements: Injunctive /Declaratory Relief Appropriate

Back 106

Appropriate in favor of the class, where party opposing the class has acted or refused to act on grounds generally applicable to the class.

Front 107

Class Actions:
Additional Requirements: Common Law Questions Predominate:

Back 107

Common law questions of law or fact predominate over any questions affecting individual members AND court finds class action is superior to other methods of dealing with the issues (e.g. test case, consolidation, intervention)
---Interests of individual members in controlling own litigation
---Litigation already commenced by or against members of the class.
---Desirability of concentrating litigation in that particular forum-considering convenience of all; and
Difficulties likely in management of class action.

Front 108

Class Action Procedure:
Determination of Maintainability

Back 108

Ct. must find that the action is maintainable as a class action, although this finding is amendable at any time before the decision on the merits.

Front 109

Class Action Procedure:
Notice

Back 109

All members of class must receive notice, conveyed in best practicable manner that the class is being brought. Notice must also inform members:
--they can be excluded if they so request
--Unless excluded, they will be bound by judgment rendered on class-action.
--If they are NOT excluded, they may appear through counsel.
Ct may order additional notice throughout proceedings, including polling whether class members consider their representation fair and adequate.

Front 110

Class Action Procedure:
Form of Judgment

Back 110

Judgment in class-action must describe the class.

Front 111

Class Action Procedure:
Subdivision of Class Actions

Back 111

When appropriate, a class action may be subdivided--i.e. the class action may be maintained only as to particular issues. Similarly, a class may be subdivided into sub-classes.

Front 112

Class Action Procedure:
Dismissal and Compromise

Back 112

Requires approval of court.

Front 113

Derivative Shareholder Actions:

Back 113

Type of class action brought by shareholders of a corporation or members of an association to enforce a right where association or corporation failed to enforce it.

Front 114

Derivative Shareholder Actions:
Characteristics

Back 114

1) Verified complaint alleging that P was a shareholder at the time of the transaction that she complains of, or became one by operation of law, and P's efforts to directors or shareholders to enforce her rights and reasons for failure.
2) Corporation is always indispensable party defendant
3) Recovery goes to corp. not P.
4) Defenses or counterclaims can't be maintained against P personally.

Front 115

Actions Relating to Unincorporated Associations

Back 115

Representatives must protect the interests of the association as well as those of the members of the class; otherwise rules for regular class actions apply. Significant only where unincorporated associations may not sue or be sued as entities.

Front 116

Substitution of Parties: Death

Back 116

1) Death of a party--on motion of any party or by successors or representatives of decedent, proper party may be substituted IF:
-Service on nonparties is made in accordance with service of process rules; and
-Motion for substitution made within 90 days after suggestion of death on record, otherwise action dismissed as to dead guy.
Caution: Some causes of action abate with the death of the P.

Front 117

Substitution of Parties:Incompetence

Back 117

On motion, and satisfying the same service and motion rules for a dead party, action may be continued by or against incompetent party's representative.

Front 118

Substitution of Parties:
Transfer of Interest

Back 118

Transfer of interest occurs where a party sells her interest in a note or a business. The suit may be continued by or against the original party, unless court on motion directs that transferee be substituted or joined.

Front 119

Substitution of Parties:
Public Officers: Death or Separation

Back 119

Automatic substitution occurs on the death or separation of public officers. Name may be changed in ct. papers at any time. Any misnomer in the papers not affecting substantial rights shall be discarded.

Front 120

Automatic Prompt Disclosure Rule: R 26.1
1992 Zlaket Rules

Back 120

Requires prompt disclosure of information and evidence automatically--i.e. without having to ask for disclosure, in order to avoid unnecessary and protracted discovery; and to encourage early evaluation and settlement of litigation.

Front 121

Automatic Prompt Disclosure Rule: R 26.1:
When Made

Back 121

Initial Disclosure: As fully as possible within 40 days after filing of responsive pleading absent a stipulation or a different time limit set by ct. No request for disclosure is required; disclosure requirement is automatic.
In Ch.Custody cases: 30 days after written notice that mediation has failed.
Continuing Duty: New or different information must be disclosed within 30 days of discovery, but in no event later than 60 days before trial.
Obligation includes information in party's possession as well as that which can be reasonably ascertained by inquiry and investigation.

Front 122

Automatic Prompt Disclosure Rule: R 26.1:
How Made

Back 122

In writing, under oath, and signed by party making the disclosure.

Front 123

Automatic Prompt Disclosure Rule: R 26.1:
Scope

Back 123

Must be disclosed to every party in the case:
-Factual bases of claims and defenses
-Legal theories on which claims and defenses are based including cites to authority if necessary
-Names, addresses and #s of all trial witnesses with fair description of the substance of each's expected testimony
-Names and addresses of all persons party believes have knowledge of events, transactions, etc in issue, and what the nature of the knowledge is.
-Names and addresses of all persons who have given statements: whether written, recorded, signed or unsigned, and custodian of statements.
-Names and addresses of expert witnesses to be called at trial:
subject matter & substance of testimony, summary of grounds for opinions, qualifications and names and addresses of custodians of expert's reports.
-Computation and measure of damages, and documents and testimony on which they were based as well as name and address of each damages witness.
-Existence, location and description of tangible evidence and relevant documents to be used and "relevant insurance agreements."
-List of documents (or list of category of documents known to exist if the documents are voluminous) whether or not in party's possession, relevant to the action and reasonably likely to lead to the discovery of admissible evidence. Copies of documents should accompany disclosure or if impractical, name and address of document custodian. Date on which documents available for inspection specified. Documents produced should be as kept in the ordinary course of business.

Front 124

Claims of Privilege

Back 124

When info withheld on grounds of privilege or as "trial prep materials" teh claim of privilege must be made expressly and supported by a description of the nature of the item not disclosed sufficient to enable the opposing party to contest the claim

Front 125

Violations of Disclosure Rules

Back 125

Party who fails to timely disclose shall not, unless such failure is harmless, be permitted to use the nondisclosed information or witness at trial, hearing or motion except by permission of court on a showing of good cause.

Front 126

Discovery: 7 Devices

Back 126

1) Oral Deposition
2) Written Deposition
3) Interrogatories to parties
4) Request for production of documents and things
5) Request for mental and physical examinations
6) Request for admissions; and
7) Request for permission to enter land or property

Front 127

Scope of Discovery

Back 127

Extends to all non-privileged information relevant to the subject matter to the pending action. Discovery may be made of material not in itself admissible but which may lead to admissible material. Party may discover information relevant to opponents case as well as her own.

Front 128

Scope of Discovery:
Presumptive Limitations

Back 128

Zlaket rules have placed presumptive limitations on scope of discovery:
limits on number of independent experts, number and length of depositions, interrogatories, requests for production and requests to admit. Designed for the typical non-complex case, parties are encouraged by the rules to seek stipulations for more complicated cases, and that failing, court permission to modify presumptive discovery limits if good cause exists.

Front 129

Scope of Discovery: Privileged Matter

Back 129

Not discoverable. Pertains to privileges of law of evidence: dr-patient, H-W, atty-clt, accountant-clt, priest-penitent, informer's privilege, and executive privilege to protect official secrets.
1) Privilege is that of the person giving the confidential information, and she's the only one who can waive it.
2) Privilege extends only to information given in confidence
3) Informer's privilege is limited, and protects ONLY the ID of informer.
4) Executive privilege is one of balancing public interest against the need of the litigant for the information.

Front 130

Scope of Discovery: Work Product Rule

Back 130

Atty work product / trial prep, is usually privileged unless there is strong reason to permit discovery and info not available through any other source. Whether work product privilege applies depends on the nature of the document and the factual setting.

Front 131

Scope of Discovery: Work Product Rule
Standard for Discovery

Back 131

Discovery of W.P / Trial Prep. may be had on a showing of:
1) SUBSTANTIAL NEED
2) Inability of UNDUE HARDSHIP for her to get it from another source.

Front 132

Scope of Discovery: Work Product Rule
Own Statement Discoverable

Back 132

One's own statement, either as party or witness is discoverable merely on written request of person giving statement.

Front 133

Scope of Discovery: Work Product Rule
Mental Impressions, conclusions, opinions, and legal theories NOT Discoverable

Back 133

Protected!

Front 134

Scope of Discovery: Work Product Rule
Interview Summaries from Corporations

Back 134

Although interview summaries are protected by both the work-product doctrine and by qualified atty-client privilege, party may show need for disclosure outweighs the corporation's interest in confidentiality.

Front 135

Scope of Discovery: Work Product Rule
Experts:

Back 135

Communications with experts hired solely to consult and not to testify are protected as atty work product unless exceptional circs. can be shown. If expert testifies, that protection is lost, even if expert ALSO served as consultant.

Front 136

Scope of Discovery: Work Product Rule
Insurance Policies

Back 136

Policies and limits are discoverable, however, they are not admissible in evidence (except to show: bias, control, interest, ownership, etc.)

Front 137

Scope of Discovery: Work Product Rule
Income Tax Returns

Back 137

While income tax returns are not discoverable from the IRS (privileged by statute) they are discoverable from taxpayer if relevant to the subject matter of action.

Front 138

Scope of Discovery: Work Product Rule
Sequence of Discovery

Back 138

Discovery may be made in any sequence, subject to control by court order. the fact that one party is conducting discovery will not prevent the other party's simultaneous discovery.

Front 139

Scope of Discovery: Work Product Rule
Liability of Non-Party

Back 139

If a party alleges that a nonparty is wholly or partially at fault in an action for damages, then the party must provide the identity and location of the non-party, and the facts which support his claim.

Front 140

Scope of Discovery: Experts:

Back 140

Parties experts who are expected to be witnesses are subject to discovery, but nonwitness experts are not subject to discovery except on motion showing exceptional circumstance. Party making discovery may have to pay experts' fees.

Front 141

Scope of Discovery: Experts: Independent Experts

Back 141

An independent expert is a witness who will offer opinion evidence and who has been retained for testimonial purposes An independent expert, who has been hired after the fact in aid of the litigation, should be distinguished from other experts.
Each side is presumptively entitled to one independent expert per issue.If there are multiple parties on a side (e.g. Co-D's) court may designate one expert for the side if the parties can't agree on one among themselves, or may allow more than one for good cause.
Rule does not apply to other witnesses: Rule does not limit number of FACT witnesses (e.g. treating physicians, even if they will offer expert testimony) Cumulative fact testimony remains regulatived by AZ Rules of Evidence 403.

Front 142

Oral Depositions:
Why May Be Deposed

Back 142

As a matter of right:
1) Parties
2) All experts to be called as witnesses
3) Custodians of Records to secure production of documents establish evidentiary foundations.
Depositions of others are permitted if all parties agree, or court permits for good cause.

Front 143

Oral Depositions: Who May be Deposed: Notice Sufficient to Depose Party

Back 143

If the deponent is a party or an officer or managing agent of a party, written notice is enough to compel her attendance.

Front 144

Oral Depositions: Who May be Deposed: Non-Parties

Back 144

Must be subpoenaed. Employees of a party are non-parties (other than officers, or managing agents)

Front 145

Oral Depositions: Where is deposition appropriate: AZ Residents

Back 145

1) Subpoena for deposition can compel attendance IF
--Deponent is a resident of the county in which the deposition is to be taken, or who is employed or transacts business in person there (deposition can be in the county, or at such other convenient place as fixed by ct. order);
--Of a non-resident in the county in which she is served or within 40 miles from the place of service or at such other convenient place established by ct. order.

Front 146

Oral Depositions: Where is deposition appropriate: Non-AZ Residents

Back 146

Deposition can be taken anywhere in the U.S. using the subpoena power of the appropriate jurisdiction.

Front 147

Oral Depositions: Waiver of Errors in Notice

Back 147

Waived unless promptly served in writing on the party giving the notice.

Front 148

Oral Depositions: Time for Deposition

Back 148

P may not take a deposition within 30 days of the service of the complaint unless the notice states that the person to be deposed will be leaving AZ and will be unavailable for examination 30 days after complaint is served and sets forth facts supporting that statement.

Front 149

Oral Depositions: Timely Notice

Back 149

Notice of a deposition must be given at least 10 days from the date of the deposition.

Front 150

Limits on Length of Deposition

Back 150

Deposition must be reasonable length, but in any event, no longer than 4 hours except by stipulation of the parties or by court order for good cause.

Front 151

Who may take depositions

Back 151

May be taken before any person authorized by the law of the place to administer oaths--e.g. notary public

Front 152

Procedure at Oral Deposition

Back 152

Atty taking deposition examines deponent as at trial, opposing counsel may then cross-X.
Deposition must be recorded: stenographically unless other means are ordered by the court or stipulated in writing by the parties. Parties may stipulate or court order that depo be telephonic. Depo NOT transcribed or filed with court unless a party orders it.

Front 153

Objections: Evidence objected to is taken subject to objections

Back 153

Objections to competency of W, or competency, relevancy or materiality of the testimony are not waived by failure to make them prior to or during depo, UNLESS grounds for objection could have been cured if objection made at that time.
Objections to qualifications of officer before whom depo is being taken are WAIVED if not raised prior to start of depo, or as soon thereafter as the disqualification is known.
Errors in manner of taking depo: Objections to form are waived if not made at the depo.

Front 154

Conduct at Depo: Objections

Back 154

Objections for form and non-responsiveness must be concise and not suggestive of an answer. Details of objections shall not be stated unless requested by party propounding the question. Argumentative interruptions are NOT permitted.

Front 155

Conduct at Depo: Coaching W

Back 155

Continuous and unwarranted off-the-record conferences between W and atty before answering questions are prohibited.

Front 156

Depo: Refusal to Answer

Back 156

If deponent refuses to answer any question, proponent of question has the choice of completing the examination or adjourning at that point after which the proponent may then move in the county where the deposition is being held to direct the witness to answer.

Front 157

Procedure AFTER Deposition

Back 157

If transcribed, depo is submitted to W to examine, make changes to and sign, unless waived by parties. If W becomes unavailable or refuses to sign during 30 day period, officer who took depo shall sign it and it has the same effect of W signing it, unless ct. upholds W's reasons for refusing to sign.

Front 158

Effect of Taking Depo

Back 158

Party does not make a witness her own by deposing her.

Front 159

Protective Order before Depo

Back 159

On motion, for good cause shown by any party, or the person to be examined, ct. in which the action is pending or the court in the county where depo is to be taken may order that:
-Depo not occur
-Depo be taken at a different place than that noted
-Depo taken only on written questions
-Depo occur in camera
-Scope of depo be limited
-Certain matters not be inquired into
-Secret processes, research, or developments not be disclosed
-Any other order that justice requires to protect the party or W from embarrassment, annoyance or oppression.

Front 160

Protective Order During Depo

Back 160

On motion of any party on grounds of annoyance, embarrassment or oppression, ct in which action is pending may order:
-Depo cease
-Scope and manner of depo be limited

Front 161

Other Depo Issues

Back 161

Depo of Inmates: Prison inmates may be deposed only by leave of ct. and only on such terms as the ct. prescribes.
Cost of Original Transcript: If depo is transcribed, party causing depo to be taken pays for original transcript.
Sanctions: Ct. shall sanction any party or atty for engaging in unreasonable, groundless, abusive or obstructive conduct.

Front 162

Written Depos: Same as Oral.
Questions, cross-x and redirect

Back 162

-Party who serves notice of the depo prepares written questions, which are served on all other parties. those parties may then serve cross-questions. Redirect and recross questions may then be served.
All questions are then delivered to officer designated in notice as person before whom depo is to be given, W is subpoenaed before that person, sworn in , the questions are asked and her answers recorded.
If W refuses to answer, proponent may move in court for order compelling answer.

Front 163

Use of Depos

Back 163

-Subject to Rules of Evidence
-May be used against any party present, represented at depo or who had reasonable notice thereof and who had opportunity and motivation to develop depo direct testimony by cross-x /redirect.
-Deponent does not need to be shown to be unavailable.
-If one party offers only part of depo, court may compel her to admit any other part that in fairness should be considered.
-Deposed W may testify in person
-Rebuttal: Any party may rebut any relevant evidence contained in depo regardless of who introduced it.

Front 164

Interrogatories to Parties

Back 164

One party may serve another with written questions to be answered in writing, under oath. Designated officer or agent for corporation/association/partnership answers.
Extrajudicial unless objections require enforcement order. Proponent of question may move in court to compel answer.
Time: May be served with summons or complaint or later. Answers or objections must be filed within 40 days of service or 60 days if served with complaint. Ct may set time period.

Front 165

Presumptive Limitations on Interrogatories to Parties

Back 165

Presumptive limit of 40 interrogatories. A uniform interrogatory and its sub-parts count as one interrogatory. Any sub-part of non-uniform interrogatory also counts as one interrogatory.

Front 166

Exceeding Presumptive Limitation on Interrogatories

Back 166

If good cause exists, parties should confer and attempt to reach written stipulation to exceed 40. If stip is not made, court permission may be sought. Burden of proving need for additional interrogatories is on person seeking them,and proposed additional interrogatories must accompany motion to exceed.

Front 167

Presumptive Limits on Interrogatories: Cooperation of Counsel

Back 167

This rule directs the parties to attempt to resolve the matter of the number of interrogatories by stip before going to ct. Counsel expected to confer in good faith and not unreasonably refuse legitimate requests for stip.

Front 168

Objections to Interrogatories

Back 168

If some interrogatories objected to, objections should be served with the answers.Proponent may then file motion to compel.

Front 169

Protective Orders for Interrogatories, Use of Interrogatories

Back 169

Same as for depositions.

Front 170

Obligations of Party Answering Interrogatories

Back 170

To furnish as much information as is available--he must search files at his own expense, as unlike depos, interrogatories not limited to what party has in his cabeza at the moment.
Voluminous business records MAY be offered in lieu of answers. Sufficient to specify records from which the answer may be derived and to afford person serving interrogatories an opportunity to waste his OWN damn time by going through the records.

Front 171

Request to Produce Documents and Things for Inspection:

Back 171

No more than 10 distinct items or specific categories of items may be requested, absent a stip by the parties, or court permission.
Time for response: 40 days
Objections must be served at time for response
Limits of relevance and privilege apply.
Producing party must produce documents as they are kept in the ordinary course of business, OR organize and label them to correspond to request.

Front 172

Request to Enter Land

Back 172

For purposes of measuring, surveying, inspecting or photographing the property or any designated object or operation. Limits of relevance and privilege apply.

Front 173

Motion or Notice for Physical / Mental Exam

Back 173

Where mental or physical condition are in controversy, an exam may be required by motion and order (where parties can't agree or on notice when parties stip. Scope is limited to condition in controversy. Any party may be tested. Usu. applies also to bloodwork for a ch. in a pat. dispute.

Front 174

Motion or Notice for Physical / Mental Exam: Rt. to receive medical reports

Back 174

Party obtaining exam does not have to give examined party a copy of the reports unless they request them. By requesting, examined party waives dr./pt. privilege as to copies of any med reports made previously or after, pertaining to the same condition. If a dr. fails or refuses to make a report, the ct. may exclude his testimony if offered at trial.

Front 175

Motion or Notice for Physical / Mental Exam: Choosing Physician or Psychologist

Back 175

When parties agree, extrajudicial written notice is sufficient instead of motion and order. Where ID of physician or psychologist is in dispute ct. resolves dispute on motion of party to be examined. Court, not party that makes final choice of examining dr. On objection to a specific dr., ct. must hear evidence

Front 176

Motion or Notice for Physical / Mental Exam: Rt. to Have Representative Present

Back 176

Person to be physically examined has the right to have a representative present, unless to do so would adversely affect the outcome of the exam. Metal exam may be audiotaped, or on good cause shown, videotaped.

Front 177

Requests for Admissions: R 36

Back 177

Service; Written request for admissions may be served by one party on any other party.
Number: No more than 25 may be served on each party without stip or ct. order. Each req. may contain one fact matter or request for genuineness of all docs or category of docs.
Admissions deemed made within 40 days (or w/in60 days if seved w/complaint) unless: Signed denial, answer under oath stating why party can't admit or deny, objection stating requests are improper and stating reasons for impropriety.
Withdrawal or amendment of admission on motion
Admissions binding unless ct. on motion permits withdrawal or amendment.
Admissions valid for pending action only.

Front 178

Discovery: Enforcement and Sanctions
Failure of Party Giving Notice to Attend
Depo

Back 178

Parties/Non Party Witnesses: Party who gave notice fails to attend, ct. may order him to pay any other party who attended in person or through counsel the reasonable expenses incurred in doing so.

Front 179

Discovery: Enforcement and Sanctions
Failure to Serve Subpoena on Witness and Witness Fails to Show

Back 179

Ct. may order party who failed to serve to pay any other party who attended in person or through counsel the reasonable expenses incurred in doing so where party noticing deposition fails to serve subpoena on non-party W, and W fails to attend.

Front 180

Discovery: Enforcement and Sanctions
Grant of Order Compelling Answer

Back 180

Upon granting order compelling answer, and finding refusal to be without substantial justification, ct. shall require refusing deponent or atty advising refusal to pay expenses, including atty's fees incurred in obtaining the order.

Front 181

Discovery: Enforcement and Sanctions Denial of Order Compelling Answer

Back 181

On denail of order compelling answer and finding that the motion was without substantial justification, ct shall require moving party or atty to pay deponent's expenses, including atty fees, incurred in opposing the motion.

Front 182

Discovery: Enforcement and Sanctions
Refusal to be Sworn tor to Answer Questions

Back 182

If party refuses to be sworn or refuses to answer a question after being directed to do so, she may be held in contempt of ct.

Front 183

Discovery: Enforcement and Sanctions
Party who Refuses to Attend

Back 183

Party who willfully refuses to attend, after propert notice, or to answer interrogatories after proper service may face
-Judgment by default
-Dismissal of his action
-Striking of all or part of his pleading

Front 184

Discovery: Enforcement and Sanctions Against Parties:

Back 184

If Party willfully refuses to cooperate, after proper notice with respect to depositions, interrogatories, production of documents or a med exam, ct. may order
-judgment by default
-dismissal of action
-pleadings stricken in whole or in part
-Proceedings stayed until order is complied with
-Party be prohibited from supporting or opposing certain claims/defenses
-Prohibition of introduction of certain documents, things or items of testimony
-Prohibition of introduction of mental or physical exam
-Party be arrested for contempt of ct.
-Any combination of the above

Front 185

Discovery: Enforcement and Sanctions
Party Sanctions:

Back 185

TC has discretion to reconsider its earlier decision on discovery requests, esp. when the requests threaten to infringe on privileged matters.
Ct of county where depo was taken may enter appropriate order. One must show abuse of discretion in order to have TCs decision overturned.

Front 186

Discovery: Enforcement and Sanctions
Admissions:

Back 186

If party fails to admit, and party requesting admission proves a fact or genuineness of the document subject to the request, ct. shall order the denying party to pay the expenses, including atty's fees of the party who requested the admission, unless ct. finds:
-Good reasons for failure to admit
-Admission sought was of no substantial importance
-Request was objectionable
-Party that failed to admit had reasonable grounds to believe he might prevail on the matter.

Front 187

Deposition Before Action or Pending Appeal: R 27
Before Action

Back 187

Person wishing to perpetuate her own testimony or that of another regardin any matter that may be cognizable in court may on verified petition obtain na order for oral or written deposition.
Service: Shall be made on all expected adverse parties, and person to be deposed.
Granting Order: Court is to grant an order for depo before action if it is satisfied that perpetuation may prevent a failure of delay of justice.
Use: Same as any other depo.

Front 188

Deposition Before Action or Pending Appeal: R 27
Pending Appeal

Back 188

Depo pending appeal is used to perpetuate testimony in case of any further proceedings in the TC.
Service: Made on motion, service same as for any other motion
Granting of Order; Granted if ct. si satisfied that perpetuation of testimony may prevent a failure or delay of justice.
Use: It's a depo. What do YOU think?

Front 189

Supplementation of Responses

Back 189

Party must supplement earlier discovery when she gains new info re:
-ID and location of witnesses, including experts, and people who have knowledge of discoverable matters.
-Facts that show original responses were incorrect (but only when knowing concealment will occur) or was correct when made but is no longer true.

Front 190

Costs

Back 190

Each party bears his own discovery costs. Depos are expensive. Winning party is awarded costs at the end of case. Losing party reimburses the winning party for the winning party's costs. Sup. Ct has no discretion to deny costs to the winning party.

Front 191

PreTrial Conferences: Comprehensive Pretrial Conference

Back 191

When: Mandatory if requested in writing by a party, or ct. can set one sua sponte
What:
-Determine & schedule add. discovery
-Schedule disclosure of experts (must be made w/in 90 days of CPC unless good cause)
-Determine # of expert wits.& order of disclosure, (w/in 45 days of close of discovery)
-Date for disclosure of non-expert wits, & order of disclosure
-Resolve discovery disputes
-Eliminate non-meritorious claims or defenses
-Permit amendment of pleadings
-Assist in identifying factual issues
-Obtain stips.
-Determine desirability of special procedures for case management (e.g. appointment of a special master, etc.)
-Consider ADR measures.
-Determine what time limits or procedures should be modified or suspended
-Determine whether there has been compliance with R.26.1 (prompt disclosure rule)
-Set date for settlement conference
-Determine date for filing joint pre-trial statement
-Determine trial date
-Impose time limits on trial, use of juror notebooks, pre-voir dire opening statements, preliminary jry instructions and management of docs and exhibits.
Sanctions are mandatory (except on good cause) for:
-failure to follow pre-trial order
-failure to appear at CPC, failure to participate in good faith, or substantial unpreparedness for the CPC
Hearing may be required prior case being dismissed as sanction unless willfulness, bad-faith, or fault of party is clear from the record.
-

Front 192

Mandatory Settlement Conference

Back 192

Must be set at request of any party at least 60 days prior to trial or on ct's motion.
Who: Parties, attorneys, representatives of parties having authority to settle must attend.

Front 193

Mandatory Settlement Conference:
Memo

Back 193

Memoranda: Each party shall furnish to the judge under seal a separate settlement conference memo.
Memo must contain:
-description of issues and each party's position
-General description of evidence to be presented
-Summary of settlement negotiations to date
-Assessment by each party of the anticipated result if case is actually tried
-Any other information deemed helpful to settlement

Front 194

Mandatory Settlement Conferece:
Optional TX to Settlement Judge

Back 194

Trial judge MAY arrange for another judge to hear the MSC.

Front 195

Mandatory Settlement Conference:
Sanctions

Back 195

Ct. shall impose sanctions if a party or atty fails to appear or participate in good faith, or is unprepared for MSC>

Front 196

Final Pre-Trial Conference

Back 196

Conference held as close to the time of the trial as is reasonable: Participants formulate a trial plan, which includes a program for facilitating the admission of evidence.

Front 197

Enforcement of Settlement Agreements

Back 197

No agreement or consent between parties or attorneys is binding where there is a dispute, unless agreement or consent is in writing or made orally in open court.
Settlement agreement is not enforceable against a party who disputes the agreement unless that party's assent and the terms of the agreement are in writing or are reflected in the minutes of an open court proceeding.

Front 198

Termination Without Trial: Methods

Back 198

1. Motion to Dismiss Prior to Answer
2. Judgment on the Pleadings
3. Default Judgment
4. Voluntary Dismissal
5. Involuntary Dismissal
6. Summary Judgment

Front 199

Default Judgment: R 55

Back 199

1) Default applies to ALL claims, including p's claim, counterclaims, cross claims and third party claims.
2) Grounds: party fails to appear or otherwise defend.
3) Limitation: Cannot exceed sum of or be different in kind than that prayed for in the claim. May include atty's fees if proved by affidavit.
4) Entry on Docket: Entry on docket by P must be made when default appears. Default entered by clerk is effective 10 days after filing of application for default.
5) Judgment entered by Ct. on App:
---No default against infant or incompetent unless represented by someone who has appeared.
---If a party has appeared, he must be given 3 days notice of default hearing
---Ct may conduct hearing and take evidence to establish the truth of any averment and amount of damages as it deems necessary and proper, and must accord a right of trial by jury where required
by law.
Default may be set aside on good cause either before or after judgment.

Front 200

Voluntary Dismissal:

Back 200

P may voluntarily dismiss her own case without anyone's permission prior to D's serving (i) an answer, or (ii) a motion for summary judgment. Upon stip of all parties, case may be dismissed at any time, or on order of court. Voluntary dismissal is w/o prejudice.
Only one voluntary dismissal w/o ct. order
w/ court order, dismissal is w/o prejudice only if ct. so orders.

Front 201

Involuntary Dismissal

Back 201

Court may dismiss P for failure to prosecute or failure to comply with rules or ct. orders. Involuntary dismissal can be sua sponte or on motion. Dismissal is w/prejudice unless specifically ordered otherwise or dismissal was for lack of J, improper venue or failure to join under AZ. R. 19.
Dismissal w/prejudice is an adjudication on the merits, and bars claim from ever being brought again in state or fed. ct.

Front 202

Summary Judgment: R. 56

Back 202

Time: Claimant may move for summary judgment at any time after 20 days from commencement of action (as long as answer has come due) or after service of a motion for summary judgment by adverse party. Defending party may move at ANY time.
Summary judgment may be complete or partial.

Front 203

Summary Judgment: Support or Opposition of Motion

Back 203

MSJ may be supported or opposed w/ affidavits, depos, pleadings admissions and answers to interrogatories. . Where affidavits are unavailable,to party opposing motion, she may by affidavit state the reasons for their unavailability. Court may:
Deny
Order a Continuance
Make other orders as it is just to do.

Front 204

Summary Judgment when Motion Supported by Affidavit

Back 204

When a motion is supported by affidavits, etc. an adverse party cannot rest upon mere pleading allegations or denials, her response, by affidavits or otherwise must set forth specific facts.

Front 205

Summary Judgment: Test

Back 205

Usu. granted where pleadings, depositions, answers to interrogatories and admissions on file together with affidavits show that:
*There is no issue as to any material fact; and
*Moving party is entitled to judgment as a matter of law.
Courts can DENY summary judgment even where the above test is met, but can't grant it if it is not.

Front 206

Summary Judgment Motion:
Must be supported by

Back 206

1) Statement to material facts as to which the moving party contends there is no genuine issue; and
2) Points and authorities: Specific points of law and authority to support the motion.

Front 207

Summary Judgment: Required Opposition

Back 207

A MSJ must be opposed by a statement of opposing points and authorities, or the court may treat the motion as conceded. The motion MAY be opposed by a statement of genuine issues, setting forth all the material facts as to which it is contended there remains a genuine issue needing to be litigated.
Court may assume that facts claimed by movant are true, except those facts which are controverted in good faith in a statement filed by the opposing party.

Front 208

MSJ: Affidavits in Bad Faith

Back 208

Court may:
1) Order the party using them to pay the other party's expenses that the affidavits caused him, including lawyers fees.
2) Hold in contempt the offending party or attorney.

Front 209

MSJ: Contributory Negligence

Back 209

Because of a unique AZ Q provision, teh defense of contributory negligence is always a question of fact for the jury; therefore summary judgment is not available where the defense of contributory negligence is raised.

Front 210

MSJ: Denial Not Applicable

Back 210

Although a grant of SJ is of course appealable, a denial is not.

Front 211

JURY TRIAL:
Functions of Judge and Jury

Back 211

Judge in a jury trial determines questions of law, while jury decides questions of fact. Whether evidence is substantial enough to go to a jury is a question of law.

Front 212

Jury controlled by:

Back 212

1) Rules of evidence
2) Motion for judgment as a matter of law
3) Jury instructions
4) Special verdicts and general verdicts with interrogatories
5) Post-Trial motions

Front 213

Right to Jury Trial

Back 213

Article 2, Section 23 of the AZ Q provides that in civil cases, there shall be a jury not less than 6 in number. The number required to render a verdict shall be specified by law.
Rule 38, entitled Jury Trial of Right provides: "The right of trial by jury shall be preserved inviolate to the parties." A concurrence by 6 out of 8 jurors is sufficient for a verdict in civil cases in courts of record.

Front 214

Demand for Jury Trial:

Back 214

Method: Demand in writing in a timely manner or right is waived.
Time: Fed requires demand within 10 days of service of answer, AZ requires any time before the date the case is set for trial OR 10 days after a motion to set is served--whichever occurs first.
Withdrawal: Once a demand is made, it may not be withdrawn without the consent of all parties.

Front 215

Trial by Jury: Consolidation

Back 215

When actions involving a common question of fact or law are pending in the court, the court may order a joint hearing on any or all matters in issue. It may also consolidate the actions.

Front 216

Trial by Jury: Separate Trials

Back 216

The court, in furtherance of convenienec, to avoid prejudice or to further expedition and economy, may order a separate trial on any claim, cross-claim, counter-claim, third-party claim, or any separate issue preserving the right ot jury trial.

Front 217

Trial by Jury: Time Limits

Back 217

The court may impose reasonable time limits on trial proceedings or portions thereof.

Front 218

Trial by Jury: Evidence
Objections

Back 218

Objections are necessary to preserve issues for appeal unless there is no opportunity to object. However, exceptions to court rulings are not necessary. Where an objection is sustained, the party offering evidence may proffer the evidence and a record must be made of the proffered evidence, its character, the form in which it was offered, the objection made, and the ruling thereon. The court may require the offer to be made out of the hearing of the jury.

Front 219

Trial by Jury: Evidence
Failure to Respond for Trial

Back 219

If no party appears for the trial, the court may dismiss; if the P does not appear, the court may dismiss, or have the trial. If the D does not appear, the court may enter judgment or have the trial.

Front 220

Trial by Jury: Evidence
Continuances

Back 220

Grounds: A motion to postpone trial must be accompanied by an affidavit disclosing the grounds for continuance and must show that due diligence was used in asking for the postponement.
Affidavit Re; Absence of Witness:
If the absence of a wit. is the ground for the continuance, the motion must be accompanied by an affidavit setting forth the material to which it is expected the absent wit would testify. Should the adverse party admit that the wit would so testify, this would stand admitted and the motion denied.

Front 221

Trial by Jury: Evidence
Multiple Experts

Back 221

Opinion evidence on the same issue from more than one independent witness for each side is not permitted except on a showing of good cause

Front 222

Trial by Jury: Burden of Proof

Back 222

Preponderance of the Evidence
Usu. elements of a claim must be proved by P, e.g. in a negligence case, duty, breach, proximate cause, and damage must be proved by P. If D is merely a denial, the burden of persuasion remains with P. If the defense is an affirmative one, then the burden of proof shifts to the D. However, it is difficult to determine what constitute an element of the claim and what does not

Front 223

Trial by Jury: Burden of Proceeding

Back 223

Burden of proceeding is the burden to persuade the judge that enough evidence has been presented at trial tha ta jury may reasonably find in the party's favor. Whoever has the burden of persuasion on an issue has the initial burden of proceeding on it as well. While the burden of persuasion never shifts, the burden of proceeding can shift during a case.
EX: P has the burden of persuasion on fact A. P must introduce evidence on fact A so that a reasonable person can infer the existence of that fact, or the judge will instruct the jury that fact A does not exist. (and, if fact A is crucial to P's case, will direct a verdict to D.)
EX: If P introduces evidence from which a reasonable person could infer that fact A exists, P has met her burden, and must await jury's verdict.
EX: If the evidence in support of fact A is so great that a reasonable person must infer the existence of that fact, and there is no evidence to the contrary, then the court will instruct the jury that they ust find that fact A exists. P satisfied his burden of proceeding, D not having satisfied hers (the burden of proceeding having shifted) there is no issue for the jury

Front 224

Withdrawing Case from Jury

Back 224

Right to a verdict only exists if there's something for the jury to decide. A motion for Judgment as a Matter of Law may be granted if the court determines that there is nothing for the jury to decide.

Front 225

Withdrawing Case from Jury:
Motion for Judgment as a Matter of Law

Back 225

Either party may make this motion at the close of the evidence for the other side. If the motion is denied, the case goes on. If granted, it's res judicata
TEST: TC is justified in granting a verdict as a matter of law only where the evidence is insufficient to support a contrary verdict. If evidence is of the quality that reasonable persons could not differ as to its interpretation, granting the motion is proper.
When W credibility is at issue, then it's almost impossible to win on a JMOL.

Front 226

Withdrawing Case from Jury:
Motion for Judgment as a Matter of Law vs. Renewed Motion for Judgment as a Matter of Law (formerly JNOV)

Back 226

Party must make a motion for judgment as a matter of law, prior to the verdict and at the close of all the evidence in order to make a renewed motion for judgment as a matter of law following the verdict.

Front 227

Withdrawing Case from Jury:
Motion for Judgment as a Matter of Law
NOT a waiver of jury trial

Back 227

Motion for JMOL is not a waiver of a jury trial. If it is denied, the moving party may present evidence as if no such motion had ever been made.

Front 228

Withdrawing Case from Jury:
Where Motion is Granted

Back 228

IF a motion for JMOL is granted, by the court, then the jury plays no role

Front 229

Jury Instructions

Back 229

The TC has a duty to instruct the jury on all legal theories framed by the pleadings and supported by substantial evidence. OTOH, it is reversible error to instruct the jury on an issue if there is no evidence to support the instruction, as this invites the jury to speculate as to possible non-existent circumstances.

Front 230

Preliminary Jury Instructions

Back 230

After the jury is sworn, the court instructs the jury concerning its duties, its conduct, the order of proceedings and the elementary legal principles that will govern the proceeding.

Front 231

Jury Instructions: Counsel's Written Requests

Back 231

Prior to the commencement of trial or at such other time during the trial as the court reasonably directs, , any party may file written requests for for particular instructions on the law. Requests for other instructions are waived except those that could not reasonably have been anticipated prior to trial. A party is bound by the theory of requested instructions and cannot complain on appeal about an instruction given at the party's request.

Front 232

Jury Instructions: Final Instructions

Back 232

Counsel must be informed of the court's proposed final instrutions on the law before final arguments. The court, at its election, may instruct the jury before or after argument, or both. All jurors must be provided with a written copy of the instructions that they can take with them to their deliberations.

Front 233

Jury Instructions: Objections

Back 233

Any objections to the jury instructions must be raised prior to retirement of the jury, if the giving or failure to give an instruction is to be grounds for appeal. The objection must state distinctly the matter objected to, and the grounds for the objection.

Front 234

VERDICTS: Generally

Back 234

Method: Verdict is to be made by the jury in open court.
Agreement Necessary: 6 out of 8 jurors necessary for a verdict.
Polling Jury: Either party may ask the jury to be polled after the verdict. This is accomplished by the court clerk asking each juror separately if the verdict returned is his verdict. If any juror answers in the negative, the jury is sent out to further deliberate. If each juror concurs in the verdict, it is received and noted in the court records.

Front 235

Imperfection in Verdict: Effect

Back 235

Form: Ct. determines that form of verdict is incorrect, court can correct verdict or send jury back.
Substance: If ct. determines that the substance of the verdict is incorrect, ct. can send jury back, or if the judge feels that they've gone too far astray, order a new trial

Front 236

Imperfections in Verdict: Substantive Causes

Back 236

Verdict must be in line with substantive law:
1)Verdict that holds the employer liable but the employee not liable, where the only theory of the employer's liability is respondeat superior, is no good.
2) A verdict that awards different amounts of damages against two joint tortfeasors may be found substantively unsound.
3) Once a jury is discharged, there must be a new trial.

Front 237

Types of Verdicts:
General, Special Verdict, General Verdict with Interrogatories

Back 237

1) General Verdict: a verdict for one of the parties, and if for the plaintiff, the amount of damages, if any, is included.
2) Special Verdict: Judge gives the jury specific factual questions. Jury then returns answers to those questions. Judge then applies the law to those facts as found by the jury.
General Verdict with Interrogatories:
General verdict is rendered, but also certain factual questions which the judge asks the jury and to which the jury returns answers.

Front 238

Special Verdict with Interrogatories:

Back 238

1) If the jurors answers disagree with the general verdict, ct can:
a) Enter judgment in accordance with answers
b) Send the jury back; or
c) Order a new trial
2) If the jurors' answers are inconsistent among themselves, the court can:
a) Send the jury back
b) Order a new trial

Front 239

Impeachment of Verdict

Back 239

A party may not use the testimony or affidavit of a juror to impeach the verdict, although she may do so from other sources, unless the testimony or affidavit concerns whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear.

Front 240

Post Verdict Motions:

Back 240

New Trial
Renewed Motion for Judgment as a Matter of Law

Front 241

Post Verdict Motion: New Trial
Procedure

Back 241

*Time: Must be made between verdict and 15 days after the judgment
*Affidavits: Motion may be accompanied by affidavits, and opposition may file opposing affidavits.
*Sua Sponte New Trial: Permitted between verdict and 15 days after judgment.
*Granted on Different Grounds: New trial will be granted on different grounds than those raised in motion IF:
--No appeal noted; and
--Court specifies grounds therefore
*Partial New Trial: Partial New Trail on some issues.

Front 242

Post Verdict Motion: New Trial
Grounds

Back 242

New trial may be granted on any ofthe following grounds:
1) Irregularity in the proceedings depriving a party of a fair trial
2) Misconduct of jury or prevailing party
3) Accident or surprise
4) Newly discovered evidence
5) Excessive or insufficient damages
6) Error in regard to evidence, instructions, or other matters of law.
7) Verdict is the result of passion or prejudice
8) Result is not justified by the evidence or is contrary to law.
The proper time for a party to raise the issue of the potential impact of a potential juror's specialized knowledge is during voir dire. generally, testimony about any matter discussed in the sanctity of the jury room during deliberations is inadmissible to impeach the verdict.
Necessity When Appealing Case:
Party can't argue (in)sufficiency of evidence to support verdict in jury cases without first moving for a new trial. Must also move for a new trial if he wants to appeal the sufficiency of the evidence warranting the giving of certain jury instructions.

Front 243

Renewed Motion for Judgment as a Matter of Law:

Back 243

Procedure: Time-between verdict and 15 days after judgment.
Condition Precedent: Party so moving must have previously moved, at close of ALL evidence for JMOL, motion for JMOL at close of evidence, if not granted, is reserved for decision after verdict. Even if ct denies motion.

Front 244

Renewed Motion for Judgment as a Matter of Law: Necessity for Motion

Back 244

Where ct. has reserved decision on JMOL motion, there must be a renewed JMOL motion after verdict.

Reason: To give verdict-winning party the opportunity to argue to the TC that in lieu of a rewned JMOL, it should grant a new trial.

Exception: Where TC sets for hearing the reserved JMOL the same result is reached and a separate, renewed JMOL motion is unnecessary.

Front 245

Renewed Motion for Judgment as a Matter of Law:Ground

Back 245

Ground for granting renewed JMOL motion is the same as for a motion for JMOL where a motion for JMOL should have been granted prior to the verdict, a renewed JMOL motion can be granted after the verdict.

Front 246

Renewed Motion for Judgment as a Matter of Law or New Trial Motion in the Alternative

Back 246

A renewed JMOL motion as a matter of law or on new trial motion in the alterntive may be made within the same time limits and upon the same grounds as the separately filed motions. The TC must pass upon both parts of the motion.

Front 247

Motion to Alter or Amend a Judgment

Back 247

A motion to alter or amend a judgment must be filed not more than 15 days after judgment.

Front 248

Trial By Court (bench trial): Early Termination of Trial

Back 248

*No JMOL in bench trial
*Dismissal of P's case--available in bench as well as jury trials.
*Dismissal After P's case: Used instead of JMOL.
--Ground: after examination of the facts and law, the P has shown no right to relief.
--Findings: In a motion for dismissal after P's case, the findings of fact and conclusions of law are required only when requested before the trial.
--Operates as an Adjudication on the Merits: Dismissal after P's case operates as an adjudication on the merits.

Front 249

Findings of Fact and Conclusions of Law:

Back 249

If requested before trial, ct. is to find the facts specially and state separately its conclusions of law. This is to be more than a broad, general conclusion; it should be enough so that the parties and the appellate court (if an appeal is taken) can know the basis of the decision.

Front 250

Post-Trial Motions: JMOL

Back 250

NO renewed JMOL, because no JMOL in bench trial.

Front 251

Post-Trial Motions: New Trial Motion

Back 251

Grounds:same as with a jury trial, except: erroneous instruction. If such a motion is granted this often means merely reopening the record for some additional information to be considered by the same judge. Ct may stay the execution of any proceedings to enforce a judgment pending the disposition of the motion for a new trial.

Front 252

Motion to Amend or Make Additional Findings and Amend Judgment

Back 252

TIME: Motion must be made between finding and 15 days after entry of judgment.
GROUND: Findings and conclusions are erroneous based upon the record (including sufficiency of evidence) and the law
APPEAL: In a motion to amend or make additional findings, ther eis no prerequisite to appeal on teh above ground.

Front 253

JUDGMENTS: Generally

Back 253

Official announcements of the result of lawsuits. Where claimant has succeeded, judgment grants affirmative relief on the pleadings and the proof. Judgments contain no recital of pleadings or records of the proceedings and are generally quite simple in form, but vary as required by the nature of the case or relief awarded.

Front 254

Judgments: Relief

Back 254

Party granted a final judgment is entitled to the relief as provided by law.

Front 255

Judgments: Offer of Judgment

Back 255

Any party may offer to allow judgment to be entered in accordance with the terms and conditions specified in the offer with costs then accrued.

Front 256

Judgments: Offer of Judgment: Time

Back 256

An offer of judgment may be made at any time (i) more than 30 days before trial begins, or (ii) not less than 10 days before proceedings begin on damages where liability has already been determined. An offer expires after 30 days, except that an offer made within 60 days after service of the summons and complaint shall remain effective for 60 days.

Front 257

Judgments: Offer of Judgment: Sanctions and Attorney's Fees:

Back 257

R. 68 is intended to encourage settlement in cases by increasing sanctions in cases of refusing offers of judgment, and to simplify the determination of when such sanctions should be made. There are different proceduresfor cases in which atty's fees are recoverable and those in which atty fees are NOT recoverable.

Front 258

Judgments: Offer of Judgment: Cases in which Atty Fees are Recoverable

Back 258

E.g. Breach of K case: Offer of judgment should be made in two parts--(i) specific stated sum or money for the underlying cause of action, i.e. damages and (ii) amount of atty's fees to be awarded if offer is accepted.

Front 259

Judgments: Offer of Judgment: Cases in which Atty Fees are NOT Recoverable

Back 259

E.g. Tort cases. Offer of judgment in this type of case should be for a specific, stated sum of money.

Front 260

Judgments: Offer of Judgment: Acceptance of the Offer--In Full or In Part

Back 260

IN FULL: Offeree accepts in full, either party may file the offer and proof of acceptance. A formal written judgment shall then be entered.
IN PART: The offeree may choose to only accept the damages part of the offer, and then make application to the ct. for a determination of atty's fees. Either side may file the offer and proof of partial acceptance. However, formal written judgment will only be entered after the resolution of the claim for atty's fees. The purpose of this procedure is to encourage settlement of as much of the case as possible by not requiring a dispute over atty's fees alone to force the entire case to trial.
NOTE: Opposite is not possible: Offeree cannot accept the offer of atty's fees and keep open for determinate the amount of damages.

Front 261

Judgments: Offer of Judgment: Sanctions for Refusing a "More Favorable Offer"

Back 261

Apply both to cases where atty's fees are recoverable and where they're not. If the offer regarding damages (i.e. the underlying claim not including costs and atty's fees) is not accepted and turns out to be equal to or more favorable to the offeree than the judgment won at trial, the offeree must pay:
1) Reasonable expert witness fees incurred after the offer was made
2) Double the statutory taxable costs incurred after the offer was made
3) Prejudgment interest from teh date of the offer on unliquidated claims. This provision does not change the long-standing rule that already permits the collection fo prejudgment interest on liquidated claims from the date that the debt became due.

Front 262

Official Judgment:Submission

Back 262

Submission: for an official judgment, a written form of judgment is submitted to the court for signing. Forms of judgment must be served on all parties and counsel. A party seeking atty's fees provides in the form of judgment a space for an award of atty's fees which is filled in by the ct.

Front 263

Official Judgment: Effective

Back 263

An official judgment is effective when signed by the ct. and filed with the clerk. It is not delayed for taxing costs.

Front 264

Official Judgment: Time

Back 264

Official judgment is made any time after the verdict or findings of fact or other order of the court. (e.g. summary judgment, default, etc.)

Front 265

Finality:

Back 265

Importance: Necessary for appeal purposes.
Entry of Judgment by Clerk: Creates finality.

Front 266

Finality: Judgment on Multiple Claims or Involving Multiple Parties

Back 266

Where a ct. adjudicates fewer than all of the claims or the rights and liabilities of fewer than all the parties, there is NO final judgment. Since there is no final judgment, the judgment entered:
1) Cannot be appealed
2) Can be revised at any time before the entry of judgment adjudicating that all claims and the rights and liabilities of all the parties, unless the court certifies that there is no just reason for the delay and expressly directs entry of judgment.
*Note that atty's fees may be considered as a separate claim form the judgment on the merits. Therefore a judgment on the merits may be appealed while the issue of atty's fees remains before the TC. However, normally, a claim for atty's fees is resolved and entered w/final judgment.

Front 267

Judgment Nunc Pro Tunc: AZ R. 58(a)

Back 267

Permits entries of judgment and orders nunc pro tunc-i.e. the effect of the judgment or order relates back to the time when, but for some clerical or other mistake, it should have been entered.

Front 268

Relief From Judgments:

Back 268

Decision to grant relief under AZ R. 60 is ultimately discretionary.
* Renewed motions for JMOL and motions for new trial may be filed in Sup. Ct. up to 15 days after judgment.
* Motion to Amend or Alter Judgment: May be filed no later than 15 days after judgment.
* Clerical Errors: A motion for relief due to clerical errors may be filed at any time, except that if the case is pending on appeal, then only with leave of the App. Ct.

Front 269

Relief From Judgments: Serious Errors

Back 269

A motion for relief from judgment due to serious errors may be filed on motion and upon such terms as are just. The court may relieve a party from a judgment or order for the following reasons within 6 mo. after judgment

Front 270

Serious Errors:

Back 270

1) Mistake, inadvertence, surprise or excusable neglect.
2) Newly discovered evidence which, by due diligence, could not have been discovered before trial
3) Fraud, misrepresentation or misconduct of another party.
4) Judgment is void
5) Judgment has been satisfied, reliefed or discharged; or
6) Any other reason justifying relief.
(Under condition 6 relief is granted only if the P shows extraordinary circumstances of hardship or injustice other than the circumstances set forth in 1-5.

Front 271

Perfection of Appeal: Judgments and Orders that May be Appealed:

Back 271

Procedure: Judgments and orders that are beign appealed must be in writing, signed by the ct and filed with the clerk.
Requirements: Judgment or order must be one specified in the AZ statutes--generally those that are final judgments and orders.

Front 272

Perfection of Appeal: Procedures
Notice of Appeal

Back 272

To appeal a judgment or order, a notice of appeal and a cost bond must be filed with the Clerk of Sup. Ct. Appellate ct. may also require the filing of a civil appeals docketing statement in the sup. ct.

Front 273

Perfection of Appeal: Procedures: Time

Back 273

The notice and cost bond must be filed no later than 30 days from teh date judgment was entered. Failure to file the notice may result in teh appeal being jurisdictionally dismissed by the court on motion or sua sponte.
Certain timely-filed post-judgment motions suspend the time period, which starts to run again upon the ruling on the motion by the TC.

Front 274

Perfection of Appeal: Procedures: Filed in Wrong Court

Back 274

Although a notice of appeal must be filed with the clerk of the superior court within 10 days,, where a party inadvertently files a notice with the court of appeals within the stat. time period, the notice will be deemed timely filed.

Front 275

Perfection of Appeal: Procedures: Time
Extension of Time

Back 275

If party is entitled to notice of the entry of judgment did not receive such notice from the clerk or from another party, within 21 days of its entry, and if no party would be prejudiced by an extension, the ct. may (upon motion filed no later than 30 days after the expiration fo the time for appeal, or within 7 duas of receiveing such notice--whichever was earlier.

Front 276

Stay of Execution of Judgment Pending Appeal

Back 276

A party appealing a judgment may obtain a stay of execution of the judgment by filing a supersedeas bond in an amount sufficient to satisfy the judgment, costs, interest, and damages for delay if the appeal is dismissed or the judgment is affirmed. On the filing of a supersedeas bond, the execution of the judgment appealed from and all further proceedings thereon will be stayed.

Front 277

Scope of Appellate Review of Judgment

Back 277

1) Matters of Law: The scope of appellate review encompasses matters of law where the trial court committed error and the error was prejudicial.
2) Matters of Fact:
-Substantial Evidence: Ct. will affirm that the verdict is supported by substantial evidence on which a reasonable person could decide as the jury did.

-Clearly Erroneous: Applicable to factual findings by a judge. Judicial findings are not reversed unless the reviewing court concludes that the findings were clearly erroneous--appellate court has a firm, definite conviction that the lower ct. judge made a mistake.

-Important Caveats: Appellate court will not consider the sufficiency of the evidence to sustain the verdict for judgment or according to a decision the sufficiency of the evidence to warrant the giving of requested jury instructions, unless a motion for new trial was given to the TC. (Motion for new trial is necessary to preserve appeal)

Front 278

MISC: Service of Papers Other than Process

Back 278

When Service Required:
-Every order required by its terms to be served.
-Every pleading subsequent to the complaint
-Every paper relating to discovery
-Every written motion other than one that may be heard ex parte; and
-Every written notice, appearance, demand, offer of judgment, designation of record on appeal and similar paper.
NO service is needed on parties in default for FTA, except for pleadings asserting new or additional claims for relief, and such pleadings shall be served as a service of process
-Pro Se parties should be served personally, those who are represented should be served through their attorneys, unless the court directs otherwise.

Front 279

MISC: Subpoenas

Back 279

-Issued by the clerk in blank to the party who fills it in prior to service.
-Subpoena Duces Tecum: Production of documentary evidence-on objection of person subpoenaed, ct. may:
--quash, modify subpoena if unreasonable and oppressive
--Condition denial of motion on advancement by the party issuing the subpoena of the reasonable costs of producing the papers.

Service: May be served anywhere within the state by sheriff or any other person who is over 18 and not a party, personally with tender of a day's witness fee and mileage.

Contempt: A person who fails to obey a subpoena without an adequate excuse will be held in contempt of court.

Front 280

MISC: Time
Computation

Back 280

-Never include day on which event occurred
-Always count the last day of the period unless Sat, Sun or legal holiday. If the last day is a weekend or holiday, the period expires on the next day that's not a weekend or holiday. When time prescribed is less than 11 days, do not count intermediate Saturdays, Sundays or legal holidays.

Front 281

MISC: Time
Enlargement

Back 281

A prescribed time may be enlarged by the court with or without motion if the request is made before the time expires. If the request comes after the expiration of the prescribed time, time may be enlarged by motion only for excusable neglect.

Front 282

MISC: Time
Enlargement--Ct. Can't Enlarge When:

Back 282

Outside the specific statutes if the Prescribed time has expired, AND the action is one of the following
1-Renewed motion for JMOL
2-Motion for amendment of findings
3-Motion for new trial
4-Sua sponte grant of new trial
5-Motion for amendment of judgment
6-Motion for relief of judgment.
Court may extend the prescribed time for these acts IF a party entitled to notice of entry on judgment or an order was not notified by the clerk or another party within 21 days of entry, and if no party would be prejudiced by an extension. The court may (upon motion filed within 30 days after expiration of the period originally prescribed or within 7 days of receipt of notice, whichever is earlier) extend the time for taking action for 10 days from the date of entry of the order granting the motion.

Front 283

MISC: Time
Additional time after service by mail

Back 283

Service by mail give the opposing party 5 additional days to do whatever she may have to do.

Front 284

Motion Practice: Form

A motion is required for application to any order

Back 284

1) Motions should be in writing, unless made during a hearing or trial
2) Motion should state with particularity the grounds therefore
3) Motion should set forth the relief sought
4) Rules applicable to captions, signing and other matters of pleadings apply to motions.

Front 285

Motion Practice:
Points and Authorities

Back 285

A legal memorandum must be filed with a motion. the memorandum should be attached to the motion
1) Concise statement of material facts
2) Specific points of law and authorities supporting the motion (this is in addition to the statement of grounds in the motion itself.)

The party opposing the motion is required to file within 10 days a memorandum in opposition. Otherwise, the court may take the motion as conceded. The moving party may then file a reply memorandum within 5 days.

Front 286

Motion Practice: Non-Appearance at Hearing

Back 286

If either party fails to appear this may be deemed a consent to denial or granting of the motion and the court may summarily dispose of the motion.

Front 287

Proceedings in Forma Pauperis

Back 287

AZ may extend the time for paying court fees for cause shown.
AZ Supreme Ct. interpreted the statute as giving trial courts discretion to permit indigent civil litigants to proceed without prepayment of court filing costs and other fees, postponing collection until after completion of the action; the fees could not be waived altogether.
Ct. held that Boddie requires waiver of fees for indigent civil litigants applies only where a fundamental right is implicated (as in divorce, child custody, dependency, etc.) and the state exercises a monopoly over the ultimate resolution of the dispute involving the right. In all other situations, AZ Statutes 12-302 and ct. has discretion only to postpone fee payments.

Front 288

Limitations on Actions: Common Forms of Actions--ONE YEAR

Back 288

1 year SOL on
malicious prosecution, false imprisonment, libel, slander, seduction or breach of promise to marry, breach of employment K, wrongful termination, and for ANY LIABILITY CREATED BY STATUTE.

Front 289

Limitations on Actions: Common Forms of Actions--TWO YEARS

Back 289

2 year SOL on:
- Personal injury
- Wrongful death
- Property Damage
- Conversion; and
- Forcible Entry and Detainer

Front 290

Limitations on Actions: Common Forms of Actions--THREE YEARS

Back 290

-Oral K
-Stated or open account
-and for relief on ground of fraud or mistake

Front 291

Limitations on Actions: Common Forms of Actions--FOUR YEARS

Back 291

Actions to require specific performance of K to convey realty.

Front 292

Limitations on Actions: Common Forms of Actions--SIX YEARS

Back 292

Written K for debt

Front 293

Limitations on Actions: Common Forms of Actions--EIGHT YEARS

Back 293

Limitation after substantial completion for actions based on improvements to property

Front 294

Limitations on Actions: Common Forms of Actions--TWELVE YEARS

Back 294

Product liability actions may not be commenced if the cause of action accrues MORE than 12 years after teh sale of the product, unless the action is based on breach of warranty or negligence by the manufacturer or seller.
**NOTE: The AZ Supreme Ct. has held that THIS statute violates the state constitutional prohibition on abrogation of the right to maintain an action for personal injury, as in some cases, claims would be barred even before injury occurred.

Front 295

All other actions without limitations specifically prescribed:

Back 295

4 years

Front 296

Limitations of Actions-
Absence from State

Back 296

While absence from the state tolls the running of the applicable SOL, the term "absence" has been construed to mean not subject to service of process via the long-arm statute.

Front 297

Limitations of Actions-
Disabilities

Back 297

Minority and insanity toll the SOL, but such period is not extended by the tacking of one disability to another. That is, when the SOL starts to run, it continues to run notwithstanding an intervening disability.

Front 298

Limitations of Actions-Acknowledgment of Barred Action

Back 298

No acknowledgment of a barred action is admissible in evidence unless it is in writing and signed by the party to be charged thereby.

Front 299

Limitations of Actions-
Presumption of Death from Absence

Back 299

A person who has been absent from his last place of domicile for the last five consecutive years is presumed dead.

Front 300

Limitations of Actions-
Non-Applicability of SOL

Back 300

Non-Applicability is left to the state and it's political subdivisions.

Front 301

Limitations of Actions-
Commencement of Action

Back 301

Filing of a complaint before the action is barred interrupts the running of the SOL, providing that the action is thereby diligently prosecuted.
REMEMBER: Under AZ R. 4(i) the action may be dismissed if service is not made within 120 days of filing the complaint.

Front 302

Limitations of Actions-
Savings Statute

Back 302

AZ's savings statute provides that if an action is timely commenced and is subsequently terminated for some reason other than abatement, voluntary dismissal, dismissal for want of prosecution, or final judgment on the merits, a new action may be commenced for the same cause within 6 months of the termination, despite the fact that the SOL may have already run. Even if the termination was for one of the above reasons, the TC still has discretion to allow a second action to be filed within 6 mo. of the termination.

Front 303

Former Adjudication

Back 303

Fomer adjudication is a court-made doctrine that prevents waste of court time, and provides repose for the parties.

Front 304

Former Adjudicaiton: Res Judicata

Back 304

Bars a new litigation on the same claim or cause of action once it has been fully litigated. This bar operates to prevent re-litigation of every issue that was or could have been litigated in the first suit.

Front 305

Former Adjudication: Res Judicata:
Final Judgment on the Merits

Back 305

Before res judicata can be raised to prevent relitigation of an issue, there must have been a final judgment on the merits.

FINAL JUDGMENTS:
-Default judgment
-Summary judgment
-Dismissal WITH Prejudice, including : For failure to state a claim on which relief could be granted, and for failure to prosecute or to obey an order of the court.

Front 306

Former Adjudication: Res Judicata: Non-Final Judgments

Back 306

1) Judgments in a case in which the court did not have PJ, UNLESS:
-D appeared and litigated the question of jurisdiction; and
-Probably if she appeared and had the opportunity to litigate jurisdiction--unless lack of SMJ was patent, and/or there were clear overriding policy considerations
2) Dismissals were without prejudice

Front 307

Former Adjudication: Res Judicata: Final Judgment on the Merits: Effects of Appeal

Back 307

A judgment is final even when an appeal is pending. Where a judgment in one case has been made the basis for for a judgment in a second case, the judgment will stand as res judicata even though the first judgment may subsequently be reversed.

Front 308

Former Adjudication: Res Judicata:
Parties in Second Suit Must be Same as in First Suit

Back 308

For res judicata to bar a subsequent suit, the parties in the second suit must be the same as those in the first. This includes those in privity with parties in the first suit. One in privity is a person so identified in interest with a party to former litigation that he represents precisely the same legal rights in respect to the subject matter involved.

Front 309

Privity:

Back 309

The following are considered "in privity"
1) Vendor / purchaser
2) Assignor / Assignee
3) Executor or Administrator and heirs or devisees; and
4) Trustee and cestui que trust

NOT IN PRIVITY:
1) Agent and principal
2) Partners;
3) Corporation and corporate officers or stockholders
4) Husband and wife--unless it concerns jointly owned or community property or joint obligations and
5) Persons secondarily liable as against those primarily liable (but not brought in through 3rd party actions) --but there is some pre-Federal Rules authority that mere notice to that person is enough.

5)

Front 310

Privity:
-Joint obligors
-Joint and several liability
-Class Actions

Back 310

Joint Obligors: Suit against one joint obligor bars suit against the other.

Joint and Several Liability: Suit against one person does not bar any subsequent suit against the others jointly and severally liable with him, but the injured person may not have more than full satisfaction.

Class Actions: If the first suit was a class action, members of the class are bound if they were adequately represented, even though they never became parties to or even knew of the first suit, if the requirements of AZ R. 23 were satisfied.

Front 311

Res Judicata: Same Subject Matter or Cause of Action

Back 311

Res Judicata cannot be raised unless both suits involve the same subject matter, or the same cause of action.
1) Different theories don't save it.
2) Identify of issues, facts and evidence must be examined.
3) A single cause of action cannot be split: P must bring forward her whole case: She cannot thereafter open the same subject of litigation in respect ot matters that might have been brought forward in the original suit.

Front 312

Collateral Estoppel:

Back 312

Collateral estoppel; makes the prior determination of an issue of fact conclusive IF the issue was litigated and determined on the merits in the original action
1) Second cause of action or claim must differ from the first.
2) There must be an issue of fact in common
3) Common issue of fact must have been actually litigated and decided in the first case.
4) Decision of the common issue must have been necessary to the result in the first case.
5) Judgment in the first case must be final.
6) Parties in the first case must be the same in the second OR their privies.

Front 313

Injunctions and Restraining Orders:
Prohibitive Writs
(oh thank G-d... familiar turf!)

Back 313

Prohibitive Writ: Forbids D from some act or prohibits his servants or agents from doing some act, which he is threatening or attempting to commit or IS committing.

Front 314

Injunctions and Restraining Orders:
Mandatory Injunction

Back 314

Commands D to do some positive act (originally it prohibited him from refusing to do some act)

Front 315

Injunctions and Restraining Orders:
Equitable Relief

Back 315

Cannot issue if there is adequate remedy at law.

Front 316

Injunctions and Restraining Orders: TRO

Back 316

Maintains the status quo until the ct. can hear and act on a motion for preliminary injunction.
TRO: 10 day max and can be renewed only once.

Front 317

Injunctions and Restraining Orders:
Ex-Parte TRO

Back 317

TRO may be granted as ex parte, but only if atty certifies in writing the efforts if any that were made to give notice to the party sough to be restrained and the reasons supporting any claim that notice should not be required.

1) Notice may be telephonic
2) Every TRO granted w/o notice MUST:
a) Be endorsed with the date and hour of issuance
b) Be filed in the clerk's office and entered of record
c) Define the injury
d) State why the injury is irreparable
e) State why the TRO was granted without notice.
3) Where a TRO is granted w/o notice, a motion for preliminary injunction should be set for hearing at the earliest possible moment.
4) Party against whom a TRO was granted without notice may appear and move for its dissolution or modification on two days notice or such shorter notice as the court may prescribe.

Front 318

Injunctions and Restraining Orders:
Preliminary Injunction

Back 318

Maintains status quo in pendente lite until the court decides the case on the merits:
-Preliminary injunction will not be granted without notice and a hearing
-Standard applied (also applicable to TRO):
---Likelihood of success on the merits
---Irreparable harm to moving party
---Balanced against irreparable harm caused by preliminary injunciton
---Public Interest Considerations.

Front 319

Injunctions and Restraining Orders:
Security

Back 319

No TRO or preliminary injunction will be granted by the ct. except on the giving of security in such sum as the court deems proper for the payment of costs and damages as may be incurred by any party who is found to have been wrongfully enjoined or restrained.

Front 320

Injunctions and Restraining Orders:
Form of TRO or Injunction Order

Back 320

1) Shall state reason for issuance
2) Shall be specific in terms
3) Shall describe in reasonable detail the act or acts sought to be restrained; and
4) Are binding only on the parties to the action, their officers, agents, servants, employees and attorneys and upon those persons in active concert or participation who receive actual notice of the order by personal service or otherwise.

Front 321

Types of Extraordinary Writs Available at Common Law:
Prohibition

Back 321

A writ of prohibition is used to prevent a lower ct. or public officer from wrongfully assuming jurisdiction of a party, case, or some collateral matter--as long as jurisdiction is not doubtful, and does not depend on evidence not of record and the complaining party does not have an adequate remedy by appeal.

Front 322

Types of Extraordinary Writs Available at Common Law:
Mandamus

Back 322

Confines an inferior court or public officer to a lawful exercise of prescribed jurisdiction or compels the officer to exercise authority when it is her duty to do so. Mandamus cannot be used to compel the lower court to decide in a certain way.

Front 323

Types of Extraordinary Writs Available at Common Law:
Habeas Corpus

Back 323

A writ of HC is nominally a civil proceeding inquiring into the cause for and legality of imprisonment or other significant restraints on the liberty of a person.

Front 324

Types of Extraordinary Writs Available at Common Law:
Ne Exeat

Back 324

Ne Exeat writ prohibits a person from leaving the jurisdiction. It was important in old equity proceedings but is used most often in DR proceedings today.

Front 325

Types of Extraordinary Writs Available at Common Law:
Quo Warranto

Back 325

Special action brought by the AG in the name of the state or where she fails to act, at the request of an interested person, to make inquiry into the lawfulness of another person's purporting to hold or exercise any public office or franchise within the state.

Front 326

Extraordinary Relief: Arizona Rules of Procedure for Special Actions

Back 326

Govern proceedings, and applications for extraordinary relief previously made available under writs of
1) certiorari
2) prohibition; and
3) mandamus

Front 327

Extraordinary Relief: Rules for Habeas Corpus, Quo Warranto and Ne Exeat

Back 327

Habeas Corpus and Quo Warranto procedures are both governed by special statutes. Ne Exeat is a common law suit.

Front 328

Abatement at Death and Non-Assignability:

Back 328

These causes of action (and ONLY the following) abate with the death of the person allegedly wronged. Cases hold these causes of action cannot be assigned inter vivos, but all others can:
1) Breach of promise to marry
2) Seduction
3) Libel and Slander
4) Separate maintenance and alimony
5) Invasion of privacy
6) Pain and Suffering; and
7) Loss of consortium