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39 Cards in this Set
- Front
- Back
What 2 events does a 26(f) pretrial conference trigger? |
1. The beginning of the "puking stage"- Document requests (R34), interrogatories,depositions 2. 14 days after 26(f) conference parties mustreveal mandatory initial disclosures
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What does a R16 mandatory pretrial meeting with the judge trigger? |
- Occurs 60 days after D appears - If D does not appear, it occurs 90 days after service - Judge sets a date for the end of Discovery |
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What does Stage 1 of Discovery include? |
Mandatory initial disclosures
- Must be disclosed at the beginning or cannot beused later as evidence - Witnesses Copy of all supporting documents, Damages calculations (for P only), Insurance policies (for D only) |
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What does Stage 2 of Discovery include? |
Party-Initiated Discovery - Must be relevant, non-privileged, and proportional - R34- Document request - R 35- a party can request documents and depositions from a non-party if it is relevant (limit 10 each side), non-privileged, andproportional - Interrogatories (limit of 25 and no 3rd parties) - R36(b)- Request for Admissions (No limit- asks other party to admit something)
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What is spoliation? |
Destruction/alteration of evidence or failure topreserve evidence |
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What is a 26(g) certification? |
Certifies that the party conducted a reasonable investigation, and to the best of the party’s knowledge theresponses are accurate - Must be certified by attorney/party |
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What is a R35 default judgment? |
When a party against whom a judgment foraffirmative relief is sought has failed to plead or otherwise defend, and thatfailure is shown by affidavit or otherwise, the clerk must enter the party’sdefault. |
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What must exist for a default judgment? |
1. The P’s claim must be for a “sum certain or a sum that can be made certain by computation” 2. The P must submit an “affidavit showing the amount due” 3. The D must not have appeared in the lawsuit 4. The D must not be a minor or incompetent person |
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What is a R41 involuntary dismissal? |
- Like a default judgment, but used by the D - If P fails to prosecute or comply with rules or a court order, D may move to dismiss the action - One year (standard in most jurisdictions) must go by with zero action in case - Adjudication on the merits- dismissal cannot be re-litigated; leads to preclusion |
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What is a R41 voluntary dismissal? |
When P moves to dismiss his own case |
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What are 3 ways for P to voluntarily dismissits own case? |
1. Allows P to dismiss any time before the D answers 2. Allows P to dismiss any time if all partiesagree 3. Dismissal by court order, on terms that the court considers proper - P may have to reimburse D for any costs incurredby lawsuit
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What are 4 techniques for settlement? |
1. If lawsuit has not been filed, P agrees not to file a threatened lawsuit 2. If lawsuit is already filed, P agrees to seek a voluntary dismissal 3. If a lawsuit is already filed, P consents to a dismissal with prejudice 4. If a lawsuit is already filed, parties stipulateto a judgment- stipulated, agreed to, negotiated agreementpresented to the judge, which he reviews and converts to a judgment |
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Describe arbitration |
- Proceeding governed by k in which a dispute is resolved by an impartial adjudicator, chosen by the parties, whose decision theparties have agreed to accept as final and binding. - An award from an arbitrator is generally final - To overturn an arbitration decision, P must showthat the arbitrator was either corrupt or went beyond the clause’s grantedpowers. Bad faith standard. |
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When is summary judgment granted? |
- A court can grant summary judgment in cases inwhich there is no material factual dispute. - Reasonable jury standard- could they find for the opponent? If so, not entitled to a summary judgment. |
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What should you argue when seeking summary judgment? |
1. Facts are undisputed and in movant’s favor 2. Based on these facts, a rational jury would only find for movant 3. No need for trial |
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What is the deadline to file a motion for summary judgment? |
No later than 30 days following the close of discovery |
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claim preclusion |
Prevents relitigation of a claim in second court(F2) bc either the claim was fully litigated in first court (F1) or the claimshould have been litigated in F1 since claim arose from the same transaction. |
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What are the 3 requirements for claim preclusion underfederal law? |
1. An identity of the claims (same claim) 2. Identity of parties (same parties) 3. A final judgment on the merits |
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issue preclusion |
Arises when the claim (cause of action) at thebar has not been litigated, but the exact issue that is now before the court has been raised andlitigated in an earlier action or proceeding. |
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When is issue preclusion appropriate? |
When an issue of fact or law is actuallylitigated and determined by a valid and final judgment in F1, and thedetermination is essential to the judgment in F1, and the party burdened withissue preclusion has an adequate opportunity and incentive to litigate theissue in the earlier proceeding in F1, then the determination is conclusive ina subsequent action in F2 between the parties, whether on the same or adifferent claim. |
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What are the 3 requirements for issue preclusion? |
1. Issues inthe first and second litigation must be identical and must have been before acourt. 2. Issue must have been actually litigated 3. A final judgment must have beenrendered, ultimately deciding the issue in question |
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What are the 4 Fairness Factors from Parklane for issue preclusion? |
1. Could the party trying to assert collateral estoppel have intervened in the earlier suit? 2. Did defendant have incentive to litigate the first action? 3. Are there multiple, prior inconsistent judgments? 4. Are there any procedural opportunities availableto defendant in the second suit that were not available in the first suit? |
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4 prerequisites for issue preclusion |
1. The issue in the second case must be the same as the issue in the first. 2. The issue must have been actuallylitigated. 3. The issue must have been actuallydecided. 4. The issue must have been necessary to the court's judgment. |
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joinder |
A party asserting a claim may join as manyclaims as it has against an opposing party. |
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compulsory counterclaim |
A pleading must state as a counterclaim any claimthat- at the time of its service- the pleader has against an opposing party ifthe claim: (A) Arises out of the same transaction oroccurrence that is the subject matter of the opposing party’s claimú (B) Does not require adding another party overwhom the court cannot acquire jurisdiction |
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permissive counterclaim |
- A pleading may state as a counterclaim againstan opposing party any claim that is not compulsory - Court will not have supplemental jurisdiction,and counterclaim will need to have an independent basis for SMJ. |
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compulsory joinder R19 |
- Missing P’s or D’s that are critical to case and case cannot continue without them |
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What are the 3 steps for analyzing whether a party should be joined or not under R19? |
1. In that person’s absence, the ct cannot accordcomplete relief among existing parties 2. If absent party is required, determine whetherjoinder is feasible 3. If joinder of required absentee is not feasible,the court must determine whether in “equity and good conscience” the case canproceed without the absentee |
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3rd party impleader R14 |
D, as a 3rd party P, may serve summons and complaint on nonparty who is or may be liable for all or part of the claims against it |
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What is the deadline for filing a 3rd party impleader? |
Within 14 days of serving original answer |
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When is permissive joinder of parties appropriate? |
- Persons may join in one action as P's if: - They assert any right to relief jointly, severally, and in the alternative with with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences - any question of law or fact common to all P's will arise in the action - Persons may join as D's when: - Any right to relief that should be asserted against them jointly, severally, or in alternative with respect to or arising out of the same transaction - Any question of law or fact that is common to all D's |
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Interpleader |
allows a plaintiff or a defendant to initiate a lawsuit in order to compel two or more other parties to litigate a dispute. An interpleader action originates when the plaintiff holds property on behalf of another, but does not know to whom the property should be transferred. |
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stakeholder |
In an interpleader action, the party initiating the litigation, normally the plaintiff |
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res |
The money or other property in controversy in an interpleader action |
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claimants |
All defendants having a possible interest in the subject matter of the case in an interpleader action |
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What are the 2 stages of an interpleader? |
1. Determine if the stakeholder is entitled to an interpleader and if he should be discharged from liability. 2. Like an action at law to determine which of the claimants is entitled to the res |
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intervention |
a procedure to allow a nonparty, called intervenor to join ongoing litigation, either as a matter of right or at the discretion of the court, without the permission of the original litigants. |
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What is the basic rationale behind intervention? |
A judgment in a particular case may affect the rights of nonparties, who ideally should have the right to be heard. |
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permissive intervention |
The court may allow anyone given a conditional right by federal statute or who has a claim or defense that is shared with the main action a common question of law or fact |