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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


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

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)





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)




What is spoliation?

Destruction/alteration of evidence or failure topreserve evidence

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

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.

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

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

What is a R41 voluntary dismissal?

When P moves to dismiss his own case

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




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

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.

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.



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

What is the deadline to file a motion for summary judgment?

No later than 30 days following the close of discovery

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.

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

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.

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.

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

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?

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.

joinder

A party asserting a claim may join as manyclaims as it has against an opposing party.

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

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.

compulsory joinder R19

- Missing P’s or D’s that are critical to case and case cannot continue without them

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

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

What is the deadline for filing a 3rd party impleader?

Within 14 days of serving original answer

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

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.

stakeholder

In an interpleader action, the party initiating the litigation, normally the plaintiff

res

The money or other property in controversy in an interpleader action

claimants

All defendants having a possible interest in the subject matter of the case in an interpleader action

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

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.

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.

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