complaint
complaint (3)
1. answer
2. default judgment
3. motion to dismiss
mandatory disclosures (rule 26(a))
- when/how to obtain
- non-parties?
- limit?
- time to respond?
when/how to obtain: early mtg of counsel, "as soon as practicable"
non-parties: n/a
limit: n/a
time to respond: n/a
requests for admission (rule 36)
- when/how to obtain
- non-parties?
- limit?
- time to respond?
when/how to obtain: party initiates, after rule 26f mtg
non-parties: no
limit: no
time to respond: 30 days (rule 36a), if not responded to within 30 days - deemed admitted
smj (2)
diversity & federal question
rule 13(a) & (b) - counterclaims
a party may assert any counterclaim against an opposing party; unrelated counterclaims are permissive (optional); counterclaims that arise from same T/O as the opposing party's claim are mandatory (waived if not raised)
if its denied?
answer
interrogatories (rule 33)
- when/how to obtain
- non-parties?
- limit?
- time to respond?
when/how to obtain: party initiates, after rule 26f mtg
non-parties: no
limit: yes - 25 per party (rule 33a)
time to respond: 30 days (rule 33b3) if not responded to within 30 days - objections waived
mandatory transfer of venue (28 usc §1406a)
- transfer or dismissal
- requirements of the alternative forum
- what law applies in the transferee/alternative forum
transfer or dismissal: transfer
alternative forum:pj & venue must be proper in the transferee forum
what law applies: transferee (SOL & choice of law rules)
diversity
aic: must exceed $75K
complete diversity: no p can reside in the same state as any d
rule 13(g) - cross claims
co-parties (p or d) may assert a crossclaim against each other if it arises from same T/O as the underlying action or a counterclaim (cross-claims are always optional)
default judgment
case over
documents requested (rule 34)
- when/how to obtain
- non-parties?
- limit?
- time to respond?
when/how to obtain: party initiates, can precede rule 26f mtg, responses due 30 days after
non-parties: yes - with subpoena (rule 45)
limit: no
time to respond: 30 days (rule 34b), if not responded to within 30 days - objections waived
motion to dismiss for improper venue (FRCP 12(b)(3))
- transfer or dismissal
- requirements of the alternative forum
- what law applies in the transferee/alternative forum
transfer or dismissal: dismissal without prejudice (not on the merits)
alternative forum: d does not need to propose an alternative forum
what law applies: p must refile in a new forum state, which will apply own SOL and choice of law rules
supplemental for diversity & exxon rule
supplemental for federal question
diversity:
- supplemental jurisdiction over ancillary but not pendent claims, if they arise from CNOF as the claims over which the court has original jurisdiction
- under the exxon rule, only one p per d must satisfy the aic; additional ps' claims are covered by supplemental jurisdiction if their claims arise from CNOF as those of the p who satisfies the aic
federal question:
- supplemental jurisdiction over all state law claims that arise from the CNOF as the claims over which the court has original jurisdiction
rule 14(a) - impleader/3rd party claims
a defending party may assert a 3rd party claim (impleader) against a new d but only for contribution or indemnity
motion to dismiss (3)
1. denied
2. granted - complaint dismissed with prejudice
3. granted - complaint dismissed without prejudice and with leave to amend
depositions (rule 30)
- when/how to obtain
- non-parties?
- limit?
- time to respond?
when/how to obtain: party initiates, after rule 26f mtg
non-parties: yes - with subpoena (rule 45)
limit: yes - 10 per side (rule 30a2A), 7 hr/side (rule 30d2)
time to respond: must give "reasonable notice" (rule 30b1)
discretionary transfer of venue (28 usc §1404(a))
- transfer or dismissal
- requirements of the alternative forum
- what law applies in the transferee/alternative forum
transfer or dismissal: transfer
alternative forum: pj & venue must be proper in the transferee forum, transferee forum is "more convenient" considering private & public interest factors
what law applies: transferor forum (original forum state) (SOL & choice of law rules from that state)
federal question
well pleaded complaint rule: does federal law create the cause of action in the p's complaint (holmes test)
embedded federal issue: do elements of p's state law claim require the court to interpret a substantial issue of federal law, without disrupting balance between state and federal courts
rule 20(a)(1) & (2) - permissive joinder of parties
multiple d's may be sued in a single case if the p's claims against them arise from same T/O and share a common question of law or fact; same rule applies for multiple p's joining together to file a single complaint
both granted MTD
1. with prejudice - case over (subject to appeal)
2. without prejudice and with leave to amend
- re-file complaint in different court - answer and mtd
- file amended complaint in this court - answer and mtd
mental/physical exams (rule 35)
- when/how to obtain
- non-parties?
- limit?
- time to respond?
when/how to obtain: must show "good cause" & mental/physical condition "in controversy" to obtain court order
non-parties: no
limit: no
time to respond: n/a
motion to dismiss on grounds of forum non conveniens
- transfer or dismissal
- requirements of the alternative forum
- what law applies in the transferee/alternative forum
transfer or dismissal: dismissal without prejudice (not on the merits)
alternative forum: p must have some remedy in the alt. forum (another country); remedy may be worse but it must exist. d may be required to waive certain defenses as condition for dismissal. court considers private & public interest factors
what law applies: p must refile, typically in another country, which will apply its own laws to the dispute
rule 18(a) - claims
a party asserting a "claim, counterclaim, crossclaim, or third-party claim" may join as many claims as it has against an opposing party (claims do not have to be related; unrelated claims are not mandatory)
rule 24 - intervention
rule 19 - mandatory j
rule 24: potential p or d who would like to join the party
rule 19: potential d who must be joined if feasible