Deadlines
How long does a party have to serve a responsive pleading?
What is within 21 days of being served with the summons and complaint, 60 days if service is timely waived, or 90 days if outside the U.S.?
What is the rule from Iqubal/Twombly?
What is possible to plausible?
When MUST a pleader state its counterclaim?
What is when it arises out of the same transaction or occurrence; and does not require adding a party over whom the court cannot acquire jurisdiction?
What must be included in the initial disclosures?
(1) Contact information of individuals likely to have discoverable information; (2) Copy or description of all documents and ESI that the disclosing party has in its possession to support its claims or defenses; (3) computation of each category of damages (and documents related to the damages); (4) insurance agreements; and (5) witnesses intended to be used a trial.
What must a request for production include?
(1) must describe with reasonable particularity each item or category of items to be inspected; (2) must specify reasonable time, place, and manner for inspection; and (3) may specify the form or forms for ESI to be produced.
When may a court grant a motion for summary judgment?
When there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law.
When must a third-party plaintiff obtain the court's leave to file a complaint against a nonparty?
What must a pleading stating a claim for relief contain?
What is
(1) a short and plain statement of the jurisdiction
(2) a short and plain statement of the claim
(3) a demand for relief sought?
When MAY a pleader bring a counterclaim?
What is a pleading may state a counterclaim against an opposing party any claim that is not compulsory?
True/False: A witness providing expert testimony must provide a written report.
What is True.
Procedures for producing ESI.
(i) a party must produce documents as they are kept in the usual course of business or organize and label them to correspond with the requested categories; (ii) if a request does not specify the form, a party must produce it in a form or form in which it is ordinarily maintained or in a reasonably usable form; and (iii) a party need not produce the same ESI in more than one form.
What are the grounds for a new trial?
Rule 59. The court may, on motion, grant a new trial on all or some issues as follows: (1) after a jury trial, for any reason for which a new trial has been granted in an action at federal law; (2) after a nonjury trial, for any reason for which a rehearing has been granted in a suit in equity in federal court.
A party may amend its pleading once as a matter of course within:
What is 21 days after serving it; or 21 days after service of a responsive pleading; or 21 days after service of a motion?
Rule 9(b).
What is fraud or mistake?
When may a pleader state a crossclaim?
What is when the coparty may be liable for all or part of the of the claim asserted in the action. The claim arises out of the same transaction or occurrence or relates to any property from the original action?
When can a party not provide discovery of ESI?
When the sources are not "reasonably accessible because of undue burden or costs." (The court may still order them to do so if the requesting party shows good cause)
Physical and Mental Examinations generally.
Rule 35. The court may order a party whose mental or physical condition (or blood group) is in question to submit to a physical or mental examination. Also applies to a person in state custody or under legal control.
Grounds for Relief from a Final Judgment, Order, or Proceeding:
for the following reasons: (1) mistake, (2) newly discovered evidence, (3) fraud, (4) Judgment is void, (5) Judgment is satisfied; (6) Other.
How long does a party have to make their initial disclosures?
What is at or within 14 days after the party's Rule 26(f) conference unless their is a court stipulation or party objection?
Rule 12(b).
By motion:
(1) lack of subject-matter jurisdiction; (2) lack of personal jurisdiction; (3) improper venue; (4) insufficient process; (5) insufficient service of process; (6) failure to state a claim upon which relief can be granted; and (7) failure to join a party under Rule 19.
What is third party practice (impleader)?
What is a defending party may, as third-party plaintiff, serve a summons and complaint on a nonparty who is or may be liable to it for all or part of the claim against it?
When a court MUST limit discovery:
(1) the discovery sought is unreasonably cumulative or duplicative, or can be obtained through a more convenient, less burdensome, or less expensive source; (2) the party seeking has ample opportunity to obtain the information; (3) the proposed discovery is outside the scope.
When may a party or examined person receive a report of the physical or mental examination?
Upon request. Must receive the examination and all previous examinations relating to the same condition.
What are the mistake factors for relief from judgment?
(1) a risk of prejudice to the non-movant, (2) length of the delay, (3) reason for delay, (4) whether the movant acted in good faith.
How long do parties who are joined after the Rule 26(f) conference have to make initial disclosures?
What is within 30 days after being served or joined unless otherwise stipulated by the court?
The court may strike an insufficient defense or any redundant, immaterial, impertinent or scandalous matter. The court may act:
When does an amendment relate back?
What is when the statute of limitations allows it to; the claim arises out of the same transaction or occurrence from the original pleading; or when the amendment changes the name of the party against whom the claim is asserted, the claim arose out of the same transaction or occurrence, and service is proper: the party may be brought if they (1) received notice of the action; and (2) knew or should have known that the action would have been against them but for a mistake of identity?
When may a party discover trial preparation materials that are normally not discoverable?
(1) they are otherwise discoverable under 26(b)(1); or the party shows that it has substantial need and cannot without undue hardship obtain the information through other means.
What may a request for admission include?
(i) facts, the application of law to fact, or opinions about either; (ii) the genuineness of any described documents.
What are the newly discovered evidence factors for relief from final judgments?
(1) newly discovered since the trial, (2) movant's due diligence, (3) not cumulative or impeaching, (4) must be material, (5) must be such that new trial would equal new result
How long does a party have to disclose an expert testimony?
What is at least 90 days before the date set for trial or for the case to be ready for trial or if the evidence is solely to contradict another party's evidence, within 30 days after the other party's disclosure?
Which defenses are waived if they are not brought initially?
What is 12(b)(2)-(5)?
How many times may a party ammend?
What is once as a matter of course within 21 days of serving the pleading, or 21 days after service of a required response or motion, and any number of times with the other party's written consent or the court's leave?
When there is a trial preparation discovery exception, what materials must the court protect against disclosure?
mental impressions, conclusions, opinions, or legal theories of the party's attorney or other representative concerning the litigation.
What rule covers discovery sanctions?
Rule 37.
What is the definition of fraud for relief from judgment?
Prove with clear and convincing evidence that the verdict was obtained through fraud.
When must pretrial disclosures be made?
What is at least 30 days before trial?
Rule 8(b).
Admissions and Denials. A denial must fairly respond to the substance of the allegation. May deny all allegations through a general denial. May admit some and deny the rest. If a party claims to lack sufficient knowledge, they must state it. If an allegation is not denied, it is admitted.
When is it necessary to join a party?
What is if in that person's absence, the court parties cannot get complete relief, or the person claims an interest and disposing of the action in the person's absence may: (1) impair and impede the person's ability to protect the interest, or (2) leave an existing party subject to a substantial risk of incurring inconsistent obligations?
Seventh Ammendment.
Must compare to 18th century relief. Is the relief for legal relief or equitable damages? If equitable there is no jury. If there is legal relief there is a jury.
What is the rule for an offer of Judgment?
A defendant can offer judgment 14 days before trial. The Plaintiff has 14 days to respond. If Plaintiff does not accept and the final judgment is less than the offer, Plaintiff must pay the defendant's attorney fees up to that point.
How long in advance must parties meet and confer before a scheduling conference?
What is as soon as practicable and at least 21 days before the scheduling conference?
Rule 8(c)
Affirmative Defenses and Mistaken Designation.
When Joinder is not feasible.
Factors to consider: (1) if a judgment in that person's absence would prejudice that person or existing parties; (2) if prejudice would be lessened or avoided by: (A) protective provisions in the judgment, (B) shaping the relief, (C) other measures; (3) whether a judgment would be adequate; and (4) whether the plaintiff would have an adequate remedy if the action were dismissed.
Written and Oral Depositions. (How many per side, how many hours, who may be questioned, notice requirements)
Max 10 per side. Each limited to 7 hours. Limits may be modified by agreement or court order. Allows a party to question, under oath, any person thought to have testimony relevant to the dispute, whether or not they are a party. Must provide reasonable written notice to other parties - specify how its going to be recorded. Deponent may review the transcript.
What is the case that says if there are equitable damages and legal relief there must be a jury trial first
Beacon
What is the rule number for dismissals?
Rule 41
How long does a party have to serve its answers and objections after being served with interrogatories?
What is within 30 days?
Which rule addresses sanction?
Rule 11(c).
When a party MAY be joined.
if they assert any right to relief jointly from the same transaction or occurrence or series of transactions or occurrences; and there is any question of law or fact common to all plaintiffs.
When may a deposition be used for unavailable witnesses?
if the court finds: (1) that the witness is dead; (2) the witness is more than 100 miles from the place of the hearing; (3) that witness cannot attend due to age, illness, infirmity, or imprisonment; (4) could not subpoena the witness; (5) on motion and notice the exceptional circumstances allow it in the interest of justice.
(i) a notice of dismissal before the answer or motion for summary judgment; or (ii) a stipulation of dismissal signed by all parties who appeared.
What is the rule number for subpoenas?
Rule 45.
How long does a party have to respond and object to a request for production?
What is within 30 days after being served or within 30 days of the meet and confer under Rule 26(f). See Rule 34(b)(2)
True/False. Every written motion must be signed by at least two attorneys of record.
What is False.
Every motion must be signed by at least ONE attorney of record OR by a party personally if unrepresented.
What is interpleader?
Rule 22. Procedural device that permits a party in possession of property it does not claim to own, the stakeholder, to join all prospective claimants to the property in a single action to determine ownership of the property.
How many Interrogatories are allowed?
25 written interrogatories including all subparts.
Involuntary Dismissal.
What is the Rule number for Judgments as a matter of law?
Rule 50.
How long does a party have to demand a jury trial?
What is no later than 14 days after the last pleading is served?
True/False: A motion for sanctions must be made separately from any other motion.
What is true.
Interpleader Statute. (give the differences)
28 US 1335.
1. minimal diversity among claimants 2. $500 3. PJ is nationwide 4. Venue is anywhere claimant resides.
What is the scope of interrogatories?
An interrogatory may relate to any matter than may be inquired into under 26(b).
A claimant's voluntary dismissal under Rule 41 (under notice of dismissal) must be made:
(1) before a responsive pleading is served; or (2) if there is no responsive pleading, before evidence is introduced at a hearing or trial. Rule 41(c)
What are the rule numbers for depositions by written question and oral depositions?
Rule 30 and 31.
How long does a party have to object to a subpoena?
What is the earlier time specified for compliance or within 14 days after the subpoena is served?
What does Rule 12(h) discuss?
What is when parties may waive defenses?
Interpleader Rule. (Give the differences)
Rule 22. 1. complete diversity 2. greater than 75k 3. PJ is governed by 4k 4. venue determined by 1391
What is the scope of discovery?
26b1. Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case.
When can you serve a subpoena on a non party?
When the nonparty is within a 100-mile radius of the court.
What is the rule number for interrogatories?
Rule 33
How much notice must be given to a party with a default judgment against them who has appeared personally or by representative?
What is written notice at least 7 days before the hearing.
Name 3 affirmative defenses.
What is (1) accord and satisfaction, (2) arbitration and award; (3) assumption of the risk; (4) contributory negligence; (5) duress; (6) estoppel; (7) failure of consideration; (8) fraud; (9) illegality; (10) injury be fellow servant; (11) laches; (12) license; (13) payment; (14) release; (15) res judicata; (16) statute of frauds; (17) statute of limitations; (18) waiver?
Intervention of Right.
Rule 24. Must permit anyone to intervene who: (1) is given an unconditional right to intervene by federal statute; or (2) claims an interest relating to the property or transaction and disposing of the action may impair or impede the movant's ability to protect its interest.
What are the discovery proportionality factors under the scope of discovery?
1. amount in controversy
2. the importance of the issues at stake in the action
3. the parties' resources
4. the importance of discovery in resolving the legal issue
5. whether the burden or expense of the proposed discovery outweighs its likely benefit.
When may a party get a judgment as a matter of law?
When a party has been fully heard on an issue and the court finds that a reasonable jury would not have the legally sufficient evidentiary basis, the court may:
(A) resolve the issue against the party; and (B) grant a motion for judgment as a matter of law.
A motion for a judgment as a matter of law may be made at any time before the case is submitted to the jury.
What is the rule number for mental and physical examinations?
Rule 35
How long does a party have to file a motion for a new trial?
What is no later than 28 days after entry of judgment?
What is if a party mistakenly designates a defense as a counterclaim or a counterclaim as a defense, the court must, if justice requires, treat the pleading as though it were correctly designated, and may impose terms for doing so?
Permissive Intervention
May permit anyone to intervene who (A) is given a conditional right by a federal statute or (B) has a claim or defense that has a common question of law or fact.
What is discoverable through request for production?
A party may serve on any other party a request for ESI, tangible items, or site visits.
When does the clerk enter a judgment for the amount and costs against a defendant who has defaulted for not appearing?
If the plaintiff's claim is for a sum certain or a sum that can be made by a certain computation.
What is the rule number for Trials by Jury vs Trial by Court?
Rule 39