Commencement of a Case
What are the requirements for who may serve a complaint?
(1) must be over 18; and (2) must not be a part to the lawsuit
What is "case management"?
Case Management encompasses a wide variety of activities and procedures applied in cases. Act as “master” orders to govern the entirety of a case. Usually entered after conference of parties
When is the last call on summary judgement motions?
30 days after the close of discovery
What are the three major methods of alternative dispute resolution?
Arbitration, mediation, and negotiation
What is claim preclusion?
Claim preclusion results of an adjudicated lawsuit or claim should be binding and not re-litigated, provided that there is no unfairness in making the first result binding
Elements: prior claim fully adjudicated on the merits; second (or subsequent) action arises out of the first claim (or is the same claim); parties in subsequent action are the same as in the earlier action – or are in privity with parties in the earlier action
What are the requirements to sue on behalf of a class (class action)?
Class is so numerous that joinder of all members is impracticable;
There are questions of law or fact common to the class;
The claims or defenses of the representative parties are typical of the claims or defenses of the class; and
The representative parties will fairly and adequately protect the interests of the class
Define the scope of discovery
This is outlined in Rule 26(b)(1) - 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
What are available motions for the defeated party?
Motion for judgment as a matter of law (JMOL)
Failure to bring this motion or raise an issue will bar the party from raising sufficiency of evidence on appeal
Must occur no later than 28 days after the verdict
Motion for a new trial
Must occur no later than 28 days after the verdict. If granted, case will be re-tried
Motions to amend findings
Can be used to fix errors, large or small
Must occur no later than 28 days after the entry of the judgement
Do the evidence rules apply in arbitration?
No!
What four factors does the court use to decide if they should grant a preliminary injunction?
(1) degree of harm if not granted (2) balance of harms between movant and respondent (3) likelihood of success of movant on the merits of the case (4) public interest
What are the three things a complaint must contain?
(1) a short and plain statement showing grounds for the court's jurisdiction (2) a short and plain statement of the claim (3) demand for relief sought
What are the requirements for responses to interrogatories?
(1) must be signed by the attorney and verified by the party
(2) Due within 30 days after service of the requests
Explain the common law versus equity distinction of the 7th Amendment
Under 7th Amendment, right to a jury trial exists only for causes of action historically recognized at “common law.”
Common Law: damages measure harm to the plaintiff and compensate the plaintiff for that harm. Usual remedy = $ damages
Equity: restitution measures benefits improperly retained by the defendant and disgorges the defendant of that benefit. Usual remedy = injunctions, specific performance, restitution
What are the three stages of negotiation?
Beginning - introductions and agenda setting
Middle - proposals, offers, demands
End - agreement/deadlock
What is a writ of execution?
Writ of Execution – may have wages garnished, bank accounts seized, assets sold, real estate lien
→ Shows how important settlement is because defendant does not want property seized and plaintiff does not want to continue paying attorneys’ fees to actually get the money they are owed!
How does one perform a Hanna analysis?
Is there a direct conflict between the Federal Rule and State Law?
If yes, does the Federal Rule violate the Rules Enabling Act (i.e., is it "procedural" rather than "substantive" and constitutional)?
If the Rule is valid, it applies, even if it changes the outcome
A party may serve on another party a request for documents. What documents/things may be requested?
Any designated documents or ESI stored in any medium
Any designated tangible thing
Property or any designated object controlled or possessed by the responding party
What is the 3-factor test courts apply when determining if a default should be overturned?
The court looks to:
Movant’s culpability
Prejudice to the other side
Does movant have a meritorious claim or defense?
Who acts as the mediator in a mediation?
A third party. The mediator is a certified, neutral mediator, or someone else chosen by the parties
What is the Collateral Order Doctrine?
The Collateral Order Doctrine allows immediate appeal or issues outside the merits of the litigation.
Must show the order is separate from and collateral to the merits
Order must decide important issue that must receive appellate review and
Effective review doubtful if not reviewed immediately
What is the key takeaway from Guarantee Trust Co.?
Federal courts, when applying state law, should regard any state rule as substantive rather than procedural if applying a different rule would significantly alter the outcome of the litigation
Define the requirements and limits of depositions
Limited to one 7-hour session. Limit of 10 per side. Can depose nonparties and parties. Requires reasonable notice. Noticing party gets to specify the location in the notice (may be done in person, by phone, or by video conference).
Define the three stages of injunctive relief
Temporary Restraining Orders (TROs) = orders restricting litigant behavior for a short time until court can decide on preliminary injunction. Emergent situations where something must be done immediately
Preliminary Injunction = stop gap between TRO and permanent injunction. An injunction issued to constrain a litigant’s behavior while the trial is pending
Permanent Injunction = this is a permanent solution, no status quo concept
When is arbitration usually decided upon? Who acts as the arbitrator? What are some benefits of arbitration? Can parties still sue
Arbitration is usually agreed to beforehand (“if dispute arises, we will arbitrate”)
Does not involve a judge, rather, dispute is submitted to a third party civilian
Benefit: arbitrator may be familiar with the subject matter (e.g. an engineer in a construction dispute)
Is a less formal process - evidence rules do not apply
Parties waive their right to sue - this decision is treated as final
What are the six instances where virtual representation applies and parties' interests are represented by one another (Taylor v. Sturgill)?
(1) Bound by agreement (2) Bound by substantive legal relationships (3) Bound when “adequately” represented by someone with the same interests, such as a trustee or guardian (4) Bound when a nonparty assumed control of party’s prosecution or defense of Case One (5) Bound if attempting to relitigate an adverse result through proxy (6) Bound pursuant to a statutory scheme