pleadings
what is a complaint?
A complaint is the document that the plaintiff files which starts the litigation process, there are three components necessary for a proper complaint. (1) Jurisdictional allegations, (2) short and plain statement showing that the pleader (i.e. π) is entitled to relief and (3) a demand for judgement.
what is discovery?
Discovery is the process of investigation after the pleading stage and prior to trial where research is done by either party in an attempt to gain information to aid their case. Any non-privileged matter relevant to any parties claim or defense, and proportional is discoverable.
what is the waiver trap?
The Waiver Trap means that when a 12(b) motion is filed, 12(b)(2-5) are waived and not able to be filed in any future motions. This results in the Omnibus Rule which states that any potential 12(b) motions can and should be filed together to avoid waiver trap.
what is Rule 11?
Rule 11 is the standard expected by Attorneys and Pro Se litigators, as they have the duty to do a reasonable inquiry under the circumstances in good faith before filing a complaint, and are objectively compared to what a reasonable lawyer would do.
what is non-mutual issue preclusion?
Non-mutual issue preclusion. When the parties differ than the OG lawsuit, but the parties upon which the issue preclusion is being used against is new. Defensive issue preclusion is generally accepted, but offensive issue preclusion is discretionary and rare.
What is Rule 12(b)(6) ?
Rule 12(b)(6) is the defendant’s motion to dismiss on the basis of plaintiff’s failure to state a claim, to determine if it should be dismissed and the Iqbal standard should be applied.
what is the portionality rule in regards to discovery?
Proportionality for discovery is determined by these factors (1) importance of the issue at stake in the action (2) amount in controversy order (3) parties’ relative access to relevant information (4) parties’ resources (5) importance of the discovery in resolving the issue and (6) whether the burden outweighs its likely benefit.
what is joinder?
Joinder is the process of adding additional parties and claims to a lawsuit. The benefits of joinder are consistency, storytelling, efficiency, and offsetting damages (Rule 14). A compulsory claim is an additional claim that arises out of the subject matter of the opposing party’s claim, and must be brought or it is lost and cannot be litigated in the future. A permissive claim does not have to bring in the same lawsuit.
what is discovery abuse?
Discovery abuse is what happens when the opposing counsel refuses to comply with agreed upon discovery procedures. The other party can file specific motions to compel disclosure or discovery response, and if those are met, and eventually go to the Court with sanctions.
what is remand?
plaintiff’s right to move the case that was removed to the federal court BACK to the state court. Can do this either for lack of SMJ (bring up at anytime) or for procedural deficiency (i.e. all defendants did not consent), which must be done within 30 days.
In order to determine if there is a valid claim the Iqbal standard must be applied. Preliminary the non-moving party must be identified (all factual disputes and inferences are taken in favor of the NMP) First, the Court ignores any allegations that are conclusory and secondly, looks at the remaining information and considers if the allegations are plausible rather than merely conceivable.
what is the work product docterine?
The work product doctrine is a quasi-privilege that protects the work products (i.e. memos or notes) of an attorney that were prepared in anticipation of litigation, however work products can be obtained in certain circumstances, when the other party has a substantial need and getting said information would induce undue hardship.
what is Rule 14 (impleading)?
Rule 14 Impleading allows for defendants to bring an additional party in the suit to offset their damages. A defendant can only implead a 3rd party defendant if the party being impleaded may be liable for all or part of π’s claim.
what is judgement as a matter of law?
Judgement as a matter of law is when the Court finds that a reasonable jury would NOT have legally sufficient evidentiary basis to find the party on the issue, and thus either (50a) provides directed verdict to the jury or (50b) overrules the jury’s decision. The standard for JAMOL is that the court will review the NMP’s evidence (in the NMP’s favor) along with any evidence offered by the moving party, then the court will determine whether in light of this evidence a reasonable jury could find in favor of the NMP.
what are the discovery tools?
Discovery tools are what are used by the parties to obtain information during discovery. (1) Interrogatories; limit of 25 written questions to opposing party to ask specific questions, parties have 30 days to answer or object in writing. (2) Depositions, live examination of witnesses without a judge present. (3) Requests for admissions, other party asked to admit facts or admissions of law, typically used for points not in dispute. (4) Document request, requires reasonable particularity, documents from 3rd parties require a subpoena.
what is a responsive pleading?
Responsive pleadings include default judgement, an answer, 12(b), 12(f), and 12(e) motions. Generally responsive pleadings must be answered within 21 days following service, unless there was a denied pretrial motion, which gives the party 14 days after Court’s denial, or service was waived, which gives the party 60 days to answer.
what is the mandatory disclosure?
The mandatory disclosure of certain information that parties are required to disclose to each other due 14 days after the meet and confer. Mandatory disclosure only applies information that will be used to support the party’s claim/defense, specifically including; (1) individuals who are likely to have discoverable information, (2) documents (3) computation of damages and (4) insurance agreements.
what is claim preclusion?
Claim preclusion prevents parties from re-litigating the same claim, thus preventing abuse of the justice system. Claim preclusion should be applied when the (1) same claim, meaning a single group of operative facts (2) same parties (in the same position), and there was a (3) valid final judgement on the merits. The same claim is determined by the transactional test, meaning it arises out of a single group of operative facts. Valid judgement means that the Court had proper jurisdiction over the case, and final means that judgement has actually been entered. On the merits means that the party had an opportunity to have the substance of the case heard.
what is the Rule 11 procedure?
Rule 11 motions can either be served by the opposing party or by the Court (Sua Sponte). If it was served by the opposing party, then the Safe Harbor Provision applies, meaning the moving party will wait 21 days after service to file to Court to allow the other party to fix their mistake before it goes to Court. If the Court makes a Rule 11 on their own accord it is called Sua Sponte and no Safe Harbor Rule applies.
what is removal?
Removal is the right of the defendant to move a civil case from a state court to the federal court counterpart (Vertical Removal), which must be done in the state court's federal counterpart, and within 30 days. All defendants must consent to the removal, and removal can not happen if the removal would result in the removal moving the case into the defendant's domiciled state, if DJ is the only SMJ that the case has (in-state defendant rule).
what is an amended pleading?
An amended pleading is an amendment to a previously filed complaint/answer. Amended pleadings are either discretionary or an amendment of right. A party can amend its pleading within 21 days after it was sent. If the pleading to be amended would require a responsive pleading then the amendment is required within 21 days after service of responsive pleading or 21 days after service under 12(b)(e)(f).
what is the meet & confer?
The meet and confer is the meeting that happens between the two opposing councils where they discuss discovery, this is done to promote fairness, cooperation, and efficiency. The meet and confer must happen at least 21 days before the scheduling order is due.
what is issue preclusion?
Issue preclusion is the inability to relitigate issues or elements within the wider, larger, claim. In order for issue preclusion to be successful it must be (1) the same issue, that was (2) actually litigated (3) with a valid final judgement (4) necessarily decided (5) the same party against whom preclusion is invoked and (6) a full and fair opportunity to litigate.
what is venue?
District within the state where a plaintiff can file a lawsuit. Governing the where, **this and PJ can be waived (i.e. ∆ can agree to be litigated where the complaint was filed)
(1) Districts where the defendant resides → IF all defendants are residents of the same state
Corporation → where they are subject to Personal Jurisdiction
Individual → domicile
Automatically where the defendant resides if there is only one defendant
(2) Where the claim arose
For this not to happen → claim happened overseas, in the ocean, etc.
(3) If 1 or 2 don’t apply → then any district where any defendant is subject to personal jurisdiction
Venue was WRONG/wanna transfer:
28 USC §1406
Filed in wrong venue
Dismissing or transferring a case when the court lacks venue
Transferring only can happen within systems
28 USC §1404
Filed in correct venue
Only applies to transfer
Forum Nonconvenience
Dismissing a correct venue → so it can be refiled to another court outside the system
what is motion for summary judgement?
Motion for summary judgement when there is no genuine issue of material facts, such that they are entitled to judgement as a matter of law. Genuine means that no reasonable jury could return a verdict for the non-moving party. A fact is material if the fact finder’s resolution of it would make a difference or change the outcome of the case. Initially the moving party has the burden to show no genuine issue of material fact, then the burden shifts to the non-moving party to demonstrate that there is a genuine issue of material facts, with the preponderance of the elements standard. All factual disputes should be taken in the light most favorable to the non-moving party.