Plead or Perish
Plaintiff files a complaint alleging negligence but forgets to include any request for damages or injunctive relief. Defendant moves to dismiss, arguing the complaint is “facially defective.”
What does Rule 8 say about this mistake?
Complaint is incomplete
*but courts usually allow amendment, not dismissal with prejudice*
Plaintiff fails to disclose a key witness in initial Rule 26(a) disclosures. Two days before trial, Plaintiff tries to add the witness. Defendant objects.
When can Plaintiff still use the witness?
Only if nondisclosure was substantially justified or harmless (Rule 37(c)(1)).
Court grants Defendant’s summary judgment motion on all claims except one small damages issue. Defendant wants to appeal immediately.
Under §1291, is the order appealable?
No — not final; litigation not fully resolved.
Plaintiff wants a jury trial. They file the complaint, Defendant answers, and 21 days later Plaintiff serves a jury demand. Defendant moves to strike.
Is the jury demand timely under Rule 38?
No — must be served within 14 days after the last pleading raising a triable issue.
Theseus is suing his former employer, Hippolyta, for sexual
harassment in violation of Title VII. The pleadings stage proceeds smoothly,
as do the parties’ initial disclosures under Rule 26(a). The response to his
attorney’s first discovery request, however, presents an issue. Theseus’s
attorney requests “any and all emails from Hippolyta’s business account
mentioning ‘Theseus’ by name, sent during the six months preceding his
termination”; Hippolyta’s attorney provides a single email in response.
Theseus is absolutely certain that there are more emails responsive to the
request—he himself has dozens from her that would fit the description.
What action should Theseus’s attorney take next?
(a) Attempt to confer with Hippolyta’s attorney on the issue.
(b) File a motion to compel discovery.
(c) File a motion for summary judgment.
(d) Serve Hippolyta’s attorney with a Rule 11 notice and, if no corrective action is taken within 21 days, file the motion for sanctions with the court.
(a) Attempt to confer with Hippolyta’s attorney on the issue.
Defendant files a Rule 12(b)(2) motion claiming lack of personal jurisdiction. He forgets to include insufficient service of process. After losing the PJ motion, he tries to raise service defects in his answer.
Can he?
No
12(b)(4) & 12(b)(5) are waived if not included in the first Rule 12 response. (Rule 12(h)(1))
Defendant wants to depose 16 witnesses but hasn’t asked the court for leave. Plaintiff objects.
How many depositions + how long is each, under Rule 30?
10 depositions allowed; each 1 day of 7 hours.
District court issues an order granting an injunction stopping a city from enforcing a new law. City wants immediate appeal.
Which statute allows it?
§1292(a) — injunction orders.
At trial, Defendant never moved under Rule 50(a). After a jury verdict for Plaintiff, Defendant files a Rule 50(b) renewed JMOL.
Will the court consider it?
No — 50(b) requires a 50(a) motion first.
After experiencing adverse side effects from using Puck Corp.’s
medicated eye drops, Lysander files a complaint against the company in the
Northern District of Oklahoma, under a theory of product liability. Lysander
properly sends a waiver request to Puck Corp.’s general counsel, but she
nevertheless refuses to waive service of process. Accordingly, Lysander mails
a copy of the summons and complaint to the home of Puck Corp.’s CEO in Los
Angeles, California.
Which of the following statements is/are true?
(a) Assuming Puck Corp. had no good cause for refusing to waive service
of process, the court has discretion to impose upon it the expenses
that Lysander incurred in making service.
(b) Assuming California’s courts of general jurisdiction permit
service of process on corporations by mailing to the CEO’s home,
service of process was properly executed.
(c) Both (a) and (b).
(d) None of the above.
(b) Assuming California’s courts of general jurisdiction permit
service of process on corporations by mailing to the CEO’s home,
service of process was properly executed.
Plaintiff sues for fraud, alleging Defendant “lied repeatedly” but provides no dates, statements, or specifics. Defendant moves to dismiss under Rule 9(b).
What would the plaintiff need in order to avoid 9 (b)?
The who, what, when, where, and how of the fraud circumstances must be pleaded with particularity.
During initial disclosures, Defendant identifies a single witness who will support its defenses. Two months later, Defendant learns that this SAME witness has changed her story in a way that hurts Defendant’s case and contradicts what Defendant originally disclosed. Defendant says nothing and keeps preparing for trial.
Under the Federal Rules, what obligation does Defendant now have regarding that witness?
What is a duty to supplement under Rule 26(e) because the prior disclosure became incorrect in a material way?
District judge certifies that an unresolved legal issue is controlling, debatable, and immediate appeal may materially speed up the case.
What kind of appeal is this under §1292(b)?
A discretionary interlocutory appeal requiring circuit court permission.
Juror admits after trial that they saw a TikTok about negligence standards the night before deliberations. Defendant wants a new trial.
What Rule 59 grounds might apply?
Juror misconduct or verdict against the weight of evidence due to contamination.
During initial disclosures, a plaintiff lists only one witness. A month later, the plaintiff discovers a new witness whose statement helps his case. He never updates his disclosures, and trial is in two weeks.
What rule requires the plaintiff to update his witness list?
What is Rule 26(e) — duty to supplement?
Defendant files a Rule 12(b)(6) motion electronically on January 1. Under the rules, Plaintiff has 14 days after service to respond. Because the motion was served electronically, Plaintiff assumes they automatically get extra time under Rule 6(d). Plaintiff files their response on January 18. Defendant moves to strike the response as untimely.
Does Plaintiff actually get extra time under Rule 6(d), and why or why not?
No — Rule 6(d)’s extra 3 days do not apply when service is made by electronic means, because service is considered complete upon transmission, and Rule 6(d) only applies to certain methods (mail, leaving with the clerk, or other consented methods).
Therefore, Plaintiff’s deadline was January 15, and the January 18 response is late.
Plaintiff requests massive ESI production. Defendant argues burden is huge and amount in controversy is tiny.
Name three proportionality factors under Rule 26(b)(1) that court considers.
Importance of issues, amount in controversy, parties’ resources, access to info, importance to case, burden vs. benefit.
At trial, the judge denies Defendant’s Rule 12(b)(6) motion. Defendant files an answer, litigates fully through discovery, and loses at jury trial. Defendant now files a notice of appeal, arguing that the district court wrongly denied the 12(b)(6) motion two years ago.
The appellate court reviews the record and sees that:
Defendant never renewed the issue in a Rule 50(a) motion,
never raised it in a Rule 50(b) motion,
and the alleged defect was a pure factual failure, not a legal one.
Is the denial of the 12(b)(6) motion appealable after a full trial, or has the issue been forfeited?
What is fail — the issue is waived because a post-trial appeal cannot challenge a pretrial 12(b)(6) denial based on factual sufficiency?
A judge is assigned a case where her brother owns 2% of the defendant corporation. Plaintiff moves for recusal.
Under §455, what is the standard?
Whether a reasonable person would question the judge’s impartiality.
A defendant responds to a request for emails with only one email, but the plaintiff knows far more exist. The plaintiff wants to run to court immediately.
What is the FIRST step the plaintiff must take before filing a motion to compel?
What is attempt to confer in good faith under Rule 37(a)
Plaintiff seeks leave to amend their complaint for the second time, adding a new theory of liability 18 months into litigation. Defendant argues amendment should be denied.
Give two valid reasons a court may deny leave and rule!
Undue delay, futility, bad faith, repeated failure to cure deficiencies, undue prejudice.
Rule 15(a)(2)
Defendant deletes text messages after receiving a litigation hold letter. Plaintiff moves for severe sanctions, including an adverse inference.
What must Plaintiff prove under Rule 37(e) to get the harshest sanctions?
That Defendant intended to deprive them of the ESI.
Trial court improperly admitted damaging evidence, but the appellate court decides it wouldn’t have changed the outcome.
What rule/statute supports affirming anyway?
§2111 — harmless error; doesn’t affect substantial rights.
Six jurors deliberate. One juror leaves unexpectedly for medical reasons. The remaining five return a verdict. No agreement from parties was given beforehand.
Valid verdict under Rule 48?
No — at least 6 jurors must return the verdict unanimously, unless parties agreed otherwise.
A defendant moves for summary judgment arguing the plaintiff has zero evidence on an essential element. The plaintiff responds only with an affidavit containing hearsay, but the witness who made the statement can testify at trial.
Why may the affidavit still defeat summary judgment?
What is the evidence can be presented in admissible form at trial