CIV PRO II Rule 12: Motions to Dismiss RULE 13: COUNTERCLAIMS 13(a) Compulsory Counterclaim: TEST FOR STO: (CELL) 13(b) Permissive CC: 13(f) Ommitted CC: 13(g) Cross-Claim: RULE 14: IMPLEADER/ 3 PARTY PRACTICE Impleader: (MUST) RULE 18: Permissive Joinder of Claims RULE 19: Joinder of Necessary Parties (Need another joinder rule /w 19) 3-STEP ANALYSIS: *If P doesn't join an indisp. party, D can file a 12(b)(7) 1) Necessary: A person is neccessary if (IT) 2) If feasible: 3) Indispensable: In deciding if ct should dismiss, it will look at: (PAAA) RULE 20: Permissive joinder of parties Rule 21: Misjoinder of parties: RULE 24 24(a) Intervention (as of right): 1) statute gives unconditional rt (rare) OR if no statute, you need... (TSIN) 24(b) Permissive Intervention: if upon timely application; judicial discretion (2) 28 USC 1331: Federal Questions : Suit arising from the Constitution, treaties, etc 28 USC 1332: Diversity : No P from same state as a D + Amt in controversy +75,000 28 USC 1367: SUPPLEMENTAL: a) Cts will have supplemental if the claim b) In a DIVERSITY case, c) Even if Supplemental is ok by a) & b), it is judges discretion, (NODE) Rule 16: Pretrial conferences; Scheduling and management 16(b) Scheduling conference: Meeting w/ attys and judge assigned to case. Results in scheduling order that may include: (6) **Scheduling order is due w/in 90 days after appearance of D and w/in 120 days after complaint has been served on D 16(f) Sanctions
RULE 23: CLASS ACTIONS 23(a) 5 Prerequisites to a Class Action (ICANT) 23(b) 3Types of Class Action (1&2 don't have to get notice but may 23(c)) 23(b)(1): Adverse effects on class members or opposing party (limited funds – small store) 23(b)(2): Actions for injuntive or declaratory relief (suing over grade) 23(b)(3): Common Q's predominate over individual Q's (Mass Tort) - To qualify under (b)(3) class must meet both req's: (need notice) 1) Common Q's must predominate over any Q's affecting indiv. members 2) Class resolution must be superior to other available methods for fair, efficient adjudication of the controversy (MEDD) 23(c)(2) Notice: 23(b)(3) class 23(b) (1-2) classes: 23(d) Order in Conduct of Actions: 23(e) Settlement/Voluntary Dismissal or Compromise S/VDor C (CAN ROH) 23(f) Appeals: (3) 23(g) Class Counsel : Requires ct to consider several factors in making decision to appoint class counsel (WERKO) 23(h) Fees and Cost: authorizes fees and costs in "certified" class action. Allows for objections to be filed and hearing on request for fees and costs 3. DISCOVERY (RSPTSCS) RULE 26: 26(a): Req'd Disclosures: (3 categories) (work product/privileged info exempt) 1) Initial Disclosure: made at disc conf. (DC) or w/in 14 days after unless otherwise agreed. If party is served/joined after DC then w/in 30 days of being served/joined. The following are req'd: (DINA) 2) Expert Testimony Disclosure: 90 days before trial, list of expert witnesses must be disclosed, including: (DEQO) 3) Non-expert witnesses and exhibits Disclosure to be made w/in 30 days before trial. Party must disclose: (WWD)
26(b) Scope and Limitation 1) Standard: 2) Limitations: Ct can alter aspects of discovery. Ct limits: (ROB) 3) Trial Prep Materials: (26(b)(3)) (Work product priviledge) 4) Trial Prep Experts: (26(b)(4) two types of experts: 26(c): Protective orders: (PMS) 26(d): Timing and Sequence of Discovery: 26(e): Supplentation of Disclosures & Responses: 26(f) Conference and Planning (**Starting place for discovery) 1. Conference: Except in exempted proceedings, requires parties to confer at least 21 days before Rule 16(b) scheduling conference to: (NAPD) 2. Who must attend: 3. Discovery plan: 26(g) Signing of Disclosures: 1. Initial and pretrial disclosures and all other discovery to be signed by at least one atty or by unrepresented party. Signature constitutes certification as set forth in Rule 26(g)(1) (CNV) Rule 29: Stipulations Regarding Discovery Procedures: Parties may in written stipulation modify procedures or limitation placed on discovery Rule 30: Depos upon oral exam: (prefered over written b/c of flexibility & doesn't allow witness to confer w/ lawyer much.) (7) Rule 31: Depos upon written questions: (questions are written & read to witness by examining officer & answers are recorded; less expensive, but less flexible): (7) Rule 32: Use of Depos in ct proceedings 10 per side, w/out leave of ct. Depos can be used: (3) Rule 33: Interrogatories to Parties: (4) Rule 34: Production of Document and things: (5) Rule 35: Physical and Mental Examination: (7) Rule 36: Request for Admission (5)
RULE 37: Failure to Make disclosure or cooperate in discovery 37(a): Motion to compelling disclosure or discovery: (2) 37(a)(4) Expenses and sanctions: (3) 37(b): Failure to comply w/ order: Failure to comply w/ct order or subpoena:(3) 37(c): Failure to disclose or Misleading disclosure; Refusal to admit: (2) 37(d): Failure of party to attend own depo or serve answers to interrogatories or respond ot request for inspection: 37(g): Failure to participate in framing discovery plan: Permits ct to impose reasonable expenses including atty fees, when party fails to participate in goodfaith w/ development and submission of discovery plan. Rule 45: Subpoena (2) Rule 41: Dismissals (2 types) 41(a) Voluntary dismissal: (NOS) 41(b) Involuntary dismissal: (3) Rule 42: Consolidation/ Separate Trials (2) Rule 50: Judgment as a matter of law in jury trials; alt motions for new trial; Conditional rulings request for new trial must be made 10 days after judgment if late = too bad, but can be made into Rule 60 motion 1. JML/DV: May be made by D at close of P's case in chief or by either party after all the evidence is submitted. (BAGJE) 2. JML/JNOV: must be made after the verdict is rendered (4) Rule 55: Defaults and Default Judgements: (3) Rule 56: Summary Judgment (PJ NAP) Rule 65: Injunctions: 65(a) Preliminary injunction (2) 65(b): Temporary restraining orders, notice, hearing, duration (STAT) 65(c): Security (2) 65(d): Form and Scope of injunction or restraining order 1) Orders granting injunctions and TROs shall: (SHAP) 65(e): Employer and Employee; interpleader; Constitutional cases
APPEALS 28 USC 1291: There must be a final judgement on merits (entry of order) before you can appeal. Does 2 things: Exceptions to Final Order (1291): parties don't have to wait for final order to appeal (3) 1. 28 USC 1292(a): Interlocutory Decisions: talks about different cases that can be brought under interlocutory order and where the US Ct of Appeal will have exclusive jurisdiction. (2) 2. Collateral Order: Decides issue that is so essential to merits of litigation that even though we don't like interlocutory appeals, we'll allow it. What determines CO (3) 3. 28 USC 1292(b) Is appeal certified by D.C. Res Judicata (watch for collateral estoppel, joinder, and summary judgment) Affirmative defense (claim preclusion) 1. 3 Requirement (need all) Collateral Estoppel: Issue only, not whole claim; brought by party who was happy w/ outcome of 1st suit. Most states don't allow offensive CE b/c it encourages multiple suits Non-Mutual Offensive= New P in 2nd suit bringing up CE Mutual Offensive = P in 1st action bringing up CE Non-Mutual Defensive = New D in 2nd suit bringing up CE Mutual Defensive = D in 1st action bringing up CE (6) Factors to look at