1) Touch on all the facts she mentioned- get points for everything on her point check list. 2) When writing an exam assume the reader is a idiot. Explain everything! state rule then restate in plain English à so someone w.o legal knowledge would understand.
1. Complaint
2. Pre answer motions
3. Answer
4. Meeting of the parties 26(f)
a. At least 21 days before scheduling conference or order
b. Purpose
i. Discuss settlement
ii. Arrange disclosures
iii. Develop a proposed discovery plan
c. Mandatory except in cases exempt under 26(a)(1)(E) or court order
5. Beginning of formal discovery 26(d)
a. After 26(f) meeting, except when exempt 26(a)(1)(E) stipulations/ct order
b. Gather facts to prepare for trial or settlement
c. Discovery is not mandatory
6. Required disclosures 26(a)
a. Initial disclosures
i. W/in 14 days of 26(f) meeting unless stipulated/court orders otherwise
ii. Purpose: exchange of witnesses, experts, and documents relevant to claims and defenses to prepare for further discovery, trial or settlement
iii. Mandatory except in cases exempt under 26(a)(1)(E), stipulation or court order
7. Discovery plan Rule 26(f)
a. Submit to court within 14 days of 26(f) meeting
b. Purposes: 26(f)((1-4)
c. Mandatory, except in cases exempt under 26(a)(1)(E) or court order
8. Scheduling order- Rule 16(b)
a. After court gets discovery plan from parties (or consults with parties/attorneys) and before 120 days of complaint filing and 90 days of defendant’s appearance.
b. Purpose: 16(b)(1-5)
c. Mandatory, unless case excepted by local rule
9. Pretrial conferences- Rule 16(a)(c)(d)
a. Anytime 16(a); final as close as possible to trial 16(d)
b. Purpose: 16(a)(1-5), 16(c)(1-16), 16(d)
c. Discretionary 16(a)
10. Pretrial orders 16(e)
a. After pretrial conferences
b. Control subsequent course of the suit (overrides pleadings)
c. Mandatory if a pretrial conference is held
11. Pretrial disclosures Rule 26(a)(3)
a. At least 30 days before trial, unless court orders otherwise
b. Purpose: 26(a)(3)(A-C)- witnesses, depositions, documents, exhibits
c. Mandatory
All 3 must be met (8a & 12)
1) Personal Jurisdiction – courts ability to have power over the defendant (must be challenged immediately or waive right to argue
a) Incident occurred there
b) D lives there
c) D does business there
2) Subject matter (Can be challenged at anytime)
a) The Federal Question- 28 U.S.C. § 1331 and Art. III § 2 of the Constitution
i) Does the complaint present a Federal Question?
(1) Federal cts are ct of limited jurisdiction
(a) Fed question cant be Ds defense cant be anticipated defense in complaint
ii) The complaint must be well pleaded (FRCP 8a (1-3))
(1) Short n plain statement of cts jurisdiction
(2) Short and plan statement of the why p is entitled to relief
(3) Demand for relief sought
b) Diversity Jurisdiction- 28 U.S.C. § 1332- there must be
i) Complete diversity on “both sides of the V” AND
(1) Diverse citizenship – Domicile Test entails
(a) Presence in the state AND
(b) Intent to remain indefinitely
(i) The date for determining citizenship for diversity purposes is determined at the time of commencing the action (Law suit is filed).
(2) Corporate citizenship: a corporation is a citizen of a state where
(a) State where it is incorporated
(b) Has its principle place of business
ii) An excess of the financial requirement in pleading (over $75,000)
(1) Issues with aggregating claims
(a) Can aggregate claim against same D
(b) Cant aggregate claims against different Ds
3) Venue
a) Place where the case is brought.
Goals of pleadings
1) Notice to D
2) Narrow issue
3) Identify baseless claim
Rule 3
Ø Case is commenced by filing a complaint
Rule 7
Ø A) Governs type pleadings
o Complaint
o Answer
o Answer to cross claim
o Answer to counterclaim
o 3rd party complaint
o Answer to 3rd party complaint
o If ct. so orders reply to an answer
Rule 8
Ø a) Short and plain statement of:
1) Cts jurisdiction à can be attacked 12b 1) personal jurisdiction,2) subject matter jurisdiction, 3) venue
2) Claim entitled to relief – Twombly & Iqbal
a. Heightened pleadings
i. Must show there are plau
party
Ø B) Certifies that pleadings are best of your knowledge and after a reasonable inquiry under the circumstances:
1. Cant be to harass and delay needlessly increased cost of litigation
2. Legal contentions have warrant under the law or are made to reasonably extend or change the existing law
3. Facts have some support or will have evidentiary support after discovery (wont be sanctioned if you don’t have evidentiary support prior to discovery however, under twombly cant file pleading without some evidence à wont survive 12b6)
4. Denial (defenses) are reasonable and made in good faith.
Ø Ex. Christian v. Mattel – explicit finding of bad faith!
Ø Break down of Rule 11
o
o 11(b)(1) – purpose of the pleading –
§ Signer certifies a reasonable basis exists for version of the facts and law asserted
§ Not presenting for an improper purpose
o 11(b)(2) – legal contentions
§ Certifies that the legal contentions are warranted by law or a non-frivolous argument to modify or reverse existing law
o 11(b)(3)-Factual contentions –
§ Have evidentiary support or will with opportunity for further investigation and discovery (aimed at parties alleging a claim)
o 11(b)(4)-Similar to (b)(3), but aimed at denials
§ Denials of oppositions factual contentions are warranted or if designative as such are based on belief or lack of info
Ø C) Sanctions
1. Who can be sanctioned-lawyer, firm (held jointly responsible), or involved party
2. Motion for sanctions
§ Has to be separate motion
§ Describe violating conduct
§ Must be properly served (see rule 5)
§ Safe harbor file w. attorney and give 21 days prior to filing with ct
§ Ct may make you pay other sides costs
3. Ct can initiate rule 11 on its own
§ Can order attorney to show why something isn’t a rule 11(b) violation
§ Ct. cant grant monetary sanction reasonable expenses and attorney fees UNLESS it issued show cause before vol. dismissal or settlement (11)(c)(5)(B)
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