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Civ Pro Outline #1


1. VENUE 2. AFFIRMATIVE DEFENSES a. Confirmance and avoidance b. I may have done it but the law lets me out of the consequences c. D usually has superior access to info bearing on defense i. Ds intent will be difficult for P to prove 3. Amending before trial 15(a) a. Amend complaint 15(a): once without court permission before party responds b. Amend answer 15(a) i. Once within 20 days ii. And not on calendar c. After time elapses 15(a): with leave of court d. Response to amended pleading 15(a) i. 10 days ii. Whatever is left of original period within which to respond 4. Amendments during and after trial 15(b) a. Based on objection at trial i. Freely permitted if 1. Aid in presenting the merits 2. Will not prejudice other partys defense b. Issues tried by consent i. If tried by express/implied consent treated as pleaded ii. Failure to amend does not affect result at trial 5. Relation back 15(c) a. Same transaction or occurrence b. Changes party or naming of party i. Same transaction or occurrence ii. Within 120 days (rule 4m) 1. Party received notice of action 2. And, knew or should have known it would have been brought but for mistake in identity 6. Discovery a. Questions to ask i. What is requested? ii. Is it properly requested under the rules? iii. Is it within the scope? iv. Does a privilege apply? 1. If no, will court grant protective order? b. 26(a)(1)(A) required disclosures c. 26(a)(1)(C) time limit for initial disclosures i. Within 14 days of 26(f) conference d. 26(A)(1)(D) time limit for initial disclosures: parties joined after conference i. Within 30 days after being served or joined e. 26(A)(1)(E) initial disclosure: unacceptable excuses i. Has not fully investigated

7. 8.

9. 10. 11.

ii. Challenges sufficiency if opposing partys disclosures iii. Another party has not made disclosure f. 37(c) failure to disclose i. Failure to disclose as required under 26(a) 1. Mandatory sanction 2. Payment of reasonable expenses 3. May tell jury 4. May impose and other sanctions (37(b)(2)(A)(i)-(iv)) g. Work product i. Not privileged at all costs 1. Essential to the case 2. Not available by other means ii. Materials produced in anticipation of litigation by lawyers, parties, or their agents iii. A/C privilege is absolute 1. Confidential communications between C/A iv. A/C privilege 1. Applied only to communications with ees who have authority to act h. 26(a)(2) disclosure of expert testimony i. 26(b)(4) Trial preparation: experts i. (A) Expert who may testify ii. (B) Expert employed only for trial preparation 1. May depose only if a. Impracticable to get by other means b. iii. (C) Payment Rule 56: summary judgment a. Trial unnecessary because no reasonable jury could find a factual dispute exists Right to trial a. Law i. Acts on the person; issues injunction ii. General fairness iii. jury b. Equity i. Money damages ii. Specific justice iii. No jury Declaratory judgment 2201 a. Right to jury trial in 2201 actions i. May be remanded as provided for by Rules 38 & 39 Judgment as a matter of law Rule 50 Supplemental JX a. Common nucleus of operative fact b. 1367(b) no supp jx in diversity case, by P against persons made parties under i. Rule 14 ii. Rule 19 iii. Rule 20 iv. Rule 24 v. By persons proposed to be joined as P under rule 19 vi. By persons seeking to intervene as P under Rule 24 vii. Unless independent diversity jx (complete diversity & $75K) c. 13(g) always permissive d. 13(a) compulsory cc does not apply until D files pleading i. Not barred by res judicata if settlement prior to answer to CC

e. 14(a) i. Indemnity ii. Subrogation iii. Contribution iv. Breach of warranty f. Rule 14 is allowed but not required i. Cant use it to say not me him 1. Would just argue that as a defense and move to join guilty party or move to dismiss under rule 19 g. 24 i. Cant break diversity must comply with citizenship rules h. Work product 26(b)(3) i. Produced in anticipation of litigation i. Res judicata (claim preclusion) i. Not applicable to 1. Consent judgment 2. Default judgments 3. Admissions in discovery 4. Pretrial stipulations j. Collateral estoppel (issue preclusion) i. Issue must have been necessary to prior judgment 1. Same party 2. Same issues 3. Judgment on the merits k. Bar and merger i. Bar: claimant lost and D won: P may not relitigate ii. Merger: claimant prevailed in first action. P may not seek additional relief. l. 59(b) i. Motion for a new trial within 10 days of entry of judgment m. Interpleader i. Affirmative interpleader: stakeholder initiates lawsuit ii. Defensive interpleader: claimant sues stakeholder, who then interpleads by way of XC or CC. n. Intervention i. Rule 24(a) standard resembles rule 19(a)(2)(i) compulsory joinder o. Statutory interpleader 1335, 1397, 2361 i. Minimal diversity ii. $500 controversy iii. Nationwide service of process iv. Venue proper where one or more claimants resides v. Not available if all claimants are from same state even if diverse from stakeholder Written by freelawschooloutlines October 9, 2009 at 7:46 am

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