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Pretrial Outline - Part 2

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<< Part 1 | Part 3 >>

  1. Supplemental jurisdiction reminder 28 U.S.C. § 1367(b)
    1. (b) In any civil action of which the district courts have original jurisdiction founded solely on section 1332 of this title, the district courts shall not have supplemental jurisdiction under subsection (a) over claims by plaintiffs against persons made parties under Rule 14, 19, 20, or 24 of the Federal Rules of Civil Procedure, or over claims by persons proposed to be joined as plaintiffs under Rule 19 of such rules, or seeking to intervene as plaintiffs under Rule 24 of such rules, when exercising supplemental jurisdiction over such claims would be inconsistent with the jurisdictional requirements of section 1332.
    2. Checklist
      1. Do you need supplemental jurisdiction at all? Is there federal-question or diversity jurisdiction over every claim anyway?
      2. Congress giveth? (s. 1367(a))
        1. Does the anchor claim come within any form of federal subject-matter jurisdiction?
        2. Does the added claim share a common nucleus of operative fact with the anchor claim? (this is the relevant part for 13(a) compulsory counterclaim)
      3. Congress taketh away? (s. 1367(b))
        1. Is the anchor claim diversity only?
        2. Is the added claim one by a plaintiff?
        3. Was the defendant on the added claim joined under Rule 14, 20, 19, or 24?
      4. Is there a discretionary reason not to exercise jurisdiction? (s. 1367(c))
    3. (b) Permissive Counterclaim. A pleading may state as a counterclaim against an opposing party any claim that is not compulsory; must have its own independent jurisdictional basis unlike compulsory claims – must state the basis in the answer

e. Cross claims

  1. Claim against person on the same side of the v as you “co-party”
    1. A pleading may state as a crossclaim any claim by one party against a coparty if the claim arises out of the transaction or occurrence that is the subject matter of the original action or of a counterclaim, or if the claim relates to any property that is the subject matter of the original action. The crossclaim may include a claim that the coparty is or may be liable to the crossclaimant for all or part of a claim asserted in the action against the crossclaimant.
    2. Does not need its own jurisdictional basis; this is an ancillary to the plaintiff’s complaint
    3. Offensive claim against a co-defendant; the co-defendant must reply and if they don’t, it is an admission
  2. Additional parties 13(h)
    1. Joining Additional Parties. Rules 19 and 20 govern the addition of a person as a party to a counterclaim or crossclaim.
  3. Impleader 14(a)(1)-(2)
    1. (a) When a Defending Party May Bring in a Third Party.
      1. Timing of the Summons and Complaint. A defending party may, as third-party plaintiff, serve a summons and complaint on a nonparty who is or may be liable to it for all or part of the claim against it. But the third-party plaintiff must, by motion, obtain the court's leave if it files the third-party complaint more than 14 days after serving its original answer.
      2. Third-Party Defendant's Claims and Defenses. The person served with the summons and third-party complaint—the “third-party defendant”:
        1. must assert any defense against the third-party plaintiff's claim under Rule 12;
        2. must assert any counterclaim against the third-party plaintiff under Rule 13a, and may assert any counterclaim against the third-party plaintiff under Rule 13(b) or any crossclaim against another third-party defendant under Rule 13(g);
        3. may assert against the plaintiff any defense that the third-party plaintiff has to the plaintiff's claim; and
        4. may also assert against the plaintiff any claim arising out of the transaction or occurrence that is the subject matter of the plaintiff's claim against the third-party plaintiff.
    2. Key points
      1. It’s not enough for impleader that the plaintiff herself might have a claim against the third-party defendant.
      2. The original defendant (third-party plaintiff) has to have a claim over against the third-party defendant.
      3. A “claim over” means a claim by the third-party plaintiff to get reimbursed for what it spends on the original plaintiff’s claim.
    3. Types of impleaders
      1. Contribution
      2. Indemnification

f. 4 quadrants of jurisdiction

V. Fees & Contracts

a. Contingency

  1. Normally 1/3 or 25% of settlement

b. Flat rate

  1. This one thing costs $

c. Hourly

  1. Bill off of a deposit or charge after the case is done

d. Contingency

e. Contract for representation

  1. State what the matter is you’re representing them for (be very specific)
  2. Describe work you’re going to do
    1. Describe also what you’re not going to do
  3. What type of fee
  4. Schedule for payment
  5. Clause for representation termination
  6. No guarantee of success or outcome
  7. Signature from client and I have read and understand all of the terms etc.
VI. Discovery

a. Proportionality

  1. Discovery costs should be proportional to claim cost

b. Fed rule that discovery conference must occur as soon practicable but at least 21 days before a scheduling conference is to be held or a scheduling order is due

c. Formal discovery tools

d. Both fed and state court have a duty to supplement discovery w/in reasonable time

e. Tools of formal discovery

  1. Depositions
  2. Interrogatories
  3. Request for physical examination (entry into property or to see the thing)
  4. Request to produce documents, electronically stored info, and things
  5. Requests for admission
  6. Required disclosures

f. NC Rule 26. General provisions governing discovery.

  1. Discovery methods. – Parties may obtain discovery by one or more of the following methods: depositions upon oral examination or written questions; written interrogatories; production of documents or things or permission to enter upon land or other property, for inspection and other purposes; physical and mental examinations; and requests for admission.
  2. Discovery scope and limits. – Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery is as follows:
    1. In General. – Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, electronically stored information, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not grounds for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence nor is it grounds for objection that the examining party has knowledge of the information as to which discovery is sought. For the purposes of these rules regarding discovery, the phrase "electronically stored information" includes reasonably accessible metadata that will enable the discovering party to have the ability to access such information as the date sent, date received, author, and recipients. The phrase does not include other metadata unless the parties agree otherwise or the court orders otherwise upon motion of a party and a showing of good cause for the production of certain metadata
      1. Specific Limitations on Electronically Stored Information. – In addition to any limitations imposed by subdivision (b)(1a) of this rule, discovery of electronically stored information is subject to the limitations set forth in Rule 34(b). The court may specify conditions for the discovery, including allocation of discovery costs.
  3. Insurance Agreements. – A party may obtain discovery of the existence and contents of any insurance agreement under which any person carrying on an insurance business may be liable to satisfy part or all of a judgment which may be entered in the action or to indemnify or reimburse for payments made to satisfy the judgment. Information concerning the insurance agreement is G.S. 1A-26 Page 2 not by reason of disclosure admissible in evidence at trial. For purposes of this subsection, an application for insurance shall not be treated as part of an insurance agreement.
    • Policy: helps decide damages and/or if the case should even go forward based on the insurance’s coverage
    • You can get the coverage and the policy but not the application

g. Federal law FRCP Rule 26 – General provisions governing discovery

  1. (a) Required Disclosures.
  2. (1) Initial Disclosure.
    1. (A) In General. Except as exempted by Rule 26(a)(1)(B) or as otherwise stipulated or ordered by the court, a party must, without awaiting a discovery request, provide to the other parties:
      1. the name and, if known, the address and telephone number of each individual likely to have discoverable information—along with the subjects of that information—that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment;
      2. a copy—or a description by category and location—of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment;
      3. a computation of each category of damages claimed by the disclosing party—who must also make available for inspection and copying as under Rule 34 the documents or other evidentiary material, unless privileged or protected from disclosure, on which each computation is based, including materials bearing on the nature and extent of injuries suffered; and
      4. for inspection and copying as under Rule 34, any insurance agreement under which an insurance business may be liable to satisfy all or part of a possible judgment in the action or to indemnify or reimburse for payments made to satisfy the judgment.
  3. Time for Initial Disclosures—For Parties Served or Joined Later. A party that is first served or otherwise joined after the Rule 26(f) conference must make the initial disclosures within 30 days after being served or joined, unless a different time is set by stipulation or court order.
  4. (B) Proceedings Exempt from Initial Disclosure. The following proceedings are exempt from initial disclosure:
    1. an action for review on an administrative record;
    2. a forfeiture action in rem arising from a federal statute;
    3. a petition for habeas corpus or any other proceeding to challenge a criminal conviction or sentence;
    4. an action brought without an attorney by a person in the custody of the United States, a state, or a state subdivision;
    5. an action to enforce or quash an administrative summons or subpoena;
    6. an action by the United States to recover benefit payments;
    7. an action by the United States to collect on a student loan guaranteed by the United States;
    8. a proceeding ancillary to a proceeding in another court; and
    9. an action to enforce an arbitration award.
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