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Pretrial Outline - Part 4

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X. Motions

Request to admit

  • Party on party device
  • Often comes later in discovery, can be early but more often comes later to get some fact/issue of proof handled. You can lock in evidence
  • A tool to streamline proof at trial
    • It’s conclusive, not rebuttable as evidentiary admission at trial. It’s similar to a stipulation
  • You have a duty to amend and supplement these just like you do other forms of discovery (these apply to all pleadings); once as a matter of right (must do so before a responsive pleading is filed or 21 days in fed. ct. or 30 days in NC court, whichever comes first) without anyone else’s consent, and then after that time period ends you must amend by either getting the other party’s consent (if they do consent, write that into the amended pleading; if they don’t, same thing) or with permission from the ct.
  • 3 bases for denying an amendment: bad faith, prejudice, and futility
    1. Futility: when NC law does not recognize this cause of action or some kind of relief, it is futile
    2. Bad faith: where it is being offered to harass the other side; using the litigation process to embarrass the other party
    3. Prejudice: when the amendment comes very late in the discovery process and usually requires an extension of discovery that it would be unfair to the other party
  • Relation back doctrine: the new Δ that you’re bringing in must have both received sufficient notice of pendency of the action AND they must have/should have known but for a mistake of identity, they were the real party/Δ in interest
    • How to show?
    • Communication btw. the two parties

Q: What is common when amending a pleading?

A: evidence (factual findings have changed), changing the relief, changing the causes of action, changing parties

  • Difference btw. amended pleading & supplemental pleading: supp. is something that came to your knowledge after the filing of the OG pleading, amended is just working with the same info you had while writing the OG pleading
  • A party has 30 days to respond and must either
    • Admit
    • Deny
    • Object
      • Privilege, relevance, could be unduly burdensome,
    • Neither admit or deny because after reasonable inquiry you still don’t have the info to answer
      • But remember the later this comes in discovery the harder it is to argue in good faith that you don’t know
        • If you use this last option not in good faith, it’s sanction-able
    • If you don’t answer in a timely manner you admit it
  • Strategic issues
    • Be careful what you have asked for, sometimes you don’t want to have other party conclusively admit something
      • Also if D for instance admits that the victim suffered 30% of body burned, then at trial the stipulation is admitted in a clinical sterile way and you the P can’t introduce evidence (pictures & testimony) that would get more sympathy from the jury
  • Procedural
    • One fact per request to admit
      • If you have multiple things in one, if any of the things is wrong then they can deny the whole thing
  • Genuineness of document
    • The document is what it purports to be
    • Signed by the person it appears to have been signed by
    • Document made by the person(s) who appear to have made it
      • Admitting these things does not mean you have admitted the document meets the hearsay rule etc. genuineness does not equal other admissibility rules

Motions generally

  • Must be in writing (unless local rules permit otherwise)
  • Must include grounds for relief
  • Must include what relief are you seeking
  • Local rules (there are a ton)
    • How long it can be
    • Consent from other party
    • Etc.
  • If you’re going to seek a trial/ hearing on your motion
    • In federal court simply filing a motion gets it going but you should put on your memo and motion that you would like an oral argument
    • In state court, your motion doesn’t go anywhere until you put it on the calendar
  • Common motions
    • Motion to strike – unnecessary info because it’s futile or insufficient; a way to get rid of a bad defense; “disfavored” motion; must be very targeted in what you’re wanting to strike and WHY
    • Motion for a more definite statement – when the complaint is so vague and ambiguous that the Δ doesn’t know what they’re being sued for; if it’s pro se and basically gibberish, just file a 12b6
    • Rule 6B Extensions of time and continuance
      • If you file before the expiration of the initial time limit, then you can get it for good cause shown
        • do this well in advance of expiration
      • If you file AFTER expiration of the initial time limit, you can only get it for “excusable neglect”
        • This basically means you better have had covid and have been hospitalized during the time
    • Motions to consolidate and bifurcate 42a and 42b
      • Consolidate
        • Multiple actions with same facts and parties
        • Discretionary for court, almost never overturned on repeal
        • Burden of proof on party making motion
      • Bifurcate
        • Convenience or to avoid prejudice
        • Can be cases as a whole or issues within cases
          • Issues for example can be bifurcating liability and damages
            • This is good when there is close call of liability and horrible damages
    • Motions in limine
      • Motion where you are seeking to get an advanced ruling from the court that piece of evidence will be admitted
        • Can come at pre-trial or during trial or it can come earlier if that could help strategy to settle
      • Federal rule
        • You don’t have to renew the motion at trial, once pre-trial is enough
      • NC Court
        • You must renew motion or you lose it
          • If your renewed motion is denied you must offer proof for the record or else, it can’t be appealed because there’s no evidence to argue that it should have been granted
    • Motion for Temporary restraining order
      • Motion must be by rule, you must provide an affidavit and you must show if I don’t get this permanent and irreparable harm will occur
        • Ex parte TRO you must also provide affidavit detailing how you notified other party OR why you shouldn’t have to notify them
      • Things you need for TRO
        • Motion and briefing
        • Verified complaint or affidavit detailing what will happen if this TRO doesn’t issue
        • If ex parte, affidavit why you are not notifying other party
        • Security for if the TRO is issued wrongly
        • Draft TRO order (you write the order then the judge signs it)
      • Limits
        • 14 days max
        • You can get one 14 day extension if judge allows
        • TRO needs to have what the specifics of the injury they’re trying to prevent is and the irreparable nature of injury
        • Why should it be issued without notice?
        • Acts its enjoining in detail
    • Preliminary injunction (balancing of harms, courts must balance one hardship against other)
      • These don’t have 14 day time limits unlike TRO
      • Sometimes this is the only relief P is seeking (not damages)
        • Because of the nature sometimes the permanent and Prelim Injunction are rolled into one (I think he said)
      • 4 factors a court must consider when deciding to issue one of these
        • Likelihood of irreparable harm to the plaintiff
        • Likelihood of injury to D if P succeeds
        • Likelihood of merit of the claim that P will it work
        • Likelihood
      • If P can really show that they will be hurt, then normally court rules for P doesn’t look as much at merits
      • If D is likely to be harmed or it’s a toss-up then P must show they’re likely to win
    • Summary judgement motion – Rule 56
      • No genuine issue of material fact
      • Often made after discovery because these are all about the evidence
      • Defined elements
        • Genuine-ness
          • If all party can go show is just a little bit next to a whole bunch of evidence
          • “minimal possibility” it could go your way is not enough
        • Material fact
          • Outcome determinative, the issue that’s disputed must matter for how the case goes
    • 12b motions
      • Rule: must bring all 12b motion together; can’t piecemeal
      • Biggest exception of SMJ (courts must always have SMJ, otherwise they can’t act)
      • Other exceptions include 12b6 and indispensable party motions; can be made up until the verdict
    • Issues of first impression
      • Relying on sister jurisdiction’s rulings & case law, treatises, provisions from a uniform law commission, law review articles


Q: Who can be present at depos?

A: both sides of counsel and parties EXCEPT →

  • Some parties do not have the right to be present (ex. improper purpose, protective order)
    • Written notice is required to all parties in the case
    • Types of depos
  • Stenographic
  • Video
  • Phone

Q: Why don’t we allow a bunch of interruptions during depos?

A: too costly (because we’re paying the ct. reporter); nobody there to rule on objections; a so what? problem; a time problem

  • Counsel can object to form but you cannot instruct the witness to not answer the question unless it’s a privileged matter; neither counsel can EVER instruct a non-party witness to not answer a question
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