Preliminary Injunction – Rule 65 – Standard: (1) likelihood of
success on merits, (2) irreparable harm, (3) balance of hardships tips in
favor.
TRO – no notice but effort required; exigent harm.
Joinder of parties – can join as π’s or Δ’s if same T/O and common
question of law.
Impleader – if can seek contribution or indemnification.
DISPOSITION BEFORE TRIAL
PLEADING PHASE
Filing the complaint
Notice Pleading – liberal: (1) accept all factual allegations as true, (2)
draw all reasonable inferences favorable to π.
Plausibility Pleading – Rule 8 – (1) strikethrough legal conclusions,
(2) based on remaining factual allegations, make plausible inferences
of claim for relief.
Heightened Pleading – Rule 9(b) – fraud and mistake stated with
particularity: WHO, WHAT, WHEN, WHERE, HOW.
Responding to the complaint
Do nothing – Rule 55 – default by clerk; default judgement by clerk if
sum certain, by judge if sum uncertain + π’s claim passes 12(b)(6) test.
Rule 12 motions – run 12(b)(6) two-part test
OMNIBUS MOTION RULE – one rule 12 means all Rule 12, except
1, 6, 7.
Rule 8 & Affirmative Defenses – must respond fairly to substance;
admit or deny each allegation; residual clause ambit: (1) affirmative
defense necessary to π claim? (2) which party had better access to
evidence? (3) unfair surprise to π if raised after pleading phase?
Amending the pleadings
Before trial – Rule 15 – once as of right 21 days after pleading filed.
Otherwise, w/ leave of court, or party’s written consent. Foman
factors: (1) bad faith, (2) undue prejudice, (3) undue delay, (4) futility.
Relation back – if SOL allows, if same T/O, or if changes name of Δ
and Δ KSK action would be brought against it and amendment
connects a mere misnomer.
Counterclaim – Rule 13 – Compulsory: if same T/O; Permissive: if
not compulsory. Rule 18 joinder of claims “kitchen sink” is
permissive, but waiver if compulsory and not raised.
Default Judgement – Rule 55 – if Δ unresponsive
Voluntary Dismissal – Rule 41 – before Δ files answer or motion for
summary judgement, π may notice a dismissal with no further action
required. Second time is with prejudice.
Involuntary Dismissal – 12(b)(6), 12(c), Summary judgement
Summary Judgement – Rule 56 – (1) What is the applicable
substantive law? (2) What are the material facts? (3) Which evidence
would be admissible at trial? (4) Did Δ meet its burden of proving
there is no genuine factual issue? (5) Did π meet requisite quantum of
evidence to rebut?
DISPOSITION DURING AND AFTER TRIAL
JMOL – Rule 50(a) – after π presents case, after both π and Δ present
cases, before jury hands down a verdict. If no legally sufficient
evidentiary basis to find for other party.
JNOV – Rule 50(b) – renewed JMOL filed after jury hands down
verdict. Waived if 50(a) wasn’t filed during trial.
Determining the sufficiency of evidence for dispositions before,
during, and after trial
1) Could a RP reach only a single verdict w/o considering the
credibility of weight of the evidence?
2) Has non-moving party presented more than a mere scintilla of
contrary evidence?
DISCOVERY
Required Initial disclosures
o The identity of persons possessing discoverable info that might
be used by the disclosing party
o All docs in the party’s current possession that might be used
o Calculations of damages being sought
o Any insurance policies
Two delay buttons: (1) stipulated or (2) ordered by the court.
Required Disclosure of Expert testimony
Must disclose the identity of any expert witness it will use at trial w/
accompanying report.
Scope of discovery – 26(b)
Informal investigations – π lawyer is not required to file a suit before
speaking with potential defendants. But: (1) Should identify
themselves (2) Indicate that they represent the potential π (3)
Communicate in writing only
May obtain discovery of any: nonpriviledged matter relevant to any
party’s claims or defenses that is proportional to the needs of the case,
in light of:
a. The importance of the issues at stake
b. The amount in controversy
c. Parties’ relative access to relevant information
d. Resources at parties’ disposal
e. Importance of that discovery for resolving the issue(s)
f. Whether the benefit of obtaining discovery outweighs
the burden of obtaining
Work-product – 26(b)(3)
Work product has qualified immunity from discovery.
- Must be in anticipation of litigation.
o Specific claim approach (too narrow): disfavors broad
protection of work-product by limiting it to product
directly related to a specific claim
o Ad hoc approach (uncommon): product need not relate
to a specific claim; docs may be produced in order to
determine what claims may be available
o Primary purpose approach: work is protected as long
as its primary purpose is to prepare for potential
litigation, rather than for mere business/administrative
purposes (this is the approach most likely used in
business contexts)
Exceptions to work-product immunity: (1) material that was not
produced in anticipation of litigation, and (2) material that the
requesting party shows substantial need for to prepare its case and
cannot without undue hardship obtain their substantial equivalent by
other means.
E-Discovery – May decline unreasonable due to undue burden or cost.
Court may still order if requesting party shows good cause. The court,
by motion or on its own, can limit discovery that would be:
o unreasonably cumulative or duplicative
o could be obtained more easily from some other source
o something that could have been obtained long ago
o outside the 26(b)(1) scope of discovery
May shift cost of production if heavy burden on non-requesting party