Civil Litigation - 2nd half
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Motion for Judgement on the Pleadings
Wis. Stat. 802.06(3)
(3) Judgment on the pleadings. After issue is joined between all parties but within time so as not to delay the trial, any party may move for judgment on the pleadings. Prior to a hearing on the motion, any party who was prohibited under s. 802.02 (1m) from specifying the amount of money sought in the demand for judgment shall specify that amount to the court and to the other parties. If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in s. 802.08, and all parties shall be given reasonable opportunity to present all material made pertinent to the motion by s. 802.08.
Motion for Summary Judgment
If summary judgment is granted, the facts underlying the judgment are binding on all parties to the suit as a matter of issue preclusion
Comparisons of judgement on the pleadings and summary judgement (refers to federal)
motion for judgment on the pleadings is a judgment based soley on the allegations and information contained in the pleadings, and not on any outside matters ( Fed R, Civ, P 12 (c)) Cf.( which means "alike" but distinguishable) summary judgment is a judgment granted on a claim about which there is no genuine issue of material fact and upon which the movant is entitled to prevail as a matter of law; this procedural device allows the speedy disposition of a controversey without need for a trial.
A motion for judgment on the pleadings is akin to a demurrer. The court can only look at the face of the pleadings (complaint, answer) and cannot consider any extrinsic evidence.
A motion for summary judgment can be thought of as a substitute for trial. The moving party provides evidence, and argues that there is no triable issue of material fact, and that the moving party is entitled to a judgment as a matter of law.
Explain how a motion for Judgment on the Pleadings is the SAME AS as a motion for Summary Judgement
Dispositive - They both end the law suit if granted.
Makes same legal argument
No genuine issues of material fact - only a question of law.
Explain how a motion for Judgment on the Pleadings is DIFFERENT THAN a motion for Summary Judgement
Judgment on the pleadings
The technique of preceding each answer to an interrogatory with a restatement of the applicable interrogatory question is known as ___________________
Under Wisconsin Law, what is the test used to determine whether the option to produce business records can be used to answer interrogatory questions.
"THE BURDEN OF DRERIVING THE ANSWER FROM THE RECORDS MUST BE "SUBSTANTIALLY THE SAME FOR THE PERSON ASKING AS IT IS FOR THE PERSON ANSWERING THE INTERROGATORY"
So, if all the records requested are in FRENCH, they must be translated.
Wis. Stat. 804.08(3)
(3) Option to produce business records. If the answer to an interrogatory may be determined by examining, auditing, compiling, abstracting, or summarizing a party's business records, including electronically stored information, and if the burden of deriving or ascertaining the answer will be substantially the same for either party, the responding party may answer by:
(a) specifying the records that must be reviewed, in sufficient detail to enable the interrogating party to locate and identify them as readily as the responding party could; and
(b) giving the interrogating party a reasonable opportunity to examine and audit the records and to make copies, compilations, abstracts, or summaries.
a. A party shall produce documents as they are kept in the usual course of business or shall organize and label them to correspond to the categories in the request;
b. If a request does not specify a form for producing electronically stored information, a party shall produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms; and
List the 7 functions of discovery
Define and explain how interragatories work under Wisconsin law - be specific and give details
How they work:
Strategic questions for the opposing party are written and served to the opposing parties attorney (no contact rule). The opposing party completes (with their atty supervision) the interrogatories or objects to the interrogatory citing the grounds in which they feel that they should not have to answer them. Within 30 days (with some exception) the interrogatories are Answered to the attorney of the party that served them.
804.08 Interrogatories to parties.
- They can only be served on parties,
- you should always consult the local rules for instructions on interrogatories
- They are answered under oath
- they are objected to under oath (atty must sign)
- 804.08(1) (1) Availability; procedures for use.
- 804.08(1)(a)(a) Except as provided in s. 804.015, any party may serve upon any other party written interrogatories to be answered by the party served, or, if the party served is a public or private corporation or a limited liability company or a partnership or an association or a governmental agency or a state officer in an action arising out of the officer's performance of employment, by any officer or agent, who shall furnish such information as is available to the party. Interrogatories may, without leave of court, be served upon the plaintiff after commencement of the action and upon any other party with or after service of the summons and complaint upon that party.
804.08(1)(b) (b) Each interrogatory shall be answered separately and fully in writing under oath, unless it is objected to, in which event the reasons for objection shall be stated in lieu of an answer. The answers are to be signed by the person making them, and the objections signed by the attorney making them. The party upon whom the interrogatories have been served shall serve a copy of the answers, and objections if any, within 30 days after the service of the interrogatories, except that a defendant may serve answers or objections within 45 days after service of the summons and complaint upon that defendant. The court may allow a shorter or longer time. The party submitting the interrogatories may move for an order under s. 804.12 (1) with respect to any objection to or other failure to answer an interrogatory.
List and explain the two tests utilized when evaluating a request for an enlargement of time. i.e. before deadline vs after deadline
Test of Good Cause - ??? what constitutes as a good cause ?? most important thing is that it is done BEFORE the court date
Test of Excusable Neglect -
Excusable neglect she refers to the story of her friendd getting in a critical accident on her way to Madison for the trial - she didn't have cell phone, office did not know what happened to her until after the trial time started.
Wis. Stat. 801.15(2)(a) When an act is required to be done at or within a specified time, the court may order the period enlarged but only on motion for cause shown and upon just terms. The 90 day period under s. 801.02 may not be enlarged. If the motion is made after the expiration of the specified time, it shall not be granted unless the court finds that the failure to act was the result of excusable neglect. The order of enlargement shall recite by its terms or by reference to an affidavit in the record the grounds for granting the motion.
A ___________ letter is sent to prevent ESI from being destroyed.
A preservation letter.
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