Bar - Civ Pro Flashcards
Recap of Main Issues
First Issues
- Personal Jurisdiction
- Subject Matter Jurisdiction
- Supplemental Jurisdiction
- Removal and Remand
- Venue and Transfer of Venue
- Notice
- Choice of Law
Pretrial Procedures
- Pleadings
- Joinder of Parties
- Joinder of Claims
- Class Action
- Discovery
Disposition without Trial
- Dismissal/default
- Motion for Summary Judgment (MSJ)
Trial
- Right to a jury
- Judgment as a matter of law (JMOL)
(Directed Verdict in California
Post Trial)
- Renewed JMOL
o JNOV in California
- New trial
- Motion to set aside judgment
- Remittitur/additur
Appeals
- Final Judgment Rule (FJR)
Use of Final Judgment
- Claim preclusion (res judicata)
- Issue preclusion (issue preclusion)
For a court to hear a case, what 4 things need to be in place?
(1) Court has personal jurisdiction over the defendant;
2) Court has subject matter jurisdiction over the matter;
(3) Venue is proper; AND
(4) D has notice of the suit.
What are the 3 types of personal jurisdiction over a defendant?
(1) In personam
(2) In rem jurisdiction
(3) Quasi in rem jurisdiction
What is in personam personal jurisdiction?
Forum has personal jurisdiction over the defendant.
What is in rem jurisdiction?
Court has power to adjudicate the rights of people all over the world to a piece of property
- Examples:
o Actions for condemnation (eminent domain cases)
o Forfeiture of property to the state (e.g., when property used for unlawful housing of narcotics)
o Settlement of decedent’s estate
What are the two types of Quasi in Rem jurisdiction?
- Type 1 – court has power to determine whether certain individuals own a piece of property; court not permitted to determine rights of people across the world
- Type 2 – court adjudicates disputes other than ownership based on the presence of the defendant’s property in the forum
- Note
For Quasi In Rem jurisdiction, the court has power over the property but the judgment does not bind the defendant personally and cannot be enforced against any other property belonging to the defendant.
What are the 4 bases to satisfy personal jurisdiction?
(1) D is domiciled in the forum state
(2) D is present in the forum state and served with process (unless by force/fraud or summons for another case)
(3) D consents to or waives personal Jx (e.g., appears in court to respond to complaint)
(4) State long arm statute and minimum contacts between the defendant and the forum state.
How is an individual’s domicile defined?
(1) State in which one is physically present; AND
(2) Subjective intent to remain.
What are the two steps in a modern personal jurisdiction analysis?
(1) Statutory analysis
(2) Constitutionality analysis
What is the question asked in the statutory analysis?
Whether there is the existence of a long arm statute
Note: Sample Long Arm Statute
Language: “State X may exercise Jx on any basis not inconsistent with the Constitution of the U.S.”
Conclusion: The statute reaches the Constitutional limit.
What is the question asked in the constitutionary analysis?
Whether defendant has sufficient minimum contacts such that jurisdiction does not offend traditional notions of fair play and justice
What are the 3 main requirements to the constitutionality analysis?
(1) Contacts between D and the forum state;
(2) Relatedness; AND
(3) Fairness
In the first prong on contacts, what are the 2 required elements and define them each.
(1) Purposeful availment, where D receives benefits in the forum state; AND
(2) Foreseeability of suit.
Note:
D can purposefully avail without setting foot in the forum (e.g., marketing a product in the forum, sending a tortious email in the forum, traveling through the forum, maintaining an interactive website in the forum)
* If active website (e.g., make hotel reservation) enough for PJ
* If passive website (e.g., only gives hotel info) not enough for PJ
- ARGUE BOTH SIDES ON EXAM
On the relatedness prong, what question are we asking? What are the two things to show to establish general jurisdiction?
Whether D’s contacts with the forum state relate to the P’s cause of action?
If yes: Specific jurisdiction, skip to reasonableness
If no: Need general jurisdiction .
D must be:
(1) “At home” or registered to do business in the forum state; OR
(2) Be served with process in the forum state.
Individuals at home in state of domicile
Corporations at home in every state of incorporation and PPB
Example for individual
Example: I live in CA. I can be sued in CA for a claim that arises anywhere in the world, including Antarctica.
Example: I am from CA, but I travel to OK, and am served with process for a lawsuit in OK. OK has personal Jx over me.
What are the 3 factors analyzed under Fairness and only for specific jurisdiction (step 3)?
(1) Burden on the defendant and his witnesses
o E.g., cost for them to travel to forum state this is not enough. D must show “grave inconvenience”
o Note: relative wealth of P and D is not determinative
(2) State’s interest
o Mention state will want to protect its citizens and offer them a courtroom
(3) Plaintiff’s interest in being in forum state
o E.g., P injured and can’t travel to other state
Exam Tips - Personal Jurisdiction
California State Courts—Personal Jurisdiction
- This is assessed the same exact way personal jurisdiction is assessed in federal court.
Minimum contacts fact triggers
Advertise or solicit business in a state
Distributor or salesperson for product in a state
Small retail store near state border
Awareness that product is being used in a state
Driving through a state on the way to another state
Housing state X prisoners in state Y
- Note: Personal Jx is frequently tested. If time permits, analyze the traditional bases of jurisdiction, but typically these bases will not be satisfied, and a full-fact intensive minimum contacts analysis will be required
What is the general rule on subject matter jurisdiction?
A federal court has subject matter jurisdiction if the case involves a federal question or diversity jurisdiction. Subject matter jurisdiction cannot be waived.
When does a federal court have federal jurisdiction? 2 requirements
Rule: A federal court has federal question jurisdiction if:
(1) The claim arises from federal law; AND
(2) Determined by a well-pleaded complaint.
- Note: D’s defenses do not matter.
- Note: There is no amount in controversy requirement in federal question cases, with the narrow exception for cases brought against defendants other than the United States, its agencies, or employees under section 23(a) of the Consumer Product Safety Act.
What is the general rule on diversity jurisdiction?
Federal courts have diversity jurisdiction where there is complete diversity of citizenship between the parties, and the amount in controversy exceeds $75K, exclusive of interest and costs and counterclaims.
- Note: Attorneys’ fees and interest that are recoverable by statute or as part of claim are included
What are the 4 groups that fulfill complete diversity of citizenship? Between who and who?
(1) Citizens of different states
(2) Citizens of a state AND citizens of a foreign country except when greencard holder
(3) Citizens of different states AND in which citizens of foreign countries are additional parties
(4) A foreign country as plaintiff and citizens of a state
o (1) citizens of different States
Example: P (Florida) v. D (New York)
o (2) citizens of a State and citizens of a foreign country
Exception
* When the citizens of the foreign country have permanent residence in the same State as P
Example: P (Florida) v. D (France) OK
Example: P (Spain) v. D (California) OK
But not: P (Florida) v. D (France citizen, resides in FL)
NOTE: If a P lives abroad, but is a U.S. citizen, they are NOT a citizen of a U.S. state.
o (3) citizens of different States and in which citizens of foreign countries are additional parties
Examples: P (Florida) and P (Germany) v. D (New York) and D (Canada)
o (4) a foreign country as plaintiff and citizens of a state (or different states)
Example: P (Turkey) v. D (California)
How is one’s citizenship determined?
Same as domicile
- (1) State in which one is physically present; AND
- (2) The subjective intent to remain.
Note: Each person can only have one domicile at a time.
Note: If you are driving from Ohio to move to Florida and get in accident, you do not yet have physical presence in Florida so your domicile is still Ohio.
How is a corporation’s citizenship determined?
- Rule: A corporation is a citizen of the state of incorporation and the state where it has its principal place of business.
- Note: A corporation may be the citizen of more than one state.
- Note: Company can also be citizen of another country.
How is the principal place of business defined?
o PPB is where the corporation’s officers direct, coordinate, and control the business
o Note: “nerve center test”; e.g., HQ
How is citizenship determined for unincorporated associations and partnerships?
- Rule: The citizenship of an unincorporated association is determined by the citizenship of all of its members.
o Note: An unincorporated association can be a citizen of all 50 U.S. states at one time.
Note: includes where both general and limited partners reside
What is the citizenship of minors, incompetents, and decedents?
- Rule: The citizenship of minors, decedents, and incompetents is determined by their OWN citizenship and NOT that of their representative.
How is the citizenship of the legal rep of a decedent’s estate treated?
Rule: A legal representative of a decedent assumes the state citizenship of the decedent.
How is the citizenship for a class action determined?
- Rule: Class action citizenship is that of the named representative.
How do you treat a situation of aliens against aliens?
Rule: There is NO federal jurisdiction for an action by an alien against another alien UNLESS there are U.S. citizens on both sides of the controversy.
What are the rules regarding the Amount in Controversy for diversity cases?
The amount in controversy must exceed $75K at the time of the filing, excluding attorney’s fees.
Sub-Rule: Good faith allegation by P usually controls unless to a legal certainty $75K is not possible.
Note: P sues for $10K for compensatory damages in breach of contract and $80K in punitive damages. We know no punitive damages in breach of contract, so diversity Jx not fulfilled.
o Note: If P recovers less than $75K, he may have to pay D’s litigation costs. But general rule is that what the P actually wins is irrelevant.
What are the 3 ways a plaintiff can meet the AIC?
(1) 1 P may aggregate claims against 1 D
o Note: Claims do not have to be related.
o Note: If P1 sues D for $50K and P2 sues D for $50K, this does not work.
(2) P may aggregate claims against joint tortfeasors on a joint liability claim
(3) Several Ps may aggregate claims against one D only if seeking to enforce a single title or right (common, undivided interest)
Note: General rule is that multiple Ps cannot aggregate
How is the amount in controversy determined for equitable relief cases?
Rule: The amount in controversy is determined by the value of relief to the plaintiff OR costs to the defendant.
* Example: If costs $90K for D to comply with injunction, amount is satisfied. If P’s house value would increase by $100K if injunction enforced, amount is satisfied.
What are the 4 types of cases in which under no condition will a federal court hear the case?
- (1) Divorce
- (2) Alimony
- (3) Child support
- (4) Probate of an estate.
NOTE: This is NOT the same as saying ‘federal court doesn’t hear family cases.’ Child suing parent for abuse could be heard in family court.
Define concurrent jurisdiction.
Rule: The federal courts and the state courts have concurrent jurisdiction over most types of actions.
What are the 3 areas where the federal court has exclusive jurisdiction?
- (1) Bankruptcy cases
- (2) Patent and copyright cases
- (3) Antitrust cases
What kind of jurisdiction do CA courts have and define it.
Rule: California state courts have general subject matter jurisdiction, which means it can hear any civil case not exclusively granted to another judicial system. This includes most cases arising under federal law.
What are the 3 classifications of civil suits in CA Superior Court?
(1) Limited civil cases
(2) Unlimited civil cases
(3) Small claims
Discuss limited civil cases and the main distinction.
o (1) Limited civil cases
Heard in Superior Court
Require AIC equal to $25K or less
Limited discovery; cannot file special demurrer
Claimant cannot get a permanent injunction or declaratory judgment or determine title to land
Expedited jury trial
Biggest limitation: Claimant cannot recover more than $25K.
P must note classification on filing.
Discuss unlimited civil cases and the main distinction.
Heard in Superior Court
Require AIC exceeding $25K or seeking general equitable relief (e.g., permanent injunction or declaratory judgment)
* Includes suing to determine title to land
No limitations on pleadings, discovery, or relief available
Claimant can recover any amount
P does not need to note classification on filing.
Discuss the two distinctions for small claims.
Heard in CA Superior Court—Small Claims Division
If P is an individual, claim is $10K or less
If P is a business, claim is $5K or less
Listen to classification and reclassification points in Superior Court.
Classification and Reclassification Points
* Plaintiff usually determines classification through AIC
o Note: If P has $10K and D has $100K counterclaim, case will get reclassified as unlimited, because the cross complaint has an AIC over $25K.
* Reclassification
o 2 ways to reclassify a case
(1) Automatically by changing dollar amount in claim
(2) Motion, notice, hearing
o Note: Court will not consider the merits of the claims in considering reclassification, but may look beyond the pleadings, and must consider a judicial arbitration award.
o Reclassify from unlimited to limited. Judge must find that the case either:
(1) Will necessarily result in a verdict of $25K; OR
(2) That reaching more than $25K is not possible.
o Reclassify from limited to unlimited. Judge must find that there is a possibility that the verdict would exceed $25K.
Must every claim in federal court have its OWN BASIS for federal jurisdiction?
Yes.
There are three main types of federal subject matter jurisdiction
(1) Federal question
(2) Diversity
(3) Supplemental
What are the 4 requirements for subject matter jurisdiction?
Supplemental jurisdiction is allowed when:
* (1) Court has subject matter jurisdiction over initial claim;
* (2) Court does not have subject matter jurisdiction over additional claim;
* (3) Additional claim derives from the same transaction or occurrence; AND
o Same T/O defined: “common nucleus of operative fact.
* (4) In diversity, where diversity is not destroyed.
Note: Supplemental Jx is a discretionary decision for the court (e.g., state law claim is complicated)
o Note: Plaintiffs do not usually bring supplemental Jx to diversity cases. Usually Ds.
o Example
P1 and P2, citizen of VA sue D, citizen of PA on state law tort
P1 claim is 100K
P2 claim is 50K
So case gets into court with P1 claim but P2 claim doesn’t work on in its own
So P2 gets in through supplemental Jx
How is same transaction and occurrence defined?
Common nucleus of operative fact.
What are the 4 categories under which a P is subject to a requirement not to destroy diversity?
Rule: In any action where diversity is the basis for subject matter jurisdiction, supplemental jurisdiction shall not destroy diversity. This includes claims by Ps against persons made parties under:
* Rule 14: Impleader—Bringing in a third party defendant
* Rule 19: Required joinder of a party
* Rule 20: Permissive joinder of a party
* Rule 24: Intervention by right or by permission
Exam Tip
Where supplemental jurisdiction is at issue, look for subject matter jurisdiction to be at issue.
What is the general rule on removal that includes three points - when it works, timing, and location
Rule: Removal allows a defendant to move a case from state court to federal court if the case could have been brought into federal court. Defendant must remove no later than 30 days after service of a document showing the case is removable. Removal is only proper to the federal district where the original state court action is pending.
Note: Only defendants can remove and don’t use the word transfer since that’s used with venue. Also, don’t switch states (if federal in State A is proper, don’t remand to federal in State B).
Example: P sues D in state court. D would rather be in federal court. D requests removal.
What is the rule regarding removal when the plaintiff has multiple claims and some do not have subject matter jurisdiction in federal court?
Rule: If multiple claims, for which some have no subject matter jurisdiction, the defendant can still remove.
What are the 2 limits on removal in diversity actions only?
Rule: A defendant cannot remove to federal court if he is a citizen of the state in which the action was filed.
Rule: One-year time limit
* Rule: If a diversity action is not initially removable but later becomes removable, it may not be removed after one year.
o Example: Nondiverse defendant dismissed it may not be removed more than one year after it was commenced in state court.
Who must join in removal?
All Ds served with process must join in the removal
Earlier-served D may join later-served D’s removal even if 30-day period expired.
NOTE: Plaintiffs cannot remove even if there is a counterclaim against them.
What is the relationship between removal and venue?
The case must be removed to the federal district court embracing the state court in which the plaintiff originally filed. It does not matter if it is not the proper venue under venue statutes.
* Example
o P sues in San Diego, under Southern District of CA. D may NOT seek to remove case to Northern District of CA.
Define remand including the timing rule and SMJ distinction.
o Rule: A plaintiff can file for remand back to state court where removal to federal court is improper. The P must move to remand the case within 30 days. If the remand is due to no SMJ, there is no time limit.
o Exam Tip
Where removal and/or remand are at issue, look for SMJ to be at issue as well.
What does venue tell us and can it be waived?
Venue tells us which geographic district to go to. Unlike SMJ, venue can be waived.
What the 3 situations in which venue is proper?
(1) Any district where all Ds reside
(2) Any district where substantial part of the claim arose or substantial part of the property is situated
(3) If 1 or 2 above cannot be satisfied, venue is proper where any D is subject to the court’s PJ with respect to the cause of action.
What are the nuances on the district where all Ds reside
- Nuance: D1 lives in Northern FL, and D2 lives in Southern FL, Plaintiff can choose whichever district in Florida they want
- Note: If D lives outside of U.S., venue is appropriate in any U.S. district
- Note: For venue, it does NOT matter where the plaintiff resides
- California
o If corporation: PPB or under contract or personal injury rules
o If unincorporated business: PPB or residence of any member of partner
Under the second prong, any district where substantial part of the claim arose or substantial part of the property is situated, what are the California rules for land, contract, or personal injury/wrongful death?
o Land: Where land in dispute is located
o Contract: Where contract entered into or to be performed
o Personal injury or wrongful death: Where injury occurred
- Note: More than one district can satisfy this requirement
In California, where there are mixed claims that call for different venues, what is the rule?
Venue is proper in the county that applies to the main relief sought.
On the exam, in a venue essay question, what should you do?
Walk through all 3 options.
NOTE: When the D is the U.S. or government agency,
Where D resides, substantial part of property/occurrence, or where the plaintiff resides if no property is involved in the action.
What is the disctinction between removal and venue?
Venue rules do NOT apply to removal.
For venue, individuals reside at their domicile. For corporations, how is residence defined only in venue matters?
Corporations reside where they are subject to PJ with respect to the action in question at the time case is filed.
Note: A corporation’s residence for venue purposes is NOT defined the same way as a corporation’s citizenship for diversity purposes.
In California, only for venue purposes, how do we define where a corporation resides? There are 4 options.
o (1) Corporation has their PPB
o (2) Corporation entered into or performed contract
o (3) Where breach occurred
o (4) Where liability arises
In a venue analysis, where do non-residents reside?
any judicial district
When does transfer of venue occur?
- Transfer of venue occurs when a case is moved from one trial court to another within the same judicial system.
Venue may be transferred so long as the court has PJ and SMJ without requiring the D to waive PJ.
* Note: A federal court cannot transfer to a state court (different judicial systems).
To transfer from a proper venue to another venue, what are the 2 factors the court will assess?
o (1) Convenience of the parties and witnesses; AND
o (2) Interest of justice
When transferring from a proper venue to another proper venue, how long does the court have?
Anytime, up to judge.
What is the choice of law used when transferring from a proper venue to another proper venue, and what is the exception?
Rule: A transfer away from a proper venue carries the choice of law rules of the transferor court.
Exception
* Transfer was ordered to enforce a forum selection clause unless forum selection clause was unreasonable. Then, transferee court choice of law rules apply.
* Consider public interest factors
When venue is improper, and there MAY be a transfer to a proper venue, what 2 options does the court have?
o (1) Transfer in the interest of justice OR
o (2) Dismiss.
When venue is improper, what timing consideration is at play?
Venue is waived unless a timely objection is made (e.g., in the Answer)
In forum non conveniens, is transfer possible?
No
Define forum non conveniens
Under forum non conveniens, a federal court with jurisdiction may use its discretion to dismiss or stay a case if there is a far more appropriate forum elsewhere, such as another state of country. Transfer is not possible.
What requirement is there for forum non conveniens, in order to help the plaintiff?
o The forum must be adequate in that the P can receive some remedy (e.g., in the other court outside the country).
* Example: Big accident happened in Latvia, caused by U.S. company, but all witnesses and evidence in Latvia.
What is forum non conveniens called in California?
Inconvenient forum
What is the timing in CA court for an inconvenient forum?
- Timing: NOT waived
- Example: NOTE: A state court in CA cannot transfer to a state court in Maine, so the remedy will be inconvenient forum.
Define notice and its two requirements.
Rule: A D must receive notice through service of process. Service of process includes:
* (1) A summons; AND
* (2) Copy of the complaint.
With respect to who can serve, what are the 2 requirements?
Service can be made by anyone who is:
* (1) At least 18 years old; AND
* (2) Who is NOT a party to the action.
* Note: Includes a U.S. Marshall
What is the time limit for a P to serve a D?
Service within the U.S. must be made within 90 days of the filing of the complaint
* Exception
o Court extends period for good cause shown.
What are the general rules for location of service of process?
- (1) In state where the district court sits
- (2) Anywhere allowed by long-arm statute
What is the 100 mile bulge rule and which two groups does it apply to?
Out of state service allowed within
- 100 mile radius
- Only 3rd party defendant or indispensable parties
What are the 4 ways to serve an individual?
- (1) Personal service
- (2) Service left at defendant’s usual abode with one of suitable age and discretion residing therein
o Person older than 14 years - (3) Service upon authorized agent of defendant
- (4) Through other method authorized by state.
What is the rule for service on minors and incompetents?
Rule: A minor or incompetent person must be served in accordance with the rules of the state in which service is made.
What is the rule for service on corporations and partnerships?
- Rule: A corporation, partnership, or association may be served by serving an officer, managing or general agent, or an authorized agent of the corporation.
When a P mails a waiver of service request to the D, what are the 4 requirements in what should be mailed?
o (1) Formal request to waive service;
o (2) Copy of complaint;
o (3) Two copies of a waiver form; AND.
o (4) Pre-paid return envelope.
When does a defendant need to respond to a waiver?
- Rule: The defendant must mail the waiver back to the P within 30 days or 60 days if outside of U.S.
What is the effect of a signed waiver of notice as it relates to timing?
- Rule: A D who waives formal service of process has 60 days (90 days if outside the U.S.) from the date the request was sent, instead of the usual 21 days to respond to the complaint.
NOTE: The waiver of service does NOT waive the defendant’s right to object to jurisdiction and venue or any other defenses.
What is the effect of a defendant failing to waive?
- Rule: If the defendant does not waive service of process, the plaintiff must serve him. However, a defendant located in the U.S. is liable for the cost of service if he does not have good cause for failing to waive service.
What are the 4 ways to effectuate service to someone in a foreign country?
o (1) As provided in an international agreement (e.g., Hague Service Convention)
o (2) In absence of such agreement, as provided by the foreign country’s law or as directed by a foreign official
o (3) As long as ok by other country’s law, by personal service or by mail with signed receipt requested
Exception: corporations, minors, incompetent
o (4) Any method the court orders (so long as not prohibited by international agreement)
Under the California rules, how can someone outside of CA be served? 2 ways
o Any in-state method
o Prepaid mail return receipt requested
NOTE: Deemed effective 10th day after mailing
How does a plaintiff prove that service was made?
- Process server files report with the court. If server is a civilian, the report is by affidavit.
- Note: Failure to file report does NOT affect validity of the service
What are the 2 areas where a D is immune from service?
o D is immune from process while appearing in another case
Example: Driver not served in Case 1; Driver appears in state for Case 2 deposition. Service on Case 1 would not be effective.
o D is immune from process if induced by fraud or deceit to enter state just so he could be served
What is the California rule for service of process and immunity when appearing in the state for another suit?
o D is NOT immune from being served with process in CA if he is in CA to be a witness or party in another state, civil case, but he is immune from service in a civil, federal case.
When is service of any document generally deemed effective?
When it is mailed
What are the rules if D receives service by mail?
What are the California rules?
- If D receives service by snail mail, you receive additional 3 days to respond (on top of the 30 days).
o CA: 5 days added to time to respond, 10 days if it is out of state
In a federal question case, when does the Statute of Limitations commence?
At filing of complaint
In diversity cases, when does an action commence?
- In diversity cases, the state rule for determining when the action is commenced applies. Thus, depending on the state rule, an action may be commenced for statute of limitations purposes when process is served on the opposing party.
Under CA law, when is substitute service allowed?
o Three types: personal, substitute, constructive
o Rule: Under California law, substitute service is allowed only if personal service cannot be accomplished with reasonable diligence.
What are the 4 requirements for substitute service in California?
- (1) Service must be left at D’s usual abode;
- (2) Must be left with a competent member of the household who is at least 18 years old;
- (3) Person must be informed of the contents; AND
- (4) Copy to D via first-class mail postage pre-paid.
What are the CA rules for service by mail?
- Self-addressed stamped envelope
- D has 20 days to return form
- Service deemed complete when D executes waiver
When does the Erie Doctrine apply?
(only in diversity actions)
o Note: On any civ pro essay, in diversity, bring up Erie Doctrine as issue. Also, there is NO Erie issue in federal question cases.
What is the general Erie rule?
A federal court sitting in diversity applies federal procedural law and state substantive law.
What is the first step in an Erie analysis?
Is there a federal law on point that directly conflicts with state law?
If so, apply federal law so long as the federal law is valid.
* Note: Due to Supremacy Clause.
* Example: FRCP is presumptively valid
* Done with steps
What is the second step in an Erie analysis?
If there is no federal law on point, federal judge must apply state substantive law and federal procedural law.
What are 5 areas that are deemed state substantive law (when no federal law is on point)?
- (1) Conflict or choice of law rules
- (2) Elements of a claim or defense
- (3) Statues of limitation
- (4) Tolling of statutes of limitation
- (5) Standard of granting a new trial due to excessive/inadequate award
Note: This prevents forum shopping.
What is the 3rd step in an Erie analysis and is only applied when it is unclear whether a law is substantial or procedural? What are the 2 tests applied?
One of 2 tests applied
(1) Outcome determinative test
(2) Balance of interests tests
What is the outcome determinative test?
Rule: An issue is substantive if it substantially affects the outcome of the case (apply state law).
What is the balance of interests test?
Rule: If the state has a greater interest in having the state law applied, the rule is substantive. If the federal interest is greater in having the federal law applied, the law is procedural.
Define pleadings.
Pleadings are documents that set forth the claims and defenses to a case.
What types of pleadings does CA use?
California courts use fact pleading where parties must plead ultimate facts to support each element of the cause of action.
What are 3 types of pleadings?
(1) Complaint
(2) Response
(3) Answer
What is Rule 11 and its 3 requirements?
Under Rule 11, all attorneys (or a party representing himself) must signs all pleadings, motions, and papers, certifying 3 things:
* (1) Paper not presented for improper purpose;
* (2) Legal contentions warranted by law or good argument law should be changed; AND
* (3) Factual contentions and denials have evidentiary support.
Note: Rule 11 does NOT apply to discovery violations.
EXAM TIP – Issue Spotting
* If Rule 11 issue, bring up Professional Responsibility
What is the general goal of Rule 11 sanctions?
The purpose of Rule 11 sanctions is to deter repeated conduct, not to punish.
How can a party move for Rule 11 sanctions?
A party may move for Rule 11 sanctions by:
* (1) Serving a motion on the other party; AND
* (2) Not filing the motion if the issue is corrected within 21 days of the service (safe harbor provision)
Who can seek sanctions?
- (1) Court does this sua sponte
- (2) Opposing party files motion
What are 2 types of sanctions?
- Requiring attorney to attend class
- Monetary sanctions paid to the court
What are the distinctions with Rule 11 sanctions?
CA Sanctions – Mirroring Rule 11
* Works just like Rule 11 except the 21 safe harbor applies to not only to motions brought by the party but also when the court brings it up on its own
* An additional statute to recover expenses and fees for bad faith or frivolous tactics in litigation
o Frivolous – no merit; purpose to harass other party
o Must be a motion by party or court and an opportunity to be heard and 21 Safe Harbor applies
What are the 5 things that must be in a Complaint? Mention the 3 matters that require more specificity.
A federal complaint must include 5 things:
* (1) Identification of the parties;
* (2) Grounds for SMJ;
* (3) Statement of the claim showing P entitled to relief;
o Matters requiring more specificity: Fraud, mistake, and special damages
* (4) Demand for relief; AND
* (5) Signature of plaintiff or attorney.
* Note: Including a legal provision in a pleading does not make the pleading defective.
In California, what are the 4 things a complaint requires? What is the nuance on a demand for judgment?
- (1) Identification of parties;
o Fictitious “Doe” defendants allowed where identity unknown - (2) Statement of facts;
o Fact pleading where specific facts are provided to support every element of each legal theory
o Also, must plead with particularity if case of fraud, civil conspiracy, unfair business practices
o Note: Heightened requirements - (3) Demand for judgment; AND
o Includes amount of damages sought
Exceptions - (1) Personal injury or wrongful death actions
- (2) Punitive damages
- Note: D will need to request a statement of damages which P needs to provide w/i 15 days. If P fails to do so, D can move for court order. Also, P must serve a statement of damages on any D before making request for entry of default.
- (4) Signature of plaintiff or attorney.
- Note: No need to allege SMJ, but in limited case, must state this in caption
How are verified pleadings be treated?
o Rule: Verified pleadings can be treated as evidence for summary judgment because they are under oath.
By when must a defendant file a response (either answer or motion)? What about if by waiver?
Rule 12 requires a D to respond by either a motion or answer within 21 days after service of process (or within 60 days if service is waived)
- Note: California allows 30 days to respond.
What are 4 types of pre-answer motions?
o Motion to Dismiss
o Motion for More Definite Statement
o Motion to Strike
o Motion for Judgment on the Pleadings
Note: Motions are NOT pleadings. They are requests for a court order.
What are the 7 options under a 12b Motion to Dismiss?
o (1) Lack of SMJ
Can be raised anytime before all appeals exhausted
o (2) Failure to state a claim upon which relief can be granted
Can be raised anytime until trial is concluded
o (3) Failure to join an indispensable party
Can be raised anytime until trial is concluded
o Waivable defenses (3Ps and a V)
(4) Lack of PJ
(5) Inproper process (something wrong in papers)
(6) Improper service of process
(7) Improper venue
When can a motion to dismiss for lack of SMJ be brought up?
anytime before all appeals exhausted
When can a 12b6 be raised?
anytime until trial is concluded
What are the 4 12b defenses that are waived if not raised?
3 Ps and a V
o Waivable defenses (3Ps and a V)
(4) Lack of PJ
(5) Improper process (something wrong in papers)
(6) Improper service of process
(7) Improper venue
When must defenses be raised?
Defenses must be raised in the first motion or answer, whichever comes first.
What are the 2 types of answers in California and what are they called?
(1) General demurrer
(2) Special demurrer
In California, what must parties do before filing a demurrer? What is the timing?
(1) Parties must confer before filing demurrer
* Timing: Must meet at least 5 days before filing of demurrer
o 30 day extension if D declares good faith effort to meet was made, and stating why the parties could not meet
o Before filing demurrer, D must declare parties were unable to resolve the issue.
What are the 2 defenses that are raised in a general demurrer?
- (1) Pleadings fail to state facts sufficient to constitute a cause of action
- (2) Court lacks SMJ
Exam Tip: Watch for cross-over question, to show elements of a tort.
Note: These defenses can be raised in the Answer as an affirmative defense or used in a Judgment on the Pleading if time for Answer has expired
Note: General demurrer is a pleading but it acts like a motion because it can get the case dismissed.
What are the 7 minor defenses that are filed in a special demurrer?
- (1) Uncertain pleading
- (2) Complaint unclear about which theories of liability are asserted against each of the defendants
- (3) P lacks legal capacity to sue
- (4) Existence of another case between P and D on same cause of action
- (5) Defect or misjoinder of parties
- (6) Failure to plead whether a contract is oral or written
- (7) Failure to file a required certificate (e.g., for professional negligence claim)
In California, what are the 3 situations in which a Motion to Squash Service of Summons is made?
lack of PJ
insufficient process
insufficient service of process
- Timing
o The motion must be made either before or with the filing of the demurrer or motion to strike or the answer, or the following defenses are deemed waived
o (1) Lack of PJ
A D must raise PJ on or before last day of his time to plead or it is waived
o (2) Insufficient process
Something wrong with papers
o (3) Insufficient service of process - Note: If court denies motion, D must plead within 15 days or file the answer within 15 days.
- Special vs General Appearance
o Special appearance when making motion to quash service of summons
o General appearance waives challenges to Jx and process
o General appearance such as answer or demurrer engages merits of case - Appeal of Motion to Quash
o Rule: The only way to appeal a denial of a motion to quash is to seek writ of mandate from the court of appeal.
What is a Motion for a More Definite Statement?
Rule: A motion for a more definite statement is used where the complaint is too vague.
California Rule: When a motion is too vague, a special demurrer is made on the ground that the pleading is uncertain.
What is a Motion to Strike?
Rule: A motion to strike is made when a pleading contains immaterial, redundant or scandalous issues
Examples
* Demand for a jury trial when there is no right to one
* D wants P to strike details of fraud in complaint
* Note: Both sides can make a move to strike
In CA, what is an Anti Slapp motion to strike?
- Rule: Under an Anti-Slapp motion to strike, D shifts the burden to the P to show a probability of winning on the merits. This aims to reduce the number of suits brought to chill free speech.
- D is not supposed to make the motion if the P’s case is in the public interest or on behalf of the general public.
- If D grants Motion to Strike, D can show grocer for malicious prosecution, and this is called a slap back suit.
What is a Motion for Judgment on the Pleadings?
A motion for judgment on the pleadings is filed after the answer is filed, and challenges the sufficiency of the pleadings.
Note: Only difference with 12b6 is timing.
Example: Defendant’s answer is missing a needed legal defense.
When must an answer be filed? What about if waived?
Filed within 21 days after service of process or within 14 days after D’s motion to dismiss is denied;
o 60 days if service waived
o CA: 30 days
What are the 3 requirements for a valid Answer?
(1) Filed within 21 days after service of process or within 14 days after D’s motion to dismiss is denied;
o 60 days if service waived
o CA: 30 days
(2) Admit, deny, or state you lack sufficient information to do either; AND
o Rule: Failure to deny an allegation is an admission
Exception: D does not have to admit amount of damages.
(3) Raise affirmative defenses.
o Note: Waived if not asserted in answer.
Note: In California, if P files a verified complaint, then D must file a verified answer.
How long do a P or D have to amend their complaint, when the window is still open?
Plaintiff
* P has a right to amend Complaint once without court’s permission within 21 days after its filing. After the 21 day window, the court will grant permission when justice so requires.
Defendant
* P has a right to amend Answer once no later than 21 days after serving his Answer.
* If the D’s first response was an Answer (not a Motion), where he forgot to raise waivable defenses or affirmative defenses, he can include them here.
What is the CA rule on the right to amend?
P has a right to amend once before the answer or demurrer, or after the demurrer is if there is a hearing on the demurrer. Otherwise, a party must seek leave of court to amend
There is a limit of 3 amended complaints.
After the time to amend expires, what are the 3 situations where the judge may grant an extension?
Rule: With court permission if justice so requires
* Usually approved except in 3 situations
o (1) Delayed too long
o (2) Prejudice to other party
o (3) Would be futile
How does the court deal with variances where the trial does not match the pleadings?
An issue not raised by the pleadings but raised at trial may be amended in the pleadings to conform to trial, even after the trial, so long as the court approves.
What is the Relation Back Doctrine?
Amended claims e pleading back to the date of the original filing for purposes of the statute of limitations when the claims “relate back”
When do claims relate back?
Claims “relate back” if they concern same conduct, transaction, or occurrence.
* Adaptibar: First claim against doctor for lack of informed consent; second claim, P wants to amend to add negligence during surgery. Courts consider if the D, when reading complaint, would have been placed on notice of possible claim to be added through amendment. If no, then the two claims do not involve the same conduct, transaction, or occurrence.
What are the 3 requirements for an amendment that changes the defendants?
- 3 requirements
o (1) Amendment concerns same conduct, transaction, or occurrence;
o (2) Defendant had knowledge of case so won’t be prejudiced by amendment; AND
o (3) Defendant knew or should have known that P made a mistake. - Context only comes up when P sued the wrong D first, and the real D knew about it
In California, what are the 4 requirements to amend a complaint based on a previously fictitious defendant?
In CA, a P can sue a fictitious “Doe” if:
* (1) Original complaint filed before statute of limitations;
* (2) Original complaint contained charging allegations against fictitious D;
* (3) P genuinely ignorant of identity of fictitious D; AND
* (4) P pleads ignorance in the complaint.
In California, when must the fictional D be substituted by?
- Rule: P must substitute a named D for a “Doe” D within 3 years of the filing and then it relates back to the filing date of the original complaint.
What is the context for supplemental pleadings?
o Context: Deals with something new that happened after the pleadings are filed
Example: D punches P in nose after Complaint filed and now P wants to add a tort claim. P does NOT make a motion to amend the complaint.
What is the rule on supplemental pleadings?
A plaintiff may move to add a supplemental pleading to an original complaint if the event occurred after the date of the original pleading and the court grants permission.
- EXAM TIP – Pleadings
o Pleadings are not typically tested outright, but the rules are eligible for testing, and the failure to state a claim upon which relief can be granted and the sufficiency of notice pleadings have been tested.
What is the rule on joinder of claims by the plaintiff?
Rule: A plaintiff can join as many claims as she wants against a defendant, even if the claims are unrelated, so long as the court has SMJ over the claims.
o Whether joinder of parties or claim is at issue, also look for issues of personal jurisdiction, subject matter jurisdiction, and/or supplemental jurisdiction.
What are the 2 types of joinder of claims that a defendant does?
(1) Counterclaims
(2) Cross claims
Define a counterclaim
A counterclaim is any claim against a complaining party. A response is required within 21 days of service.
o Note: Counterclaim is contained in the defendant’s Answer.
What are the 2 types of counterclaims?
(1) Compulsory
(2) Permissive
What 2 requirements must be met for a compulsory claim to be joined?
Compulsory claims are joined if they fulfill 2 requirements:
* (1) Arise from the same transaction/occurrence; AND
* (2) SMJ on the counterclaim.
Note: If a compulsory counterclaim is not raised, the claim is waived. ONLY claim that is deemed waived.
Note: No need to mention supplemental Jx.
Note: Judge will dismiss a new case with one of these claims in it, since it should have been in initial case. However, if B moved to dismiss for improper service, as an example, and won, then B can bring that claim up in another lawsuit, because B had not answered yet.
What is the only type of claim that is deemed waived if not brought up?
Compulsory counterclaim
What are permissive counterclaims?
Those that do not arise from the same transaction or occurence.
What is the rule for permissive counterclaims?
Rule: Permissive counterclaims, which do not arise from the same transaction/occurrence MAY be joined. If not, the claim may be raised in a separate case.
Note: SMJ is often an issue.
Note: An independent basis for supplemental Jx IS required, because it is not clear whether the claim has SMJ on it.
Are cross claims compulsory?
No
What are the 3 requirments for a valid cross claim?
o (1) Claim against a co-party;
o (2) Arise from the same transaction or occurrence; AND
o (3) Claim on its own invokes subject matter jurisdiction, or if not, then supplemental jurisdiction.
o Example: Initially the case was diversity; but D1 and D2 both live in NY. So there is not diversity on the cross claim. So need independent basis (SMJ or supplemental)
Supplemental analysis
* Does it mean common nucleus of operative fact? (Yes)
* Because the case got into federal court on diversity, does the additional claim destroy diversity? (No, because it is a claim by a defendant, and the supplemental jurisdiction limitation only applies to claims by plaintiffs)
* Note: Cross claims are never compulsory; you can sue on it later.
* Note: After cross claim, if other D wants to file a claim back, it is a counterclaim.
In California, what is a cross complaint?
- Counter claim, cross claim, impleader all 3 are called a ‘cross complaint’ in Superior Court
- Cross complaint MUST be a separate document than the Answer
- Three Types of Cross Complaints
o (1) Cross complaint against plaintiff (same as counter claim)
File before or at same time as Answer
Compulsory and permissive still applies
o (2) Cross complaint against a co-party (same as cross claim)
Can file anytime before court sets trial date
Not compulsory
o (3) Cross complaint against third party (same as impleader)
Can file anytime before court sets trial date
Not compulsory
Usually for indemnity or contribution - Person must respond within 30 days of receiving complaint
What are the 2 types of joinder of parties?
(1) Required and Indispensable Parties
(2) Permissive parties
What are the 3 situations in which a P MUST join an absent party or face dismissal of his lawsuit?
o (1) Court cannot accord complete relief without absentee
o (2) Absentee’s interest will be harmed [OR]
o (3) Defendant at risk for multiple or inconsistent obligations
For a required or indispensable party, the court will join the party if feasible. What 2 things need to be feasible?
(1) Personal jurisdiction over absentee; AND
(2) Federal subject matter jurisdiction over claim by or against absentee.
Where Court Is Unable to Join a Required Party, what are the court’s 2 options?
(1) Dismiss
(2) Proceed without necessary party
What are the 3 factors the court balances in making its decision?
(1) Alternative forum available
(2) Actual harm to absentee is likely
(3) Court can shape relief to avoid any harm
* NOTE: Joint tortfeasors are NOT required parties for joinder.
What is the rule for permissive joinder of parties?
Ps and Ds MAY be joined to a case if:
o (1) Arise from the same transaction or occurrence;
o (2) Raise a common question of fact or law; AND
o (3) Court has SMJ.
- Example: P1 and friend got in same accident. Friend may join as P2.
What is a Motion to Sever?
o Rule: If parties are improperly joined, the court can grant a motion to sever.
What are the 3 types of joinder rules that start with the letter I?
Impleader
Interpleader
Intervention
Define impleader.
Under impleader, a defendant may implead a nonparty, if the nonparty may be liable for any part of a judgment that the plaintiff may recover against her.
Note: State law MUST recognize contribution among joint tortfeasors in order for impleader to be effective.
o Note: Indemnity shifts the liability completely, while contribution shifts it pro rata.
o Note: Impleading is proper only to join a party who is derivatively liable to the defendant, not to bring in a substitute defendant. Do not use impleader to “switch” defendants.
o Example: Homeowner sues subcontractor, subcontractor impleads termite guy for causing the damage to the house
o Note: Impleader claims are always permissive
What is the relationship between impleader and supplemental jurisdiction?
Supplemental Jx will apply because the claim will meet the “common nucleus of operative fact” It cannot destroy diversity because this is a new defendant coming in, not a plaintiff, and additional requirements ONLY APPLY TO PEOPLE THE PLAINTIFF BRINGS IN.
What is the 2 step process for impleader?
(1) D files a third party complaint naming the third party defendant and serves the third party defendant.
(2) D may implead within 14 days of serving the answer, otherwise must ask for court permission (leave of course)
o Note: Third party defendant can assert claims against P and P can assert claims against third party defendant so long as they arise from same transaction/occurrence and there is SMJ
* Try diversity, try federal question. If neither works, try supplemental.
Note: If third party defendant is same state as plaintiff, it is OK, because the plaintiff is not part of the claim, the claim is between the defendant and the third party defendant.
Note: Even if TPD sues plaintiff, and they are from same state, diversity is not destroyed, because supplemental Jx restriction only applies to claims made by the plaintiff. But if P sues TPD and they are same state, claim cannot come in because of supplemental Jx restriction.
o California
California calls this a cross complaint, and it allows addition of any claim on which third party D is liable so long as pertains to same transaction/occurrence
What is the relationship between venue and the impleaded new third party defendant?
Under impleader, venue need not be proper for the third party D.
What are the 2 types of intervention?
(1) As of right
(2) Permissive
What are the 3 requirements for intervention as of right?
- (1) Absentee’s interest may be harmed if she is not joined;
- (2) Interest is not adequately represented; AND
- (3) Intervenor’s claim has SMJ.
- Example: Intervenor claims an interest in the property or transaction that is subject of the suit and his absence will impair his rights.
What are the 2 requirements for permissive intervention?
(1) One common question of law or fact; AND
(2) Intervenor’s claim has SMJ.
o Recall: Try SMJ, if that doesn’t work, try supplemental Jx
What happens if the person intervening is a plaintiff?
the supplemental Jx limitation applies where diversity cannot be destroyed
In any action where diversity is the basis for subject matter jurisdiction, supplemental jurisdiction shall not destroy diversity. This includes claims by Ps against persons made parties under:
* Rule 14: Impleader—Bringing in a third party defendant
* Rule 19: Required joinder of a party
* Rule 20: Permissive joinder of a party
* Rule 24: Intervention by right or by permission
In California, when is intervention allowed?
Rule: Under intervention in California, intervention is allowed if the person’s interest is direct and immediate
Note: Intervention not allowed if the interest is indirect and consequential.
Define interpleader
Interpleader permits a stakeholder to require 2 or more claimants to litigate amongst themselves to determine who has a valid claim, in order to avoid double liability.
Where are the 2 places that interpleader is available?
Federal Interpleader Statute
Rule 22
What are the 3 requirements for the interpleader statute?
- Requires
o (1) One claimant diverse from the other claimant;
o (2) Amount in controversy must be $500 or more; AND
o (3) Plaintiff stakeholder deposits bond with court.
What is the requirement for Rule 22?
- Requires
o Federal subject matter jurisdiction
To qualify for a federal class action, what are the 5 requirements that must be met?
o (1) Numerosity where joinder of all is impractical
o (2) Commonality where there is a common question of law or fact;
o (3) Typicality where the named parties interests are typical of the class;
o (4) Adequate representative to fairly represent absent members; AND
o (5) Action fits into 1 of 3 types
What are the 3 types of class actions?
(1) Necessary to avoid inconsistent results (rare)
(2) Injunctive or declaratory relief is appropriate (e.g., employment where all class claims employer not giving them legally required vacation time)
(3) Common questions of fact or law predominate and class action is superior to other methods
* Note: Most likely on bar exam, due to Notice analysis required. Also, this is where you sue for damages.
If a court certifies a class action, what 3 things occur?
Court defines class, claims, issues, and defenses
Court appoints counsel
Certification is immediately appealable
What is the notice requirement on a Type 3 class action? When are the people bound?
o Rule: Court must notify members all reasonably identifiable members by mail.
Notice will provide that they can opt out if, and if they don’t, they are bound.
Is notice required in a Type 1 or Type 2 class action?
Notice is NOT required in a Type 1 or Type 2 class action.
Also, there is no right to opt out of a Type 1 or Type 2 class action
What is required for a class action and a settlement?
court approval
- Settlement or Trial
o Rule: Once class action is certified, you can only settle or dismiss with court approval.
o Settlement Proposal Process for all 3 Types
Courts gives notice to class members of settlement and gets their feedback as to whether it should be settled or dismissed
Court may refuse settlement unless members given second chance to opt out
For federal class actions under diversity, how does one determine whether diversity exists?
- Rule: Only citizenship and amount of claim of named class representative is taken into account
If diversity does not exist, is there another path? What are the 3 requirements?
- Rule: Under the Class Action Fairness Act, in cases where there is not complete diversity, a federal court may still hear the class action is 3 requirements are met:
o (1) Any class member is diverse from any D;
o (2) Aggregated claims exceed $5 million; AND
o (3) At least 100 class members. - Note: Any D may remove
- Note: Local actions stay local
What are the 2 requirements for a shareholder derivative suit?
o (1) Must have been shareholder at time of transaction (or received shares by operation of law); AND
o (2) Must have made demand on Board if required
o Venue is where corporation could have sued the same Ds
In California, what are the 2 requirements for a class action?
(1) Ascertainable class; AND
(2) Well defined community of interest.
In CA, what is the 3 factor balancing test to determine whether there is a well defined community of interest?
o (1) Common questions predominate
o (2) Representative adequate
o (3) Class will result in substantial benefit to parties and court
o Notice
Individual notice is NOT required
Publication to a class may be given
All class members who do not opt are bound by the class judgment
o Court will decide who will pay – the rep or the defendant or shared costs
o California does not require the court to appoint class counsel, but will approve a settlement
o Determining the AIC for a class action in California
Limited or unlimited: Aggregate claims to reach $26K to make it unlimited
What are the 3 things that must be disclosed to the other side?
(1) Initial disclosures
(2) Expert testimony disclosures
(3) Pretrial disclosures
Under Rule 26, what are the 4 things that must be initially disclosed?
- (1) Name, number, address of people with discoverable information about claim or defense;
- (2) Documents (ESI, tangible things) used to support claim or defense unless solely for impeachment;
- (3) Computation of damages; AND
- (4) Insurance coverage.
- Example: D does not have to initially disclose a harmful document. But if P has the memo (showing company fault), she has to disclose it.
When must initial disclosures be shared with the other side?
Within 14 days of the Rule 26f conference, each party must disclose initial disclosures AND must submit to the court the detailed discovery plan.
o Note: Discovery requests (other than requests for production) cannot take place until after the Rule 26f conference.
* Example: You cannot serve someone and attach interrogatories.
What 6 things must be disclosed for testifying experts?
- (1) Identity of expert;
- (2) Expert qualifications;
- (3) Expert’s written report including data;
- (4) Any exhibits;
- (5) Compensation received; AND
- (6) List of other cases testified in in last four years
How soon before trial must the info on testfiying experts be disclosed?
at least 90 days before trial through a supplementary disclosure.
What are the 2 things required in pre trial disclosures?
- (1) List of non-expert witnesses; AND
- (2) List of documents or exhibits
When are the pretrial disclosures due?
30 days before trial
What is the rule for disclosing information from consulting experts who are not testifying?
Consulting experts and their materials need NOT be disclosed absent exceptional circumstances.
Consulting experts may NOT be deposed.
What is the penalty for failure to disclose?
The penalty for failure to disclose is that the party cannot use the undisclosed material unless it is harmless.
* Note: This would include not being allowed to use an expert witness if the rules weren’t followed.
What is the CA rule on initial or mandatory disclosures?
CA does not require ANY INITIAL or MANDATORY DISCLOSURES.
Define depositions, the subpoena distinction and the limit on number.
- A deposition is live testimony under oath. Non-parties can be deposed through a subpoena. The FRCP permits one deposition per person, not to exceed 7 hours in a day.
Limits on Depositions - Unless court orders otherwise
o No more than 10 depositions
o Cannot depose same person twice
o Cannot exceed one 7-hour day
o Unless a non-party agrees, the farthest they must travel to a deposition is 100 miles - California = no limit on number of depositions
Is there a federal physician patient privilege?
No.
- Physician who treated plaintiff
o Example: Laura is Phil’s doctor and is not a party to the litigation. So long as her testimony is relevant and not privileged, she may be deposed.
What is the CA rule on a physical patient privilege?
Confidential communications made for the purpose of receiving a medical diagnosis and treatment ARE privileged
EXCEPTION
* When the patient puts his physical condition at issue.
* Note: This is why the treating doctor would have to testify in a personal injury case, and this is why the Erie Doctrine has to be brought up.
California specific rules on depositions
- No limit on number of depositions
- Must get court order to take discovery within 10 days of serving D with process or within 20 days if it will take D’s deposition
- Work exactly like federal court other than the limit (federal court has limit of 10)
- In state and federal court, deposition should be 1 day of 7 hours
Define interrogatories, when they take place and how long the party has to respond.
- Interrogatories are written questions to parties answered under oath. They cannot take place until after the Rule 26f conference and must be responded to within 30 days of service.
What is the federal and CA rule on the limit to interrogatories?
- Only to parties
- Limited to 25 questions without a court order or stipulation
o California
Form interrogatories approved by Judicial Council - No Limit
Special interrogatories - No subparts
- Limit 35 questions (unless court approves otherwise upon filing of “Declaration of Additional Discovery” identifying the need)
o Otherwise, interrogatories work the same - Note: If the burden of finding an answer is equal to both parties, the responding party can just point other party to the data to find it themselves.
What are contention interrogatories?
Contention interrogatories are interrogatories that ask about an opposing party’s legal contentions.
* Note: Interrogatories can ask about fact and the law.
What are requests for admission?
A request for admission is a written request asking the opponent to admit facts. Reasonable inquiry must be made before answering
How long does the opposing party have to respond to a request for admission and what if they fail to deny?
o Must respond within 30 days
o Response: Deny, deny knowledge, object, admit
o If fail to deny, answer deemed admitted.
o CA = no more than 35 requests (unless court approves otherwise upon filing of “Declaration of Additional Discovery” identifying the need)
Exception
* Request to admit genuineness of documents no limit
o CA
Limited case: 1 deposition
Limited case: Combined total of 35 for requests for admission, interrogatories, inspection demands
What is a Request to Produce (inspection demand)?
Any party may request another party or non-party with subpoena to make available for review and copying documents or permit entry onto property.
By when must a party respond to an inspection demand?
o Must respond in writing within 30 days and state whether material will be produced or why material isn’t available.
California
* Same as above but NOT allowed for non-parties. Instead, subpoena for deposition and to bring documents with you.
* In an unlimited case, no limit
What are the 3 requirements for a Request for a Physical or Mental Examination?
- (1) Court order;
- (2) Showing that physical or mental condition is at issue; AND
- (3) Good cause for an examination.
NOTE: ONLY of parties
- Note: Can get order for someone in your custody or in control. If parent suing toy company, we could get court order for exam of child. This does not work for employees.
- Note: Requesting party chooses the doctor.
- Note: If negligence case on the essay question, you can mention the four elements, duty, breach, causation, damages, and mention that physical exam is needed for damages. Also, since P made his injuries an issue in a personal injury negligence case, so it makes sense that his treating doctor would have to testify.
- Note: You can mention that a mental exam would be intrusive.
- Note: Responding party can request copy of report, but then on request, she must produce all medical reports from her own doctors.
What is the California rule for a physical or mental exam and the exception to the rule?
- Under the California rule, a court order is required for a physical or mental exam.
o Exception
Personal injury case; D has a right to demand one physical exam - The lawyer has a right to attend the physical exam; the lawyer needs a court order to attend mental exam
What are the 3 requirements to electronically stored data?
- (1) Parties meet to discuss the data;
- (2) Court can order production and impose cost-sharing methods; AND
- (3) Parties must take reasonable steps to preserve.
What is the CA rule on supplemental discovery?
- Supplemental Discovery – Unlimited Cases Only
o Requesting party can propound a supplemental interrogatory and a supplemental demand for inspection
Limit for both: Twice before trial date is set and once after trial date is set
How does a lawyer’s signature relate to discovery process?
- Lawyer Signature
o Required on discovery items though Rule 11 does not apply here
o If new facts come up after we responded to discovery and make prior information incorrect, lawyer must come forward with new info
What is the Scope of Discovery rule (2 requirements)? What is the CA rule on scope?
Discovery is permitted with regard to any non-privileged matter that is:
(1) Relevant to a claim or defense; AND
(2) Proportional to the needs of the case.
Note: Discovery is broader than admissible
California – Scope of Discovery
* Rule: You can discover anything relevant to the subject matter.
* Info need not be admissible
* Same as federal court on privileged matter, log, etc.
When during discovery may ESI not be produced?
If the responding party identifies it as from a source that is not reasonably accessible because of undue burden or cost.
What are the 2 types of non-discoverable information?
(1) Privileged material
(2) Attorney work product
Define Work Product.
Attorney work product is material prepared in anticipation of litigation.
What is the work product rule?
AWP is NOT discoverable unless there is:
(1) Substantial need; AND
(2) Undue hardship to obtain information any other way.
Note: Does not need to be made by lawyers, could be a private investigator or plaintiff or a doctor
Example: Draft reports and communication from doctor are protected work product
How does AWP relate to expert witnesses?
Confidential communications between such experts and counsel for the party are also generally protected under the work product doctrine
o Exception
Communications related to expert’s compensation or to facts or data attorney provided expert.
Note: Identity of people with discoverable info (e.g., eyewitnesses) is never privileged, even if one party paid a lot to find out who the people are.
What are the 4 areas of absolute privilege?
- (1) Mental impressions
- (2) Opinions
- (3) Conclusions
- (4) Legal theories
- Note: These can be generated by private investigator.
Federal: Work product can be generated by the party or any representative of a party.
California: Work product must be generated by the attorney or her agent.
What is the California rule related to privacy and discovery?
California Constitution recognizes a right to privacy, which is balanced against need for the information/discovery. That said, privacy protection is not assumed, and the objecting party will need to establish an interest in privacy, and the court will then determine through a balancing test.
To properly withhold discovery, what must an attorney do?
- (1) Must claim protection expressly; AND
- (2) Must prepare privilege log
What is the inadvertent discovery rule? 2 requirements
- Other party must:
o (1) Notify other party promptly; AND
o (2) Other party must return it, sequester it, or destroy it, pending a decision by the court on whether there has been a waiver.
What are the 2 requirements if a party wants to raise the other side’s failure to respond to discovery?
If a party fails to fully respond to discovery:
(1) Other party may move to compel discovery; AND
(2) Must certify that made a good faith attempt to confer with the opposing party to obtain the discovery.
o Discovery violations (including not attending depo) may lead to sanctions.
Note: Meet and confer is a prerequisite to an award of reasonable expenses (which includes attorneys’ fees).
o Partial failure to respond
Merits sanctions
* (1) Establishment order
* (2) Strike claims or pleadings
* (3) Disallow evidence
* (4) Dismiss P’s case
* (5) Enter default judgment against D
* (6) Contempt
But no contempt for refusal of medical exam
o Total failure to respond
Monetary sanctions
Merits sanctions
If a party fails to preserve data, what may the court do?
Court may order an adverse inference only if the party who lost the ESI acted with the intent to deprive the other party
What are the 3 uses of depositions at trial?
o (1) To impeach witnesses
o (2) For dead, unavailable, or absent witnesses
o (3) For any purpose if deponent is the adverse party
What are the 4 ways to dispose of a case without a trial?
(1) Motion to dismiss for failure to state a claim
(2) Dismissal
(3) Entry of Default Judgment
(4) Motion for Summary Judgment
What are the 3 types of dismissal?
(1) Voluntary dismissal without court permission
(2) Voluntary dismissal with court permission
(3) Involuntary dismissal
When must a plaintiff file for a voluntary dismissal (without court involvement)? What are the prejudice rules?
Before D files an answer or MSJ. The first dismissal is WITHOUT prejudice. The second is WITH prejudice.
This is also true if first case was state court.
o California rules: A plaintiff can move to voluntarily dismiss a claim anytime before the trial starts, and the judge decides if you can do it.
If P moves for dismissal after trial starts and judge grants, it is granted with prejudice
What is the rule on involuntary dismissal?
An involuntary dismissal may be done at the defendant’s request or at the court’s own motion. Such a dismissal is usually with prejudice, so it may not be relitigated.
In CA, what are the 2 situations where the case MUST be dismissed?
- (1) The case is not brought to trial within 5 years of filing
o Exclude time for which proceedings stay - (2) Process not served within 3 years of filing
o Exclude time for which impossible to serve process
Define default.
o Notation in the case file by the clerk that there has been no answer filed within the permitted time.
When does an entry for default occur and is notice required?
An entry of default occurs if the defendant fails to respond to the Complaint within 21 days after service. P must file a motion and affidavit with the clerk of the court to make an entry of default.
o California: D fails to respond within 30 days of service
o Note: No notice is required.
o California: P must provide affidavit stating that a copy of the application has been mailed to the defendant
What is the impact of an entry of default?
o Rule: An entry of default cuts off the defendant’s right to proceed until the default is set aside by the court.
o Note: The plaintiff is not awarded anything; the damages amount is not yet determined.
- By request of the plaintiff, a court clerk may sign and enter judgment for the amount and costs against defendant if what 4 requirements are met?
o (1) D has failed to appear;
o (2) Claim for a certain amount;
o (3) P gives affidavit of amount owed; AND
o (4) D is not a minor or incompetent.
o Note: Damages amount requested should not be greater than amount in complaint.
Example: In Complaint, P asks for damages, but during default judgment, she asks for injunction. Court will not give her injunctive relief.
Define default judgment
o Judgment entered because defendant did not oppose the case.
In California, clerk can enter default judgment if what 4 requirements met?
- D made no response;
- Claim on contract or judgment;
- D not served by publication; AND
- P provides affidavit providing relevant facts.
When must notice be given and what is the timing?
- If defendant has appeared, even though he has not answered, he must be notified of the request for default judgment by first class mail at least seven days before the hearing on the application for a default judgment.
- Note: Appearance includes any action that shows he is involved in case
By when must a defendant file a motion for MSJ?
D can move for MSJ no later than 30 days after the close of discovery.
What issue should you think about analyzing along with MSJ?
Claim or issue preclusion
Other MSJ stuff
Note: A court can grant partial summary judgment as to one of several causes of action.
Note: Here, court looks at evidence (differs from 12b6). Recall, pleadings are not evidence, they are not even under oath. If you see the word ‘verified pleading’ it is under oath and considered evidence. However, if D failed to deny something in Answer, that admission can be used in summary judgment.
California Rule - not heavily tested
* (1) Moving party serves separate statement of material facts
* (2) At least 75 days before hearing
* (3) Opposing party responds at least 14 days before hearing
* (4) Reply papers must be filed at least 5 days before hearing
- EXAM TIP
o Civil procedure essay exams will often phrase a call by asking if a party is entitled to a motion of summary judgment, or a dismissal. This is almost always a method employed to ask about the underlying procedural issues present in the question, such as jurisdiction or claim preclusion or issue preclusion.
What is the rule for a motion for summary judgment?
A court will grant a motion for summary judgment when there is no genuine dispute of material fact. Evidence is viewed in light most favorable to the nonmoving party.
What are the 4 requirements for a preliminary injunction?
(1) Irreparable harm
(2) Likely to win on merits
(3) Balance of hardships
(4) Public interests
Note: P also must post bond and must provide facts and law.
Note: Appealable.
Define a TRO including the comment on appeal and notice
A temporary restraining order preserves the status quo until the hearing for a preliminary injunction. TROs are not appealable and notice of a TRO hearing must be given before it is issued.
What are the 3 requirements for a judge to issue a TRO without giving notice to the other side?
Moving party must:
* (1) Affidavit showing immediate and irreparable injury if opposing side can be heard;
* (2) Efforts to give notice or why notice not required; AND
* (3) Security.
NOTE: Must state its terms specifically and describe in detail what the D must do or not do;
Must state why it was issued; AND
Must state why the threat of injury to P was irreparable
What are the timing rules associated with TROs?
Typically 14 days with one 14 day extension allowed, for max total of 28 days
* Extension requests only approved if good faith reason
* OK to ask for extension right before the initial hearing date was set
Treated like a preliminary injunction after 28 days
What is the relationship between the Seventh Amendment and a jury trial? When must a jury demand be made and how? If one is not asked for, what happens?
The Seventh Amendment provides a right to a jury trial in federal court for all civil actions at law. A Plaintiff must demand in writing, within 14 days of service of the last pleading that he wants a jury trial. Otherwise, it is waived, unless the court decides otherwise.
NOTE: Equitable claims are not guaranteed a jury trial under the Seventh Amendment.
How does a judge handle mixed claims?
- Damages claims tried first before the jury
- After, equity claims are tried before the judge.
o Note: The jury’s findings on facts will bind the court in the equitable claim.
Note: Seventh Amendment does NOT apply to state courts.
What are the 2 types of challenges in voir dire?
(1) For cause
(2) Peremptory
What are the ways in which a presumption of bias is created under for cause challenges?
(1) Stock ownership in the company
(2) Potential juror or his spouse having worked for company
Note: A juror’s statement that he could fairly consider the evidence in the case is not determinative.
Define peremptory challenges.
Peremptory challenges allow an attorney to disqualify a potential juror because the juror displays an unfavorable characteristic that does not rise to the level of bias.
- Note: No reason needed but must be used in gender and race-neutral way, because jury selection is considered state action.
In federal court, how many for cause and peremptory challenges are allowed?
Each side has UNLIMITED challenges for cause and THREE peremptory challenges (though must be used in a gender and race-neutral way)
How many jurors in federal court, are alternates allowed, and what type of verdict is needed?
A jury must contain anywhere from 6-12 jurors with NO alternatives, and a unanimous vote is required.
* Note: Parties can agree otherwise to change number of jurors and that unanimous vote is needed.
What are the three requirements for objections regarding jury instructions?
o (1) Party objects on record;
o (2) Objection made before instructions are read to jury; AND
o (3) Judge tells parties the instructions and which were refused.
o Note: If attorney does not properly object, objection waived.
What are the three types of verdicts?
(1) General
(2) Special
(3) Combination
Define each type of verdict
o (1) General
Who wins and gives damages due
o (2) Special
Answers questions about facts, and judge makes legal conclusions based on the answers
If the judge fails to give an issue to jury, case reversed unless harmless error
If attorney fails to make a request for an issue, jury trial on issue is waived, and judge decides it
o (3) General Verdict with Written Questions
Answers to questions of fact are submitted along with the general verdict to test the verdict’s validity.
When a verdict is erroneous, what 2 options does the judge have?
o (1) Jury may be asked to reconsider
o (2) New trial may be ordered
* Examples
o Wrongdoer is not liable
o Verdict that finds for the plaintiff for “actual damages suffered”
What are the 2 types of inconsistent findings from jury verdicts?
o (1) Answers to questions are consistent with each other, but NOT with the general verdict
o (2) Answers to questions are inconsistent with each other, AND are inconsistent with general verdict
When Answers to questions are consistent with each other, but NOT with the general verdict, what 3 options does the court have?
Court has 3 options:
* (1) Enter judgment in accord with the answers
* (2) Ask jury to reconsider
* (3) Order a new trial
When Answers to questions are inconsistent with each other, and are inconsistent with general verdict, what 2 options the court have?
- (1) Ask jury to reconsider answers and verdict
- (2) Order a new trial
- Note: A jury may completely change its answers or the verdict after it redeliberates.
What are the 5 grounds for recusal of a judge?
o (1) Personal knowledge of facts
o (2) Acted as lawyer with one of the other lawyers
o (3) Expressed opinion of merits while in government employment
o (4) Judge or immediate family member has financial interest in subject matter/party
o (5) Violates due process rights
NOTE: These cannot be waived.
A verdict based on jury misconduct may result in a new trial if what 2 factors are met?
o (1) External influence was involved; AND
o (2) Misconduct was material in that it could have made for a challenge to the outcome.
- Example: Jurors bribed or used research outside of court
What are the 3 things a judge does in a bench trial?
o (1) Determines facts of trial;
o (2) Determines legal conclusions; AND
o (3) Records findings in writing or orally on the record.
During a trial, when deposition material is used, what is the rule regarding objections?
o Rule: If an attorney fails to object at the deposition as to the form of the question, he waived the objection at trial.
Does California grant a right to a jury trial?
The California Constitution grants a right to a jury trial.
In California, when must a demand to a jury be made?
The demand for a jury must be made:
- At time case is set for trial OR
- Within 5 days after notice of setting.
In a CA trial, what is the order of issues?
Rule: Unlike in federal court, in California, if a case has both legal and equitable claims, the judge decides the EQUITABLE ISSUES FIRST, and then the jury decides the legal issues.
At trial, a plaintiff can recover more than in the complaint. Recall, the only time a judgment must match complaint is in default judgment.
* In limited civil cases, no claimant can recover more than $25K.
What is the CA Equitable Clean Up Doctrine?
Where the main purpose of a case is equitable, and the only legal issue concerns incidental damages, the judge may hear the whole case and a jury is NOT required.
- Difference is that in federal, damages are only handled by jury.
What is the jury composition, number of votes needed and number of challenges in state court?
Rule: Each party entitled to unlimited challenges for cause and SIX preemptory challenges.
* Recall: Federal court only allows 3 preemptory challenges. Also, federal court (gender, race). State court (religion, gender, race, sexual orientation, etc.)
Rule: A jury contains 12 jurors and alternates; and only a 3-quarters juror vote is required (civil cases only; criminal cases – unanimous verdict is required)
What is a CA expedited trial?
Limited civil case subject to mandatory expedited trial
Number of jurors = 8
Peremptory challenges = 4
Jury vote = 6 of 8
Each side has 5 hours to do voir dire and present case
Parties may enter a high lo agreement (min max for defendant’s liability)
Define a Judgment as a Matter of Law (JMOL) including its timing and the standard
A motion for a Judgment as a Matter of Law:
(1) Can only be made at trial and must be made after the opposing party has been heard on the issue and before the case goes to the jury;
(2) The motion is granted if reasonable people could not disagree on a result; AND
(3) Evidence viewed in the light most favorable to the nonmoving party.
Note: This serves to take the case away from the jury.
Example: P rests at trial. D can then move for JMOL, but P may not, since D has not yet been heard.
o California
Rule: In California courts, a judgment as a matter of law is called a motion for a directed verdict or a demurrer to the evidence.
- EXAM TIP
Civil procedure essays may ask if a party is entitled to a JMOL as a mechanism to ask about the underlying substantive claim, such as a tort.
Timing
- The following motions must be filed, with no extensions, within 28 days of entry of judgment
o (1) Motion for judgment as a matter of law
o (2) Motion to amend judgment
o (3) Motion for a new trial
o (4) Motion to amend findings of fact in a non-jury case
o (5) Grant of a new trial on the court’s initiative
Define a RJMOL - a Renewed Judgment as a Matter of Law and its standard and timing
5 requirements
Renewed Judgment as a Matter of Law is a
(1) No reasonable jury could have agreed on the result;
(2) Decided AFTER a jury has returned its verdict;
(3) Viewed in the light most favorable to the non-moving party;
(4) Losing party must have originally filed a JMOL; AND
(5) Motion is made within 28 days after entry of judgment.
Note: RJMOL has to be raised on the same grounds as the JMOL.
o NOTE: RJMOL is much more drastic than a new trial, because RJMOL takes the verdict and gives it to the other party, whereas in a new trial, the same party who initially won can win again.
What is the main reason between a federal RJMOL and the California rule?
- Called a motion for judgment notwithstanding the verdict
- Unlike in federal court, the losing party is NO required to make a directed motion first in order to make the JNOV motion
- Motion must be made within 15 days after notice of entry of judgment, or 180 days after the entry of judgment.
What are 6 grounds for a new trial:
- (1) Prejudicial error that makes judgment unfair
- (2) Newly discovered evidence that by due diligence could not have been discovered in time to move for a new trial
- (3) Prejudicial misconduct of a party/attorney/third party/juror
- (4) Judgment is against the weight of the evidence
- (5) Excessive damages or inadequate damages
- (6) What the judge has concluded to be her own errors committed during the trial
- Recall: A federal court is authorized to order a new trial on its own for any reason justified.
o Note: If party loses JMOL or RJMOL motion, they can always file a motion for new trial
o Note: In a diversity case, federal trial courts are required to apply a state law standard when considering a motion for a new trial based on the excessiveness of the verdict.
When must a motion for a new trial be filed?
A motion for a new trial must be filed with the trial court within 28 days from the verdict.
What are the 5 areas that can qualify a Motion to Set Aside the Judgment?
Clerical errors
Neglectful mistakes
Newly discovered evidence that could NOT reasonably be discovered for the original trial
Fraud, misrepresentation, or other misconduct of a party
Lack of due process
Judgment has been void or satisfied
What are the three areas for a motion to set aside the judgment that cannot be filed after a year has passed?
(1) fraud,
(2) neglectful mistakes
(3) newly discovered evidence
CA: 6 months limit for all
What is remittitur and what are the judges 2 options?
Rule: Under remittitur, if a judge thinks that an award is excessive in that it “shocks the conscience,” the judge is permitted to either:
* (1) Order a new trial
* (2) Offer the alternative of remittitur
* Note: P must receive offer from judge. Judge can’t decide unilaterally.
Note: Applies to federal and state court
What are the considerations on additur?
Rule: Additur occurs when a judge finds that the damage figure “shocks the conscience,” and orders a new trial unless the damage award is increased.
California State Court: Additur is permitted
What is the rule for Offers of Judgment?
o Rule: A D can submit formal settlement offers up to 14 days before trial. Cost shifting applies to when a P rejects an offer to settle, and then does less well at trial.
o Example: D offers $50K to settle. P rejects. P wins $40K. P is then liable to D for litigation costs incurred after offer was made.
What should you do whenever a question brings up appellate review?
Start with the Final Judgment Rule
What is the general statement regarding the final judgment rule?
Generally, only a final judgment can be appealed. A final judgment is a decision by the trial court on the merits of an entire case (all parties and all claims). However, there are exceptions.
What are the 6 exceptions to the Final Judgment Rule?
(1) Injunctions and TROs
(2) Trial court certifies an interlocutory order for an appeal
(3) Collateral orders
(4) Multiple claims or parties with some resolved and some still pending
(5) Extraordinary writ
(6) Certification of class actions
What is the point on injunctions and TRO?
o For TRO: Those that are renewed beyond 28 days (that have become a preliminary injunction)
Trial court certifies an interlocutory order for appeal based on what 3 requirements?
o (1) Controlling issue of law;
o (2) For which there is a substantial difference of opinion; AND
o (3) At least two appellate court judges agree to hear the appeal.
o Note: Not mandatory for appellate court to hear appeal.
Collateral orders (e.g., those regarding procedural issues) where what 3 requirements
o (1) Court hears issue unrelated to merits of case;
o (2) Case involves an important question of law; AND
o (3) The issue must be raised before final judgment.
o Example: 11th Am. provides that states are immune from suits in federal court. If state claims immunity and district court rejects this, state/D can appeal.
Multiple claims or multiple parties where some claims or parties are resolved and some remain pending
the resolved issues can be appealed if the court expressly finds no just reason to delay the appeal.
o Example: When a court grants summary judgment on some but not all of the claims in an action, the court’s order is not final and thus not appealable unless the court expressly determines that there is no just reason to delay entry of judgment.
o Adaptibar
When a P sues multiple Ds, P must wait until a final judgment is reached on all Ds, before appealing (unless P can convince judge otherwise, which is rare).
o California: A judgment as to one of several parties is considered a final judgment and can be appealed.
Define an Extraordinary writ
An extraordinary writ is an entirely new case filed with the court of appeals to compel the trial judge to make or vacate a particular order.
o Example: Lower court not giving you right to a jury trial.
o California: Great area to test is that the only way to appeal a denial of motion to squash is to ask for a writ of mandate by the court of appeal.
Certification of class actions
o Start with court of appeals, within 14 days of the order
o The appeal does not stop the proceedings unless the trial court says so.
READ THIS ON FINAL JUDGMENT
Example: P wins trial. D moves for new trial. Lower court grants. P appeals. Appeal denied; granting a new trial is not a final judgment, because they need to hold a new trial.
Note: Remands, sent from federal court to state court, are not reviewable on appeal.
o Time Limits for Appeals of Final Judgment
Must file notice of appeal in district (lower) court within 30 days after entry of final judgment.
* Note: The filing period is extended to 60 days when the United States is a party to the action.
California:
* In unlimited case, appeal to CA Court of Appeal
o Must file notice of appeal within 60 days after service of notice of entry of judgment OR or 180 days after entry of the judgment if no notice is served.
* In limited case, appeal to appellate department of superior court
When are the 4 types of standards of review and define each one.
(1) De novo
* No deference is given to the trial judge, and the appellate court will decide the issue from scratch.
(2) Clearly erroneous
* Highly deferential to judge
(3) Abuse of discretion
* Highly deferential to judge
(4) Harmless error
* A conclusion an appellate court reaches after reviewing, not a standard to determine whether it was erroneous in the first place.
How are matters of law reviewed by an appellate court?
de novo
Example: Whether punitive damages amount is Constitutional
How are mixed questions of fact and law reviewed
abuse of discretion standard, which is highly deferential to the trial judge.
Example: A party objects to judge allowing evidence in. This is facts and law together.
How are matters of fact reviewed reviewed by an appellate court? Findings by judge? Findings by jury?
Rule: An appellate court will not overturn a judge’s findings of facts unless clearly erroneous.
Rule: An appellate court will not overturn a jury’s findings of facts unless no reasonable person could have made that finding, and the matter is viewed in the light most favorable to affirming the jury’s verdict.
How are matters discretionary to the judge reviewed?
abused its discretion.
Examples
* Judge denies motion for new trial
* Judge makes discovery ruling
How is plain error defined?
- Affects substantial rights
- Note: No reversal is required if “harmless error” (opposite of plain error)
When would an appeal on jury instructions be successful? 3 requirements
An appellate court may reverse the verdict if:
o (1) Improper jury instruction;
o (2) Claim not property reserved by attorney; AND
o (3) Amounts to plain error.
Claim Preclusion and Issue Preclusion comments
o On exam, analyze BOTH claim preclusion and issue preclusion any time one arises
o On exam, always start with claim preclusion, because if it applies, Case 2 will not happen. Then, go to issue preclusion, since it is narrow.
o On exam, analyze MSJ and Claim Preclusion, because if claim precluded from being relitigated, then often judge will grant MSJ, because there is no dispute as to a material fact
If Case 1 and 2 are different judicial systems what rules should Case 2 apply?
Case 2 system must apply preclusion rules from Case 1 system
Example: Case 1 Wisconsin, Case 2 Ohio. Case 1 Wisconsin preclusion rules are used.
Example: Case 1, CA State law. Case 2, federal. Federal uses CA state law.
What is the other word for claim preclusion?
Res judicata
What are the 3 requirements for claim preclusion?
(1) Same P and same D in both actions (or those in privity);
* Example: Successor in interest to the property or claim; representative or trustee of a party
* Note: Privity exists in employer employee relationship
* Note: Not enough to say same parties. Must be same plaintiff in same configuration, suing same plaintiff.
(2) Final judgment on the case; AND
* Note: Any judgment is final on the merits unless it is based on:
o Lack of jurisdiction, improper venue, or failure to join an indispensable party.
* Example: Case 1 default judgment by clerk. Case 2 same P with same claim against same D. Claim precluded because it was on the merits.
* Note: If P won on one part of claim, can’t sue D in second suit on second part of claim.
* California
o Judgment final when appeals have concluded.
o Any judgment is final on the merits unless it is based on 3 areas above and the statute of limitations
(3) Same cause of action or claim
For same cause of action or claim in claim preclusion, what are the traditional and modern view and which does CA use?
- Federal view: Same transaction or occurrence
o NOTE: If legal relief in case 1, and injunction sought in case 2, the claim for legal and equitable relief is considered the same claim, and claim preclusion applies. - California: Primary rights theory
o Defined: There is a separate cause of action for each right invaded.
o Example: Car accident with physical injury and car destroyed. Case 1 is for physical injury. OK for Case 2 to just be on car.
3 areas where claim preclusion does not apply
(1) Dismissal for lack of jurisdiction
(2) Dismissal for improper venue
(3) Settlement
* Exception
o After settlement, case is dismissed with prejudice
o Change of Law After a Loss or Win
Rule: If there is a change of law, once there is a final judgment, you cannot bring a suit again.
o Note
Bar occurs when a plaintiff loses. Merger occurs when plaintiff wins.
o Issue Spotting Tip
Look for facts such as a prior judgment that was not based on the merits, but based on failure to join a party, jurisdiction, default judgment, consent, etc.
What is the other term for issue preclusion?
Collateral estoppel
Context for collateral estoppel
The issue was already litigated in Case 1. But same issue is also presented in Case 2. If issue preclusion applies, the issue will not be relitigated in Case 2, it is deemed established in Case 2.
4 requirements to issue preclusion?
(1) Judgment final;
(2) Same issue actually litigated;
(3) Determination of issue essential to case 1; AND
(4) Mutuality of parties.
- Federal: Judgment final when judgment rendered.
- California: Judgment final when appeals have concluded.
- Note: Fact triggers
o Underlying court finds P didn’t own property in dispute, but finds D was not negligent anyways
o Underlying court finds doctor is not an agent of the hospital being sued, but finds on negligence issue anyway.
o Look for facts that seem peripheral to judgment.
o Look for specific findings for the underlying judgment.
(2) Same issue was actually litigated; - Note: Look for facts like “the court heard extensive evidence”
- Note: Same issue, but usually different cause of action
- NOTE: If default judgment in prior case, issue was NOT litigated
Traditional rule on mutuality?
- Traditional rule: Issue preclusion may be asserted only against someone who was a party (or in privity to) in the previous case.
Modern and California Rule on Allowing non parties in - defensive use
When a non-party wishes to use a prior judgment to avoid liability in a subsequent suit, there are often compelling reasons to do so including fairness.
Example: If P unsuccessfully sues the employee, P’s later suit against employer will be barred by issue preclusion; if P unsuccessfully sues a person secondarily liable, can’t go and sue primarily liable person.
offensive use? what are 4 fairness factors
o Non-mutual, offensive use, OK if fair:
Fairness factors:
* (1) Whether party to be bound had a full opportunity to litigate in case 1
* (2) Whether party to be bound had a strong incentive to litigate in case 1
* (3) Whether the party asserting issue preclusion could have easily joined in case 1
* (4) Whether inconsistent findings on the issue
o Issue Spotting Tip
If a fact pattern includes a prior judgment or lawsuit, look for claim preclusion and/or issue preclusion.
o EXAM TIP
Both issue and claim preclusion are frequently tested on the essay.
Be sure to apply the facts to the general rule and to the California rule distinctions, which will often lead to a different result.
