Civ Pro

Question 1

What is PJ and what is the two step process for PJ?

Answer 1

PJ refers to the ability of a court to exercise power over a particular defendant. It is traditionally based on where a defendant is domiciled, presence in the state when served, or consent. [go through each on essay]

• state statute ()
  A long-arm statute gives the court personal jurisdiction over a defendant. Plaintiffs should look for a long-arm statute. CA’s long-arm statute reaches reaches the Constitutional limit. A federal court will analyze PJ as if it were a state court in the forum state.
• constitutional analysis
  Even if a long-arm statute applies, the exercise of PJ must be constitutional. To be constitutional, there must be sufficient contacts with the forum state so as to not offend the traditional notions of fair play and substantial justice.

Question 2

What is the constitutional analysis for PJ?

Answer 2

Test: Does D have such minimum contacts with the forum state that jurisdiction wouldn’t offend traditional notions of fair play and justice?

Contact: there must be a relevant contact between D and the forum state. There are two factors to be addressed here.
- Purposeful availment: the contact must result from purposeful availment. D’s voluntary act. This means the defendant must reach out to the forum. (d can purposefully avail himself without setting foot in the forum if he causes an effect in the forum)
1. Marketing a product in the forum
2. Using the roads in the forum
3. Establishing a domicile in the forum,
4. Travelling in the forum
5. Sending a tortious email into the forum
- Foreseeability: it must be foreseeable that defendant could get sued in this forum.
Remember: interactive website – purposeful availment; but just info (passive) is not

Relatedness: Once we arguably have a contact between D and the forum, ask does p’s claim arise from the defendant’s contact with the forum? (does the contact include the very thing that harmed the plaintiff)

If yes, the court might uphold PJ even if D does not have much contact with the forum.

If the defendant’s conduct arises from d’s contact with the forum, we have specific jurisdiction.

If not, jurisdiction is okay ONLY IF the court has general PJ. If so, can be sued there for a claim that arose anywhere in the world.

1. To have general PJ, the defendant must be at home in the forum.
2. A human is always “at home” where domiciled.
   a. “tag jurisdiction” may be subject to general jurisdiction if you are voluntarily present in a state other than the state you’re domiciled in and you are served
   iii. Historically, a corporation was subject to general PJ in every sate which it did continuous and systematic business. That is no longer true. The company’s activity must be so systematic and continuous that the company is “at home” in the forum. A corporation always “at home”
3. Where incorporated
4. Where it has its principal place of business

Fairness: now we assess whether jurisdiction would be fair (or reasonable) under the circumstances. However, the fairness factors are addressed only in SPECIFIC PJ questions. Fairness factors are not assessed if there is general PJ – once we find a D is “at home,” that’s it. In specific PJ case, we look at:

i. Burden on D and witnesses. Due process doesn’t guarantee that the suit will be in the most convenient forum for D.
1. D must be able to show it puts her at a severe disadvantage in the litigation (hard to meet – not just about travel or witnesses)
ii. State’s interest. The forum state may want to provide a courtroom for its citizens, who are allegedly being harmed by out-of-staters.
iii. Plaintiff’s interest. Maybe injured and wants to sue at home.

Question 3

Notice must be “ “

Notice consists of “ “

Answer 3

“reasonably calculated, under all circumstances, to apprise interested parties of the action.”

“notice consists of a summons (formal court notice of suit and time for response) and a copy of the complaint”

Question 4

Who may serve? When?

Answer 4

nonparty - 18; within 90 days complaint is filed

Question 5

How is process served on an individual (4 kinds)? A corporation (2 kinds)? In foreign country (3 kinds, last one has four subparts)?

Answer 5

Individual
1. Personal service. Papers are given to D personally anywhere.

2. Substantial service. Process is left with the D’s butler at D’s summer home is okay if
   a. Defendant’s usual abode
   i. Where’s living right now – doesn’t need to be year round
   b. Serve someone of suitable age and discretion that resides there
   (in ca has to be (1) abode, (2) to member of household that’s 18, (3) person being served must be informed of contents, (4) first-class mail – effective 10 days after mailing
3. Service on D’s agent. Process can be delivered to D’s agent. OK if receiving service is in the scope of agency, e.g., appointment by K.
   a. In federal court, we can use substitute or agent service even if personal serice would be possible. NO PREFERENCE.
4. State law methods. In addition, we can use methods for serving process that are permitted by state law of the state (1) where the federal court sits or (2) where service is made.
   (in ca - you can serve by mail: Copy of summons and complaint and two copies of acknowledgment (waiver form) are mailed to D, with self-addressed stamped envelope addressed to P. Works like waiver in federal court, except this is considered “service” and not “waiver of service. 20 days to respond)

Corporation

1. Officer, managing or general agent. Deliver a copy of the summons and of the complaint to such a person.
2. State law methods. Can use methods for serving process permitted by state law of th estate (1) where the federal court sits, or (2) where service is made.

Service in a foreign country: may use a method allowed by international agreement (e.g. Hague Convention). Or, if there’s no such agreement on point, options:

1. As directed by the American court;
2. If reasonably calculated to give notice
   a. Method allowed by the foreign country’s law
   b. Method directed by foreign official in response to a letter (letter rogatory) from the American court
   c. Personal service in the foreign country (unless prohibited by its law) or
   d. Mail sent by the clerk of the American court requiring signed receipt (unless prohibited by the foreign country’s law).

Question 6

Waiver of Formal Service of Process

Answer 6

Mail to D a notice and request to waive formal service, including a copy of the complaint and two copies of a waiver form, with a prepaid means of returning the form (e.g., stamped envelope for sending it back to P). If D executes and mails waiver form to P within 30 days (60 days if D is outside the US), D waives formal service of process. Can be used for individuals and entities.

• When D signs and mails the waiver form back to P, P files it in court and it is effective then.
  o That means for timing purposes, we act as though D was served with process on the day P filed the waiver form in court.
  o If D fails to return the waiver form, P then has D served personally or by substituted service. If D did not have good cause for failing to return the waiver form, there is a penalty for D: he must pay the cost of service

Question 7

service of other documents

Answer 7

fed: other documents get served but we don’t need summons. We can deliver them or mail them to other party’s attorney. Can be sent by email. 30 days to respond to requests - 3 extra days to respond if sent by snail mail.

Ca: 5 days added for snail mail. 10 days if out of state.

Question 8

SMJ - state and fed

Answer 8

SMJ refers to court’s ability to hear a typeof case. The lack of SMJ is not waived by failing to raise it at trial - it may be raised at any time, including on appeal.

Each claim must have an independent basis for SMJ.

States - general SMJ; can hear most cases except for ones that federal courts have jurisdiction over.

Fed - limited SMJ; two main cases that can be heard in federal courts - diversity of citizenship and federal question

diversity of citizenship at the time the action is filed between citizens of a different states (complete diversity rule) or between a citizen of a US state and a citizen of a foreign country (alienage), AND amount exceeds $75K excluding interest that is not part of the controversy and costs (claims can be aggregated. for equitable relief, we look at decrease in property value (p’s view) or cost to comply with what p’s asking for (d’s view)

Multiple plaintiffs may aggregate their claims against a single defendant only when they are seeking to enforce a common or undivided interest.

Federal question jurisdiction requires that the p’s well-pleaded complaint sets forth a cause of action arising under federal law.

federal courts can never hear divorce, alimony, child custody, probate

Question 9

What is removal, when can a defendant remove, who must join in removal?

Answer 9

P has sued D in state court. D would prefer to litigate in federal court. D might be able to remove the case to federal court. Removal transfers a case from a state trial court to a federal trial court. If removal was improper, the federal court can “remand” the case back to state court.

1. When can D remove?
   D must remove no later than 30 days of service (not filing) of the first paper that shows the case is removable. Usually, that means no later than 30 days of service of process.
2. Who must join in the removal?
   All defendants who have been served with process.
   - 30 days starts anew with service on later-served defendant. After D2 is served, they can still remove if they all join in.
   - BUT REMEMBER: D1 and D2 must file notices of removal or they can do so together.

Question 10

What cases can be removed?

Where are they removed to?

Answer 10

D can remove if the case meets the requirements for FQ or diversity EXCEPT for diversity, if any D is a citizen of the forum state or if removal is after one year after the case was filed in state court.

Removed to federal district “embracing” the state court where the case filed

Question 11

How do Ds Remove a Case?

Answer 11

If P sues D in state court and D wants to remove to federal court she doesn’t need to get permission from state or federal case.

• D files “notice of removal” in federal court, stating grounds of removal, which means federal SMJ (diversity or FQ).
• D attaches all documents that were served on her in state action. She “promptly” serves a copy of the “notice of removal” on adverse parties. Then she files a copy of the “notice of removal” in state court.

Question 12

What if p thinks removal was improper?

Answer 12

If P thinks the case shouldn’t have been removed, she moves to remand to state court.
- If P thinks removal was improper for some reason other than SMJ (D did not attach relevant papers to her notice of removal) she must move to remove to remand no later than 30 days after notice of removal was filed in federal court.
o Satisfies diversity jurisdiction but there’s an in-state D – P must move to remand within 30 days. If she doesn’t, she waives the right to have it remanded.
- If the P thinks removal is improper because the federal court LACKS SMJ, she can move to remand to state court at any time.

Question 13

What is supplemental jurisdiction? How to establish

Answer 13

a non-federal, non-diversity claim can be heard in federal court if it meets “the common nucleus of operative fact test” UNLESS it is supp j is being used to override complete diversity requirement.

discretionary

Question 14

What is the Erie doctrine?

Answer 14

We apply the Erie doctrine when we’re in a diversity of citizenship case in federal court and we’re deciding whether to follow state of federal law.

We first ask whether there is a federal law that conflicts on the matter; if the state law conflicts with valid (procedural) federal law, we apply federal law.

Next, if no valid federal law on point, federal judge must apply state choice of law rules if issue to be decided is “substantive.” Five issues are clearly substantive:

a. (1) elements of a claim or defense
b. (2) statute of limitations
c. (3) rules for tolling statutes of limitations
d. (4) conflict (or choice) of law rules
e. (5) standard for whether to grand a new trial because a jury’s damages determination is excessive or inadequate.

If not in one of these categories, court decides if substantive based on the following:

(1) if outcome determinative - apply state law
(2) balance of interests - does either state or federal law system have a strong interest in having its rule applied?
(3) avoid forum shopping/burdening federal court system - apply state law

Question 15

What are the areas where federal courts can make up their own common law?

Answer 15

international relations, admiralty, disputes between states, the right to sue a federal officer for violating one’s federal rights. In these areas, there is no role for state law. One important area: the preclusive effect of a federal judgment.

Question 16

What is venue and where may p lay venue?

Answer 16

Venue tells us exactly which federal court. P suing in federal court wants to lay venue in a proper district.

P may lay venue in any district where:

• any of the defendants reside if they all live in the same state
• A substantial part of the events or omissions giving rise to the claim occurred or a substantial part of the property that is the subject of the action is situated, or

if the two above can’t be met, any defendant is subject to PJ with respect to the action

Question 17

Where do defendants “reside” for venue purposes?

Answer 17

1. A human “resides” in a district where they reside/are domiciled - his permanent home where he intends to return
2. A business (corporation or unincorporated) “resides” where PPB is or where its incorporated. PPB = where corp’s high level officers direct the corporation’s activities

Question 18

When is transfer of venue appropriate?

Answer 18

To have venue transferred, the defendant must show either that venue is improper in the p’s chosen venue or if the venue is proper, that venue should be transferred in the interests of justice for the convenience of the parties and witnesses.

When venue is proper, a transfer must be made to another district in which the action might have been brought or to which all parties have consented so long as the new forum as SMJ and PJ over the parties.

When venue is improper, transfer is to a proper venue that has SMJ and PJ over the parties. The court may transfer in the interest of justice or dismiss (but will try to transfer).

Question 19

Forum non-conveniens

Answer 19

When the court dismisses or stays a case because the more convenient court is in a different judicial system (eg state from fed, a foreign country) so transfer is impossible. Same factors as in transfer.

Other court must be available and adequate. Not available if no remedy for p at all.

Question 20

What must a complaint contain? When is heightened factual statements required?

Answer 20

1. A state of grounds of subject matter jurisdiction;
2. A short and plain statement of the claim, showing entitled to relief.
3. A demand for relief sought (e.g. damages, injunction declaratory judgment).

three matters must be pleaded with even more detail – with particularity or specificity

1. Fraud
2. Mistake
3. Special damages

Question 21

When must D respond to a complaint? What are the two types of responses?

Answer 21

Rule 12 requires D to respond in one of two ways no later than 21 days after being served with process:

1. By motion or
2. By answer

If D waived service, D has 60 days from when P mailed the waiver form.

Question 22

What are the important 12 motions? Are these motions pleadings?

Answer 22

Motions are not pleadings; they are requests for a court order.
Issues of form:
12(e) motion for more definite statement – the complaint is so vague or ambiguous D simply cannot respond; must make this motion before answer;
12(f) motion to strike – asks the court to remove redundant or immaterial things from pleadings; any party may move for this.

• Rule 12(b) defenses:
  o (1) lack of subject matter jurisdiction
  o (2) lack of PJ
  o (3) improper venue
  o (4) improper process (problem with the papers)
  o (5) improper service of process
  o (6) failure to state a claim
  o (7) failure to join indispensable party
• These defenses can be put either in a motion to dismiss or the answer.

lack of PJ, improper service, improper process, and improper venue are waived if you don’t raise them in first 12 motion or answer (whatever is first)

Question 23

D’s Answer. What must the D do in re to allegations?

What are some classic affirmative defenses (5)?

Answer 23

It is a pleading. D does two things in the answer:
Respond to allegations of complaint
1. Admit
2. Deny
3. State that you lack sufficient information to admit or deny
a. Effect of a denial, but you cannot use (3) if the answer to the question is in your control.

Raise Affirmative Defenses
These inject a new fact into the case, which will allow D to win. Classic affirmative defenses are statute of limitations, SOF, res judicata, self-defense. All 12(b) defenses are also affirmative defenses.
- If d fails to assert an affirmative defense in the answer, he might have waived it.
- IF D asserts an affirmative defense, P doesn’t have to respond to the answer because the allegations in D’s answer are deemed denied.

Question 24

When does p and d have right to amend their complaint/answer?

What if there’s no right to amend?

Answer 24

P has a right to amend complaint 21 days after being served first 12 motion or answer.

D has right to amend 21 days after serving answer.

If this time period has passed, the person seeking amendment must seek leave from the court. The court will grant the leave to amend if “justice so requires” after considering delay, prejudice, and futility of amendment.

Question 25

What are the rules of amendment after the SOL has run?

Answer 25

To join a claim not originally asserted, amended pleadings “relate back” if they concern the same product, transaction, or occurrence as the original pleading. We treated the amended pleading as though it was filed when the original was filed.

To change a defendant after the statute has run, the amendment will relate back of:

(1) the amendment concerns the same conduct, transaction, or occurence as the original
(2) the new defendant knew of the case within 90 days of filing, and
(3) knew or should have known that, but for a mistake, she would have been named originally.

Question 26

What is Rule 11? What happens if you violate Rule 11?

Answer 26

Applies to all documents except for discovery.
When the lawyer or pro se party signs documents, she certifies that to the best of her knowledge and belief, after reasonable inquiry:
- The paper is not for an improper purpose, and
- The legal contentions are warranted by law (or nonfrivolous argument for law change), and
- The factual contentions and denials of factual contentions have evidentiary support (or are likely to after further investigation).

Often courts impose non-monetary sanctions (e.g. require lawyer to attend professionalism classes). Monetary sanctions, if imposed, are paid to the court. If the other party violates Rule 11, you can’t file a motion for sanctions immediately.
- You serve the motion on other parties but cannot file it. The party in violation has a safe harbor of 21 days in which to fix the problem and avoid sanctions. If she does not, then the motion can be filed.
- Can the court raise Rule 11 problems on their own? Yes, no safe harbor
- To do so, court usually issues an “order to show cause” why sanctions should not be imposed. The court must give a change to be heard before imposing a sanction on anyone.
(same in CA except in CA, 21-day safe harbor exists when court finds violation of Rule 11 as well)

Question 27

What is joinder?

Answer 27

Joinder rules define the scope of the case - how many parties and claims can be brought.

Claim joinder - The plaintiff can join as many additional claims as she likes even if the additional claim is unrelated to the original claim.

Plaintiffs can sue together a co-plaintiffs and defendants can be sued together as co-defendants as long as the claims (1) arise from the same TO, and (2) the raise at least one common question.

Question 28

When is a party necessary or required?

Answer 28

An absentee (A) who meets any of these tests:

1. Without A, the court cannot accord complete relief among the existing parties (worred about multiple suits);
2. A’s interest may be harmed if he is not joined (practical harm); OR
3. A claims an interest that subjects a party (usually D) to a risk of multiple obligations.

Question 29

What is the analysis for what happens after a party is determined to be necessary?

Answer 29

(1) we look to see if joinder is “feasible”
- (a) PJ over new party
- (b) new party won’t goof div jur

(2) if not feasible, court may
- (a) continue without A
- (b) dismiss the case (party is “indispensable”)

(3) factors that determine whether to continue or dismiss:
1. Is there an alternative forum available? (maybe some state court)
2. What is the actual likelihood of harm to you
3. Can the court shape relief to avoid that harm to you

Question 30

What is a counterclaim? What are the types?

Answer 30

claim against opposing party

compulsory - it must arise from same T/O as underling action; can’t bring it separately

permissive - does not arise from same T/O; you can bring it now or later.

Question 31

What is a cross claim?

Answer 31

Claim against a co-party. Must arise from same T/O as underlying action.

Question 32

What is an impleader? What are the steps/timing of impleading a third party d?

Answer 32

Here, a defending party (usually D) is bringing in someone new. The new party is the third-party defendant (TPD).

D can do this only to shift to the TPD the liability D will owe to P. So if D is found liable to P, he will try to get TPD to pay all or part of his own liability.
- Indemnity shifts it completely (so TPD must cover entire claim). Contribution shifts it pro-rata (so TPD must cover a pro-rata portion of the claim).

Steps for impleading the TPD in the pending case:

1. A D files a third-party complaint naming the TPD, and
2. Serves process on TPD (so must have PJ over TPD)

There is a right to implead within 14 days of serving your answers. After that you need court permission.
- After TPD is joined, p may assert a claim against TPD even if same T/O (remember to establish SMJ though)

Question 33

What are the two types of intervening parties?

Answer 33

Intervention of right - A’s interest may be harmed if she is not joined and is not adequately represented now

Permissive intervention - A’s claim or defense and the pending case have at least one common question. Discretionary with the court. Usually OK unless intervention will cause delay or prejudice to some.

Remember – claim against/by intervenor needs to have SMJ - if no fed Q or div –> supplemental

Question 34

What are the requirements for and types of class actions? When is a class action created?

Answer 34

Requirements (must demonstrate all four):

(1) numerosity. Too many class members for practicable joinder. Is there a magic number? NO.
(2) commodity. There is coms issue in common to all class members, so resolution of that issue will generate answers for everybody in one stroke.
(3) typicality. Rep’s claims are typical of those of the class; and
(4) representative adequate. The class rep will fairly and adequately represent class.

Types (must satisfy one):

(1) Type 1: “Prejudice” (rare): class treatment necessary to avoid harm (prejudice) either to class members or to the non-class party.
i. Many people have claims to a limited fund of money. IF they sue individually, the fund will be depleted before all claimants get to court. That would leave those later claimants with nothing. To avoid this harm, a class would allow everybody to recover at least a portion of her claim.

(2) Type 2: Class seeks an injunction or declaratory judgment because D treated the class members alike. Example: employment discrimination. Type 2 can’t seek damages.
(3) Type 3: “Damages”: (1) common questions predominate over individual questions, AND (2) class action is superior method to handle the dispute. Example: mass tort.

No class action until court grants motion to certify class action. Court must

(1) define the class and class claims, issues or defenses
(2) appoint class counsel
(3) if a type 3, notify class members that they are in a class - they have a right to opt out while class members of others don’t

Question 35

SMJ for class action?

Answer 35

FQ or FD - however, for citizenship we only consider the rep, only consider the rep’s claim

Question 36

Class Action Fairness Act

Answer 36

this grants subject matter jurisdiction separate from diversity of citizenship jurisdiction. It lets a federal court hear a class action (of at least 100 members) if any class member (not just the representative) is of diverse citizenship from any defendant and if the aggregated claims of the class exceed $5M. This makes it easier for interstate class actions to go to federal court.

Question 37

California Interpleader

Answer 37

where stakeholder is in possession of property but knows that several claimants want it. Stakeholder doesn’t want to get sued by each of the claimants so he sues them in interpleader and the court figures out who owns it.

Question 38

California Class Action

Answer 38

“when the question is one of a common or general interest, of many persons … and it is impracticable to bring them all before the court, one or more may sue or defend for the benefit of all”

(1) ascertainable class; and
(2) a well-defined community of interest
- common questions predominate
- rep is adequate
- class will result in substantial benefit to parties and court

Question 39

Discovery - Initial Required Disclosures (4)
What happens if you fail to disclose?
What timing for the conference?

Answer 39

1. Identities of persons who have discoverable info that you (the disclosing party) may use to support your claims or defenses.
   a. You give name, telephone number, address, and topics on which they have evidence
2. Documents and things you may use to support claims or defenses. You may produce copies or a description of these things.
   c. Info to be disclosed includes photographs, recordings, and electronically stored information
   d. Also includes things on your computer, videos, photos taken on your smartphone etc. as well as good old-fashioned party
   e. Also includes tangible things
   f. However, only includes things in your control. If you know there are documents, ESI, or things that support your case but you don’t have access – don’t have to disclose.
3. Computation of relief and documents/ESI supporting it.
   a. Anyone claiming monetary relief must provide a “computation,” supported by documents or ESI of the amount sought.
4. Insurance coverage. D must disclose any insurance that might cover all or part of the judgment in the case.
   a. True even though existence of insurance will probably not be admissible at trial.

If you fail to disclose something you were required to disclose, you cannot use that material in the case (unless the failure to disclose was substantially justified or harmless).

Within 14 days of Rule 26(f) conference

Question 40

Required Disclosures about Expert Witnesses? What about consultant expert witnesses?

Answer 40

Later in the case, at a time directed by the court, each party must identify expert witnesses “who may be used at trial.” We are talking here about people who, because of expertise, are hired to give opinion testimony in the case.

As to an EW “who may be used at trial,” each party must generally disclose identity of EW and written report with:
o	Opinions EW will express
o	Bases for the opinions
o	Facts used to form the opinions
o	EW’s qualificatons, and
o	How must EW is being paid

Consultant witnesses are third parties hired to help prepare the case but will not be testifying at trial. This information is not discoverable absent exceptional circumstances.

Question 41

Required Pretrial Disclosure

Answer 41

No later than 30 days before trial, must give detailed information about trial evidence, including identity of witnesses to testify live or by deposition and documents/ESA/things to be introduced at trial.

Question 42

When can you send discovery requests?

Answer 42

after 26(f) conference except (1) requests to produce, which can be sent 21 days after service and they are treated as though served at the conference (2) depo with court court order through Rule 30.

Question 43

What is a deposition? What are the limits? What is a subpoena “duces tecum”?

Answer 43

Here a person gives live testimony in repose to questions by counsel or pro se parties. The questions by counsel are pro se parties. The questions are usually oral, but can be written (if written, they are read by the court reporter). Deponent testifies under oath. The depo is recorded by sound or video or stenographically and a transcript can be made.

You don’t need a subpoena, only notice for parties. You should subpoena a party.

a subpoena “duces tecum” requires the deponent to bring requested materials with her.

Limits:

(1) unless nonparty agrees, the farthest she can be required to travel is 100 mi
(2) each side gets 10 depos without court order
(3) can’t depo same person twice without court order
(4) can’t exceed one day of seven hours unless parties stipulate or court order

Question 44

What are interrogatories?

Answer 44

• Sent only to parties; never to nonparties.
• These are written questions, to be answered in writing under oath.
• Party has 30 days from service to respond with her answers or obligations + extra 3 days if they were mailed
  o You can’t respond to interrogatories by saying you don’t know the answer; must respond based on information reasonably available to you
• Legal contention interrogatories are fine
• Max number of interrogatories you can sent to a party w/o court order or stipulation is 25
  o Includes subparts
• If the answers to interrogatories can be found in business records and the burden of finding them would be about the same for either party, the responding party can allow the requesting party to have access to the records.
• At trial you cannot use your own answers to interrogatories. Others are OK per rules of evidence.

Question 45

What are requests to produce?

Answer 45

These request that someone make available for review and copying documents or things, including electronically stored information (ESI), or to permit you to enter designated property to inspect, measure, etc. That person must respond in writing within 30 days of service, stating that the material will be produced or asserting objections.

• Can’t be made of nonparties but YOU CAN GET THE SAME INFO FROM NONPARTIES WITH SUBPOENA
• ESI must be produced in form that the requesting party specifies; responding party may object.

Question 46

What are the requirements for a physical exam (mental or physical)?

Answer 46

you need a court order. To get the court order, you must show (1) that the person’s health is in actual controversy, and (2) good cause.

• A party or someone in the party’s custody or legal control can be ordered to undergo medical exam (narrow – employee is not in the custody or legal control of employer)
• Party seeking order chooses the licensed person to perform the exam.
• If court orders a medical exam of Joe and doctor examines and writes her report and gives it to the party who requested. If Joe wants a copy, he can request.
  o If Joe requests and obtains the report, he must (on request) produce it to the other party all medical reports by his own doctors about that medical condition. He also waives any doctor/patient privilege he may have had with his doctor regarding that condition.

Question 47

What are requests for admission?

Answer 47

• Sent to parties
• This is a written request that someone admits things. Responding party must respond in writing within 30 days of service, either denying specifically or objecting.
  o If they fail to respond (deny, or object) he is deemed to admit  VERY USEFUL
• The responding party can say she doesn’t know ONLY if she states that (1) she made a reasonable inquiry and (2) cannot find enough information from which to admit or deny.
  o Often used to authenticate documents – “admit that this is the contract.”

Question 48

Duty to Supplement

Answer 48

After you respond to discovery, suppose circumstances in the real world change. In light of these new circumstances, your response to a required disclosure, interrogatory, request for production, or request for admission is now incomplete or incorrect.
- You have a duty to supplement your response (but not in CA)

Question 49

What is the scope of discovery? What happens when cost is enormous?

Answer 49

we can discover anything relevant to a claim or defense and proportional to needs of the case.

if enormous cost to recover emails:
o (1) defendant can move for protective order
o (2) d can object to discovery and p will move to compel discovery
o (3) if court finds ESI is not reasonably accessible because of undue burden or cost, P will try to show good cause for discovery
o (4) if p shows good cause, court can order production and allocate expense between parties

Question 50

Privilege - does it exist for discovery? What is work product?

Answer 50

You can object to discovery based on evidentiary privilege – eg confidential communications between attorney and client.

Work product or “trial preparation materials” (material prepared in anticipation of litigation)
- Work product doesn’t need to be generated by lawyer – by party or any rep of party
- “qualified work product” may be discoverable if seeking party shows:
o (1) substantial need
o (2) it’s not otherwise available
- “absolute work product”/“opinion work product” can’t be discovered
o Mental impressions
o Opinions
o Conclusions
o Legal theories

IF you withhold discovery or seek a protective order based on privilege or work product, you must claim the protection expressly and describe the materials in detail.
- You do this in a document that lists the materials protected by date, author, recipient, and privilege or protection claimed. It must be in enough detail to allow the judge to determine whether the material is protected.

Question 51

TRO and Preliminary Injunction

Answer 51

TRO - detail, specificity, irreparable harm. 14 days, can be extended another 14 days. Anything after is PI.

PI - maintains status quo until adjudication. Applicant must show in specificity and detail:

(1) irreparable harm
(2) he would win on merits
(3) balance of hardship
(4) injunction is in public interest

in court’s discretion; TRO not appealable, IP is

Question 52

Voluntary Dismissal

Answer 52

P wants to withdraw the case. P can make a motion for voluntary dismissal any time which the court has discretion to grant.
P has a right to take a voluntary dismissal by filing a notice of dismissal.
- P has a right to take a voluntary dismissal by filing a “notice of dismissal” but she must do it before the defendant serves an answer or motion for summary judgment.
- If p files a timely notice of dismissal, the case is dismissed without prejudice. That means plaintiff can refile the case.
- But you get to do it without prejudice once. If P files a notice of dismissal in the second case, that dismissal is “with prejudice” aka p can’t refile the case.

Question 53

Default and Default Judgment

What is a default? How do you get a default judgment? When does the defendant get notice?

Answer 53

A default is a notation by the court clerk on the docket sheet in the case. D does not respond to the complaint in time (21 days after being served with process; 60 days from mailing of waiver if you waived service). P can’t recover just gets default judgment.

To get a default judgment you have to show:(1) d made no response at all;

(2) the claim itself is for a sum certain in money;
(3) The claimant gives an affidavit (sworn statement) of the sum owed; AND
(4) D is not a minor or incompetent.

D gets notice if he appeared.

Question 54

What is a motion to set aside?

Answer 54

D may move to have the court set aside a default or default judgment by showing good cause (like excusable neglect) and a viable defense.

Question 55

Motion for failure to state a claim - what does the court ask when deciding whether to grant or deny?

Answer 55

Assuming these facts are true, do they state a plausible claim? ONLY looks at face of the complaint.

Question 56

Summary Judgment: what must a party show? What if it’s met? When can it be brought? What evidence can be used?

Answer 56

Part moving for summary judgment must show:

1. No genuine dispute on material fact and
2. She is entitled to judgment as a matter of law

• If this standard is met, court has discretion to deny still. No right.
• Any party may move for this no later than 30 days after close of discovery
• Motion can be for partial judgment
• Court can look at evidence
  o Court views evidence in light most favorable to nonmoving party
  o The parties proffer this evidence usually (1) affidavits, (2) declarations, (3) deposition testimony, or (4) interrogatory answers (anything under oath). Must be first hand knowledge and not hearsay.

Question 57

What are the requirements of Rule 26(f)?

Answer 57

Unless court order says otherwise, at least 21 days before scheduling order, parties “meet and confer.” They discuss production of required initial disclosures, claims, defenses, settlement, and preservation of discoverable information.

In addition, they must present a detailed discovery plan no later than 14 days after the Rule 26(f) Conference.
- Plan must include:
o Views and proposals on timing
o Issues about discovery of ESI, including how it will be produced and any problems retrieving it (e.g. deleted files) etc.

Question 58

Describe the 7th Amendment right to a jury trial. When do you have to request a jury by? When do you have the right to request?

Answer 58

The Seventh Amendment preserves the right to jury in a “civil actions at law,” but not in suits at equity. If the case includes both law and equity the jury decides all facts underlying the damages claim but not the equitable claim.

• If a fact underlies claim for damages and claim for injunction – jury decides it.
• Must demand the jury in writing no later than 14 days after service of the last pleading addressing a jury triable issue; must serve it to all parties. If you don’t you waive the right to a jury. The last pleading addressing a jury issue is usually the answer.

Question 59

What are the two types of challenges to jurors and and how many does each side get? min and max number of jurors?

Answer 59

1. “for cause” eg potential juror will not be impartial. No limit on these strikes.
2. “Peremptory” – historically one did not need to state a reason – you must dismiss the potential juror. Limit for 3 per side.
   a. Peremptory strikes may only be used in a race and gender-neutral manner because jury selection is state action

Min 6 max 12 jurors in federal court making decision

Question 60

What are the rules for entering judgment regarding the different kinds of jury verdicts?
General
Special or general verdict with written questions - answers are consistent with each other
general verdict with written questions - answers are consistent with each other but inconsistent with the verdict AND answers are inconsistent with each other and inconsistent with general verdict

Answer 60

• If the jury returns a general verdict, the clerk of court enters the judgment
• If the jury returns a special verdict or general verdict with written questions and answers are consistent with each other and the verdict, the judge approves the judgment and the clerk enters it.
• In a case involving a general verdict with written questions, if the answers are consistent with each other but inconsistent with the verdict, the court may enter an appropriate judgment consistent with the answers. (or it can tell the jury to reconsider or order a new trial)

o What if the answers are inconsistent with each other and one or more inconsistent with the general verdict? The court either instructs the jury to reconsider or orders a new trial.

Question 61

Re juror misconduct, when may a verdict be impeached?

Answer 61

In general, a verdict may be “impeached” based upon “external” matters. So if jurors were bribed, or based the verdict on their investigation of matters outside of the court instead of the evidence at trial, a new trial can be ordered. Non-jurors may give first-hand evidence of such things.
- But a verdict will not be set aside if the misconduct was harmless – juror chatted for a moment with P about the weather (not the case)

Question 62

What are the steps the judge must do when there is no jury?

Answer 62

(1) record her findings of fact on the record
(2) record conclusions of law
(3) enter the judgment - short

Question 63

What is JMOL?

Answer 63

1. Motion for Judgment as a Matter of Law (JMOL)
   FKA “directed verdict.” Applies in jury trial. If judge grants JMOL, the case will not go to jury – the judge grants the motion and enters judgment.
   - The motion is based on evidence presented at trial.
   - Motion for JMOL may be filed at any time before submission of the case to the jury.
   - Judge would grant JMOL if reasonable people could not disagree on the result.
   - It’s like SJ (where no dispute of material fact) except this comes up at trial.
   - Like SJ, court views the evidence in light most favorable to the non-moving party.
   - D may move for JMOL until other side is heard at trial because p has been heard at trial.

Question 64

What is RJMOL? timing?

Answer 64

2. Renewed Motion for Judgment as a Matter of Law (“RJMOL”)
   - P fails to give evidence of one of the elements of claim. D moves for JMOL. Court should grant – defendant should win on that claim.
   o But if judge denies JMOL and jury returns verdict for P, D can move for RJMOL because jury reached conclusion reasonable people would have made.
   - If RJMOL is granted, the court enters judgment for the party that lost the jury verdict. (As with JMOL, the court views the evidence in light most favorable to the non-moving party).
   - Must have moved for RJMOL within 28 days of entry of judgment
   o You must have moved for JMOL at the proper time
   o RJMOL motion must be based upon the same grounds as the JMOL motion

Question 65

What is motion for a new trial? timing? Difference between this and RJMOL?

Answer 65

Judgment is entered, but some error at trial requires that we should start over and have a new trial.
- This can be based on any (non-harmless) error that makes the judge think we should have a do-over. Party moves for this within 28 days of judgment.

Maybe a party met the standard for RJMOL but waived it by not moving for JMOL at trial. She could move for new trial on the grounds that the verdict is against the weight of the new evidence. Ordering new trials is less drastic than ordering RJMOL.

Question 66

Remittitur // Additur

Answer 66

One ground for a new trial is that the jury’s damages figure is excessive or inadequate. The majority standard for ordering new trial on this ground: if the damages figure shocks the conscience.
- By new trial is a lot of work. To avoid a new trial, the court might suggest remittitur or additur. Court can’t instruct jury to lower – would violate 7th amendment.
- Based on state law standard
o Remittitur (too much $$ to P) – playing hardball with p
 okay in federal or state court
o Additur (not enough $$ to P) – playing hardball with d
 Okay in state, uncon in federal court: violates Seventh Amendment

Question 67

Offer of Judgment

Answer 67

At least 14 days before trial, D offers to settle P’s claim. P can accept and judgment will be entered for that amount. IF P rejects and goes to trial, and P wins a judgment that is not more favorable than the offer, P is liable to D for D’s costs incurred after the offer was made.

Question 68

When can you appeal? What can you appeal?

Answer 68

30 days after entry of judgment. Can only appeal final judgments.

Question 69

What are the different categories for interlocutory/non-final review?

Answer 69

If the district court’s order is not a final judgment, it might be appealable based upon one of these doctrines.
1. Orders Reviewable as of Right
Interlocutory orders reviewable as of right: orders granting, modifying, or refusing preliminary or permanent injunctions. This doesn’t include TROs.
- Remember: TRO is good for max of 14 days, renewable for up to another 14 days. If TRO entered for 14 days and then 10 days later court extends TRO for 30 days, the restrained party can appeal because we treat it as a preliminary injunction.
2. Interlocutory Appeals Act
Allows appeal of nonfinal order if:
- The district judge certifies that it involves a controlling issue of law;
- As to which there is a substantial ground for difference of opinion; and
- The court of appeals agrees to hear it.
3. “Collateral Order” Doctrine
Appellate court has discretion to hear ruling on an issue if that issue:
A. Is distinct from the merits of the case;
B. Involves an important legal question; and
C. Is essentially unreviewable if parties away a final judgment.
4. Multiple Claims and Parties
When more than one claim is presented in a case, or when there are multiple parties, the DC may expressly direct entry of a final judgment as to one or more of them if it makes an express finding that there is no just reason for delay.
- Ex: P sues D. D files counterclaim against P. Court enters partial SJ in favor of D on first claim. Not appealable because not a final judgment – counterclaim is still pending. DC can expressly direct entry of a final judgment on P’s claim against D and allow appeal of that issue if express finding that there is no just reason for delay.
5. Class Action
Court of appeals has discretion to review an order granting or denying certification of class action. Must seek review at the court of appeals within 14 days of order. Appeal here does not stay the proceedings at DC unless the court of appeals or district court says so.
- Court of appeals must not grant appeal; discretionary
6. Extraordinary Writ (Mandamus or Prohibition)
An original proceeding in the court of appeals to compel the district judge to make or vacate a particular order. Not a substitute for appeal; available only if the DC is violating a clear legal duty.

Question 70

1. When a district court decides questions of law, the standard used by the court is:
   - __.
2. In a non-jury trial, what is the standard of review for district judge’s determinations of questions of fact?
3. In a jury trial, what is the standard of review for jury’s determination of questions of fact?
4. How will the appeals court review discretionary matters?
5. What if error is harmless?

Answer 70

1. De novo
2. appeals will affirm unless findings are clearly erroneous
3. court of appeals will affirm unless reasonable people could not have made that finding
4. Court of appeals will affirm unless district judge abused her discretion
5. not reversible

Question 71

CA: When must a notice of appeal be filed in superior court?

Where are judgments in limited civil cases and small claims matters appealed to?

Is the final judgment rule the same in CA?

What is the collateral order rule in CA?

What may a party do if not ordinarily appealable?

Answer 71

• Unlimited case  court of appeal
• Notice of appeal must be filed in superior court within
  o 60 days of mailing or service of “notice of entry” of judgment
  o 180 days after entry of judgment if no notice
• Judgments in limited civil cases and small claims matters are appealed to the appellate department of the Superior Court.
• Same final judgment rule; except in CA, a judgment wrapping up the dispute as to one of several parties is considered final judgment
• Interlocutory review
  o Circumstances that are appealable (see list)
  o Collateral order rule: court may appeal appeal on (1) an issue collateral to the merits of the case, (2) that the trial court has decided finally, if (3) it directs payment of money or performance of an act.
• Extraordinary (or peremptory writ). If order isn’t otherwise appealable, party may seek a writ of mandate (to compel a lower court to do something the law requires) or prohibition (to stop a lower court from doing something the law does not allow).
  o Not an “appeal;” separate proceeding filed in Court of Appeal
   Issued to inferior court
   Party seeking writ must demonstrate:
  • She will suffer irreparable harm if not issued
  • Normal route of appeal from final judgment is inadequate, and
  • She has beneficial interest in the outcome of the writ proceeding
   Discretionary with court

Question 72

What is issue and claim preclusion? What are the requirements for both?

Answer 72

Claim Preclusion (Res Judicata)
You only get to sue on a claim once. So you only get one case in which to vindicate all rights to relief for that claim.
Requirements
1. Case 1 and Case 2 were brought by the same claimant against the same defendant.
2. Case 1 ended in a valid final judgment ON THE MERITS.
a. General rule: unless the court said otherwise when it entered the judgment, any judgment is “on the merits” UNLESS based on
i. Jurisdiction
ii. Venue
iii. Indispensable parties
b. This is true even if there was no adjudication in Case 1
3. Case 1 and Case 2 asserted the “same claim.”
a. Majority view (including federal law): A claim is any right to relief arising from a T/O
b. Important minority view: there are separate claims for property damage and for personal injuries because those are different primary rights.

Issue Preclusion (Collateral Estoppel)
Narrower than claim preclusion. Here, an issue was litigated in Case 1. The same issue is presented in case 2. But if issue preclusion applies, we will not allow the issue to be relitigated in Case 2. We deem it established in Case 2.
Requirements
1. Case 1 ended in a valid, final judgment on the merits;
2. The same issue was actually litigated and determined in Case 1; and
3. The issue was essential to the judgment in Case 1. That means the finding on this issue is the basis for the judgment.
4. Against whom can issue preclusion be asserted? Only against somebody who was a party to Case 1 or in “privity” with a party. “Privity” means that a party to Case 1 represented someone who was not a party to Case 1.
a. Ex: class action, where Rep represents members, who are bound even though they were not parties
b. Why? Due process

Question 73

Who can assert issue preclusion preclusion?

Answer 73

Every court agrees that issue preclusion can be used by someone who was a party to Case 1 (or represented by a party). The big question is whether it can be used by someone who was not a party to Case 1 (or represented by a party).

a. When someone who was not a party to Case 1 tries to use issue preclusion in Case 2, it is called “nonmutual” issue preclusion. Comes up in two ways:
i. Nonmutual defensive issue preclusion (the one using it was nota. Party to case 1 and is D in Case 2).
1. Federal law and most state law says this is okay so long as person you’re using it against had full change to litigate in case one.
ii. Nonmutual offensive issue preclusion (the one using it was not a party to case one and is P in Case 2)
1. Trend, including federal law says it’s okay if it’s fair. Factors;
a. Person it’s being used against had a full and fair opportunity to litigate in Case 1
b. Person it’s being offered against had an incentive to litigate strongly in Case 1
c. You could not have joined easily in Case 1.
d. There are no inconsistent findings on this issue.