Civ Pro

Question 1

Federal question (FQ)

Answer 1

District courts have original jurisdiction (JX) of all civil actions arising under the Constitution, laws, or treaties of the U.S.; Express— cause of action is expressly created by federal law and federal law provides the underlying right; Implied—FQ likely to be found if right is created by federal law, and a c/a can be fairly implied and was intended by Congress; Implied—complaint must involve state claim that is (1) necessarily raised, (2) actually disputed, (3) substantial, and (4) capable of resolution in federal court

Question 2

Diversity jurisdiction (DJ)

Answer 2

Federal courts have JX when there is complete diversity between the parties, and amount in controversy exceeds $75,000

Question 3

Complete Diversity

Answer 3

No diversity if any P is a citizen of the same state or citizen of the same foreign country as any D in the case

Question 4

Citizenship of Individuals

Answer 4

Individuals—domicile is state in which an individual is present and intends to residefor an indefinite period; an individual can only have one domicile at a time; and domicile determined when action is commenced

Question 5

Citizenship of Corporations

Answer 5

Citizenship is state of incorporation and state where it has its principal place of business (“nerve center” from which the high-level officers direct, control, and coordinate the activities of the corporation)

Question 6

Amount in Controversy

Answer 6

Standard of proof—P’s good-faith assertion in complaint is sufficient unless there is legal certainty that P cannot recover alleged amount. Aggregation of claims—permitted for single P against single D, or multiple Ps with
common/undivided interest (counterclaims generally not counted in determining whether P has met amount). Specific performance can be valued by measuring the value of the benefit to the plaintiff or the cost of compliance for the defendant.

Question 7

Supplemental jurisdiction (SJ)

Answer 7

Federal court with JX may exercise SJ over additional claims which court would not independently have SMJ (usually state law claims against a nondiverse D), but that arise out of a “common nucleus of operative fact” such that all claims should be tried in a single judicial proceeding

Question 8

Supp Jdx - Diversity Jdx

Answer 8

Permissive joinder—addition of a plaintiff asserting additional claim can’t violate complete diversity rule (not required to satisfy jurisdictional amount); Counterclaims—compulsory counterclaims need not satisfy jurisdictional amount, but permissive counterclaims must satisfy both DJ requirements; Cross-claims—may be asserted by a D against another D or by a P against another P, if the cross-claim arises out of the same transaction or occurrence as the initial claim; no amount in controversy or citizenship requirement if the court has SMJ over original complaint

Question 9

Removal

Answer 9

Case may be removed to federal court if (1) the case could have been brought in federal court, (2) all the defendants agree to it, and (3) notice of removal is filed within 30 days of service. The right of removal is a right of the defendant only. A case is not removable to federal court if any defendant is domiciled in the forum state.

Question 10

Personal Jdx

Answer 10

PJ is the judicial power over the persons or property involved in the cases or controversies before it. There are three general types of personal jurisdiction: (i) in personam jurisdiction; (ii) in rem jurisdiction; and (iii) quasi-in-rem jurisdiction.

Question 11

Bases for IPJ

Answer 11

IPJ is the power that a court has over an individual party. (1) Voluntary—appearance alone does not waive right to object to PJ (2) Domicile—state has JX over person domiciled in state (3) Consent—D can expressly consent or impliedly through conduct, or voluntarily through appearance in court (4) Long-arm statute—authorizes PJ over nonresidents who engage in some activity in
state or cause some action to occur within state to extent permissible under DP Clause

Question 12

IPJ - DP Reqs

Answer 12

Satisfied if nonresident D has certain minimum contacts
with the forum state such that the maintenance of the action does not offend traditional notions of fair play and substantial justice.

Question 13

IPJ DP - Minimum Contacts

Answer 13

Requires purposeful availment and foreseeability. D’s contacts with forum state must be purposeful and substantial, such that D should reasonably anticipate (foresee) being taken to court there. Corporations - Test is whether corp’s affiliations with the forum state are so “continuous and systematic” as to render the corporation essentially “at home” in the forum state

Question 14

IPJ DP - Relatedness of the Claim to the Contact - Specific Jdx

Answer 14

Specific jurisdiction may be found when a cause of action arises out of or closely relates to a defendant’s contact with the forum state, and jurisdiction may be warranted even if that contact is the defendant’s only contact with the forum state.

Question 15

IPJ DP - Relatedness of the Claim to the Contact - General Jdx

Answer 15

General jurisdiction exists if the defendant had systematic and continuous activity in the forum state such that the defendant is essentially at home in the forum.

Question 16

IPJ DP - Fair play and Substantial Justice

Answer 16

Factors include: Interest of forum state in adjudicating matter; Burden on D of appearing in case; Interest of judicial system in efficient resolution of controversies; Shared interests of the states in promoting common social policies

Question 17

Notice

Answer 17

Rule—must be reasonably calculated, under all the circumstances, to apprise interested parties of pending action and afford them the opportunity to object. Form—via in-person, registered mail, etc. if identity/address known or obtainable through reasonable efforts

Question 18

Venue - Federal

Answer 18

Proper in only one: (i) a judicial district in which any D resides, if all D’s reside in the same state in which the district is located; or (ii) a judicial district in which a “substantial part of the events or omissions” on which the claim is based occurred, or where a “substantial part of the property” that is the subject of the action is located. Corporation is deemed to reside in any judicial district in which the entity is subject to PJ.

Question 19

Venue - CA

Answer 19

Proper in any county in CA where any D resides or where the injury occurred. Venue in action against a corporation is proper in the CA county where the obligation or liability arose or where the organization has its PPB.

Question 20

Change of Venue when Original Venue is Proper

Answer 20

For the convenience of parties and witnesses, a district court may transfer any civil action to any other district or division where (1) it might have been brought or (2) to any district or division to which all parties have consented. • DJ— apply law of transferor court. FQ—transferee court will apply federal law as interpreted by its court of appeals.

Question 21

Choice of Law: The Erie Doctrine

Answer 21

(1) Is there is a conflict between state and federal law? If yes and there is federal statute on point, apply federal law. (2) If none exists, then the court will determine whether federal common law rather than state law should apply by looking at whether failure to apply state law will lead to different outcomes. Apply state law if failure to do so would lead to different outcomes in state and federal court.

Question 22

Service of Process - Fed

Answer 22

Timing—within 90 days after filing complaint. Methods: personally (by 3rd party, 18+); at D’s usual place of abode with a person of suitable age/discretion who resides there; delivering to D’s agent

Question 23

Service of Process - CA

Answer 23

Requires follow up mailing to D for substitute service. Allows service by first class mail/return receipt for out-of-state D if PJ exists.

Question 24

TRO

Answer 24

Effective no longer than 14 days unless good cause exists or adversary consents (CA—TRO w/o notice can’t exceed 15 days). May be issued without notice to adverse party if (1) immediate and irreparable injury will result and (2) movant’s attorney certifies efforts made to give notice and the reason why notice should not be required. Not generally immediately appealable.

Question 25

Preliminary Injunction

Answer 25

Issued prior to a full hearing on the merits, upon notice to the defendant. May be issued to a P if: (1) P is likely to succeed on the merits, (2) P is likely to suffer irreparable harm in the absence of relief, (3) Balance of equities is in P’s favor, an, (4) Injunction is in the public interest

Question 26

Permanent Injunction

Answer 26

Same standard as for perm injunction but P must show actual success on the merits.

Question 27

Complaint

Answer 27

Federal rule—short/plain statement of court’s SMJ, P’s entitlement to relief, and demand for judgment (notice pleading). CA—all pleadings must contain statement of all material, operative facts constituting each c/a and demand for relief, and amount of damages (fact pleading).

Question 28

Rule 12(b)(6) motion to dismiss

Answer 28

W/in 21 days of service. Claim will be dismissed if it fails to assert legal theory of recovery cognizable at law or
allege facts sufficient to support cognizable claim; and court treats well-pleaded facts as true, resolves doubts/inferences in P’s favor, and views pleading in light most favorable to P

Question 29

Answer

Answer 29

Answer must admit/deny P’s allegations, or plead lack of sufficient knowledge (with the reasonable investigation). D must state affirmative defenses or they are deemed waived. Timing: (1) No motion to dismiss—21 days after summons and complaint, (2) Motion to dismiss—w/in 14 days after notice of court’s action.

Question 30

Amendment

Answer 30

W/in 21 days after answer. The court should freely give leave to amend a pleading when justice so requires. Court will first determine if the proposed amendment to the pleading would be futile because it would immediately be subject to dismissal under Rule 12(b)(6). If it would not, the amendment will generally be permitted unless it would result in undue prejudice to the opposing party.

Question 31

Relation Back - New Claim

Answer 31

Relates back to date of original pleading if amendment asserts claim/defense that arose out of same conduct, transaction, or occurrence as original pleading

Question 32

Relation Back - New Party

Answer 32

(1) Relates back to date of original pleading if amendment asserts claim/defense that arose out of same conduct, transaction or occurrence as original pleading; (2) New party receives notice of action within 90 days after original complaint filed; (3) D knew or should have known about action but for mistake concerning proper party’s identity

Question 33

Permissive Joinder of Parties

Answer 33

Ps and Ds may join/be joined in one action if any right to relief is asserted jointly, or arising out of same transaction, occurrence, and question of law/fact common to all Ps or Ds will arise. Need SMJ: Ds—Supp jdx doesn’t apply so must be complete diversity between Ps and Ds and ea claim must exceed $75k. Ps—Supp jdx permitted for jdx amount less than or equal to $75,000 but there must still be complete diversity. IPJ—court needs IPJ over D for proper joinder. Venue—joinder subject to applicable venue requirements.

Question 34

Compulsory Joinder of Parties

Answer 34

Party is necessary for just adjudication: (1) Complete relief cannot be provided to existing parties w/o add. person, (2) Disposition w/o that person may impair person’s ability to protect his interest, or (3) absence of that person would leave existing parties subject to substantial risk of
multiple or inconsistent obligations. Can’t destroy diversity. Need IPJ over add D’s. If indispensable party can’t be added, dismiss case and consider prejudice.

Question 35

Federal Interpleader Rule

Answer 35

Allows person holding property (stakeholder) to force all potential claimants into single lawsuit. Ps—persons with claims that may expose P to multiple liability may be joined as Ds and required to interplead claims though they lack common origin or are adverse and independent rather than identical or P denies liability. Ds—exposed to similar liability may seek interpleader through a cross-claim or counterclaim. Only stakeholder needs to be diverse. Need IPJ over all claimants.

Question 36

Seventh Amendment Right to a Civil Jury Trial

Answer 36

Provides a right to a jury trial in federal court in all “suits of common law” where the amount in controversy exceeds $20. The right extends to legal issues, but not equitable issues. If the same case involves both legal and equitable issues, the legal claims are normally tried first before the jury, and then the equitable claims are determined by the court.

Question 37

Timing for a Demand for a Jury Trial

Answer 37

Under Rule 38(b), any party may make a demand for a trial by jury. Must be in writing and served within 14 days after service of the last pleading directed to the issue that is sought to be tried by the jury, or else risk waiver of a jury trial.

Question 38

Scope of Discovery

Answer 38

Information within the scope of discovery need not be admissible in evidence to be discoverable. The test is whether the information sought is relevant to any party’s claim or defense. Information may be discoverable if it “appears reasonably calculated to lead to the discovery of admissible evidence.”

Question 39

Special/Written Interrogatories Limit

Answer 39

Any party may serve no more than 25 written interrogatories on any other party. The court, however, has the power to alter the limit on the number of interrogatories.

Question 40

Requests to Produce Documents

Answer 40

Nonparties may be compelled to produce documents and other things or submit to an inspection pursuant to a subpoena. 30 days from being served with request
or 30 days from the parties’ first rule 26(f) conference.

Question 41

Discovery Conference

Answer 41

Under Rule 26(f), the parties must confer as soon as is practicable, and in any event at least 21 days before a scheduling conference is to be held to develop a discovery plan. Discovery generally may not be made before the discovery conference and a discovery plan is agreed upon.

Question 42

Objection to Interrogatory

Answer 42

Each interrogatory must be answered fully and separately under oath, unless the responding party objects to the interrogatory. The grounds for objecting to an interrogatory must be stated with specificity. Any ground not stated in a timely objection is deemed waived, unless the court, for good cause, excuses the failure.

Question 43

Motion to Compel

Answer 43

A motion to compel must be served on all parties and be accompanied by a certificate that the movant has in good faith conferred or attempted to confer with the opposing party in an effort to obtain the disclosure or secure the information or material without court action.

Question 44

Mental and Physical Exam

Answer 44

The court may order person to submit to physical/mental exam if physical/mental condition is in controversy. An order for a physical or mental exam may be made only upon motion, for good cause shown, and the person to be examined and all parties must be given prior notice specifying the time, place, conditions, and scope of the examination and the identity of the examiner.

Question 45

Patient-Physician Privilege

Answer 45

Privileged information is not discoverable. The patient-physician privilege protects confidential communications for medical treatment between a patient and physician. However, this privilege belongs to the patient, so a doctor cannot raise this privilege to bar discovery.

Question 46

Testifying Expert

Answer 46

Rule 26(a)(2) requires parties to disclose the identities of persons who may testify as expert witnesses and to produce an expert report for each such witness. The expert report must be prepared and signed by the expert and contain all the relevant information, including the expert’s name, the expert’s qualifications, the opinions to be offered, the basis for all opinions, and the facts or data considered by the expert in forming the opinions.

Question 47

Consulting Expert

Answer 47

If the expert was retained in anticipation of litigation/to prepare for trial but will not be a witness, discovery is permitted only showing of exceptional circumstances under which it is impracticable for the party to obtain info by other means.

Question 48

Work Product Privilege

Answer 48

Party may not discover documents and tangible things prepared in anticipation of litigation or for trial, unless other party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means. Disclosure of the mental impressions, conclusions, opinions, or legal theories of a party’s attorney or other representative concerning the litigation are absolutely protected.

Question 49

Objecting to Discovery

Answer 49

Party must expressly state the claim of privilege and describe the materials or communications not produced in a manner that will enable other parties to assess the applicability of the privilege or protection.

Question 50

Compulsory Counterclaim

Answer 50

(w/in 21 days of service) At time of service, counterclaim is compulsory if it arises out of same transaction/occurrence that is subject matter of opposing party’s claim and doesn’t require adding another party over whom court has no jdx. By definition court will have supp jdx so don’t need independent SMJ

Question 51

Permissive Counterclaim

Answer 51

(w/in 21 days of service) Party has discretion if counterclaim isn’t compulsory. SMJ—need DJ or FQ. Third parties—can assert counterclaims against original P or D, and governed by requirements for counterclaims and joinder.

Question 52

Cross-claims

Answer 52

(w/in 21 days of service) A claim against coparty may be asserted if they arise out of same transaction or occurrence that is subject matter of original action or counterclaim and new parties subject to joinder rules

Question 53

Class Actions

Answer 53

(1) Numerosity—class is so numerous that joinder of all members is impracticable(2) Commonality—must be questions of law or fact common to class (3) Typicality—claims/defenses of representatives must by typical of class, and (4) Adequacy—representatives must fairly and adequately protect the interests of class

Question 54

Summary Judgment

Answer 54

(1) No genuine dispute as to any material fact, (2) the movant is entitled to judgment as a matter of law, (3) court will construe all evidence in the light most favorable to the nonmoving party and resolve all doubts in favor of nonmoving party. Movant has burden of persuasion to show prima facie case.

Question 55

Claim Preclusion (Res Judicata)

Answer 55

(1) Valid final judgment on the merits—court must have PJ and SMJ, D must have had proper notice and opportunity to be heard, court must have nothing further to do but order entry of judgment, and decision must be made on merits of claim/defense. CA—judgment not considered final until conclusion of appeal or until time for appeal has expired. (2) Sufficiently identical claims—original and later-filed claim must be sufficiently identical to be barred under claim preclusion. CA—“primary rights” doctrine (3) Sufficiently identical parties—P and D must be the same, and in the same roles, in both the original action and subsequently filed action.

Question 56

Issue preclusion (collateral estoppel)

Answer 56

(1) Same issue—facts relevant to particular issue and applicable law must be identical. (2) Actually litigated—the issue must have been actually litigated in the prior action. CA Distinction—default and consent judgments in CA are given issue preclusive effect as to material issues actually raised in pleadings that were necessary to judgment. (3) Final, valid judgment—first determination of issue was within authority of court that decided it and the determination was made in final decision on the merits. (4) Essential to judgment—issue that constitutes a necessary component of the decision reached will be considered essential