Civ Pro Flashcards
1
Q
CA subject Matter jurisdiction is split in 3 ways. What are the 3 ways
A
Limited, Unlimited, Small Business claim
2
Q
Limited Civil cases
A
Amount in Controversy (AIC) of $25K or less. Restrictions on equitable, declaratory relief.
3
Q
Unlimited Civil Cases
A
AIC over 25k; no other limits
4
Q
Small Claims Cases
A
10k or less or for a business 5k or less
5
Q
SMJ
A
Federal courts are courts of limited jurisdiction and can only hear cases where it has SMJ. SMJ exists if a) there is a federal question; b) there is diversity of citizenship among the parties; or c) supplemental jurisdiction. Subject matter jurisdiction is not waived if a party fails to raise it at trial - it may be raised at any time, even on appeal.
6
Q
Federal Question
A
A federal question exists if a well-pleaded complaint alleges a claim that arises under federal law, the U.S. Constitution or United States treaties. Raising a federal defense is not sufficient.
7
Q
Diversity JDX
A
Diversity jurisdiction exists when: 1) there is complete diversity of citizenship between plaintiffs and defendants; and 2) the amount in controversy exceeds $75,000.
8
Q
Citizenship (person, corporation, Executors, Partners)
A
Citizenship for a person depends upon their domicile, (residence with a subjective intent to make the state their permanent home). For a corporation, citizenship is determined by the corporate Principal Place of Business, or nerve center where the company is controlled, or any state in which incorporated. Executors are citizens of the Decedent’s state, and partnerships are citizens of the domicile state of every partner.
9
Q
AIC
A
– In federal courts, the AIC must be greater than $75K and alleged in good faith. A plaintiff can aggregate against one defendant, or all or all defendants if they are joint tortfeasors. If suing for injunctive relief, the AIC is based on the value of the benefit or the cost of compliance.
10
Q
Supplemental JDX
A
If a federal court has SMJ over a claim, then it may exercise SJX over additional state claims when they arise from a common nucleus of operational facts. SJX cannot be used to circumvent lack of diversity and cannot provide for jurisdiction over third parties. SJX does not require AIC or diversity, and if not used solely to defeat diversity and the common nucleus requirements, then SJX will likely be granted.
11
Q
Denying supplemental JDX
A
A federal court may decline SJX over state claims when: a) it raises a novel or complex issue of State law; b) it substantially predominates over the claim(s) of which the district court had original jurisdiction; c) the court has dismissed all claims of original jurisdiction; or d) in exceptional circumstances. State claims do not substantially predominate over federal claims when the facts needed to prove each claim are identical or similar.
12
Q
Removal to federal court - D can only remove if
A
1) the federal court has SMJ; 2) all defendants agree; 3) no defendant is a resident of the forum state; and 4) removal is sought within 30 days of either service of the summons or receiving the initial pleading (whichever is shorter).
13
Q
Who can never remove and what is the timeline for removal not to be an option
A
P; no more than 1 year after commencement in a diversity JDX
14
Q
If a plaintiff files the case in a state court, a defendant must remove it to
A
federal district court that embraces that state court.
15
Q
When must a fed court remand to state court
A
no federal SMJ
16
Q
When MAY a federal court remand a case to State court when the Federal court orginally had SMJ
A
once he federal claims have been decided
17
Q
A motion to remand must be filed within how many days of a request for removal
A
30
18
Q
State courts can try a federal question case so long as
A
there is no implied restriction by congress
19
Q
States cannot do what to a case
A
discriminate based on federal law
20
Q
In personam JDX
A
– IPJ is required for a court to exercise judgment over a specific party, and normally falls into two categories: 1) the traditional bases of jurisdiction; and 2) modern bases of jurisdiction.
21
Q
Traditional basis of jdx
A
domicile
presence when served
consent
22
Q
Modern basis of jdx
A
long arm statute
consitutionality
23
Q
Long arm statutes
A
Many states have adopted long-arm statutes which allow personal jurisdiction over non-residents. While long-arm statutes can differ by state, jurisdiction under a long-arm statute must satisfy the constitutional requirements for the exercise of jurisdiction. Many states, like California, have adopted long-arm statutes which extend personal jurisdiction to the limit of the Constitution.
24
Q
Constitutionality - Int. Shoe
A
- To satisfy the Constitutional requirements for personal jurisdiction, the defendant must have such minimum contacts with the forum state as to not offend traditional notions of fair play and substantial justice.
25
In determining whether minimum contracts are present, courts will look to 3 things
1) the level of contacts; 2) relatedness to cause of action; and 3) whether the exercise of jurisdiction would be fair.
26
Minimum Contacts - In determining minimum contacts, the court looks:
1) whether the defendant purposefully availed himself of the forum state; and 2) whether the exercise of jurisdiction by the forum state would be foreseeable.
27
Purposeful
– The contacts were purposeful if the Defendant availed themselves of the benefits and protections of the forum state’s laws.
28
Is knowledge of your product being sold in another state enough under purposeful
Not by itself
29
What is needed for products to be considered purposeful
you need to advertise, send goods, activate a two-way website, etc.
30
If you drive another states roads you have
availed yourself of the protections of their traffic laws – purposefully availed.)
31
Foreseeable contacts
contacts were foreseeable if the defendant could foresee being haled into court based on contacts in the forum state.
32
Relatedness - The relatedness of a contact to the controversy determines if
the court will exert General or Special Jurisdiction.
33
Fair Play and Substantial Justice factors
Requires courts to consider 1) burden on defendant; 2) the state’s interest; 3) plaintiff’s relief interest; 4) interstate judicial system’s interest in efficiency; and 5) shared social policy interests.
34
Judgment on the pleadings standard
material facts are not in dispute and the pleadings reveal merit of the claim for either party.
35
When can judgement on the pleadings be filed
after an answer has been filed and pleadings are closed
36
Service of process - Process may be served by
anyone 18 years of age or older who is not a party to the case.
37
3 methods of federal service upon indiviuals are
1) deliver to the defendant personally, leave at defendant’s dwelling with someone of suitable age and discretion who resides there, or deliver to the defendant’s agent; 2) use any service method authorized by state law in the state where the action is pending or in the state where service is taking place; or 3) if the defendant has waived the right to personal service, by sending a copy of the summons and complaint by first-class mail.
38
How can you serve corporation
by 1) hand-delivery to an officer or a managing or general agent of the defendant;
2) any service method authorized by state law in the state where the action is pending or in the state where service is taking place; or
3) if the defendant has waived the right to personal service, by sending via first-class mail.
39
Venue is proper in any district where
a) any defendant resides (if all defendants are residents of forum state); b) where a substantial portion of the claim occurred; c) where a substantial part of subject/property is located; or d) if none of the above apply, then venue is proper in any judicial district where any defendant is subject to personal jurisdiction.
40
Proper venue is determined when
when the suit is filed; a subsequent change of domicile by a party does not warrant a change in venue.
41
Transfer of venue - if venue is proper, a court may transfer venue if
1) needed for convenience of parties and witnesses or interests of justice; and 2) the action could have been brought in the receiving court (proper venue and jurisdiction).
42
If venue was orginally proper, court must apply
substantive law of transferor court
43
If venue is improper when the case is filed the court must either
a) dismiss the case or b) transfer to a proper court if the interests of justice require.
44
If venue was improper the law applied is
the one of the transferee court
45
In CA a venue depends on whether
action is local or transitory action
46
Local action
action involving real property, and venue is proper in the county where the real property is located.
47
Transitory action
venue is generally proper in any county where any defendant resides. If no defendant resides in California, then venue is proper in any county where the court has personal jurisdiction over the defendant.
48
Contract actions - CA venue
venue is proper in the county where the contract was executed or to be performed.
49
Tort actions - CA venue is proper in
the county where the act or omission giving rise to the tort occurred.
50
Forum Non Conveniens
Allows a court to decline jurisdiction and dismiss an action if the court where the action was brought would be a seriously inconvenient forum and an adequate alternative forum exists in a foreign country.
51
Scope of discovery - FRE
– Discovery shall include all information: 1) relevant to any party’s claim or defense; 2) that is not privileged; or 3) is proportional to the needs of the case. The evidence sought need not be admissible at trial so long as it appears reasonably likely to lead to the discovery of admissible evidence.
52
Scope of discovery - CA
a party may obtain discovery of all non-privileged information that is relevant to the subject matter involved in the pending action.
53
Limits on scope of discovery – The Judge will determine the
benefit to the parties, the needs of the case, the amount in controversy, parties respective resources, importance of the issues and importance of the discovery in resolving those issues.
54
Physical or mental exams
When a person’s condition is in controversy, a physical or mental exam of the person may be requested. Court requires a good cause showing for the exam
55
What discovery tool is the only discovery tool that needs advance court approval
physical and mental exam
56
Disclosure of persons with knowledge
A party has no obligation to include in their initial disclosures information concerning individuals who have discoverable info but whom the party does not intend to use in its defenses.
57
26F conference & Discovery
party may not seek discovery until after a Rule 26(f) discovery conference, unless ordered by the court, stipulated by the parties, or authorized by a specific rule
58
26F conference
A meet and confer to plan discovery, this conference should be as soon as possible, and must take place 21 days prior to Scheduling Conference. Initial disclosures must be exchanged 14 days after the 26(f) conference, unless the court stipulates otherwise.
59
Request for a production of documents
allows a party to request and inspect designated documents in another party’s possession, custody, or control. The party to whom the request is directed must respond in writing (1) within 30 days after being served or (2) if the request was served prior to that conference, within 30 days after the parties’ first Rule 26(f) conference—unless a shorter or longer time is stipulated by the parties or ordered by the court.
60
Motion to compel
If a party fails to respond to a document request, fails to allow inspection, or objects to a request, then the requesting party may move to compel. However, with a motion to compel, there is a preference that parties first meet to try to resolve the issue before filing the motion
61
Interrogatories
A party may request 25 interrogatories, and if more are needed, bring this issue up at the 26(f) conference. Parties have 30 days to respond to interrogatories.
62
Depositions
A formal interview under oath. A party is initially limited to 10 depositions, but the parties may stipulate a certain number. Depositions are normally limited to one day, and at the most seven hours on that day.
63
Work product doctrine
Material a lawyer prepares for litigation is immune from discovery unless the opposition shows a substantial need and inability to gather the material without undue hardship. A lawyer’s mental impressions or opinions are immune from discovery.
64
Absoulte privillege applies to
mental impressions, notes or opinions
65
Qualified Privilege
applies to other materials that can be discoverable upon showing of substantial need and inability to acquire the materials elsewhere.
66
Leave of court to amend will be granted when
1) justice requires; 2) no undue prejudice will result to defendant; and 3) amendment of the claim is not subject to dismissal.
67
Res Judicata def
Precludes parties in an action from re-litigating any claim that was or could have been raised in that action.
68
Res Judicata elements
1) parties are identical or in privity; 2) there was a final judgement on the merits; and 3) same claim based on same transaction or occurrence as that previously litigated.
69
CA res judicata
all appeals must be exhausted. A dismissal with prejudice equals a final judgment on the merits. If the plaintiff wins, then the new claim is merged, if the defendant wins then the new case is barred.
70
Collateral Estoppel def
Precludes a party from attempting to retry an issue if there has been a final judgment on the merits by a court of competent jurisdiction.
71
collateral estoppel elements
1) a valid and final judgment was rendered; 2) issue is identical to the issue previously decided; 3) issue was actually litigated and determined essential to the prior action; and 4) party against whom enforcement is sought had full and fair opportunity to litigate the issue in the first action.
72
If one state initally issues a judgement in collateral estoppel
state laws determine if it can be used non-mutality in another state
73
Erie doctrine must have a
federal case sitting in diversity
74
Erie doctrine def
Doctrine - In a federal case under diversity, the court will apply its own federal procedural laws but must apply state substantive law.
75
Procedural laws
civil procedure rules, burden of proof, and rebuttable presumptions.
76
Substantive laws
choice of law rules, statute of frauds, damages, and the statute of limitations.
77
Valid final judgement
court had both personal and subject matter jurisdiction, and the defendant had proper notice and an opportunity to be heard.
In California, a judgment is not final until the conclusion of the appeal or, if no appeal is taken, when the time for filing a notice of appeal expires.
78
SOL
Limits the amount of time a plaintiff may bring a claim to encourage resolution of claims within a reasonable time before evidence has been lost or facts have become unclear through the passage of time, defect of memory, death or disappearance of witnesses.
79
Relation back
An amendment to a pleading overcomes the statute of limitations when 1) claim is of the same transaction or occurrence as the original pleading; 2) the new party received notice of the lawsuit and knew or should have known the action should have been brought against them.
80
Class action certification is when a judge must determine that
1) the class must be so large joinder of all parties is impractical; 2) there is a common question of law or fact shared by the class; 3) the claims of named representatives are typical of the class; and 4) the representatives fairly and adequately protect the interests of the class.
81
Certification can be appealed within
within 14 days of the certification decision, where the court of appeals has complete, unfettered discretion in deciding to hear the case.
82
CAFA
Allows federal courts to preside over class action cases when the amount in controversy exceeds $5M, the class is at least 100 persons, and where minimal diversity exists – at least one plaintiff and one defendant are diverse.
83
Summary judgement
Should be granted if the pleadings, discovery, and affidavits viewed in light most favorable to nonmoving party (NMP), the moving party shows that no genuine dispute of material fact exists and the moving party is entitled to judgment as a matter of law
84
How long do you have to file a summary judgement
until 30 days after the close of discovery
85
JMOL
Occurs if a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient basis to find for the party on that issue. The movant must make this motion prior to submission of the case to the jury, and if they do, after the verdict against them, they can move for a renewed JMOL.
86
When raising a JMOL, the court may
1) resolve the issue against that party; 2) grant a motion for JMOL against the party.
87
Renewed JMOL may be filed no later than
than 28 days after entry of the judgment and is limited to those issues raised in the JMOL. If the party did not motion prior to assignment to the jury, they have not preserved the right to file a renewed JMOL.
88
Under the 7th Amendment, if a case contains both legal and equitable claims arising from a common nucleus of operative facts, then the legal claims should be tried by the
jury first, and the equitable claims would be tried by the court afterward. This works in the opposite in CA.
89
Motion for a new trial must be filed
no later than 28 days from judgement
90
When will a court grant a new trial
when there is an error during trial, juror misconduct or if the verdict is against the weight of the evidence.
91
Plain error - WHen will a court consider a plain error in the instructions
when the claim was not preserved by proper objection, and only if the error affects substantial rights.
92
In situations where you fail to raise the issue of insufficiency of evidence in a motion for JMOL, RJMOL or a new trial, you have
failed to preserve, cant raise this issue on appeal
93
On motion or on its own (sua sponte), a court may relieve a party from a final judgment order if there is
1) mistake; 2) new evidence that could not be found with due diligence; 3) fraud; 4) any reason that justifies relief. Reasons 1, 2, and 3 must be raised within a year, and #4 is within reasonable time
94
Judicial order for a new trial
– A Judge can order a new trial for any reason that a party could motion for one.
95
Joinder of claims
A plaintiff can join any number/type of claims against a defendant; when multiple plaintiffs or defendants are involved, at least one of the claims must arise out of a transaction in which all were involved.
96
Complusory joinder of parties
a plaintiff must join all interested parties or face dismissal of the lawsuit.
97
Complusory joinder elements
the court must ask: 1) should the absentee be joined; 2) can the absentee be joined; and 3) if the absentee cannot be joined, should the action proceed?
98
Permissive joinder
parties may join as plaintiffs or be joined as defendants whenever: 1) some claim is made by each plaintiff and against each defendant relating to or arising out of the same series of occurrences or transactions; and 2) there is a question of fact or law common to all parties.
99
What does not deem a party necessary
being jointly and severly liable
100
Common law right to jury
guarnteed only in federal courts not state
101
7A right to jury
A jury demand must be made within 14 days of the last pleading. Facts that apply to both legal and equitable claims will be tried by a jury if requested.
102
Crim cases - 7A right to jury
the right to a jury applies to serious cases only, with penalties of at least 6 months incarceration.
103
– If an action is not one where a jury might be demanded, a court
can’t grant a jury without both parties’ consent.
104
Court may try with a jury trial for a case that would not get one if
they both consent and that effect is binding
105
1791
If a party would have been entitled to a jury in 1791, before the common law/equity split, then that party is entitled to a jury trial today.
106
Right to jury - civil case
trial in civil cases is only guaranteed in federal courts – state laws determine jury rights in state courts.
107
M2 dismiss a civil claim
A court may dismiss a civil claim without legal merit by determining if sufficient facts are pled to sustain a prima facie case for the alleged cause of action. If not, the court will not evaluate the merits of the case.
108
timing of a 12B motion
A 12(b) motion to dismiss for lack must be raised by the defendant in its first response.
109
If m2 dismiss is based on insufficent process, proper procedure is to
to file a motion to dismiss, not with an answer stating affirmative defense per FRCP 12(b).
110
Can a motion for a new trial be filed with a JMOl
yes
111
If the JMOL is approved what would happen to the M2 a new trial
conditionally rule on a motion for a new trial
112
Grounds for juror misconduct
– Testimony that a juror used extraneous, prejudicial information or improper outside influences is grounds for a new trial.
113
Not grounds for juror misconduct
Misunderstanding of the standard of proof, mental states and relying on evidence that was directed to be disregarded are not grounds for a new trial.
114
Final Judgement exception
A claim or issue may be immediately appealable (interlocutory) if it is too important to wait
115
what must you show to get a final judgement exception
1) the lower court must have conclusively determined the disputed questions;
2) the issue must be separate from and collateral to the merits of the main issue of the case; and
3) the issue must be effectively unreviewable on appeal from the final judgment.
116
Appeal must be made within 30 days unless the
US Goverment is a party then its 60 days
117
Interlocutory appeals requires
1) the judge certifies the interlocutory order involves a controlling question of law; 2) this question involves a substantial ground for difference of opinion and immediate appeal may terminate the need for a trial, and 3) the court of appeals agrees to take the case.
118
Issues Eligible for review on appeal
Requires 1) the loser must preserve the issue during trial, typically by making an objection, then raise the issue on appeal, 2) if issue is of fact, the appellate court will give great deference to the trial court’s handling, and 3) the appellate court will not reverse if they find the error was harmless.
119
Harmless Error
Error does not affect substanital rights of party
120
– If a party has made an appearance yet later defaults, they must be given
a 7 day notice of the default entry hearing
121
If a party never apears
they are not afforded a 7-day notice and go straight to default.
122
Serrvice must be made within
90 days but upon a showing og good cause, court may extend
123
What does service require
summons and compliant
124
Failure to serve in time results
in dismissal without prejudice
125
Waiver of service
Provides a defendant additional time to respond to the complaint. This waiver must be returned within 30 days in the continental United States, or 60 outside the U.S., then the person served need not reply to the complaint until 60 days after service, or 90 outside the U.S.
126
A pleading may be amended
1) once within 21 days of serving; 2) 21 days after services of a responsive pleading or pre-answer if it requires a response; or 3) after seeking leave of the court or written consent of the adverse party.
127
If a partty moves to dismiss a claim twice without leave of court it acts as a
adjuication on the merits w/ prejuice
128
For SOL purposes an amendment to a pleading that arises from the same transaction or occurrence set forth in the original pleading is generally deemed
filed on the date the original pleading was filed.
129
In cases where jury awards are deemed insufficient, a court may invoke
Additur or Remittitur
130
Additur
providing the losing party the option of adding to their judgement or facing a new trial
131
Remitter
when excessie; (offering the winning party the option of lowering their award or facing a new trial).
132
Federal courts do not permmit
additur
133
Clearly erroneous
bad fact finding
134
De novo review
pure matter of law
135
Abuse of disrection
court makes a bad decision that is plainly wrong or without appropriate basis
136
Mixed questions of law and fact are
de novo
137
Implied consent
If a defendant brings allegations during trial, and the plaintiff does not object, the plaintiff thereby implies consent to admit the claim to the current trial. This filing occurs without a need to file a counterclaim.
138
Sanctions
The Court has discretion to impose sanctions sufficient to deter repetition of conduct. The court will not fine the party because of lawyer’s misconduct, nor will they dismiss a case with prejudice.
139
Rule 11 Sanctions -
- Every pleading, written motion, or other paper filed with the court must be signed by the attorney of record, certifying that to the best of the attorney’s knowledge, information, and belief formed after a reasonable inquiry 1) the document is not being presented for an improper purpose; 2) the legal contentions are warranted by existing law; and 3) factual contentions and denial have evidentiary support.
140
Can the court order sanctions on its own
yes
141
Opposing parties process for sanctions
they must give notice of their intention to do so to the opposing counsel and allow them 21 days to withdraw or correct the matter before the opposing party may file the motion.
142
Sanctions may be for
money or non-monetary directives
143
Notice pleading
A claim must be stated in general terms and must contain sufficient factual allegations to allow a district court to find that the claim is plausible. In cases where fraud is asserted, specificity is required.
144
Writ of Mandamus
An order directing a judge to act/enjoin when it’s been determined that an appeal would be insufficient to correct the problem at hand, and that the trial court’s actions constitute a serious abuse of power in need of immediate rectification.
145
Findings and conslusion
Required to be provided by a court when there is no jury and the case is tried solely on facts. This can be done when there is no need to assess the credibility of the witnesses.
146
Failure to prosecute
court dismisses your case due to a failure to prosecute, it is with prejudice, may not be filed at a later date.
147
Interpleader
a type of suit between two or more parties to determine the claim to property held by a third party. Can be statutory or rule based.
148
Statuory
minimal diversity and 500 dollars AIC
149
Rule
rules are the same as diversity jurisdiction. Binding only on those who are a party to the claim.
150
Impleader
Before a trial begins, one party may join a third party when the third party is liable to the original defendant.
151
Judgement on the merits
decision was made in consideration of the merits of the claim or defense, rather than on technical grounds (e.g., lack of jurisdiction, improper venue). A judgment on the merits includes judgment entered after a full trial, summary judgment, judgment as a matter of law, and default judgment when the court has SMJ and personal jurisdiction over the parties.
152
Federal law transactional approach for sufficently identifical claims barred by res judicata
all or any part of the transaction, or series of connected transactions, out of which the action arose. Factors that are considered in determining what constitutes a transaction or series of transactions include: (1) whether the facts are related in time, space, origin, or motivation, (2) whether the facts form a convenient trial unit, and (3) whether treating the facts as a unit conforms to the parties’ expectations.
153
Same parties - res judicata
defendant must be the same (and in the same roles) in both the original action and the subsequently filed action.
154
Initial disclosures
Parties are required within 14 days of discovery to make the inital disclosures as to the names of any witnesses they will retain and any qualifications (as expert witnesses) and insurance liability policy held.
