Civ Pro

Question 1

Fed Ct. SMJ

Answer 1

A federal court can only hear cases where it has subject matter jurisdiction, because it is a court of
limited jurisdiction. A federal court has subject matter jurisdiction if there is: (a) a federal question
jurisdiction; (b) diversity jurisdiction; or (c) supplemental jurisdiction. Subject matter jurisdiction
cannot be waived and may be raised at any time, even if on appeal.

Question 2

CA Ct. SMJ

Answer 2

i. California superior courts are courts of general subject matter jurisdiction, and can hear any case
not dedicated to another division of the superior court.
1. Three classifications: (1) unlimited – exceeding $25k, can recover any amount or equitable
relief. (2) limited - $25k or less – limited to recovery of $25k. (3) small claims –
individuals/$7500 or less, corporations/$5000 or less.
2. Reclassification: If amount changes, matter can be reclassified on motion/hearing by a
party, or automatically by clerk. Can change from limited to unlimited if possibility that
recovery will exceed $25k. Can change from unlimited to limited only if $25k is virtually
unobtainable.

Question 3

Federal Question Jurisdiction

Answer 3

i. Federal Question Jurisdiction exists if the plaintiff’s well-pleaded complaint alleges a claim that
arises under: (1) federal law; (2) the U.S. Constitution; or (c) treaties of the United States. The
plaintiff MUST be enforcing a federal right, and the federal question of law must be present on the
face of the Complaint.
1. Raising a defense under a federal law is NOT sufficient to trigger federal question
jurisdiction.

Question 4

Diversity Jurisdiction

Answer 4

Diversity Jurisdiction exists when: (1) there is complete diversity of citizenship between all plaintiffs
and defendants (no plaintiff can be from the same state as any defendant); and (2) the amount in
controversy exceeds $75,000.
1. Diversity of citizenship is determined at the time the case is filed (a post-filing change of
citizenship, even if made solely for the purposes of litigation, is irrelevant if truly intended to
be a permanent change of domicile (i.e. not “sham” jx in bad faith).

Question 5

Supplemental Jurisdiction

Answer 5

A federal court with subject matter jurisdiction (diversity jurisdiction or federal question jurisdiction)
over a claim may exercise supplemental jurisdiction over additional state law claims when the state
and federal claims arise from a common nucleus of operative fact (the same transaction or
occurrence).

Question 6

Supplemental Jurisdiction DJ

Answer 6

If subject matter jurisdiction is based on diversity jurisdiction, supplemental
jurisdiction may not be exercised over a related claim if it would destroy complete
diversity.

Question 7

State Prerogatives for Supp Jx

Answer 7

federal court may decline to exercise supplemental jurisdiction over state law claims when: (a) the claim raises a novel or complex issue of State law; (b) the claim substantially predominates over the claim(s) of which the district court had original jurisdiction; (c) the federal district court has dismissed all claims over which it had original jurisdiction; OR (d) in exceptional circumstances.

Question 8

Removal to Federal Court (motion by defendant)

Answer 8

A defendant may remove a case to a federal court sitting in the State where the claim was filed if:
(1) the federal court has subject matter jurisdiction (original jurisdiction);
(2) all defendants agree;
(3) no defendant is a resident of the forum state, if removal is sought under a Diversity Jurisdiction
basis; AND
(4) removal is sought within 30 days of either service of the Summons or receiving the
initial pleading (whichever period is shorter).

1. A plaintiff CANNOT remove a case to federal court. In addition, a case CANNOT be removed
   more than one year after commencement in a diversity action.

Question 9

Remand to State Court (motion by plaintiff)

Answer 9

i. A federal court MUST remove a case to state court if there is no federal subject matter jurisdiction.

If it remands for denying to exercise supplemental jx, then it only decides the federal issues
in the case, severs the state law claims, and then remands state law claims.

ii. A federal court MAY remand the case to state court if a motion to remand on the basis of any other
defect has been made within 30 days after the filing of the Notice of Removal.

Question 10

PJ In Personam General Rule

Answer 10

Personal jurisdiction refers to the judicial power over the persons or property involved in the case
before it. In personam jurisdiction is the power that a court has over an individual party. There are
four bases for in personam jurisdiction: (i) domicile, (ii) voluntary presence and personal service, (ii)
consent (or waiver), and (iv) long-arm statutes.

Question 11

Long Arm Statutes & Due Process

Answer 11

Most states have enacted long arm statutes that authorize personal jurisdiction to the extent
permissible under the Due Process Clause. The constitutional due process requirements are satisfied
if a party has sufficient minimum contacts with the forum state so as to not offend traditional
notions of fair play and substantial justice.

Question 12

Minimum Contacts

Answer 12

Minimum Contacts requires a showing of purposeful availment and foreseeability. The defendant
must have purposefully availed himself of the privilege of conducting activities in the forum state,
thus invoking the benefits and protections of its laws. The defendant must also know or reasonably
anticipate that his activities in the forum state make it reasonably foreseeable that he may be
hauled into court there.

Question 13

Relatedness (Specific or General Jurisdiction)

Answer 13

The scope of minimum contacts necessary for personal jurisdiction depends on whether the court
has Specific Jurisdiction or General jurisdiction over the defendant.

Specific jurisdiction may be found when a cause of action arises out (of or closely relates to) a defendant’s contacts with the
forum state, and may be warranted even if it’s the defendant’s only contacts with the state.General jurisdiction applies if the defendant is domiciled in the state, or has continuous and systematic
contacts with the forum state such that the defendant is essentially at home in the forum, and can
be found even when the claim has no relationship with the defendant’s contacts with the state.

Question 14

Fair Play and Substantial Justice (F-S-B-J-)

Answer 14

In determining whether personal jurisdiction would offend traditional notions of fair play and
substantial justice, courts consider: (1) the interest of the forum state in adjudicating the matter; (2)
the shared interests of the states in promoting common social policies; (3) the burden on the
defendant of appearing in the case; and (4) interest of the judiciary in efficient resolution.

Question 15

Choice of Law/Erie Doctrine

Answer 15

In diversity jurisdiction cases or supplemental jurisdiction cases, the federal court must apply state
substantive law, but will apply federal procedural law (even when no federal procedural law on point, can
still ignore state procedural law).

i. If a law is clearly substantive/procedural, courts will simply apply according to above rule.
Clearly Substantive State Laws (CBEST): (1) Conflict or choice of law rules of the State; (2)
Burdens of Proof; (3) Elements of a claim/defense; (4) Statutes of Limitations; (5) Tolling
provisions.
2. Clearly Procedural Laws: FRCP rules, rules of evidence, Judge-Jury allocations for factual
determinations, attorney’s fees assessments, determining if an issue is equitable or legal.
ii. If unclear whether a law is substantive or procedural in nature, and the federal law and state law
conflict, courts use the following approach:
1. If state law conflicts with the constitution, constitution controls.
2. If State law conflicts with an on-point federal statute or FRCP rule, federal law controls if
valid under Rules Enabling Act (i.e. can’t affect substantive rights beyond incidental effects).
3. If State law conflicts with Federal Common Law, then:
a. Outcome Determinative Test – If the state law would change the outcome of the
case, it is substantive and must be used (unless important countervailing federal
interests are at stake). If the state law would not change the outcome of the case,
federal law applies.
i. Alternate considerations: Balancing of Interests – does either federal or
state system have a strong interest in having its rule applied? Avoiding
Forum Shopping – if applying state law would help prevent forum shopping.

Question 16

Fed. Ct. Scope of Discovery

Answer 16

1. In Federal Court, a party in a lawsuit may obtain discovery of all non-privileged information that
   is: (1) relevant to any party’s claim or defense; AND (2) proportional to the needs of the case.
   (considering the importance of the issues at stake, amount in controversy, party’s access to
   relevant information and resources, the importance of the discovery in resolving the issues, and
   the burden/expense vs. likely benefit).
2. Information within the scope of discovery need not be admissible as evidence to be
   discoverable.

Question 17

CA Ct. Scope of Discovery

Answer 17

In California Courts, a party in a lawsuit may obtain discovery of all non-privileged information
that is relevant to the subject matter involved in the pending action (this is broader than the
federal standard).

Question 18

Mental & Physical Examinations (must be court-ordered) (GNC)

Answer 18

A court-ordered mental or physical examination by a suitable licensed or certified examiner may only be
conducted on parties in the case, and will only be ordered upon: (1) a motion for good cause shown, (2)
the party-examinee’s mental/physical condition is in controversy, and (3) all parties have been given
prior notice specifying the time, place, manner, conditions, examiner, and scope of the examination.

Question 19

Motion for Summary Judgment

Answer 19

i. A court will grant a Motion for Summary Judgment when: (1) there is no genuine issue of material
fact; AND (2) the movant is entitled to judgment as a matter of law. When reviewing the motion,
the court MUST view the evidence in the light most favorable to the non-moving party. A court
may grant the motion in full or in part (partial summary judgment). Papers submitted on a motion
for summary judgment MUST cite to particular evidence in the record.
1. In California, a party must include a statement of undisputed facts in the motion for
summary judgment.

Question 20

Right to Jury Trial

Answer 20

The 7th Amendment guarantees a right to a jury trial for actions at law (BUT NOT for actions in equity). A
demand for a jury trial MUST be made within 14 days of service of the last pleading concerning the claims
(usually are made in the complaint or answer).
i. If a case involves both legal and equitable claims, the legal claims will be tried first to the jury and
then the equitable claims will be tried by the judge.

Question 21

Appeals - Final Judgment Rule

Answer 21

A party may only appeal from a final judgment or decision (known as the “final judgment rule”). A
final judgment/decision is one which ends the entire litigation on the merits (all claims against all
parties are resolved), and leaves nothing for the court to do but execute the judgment. Appeals
MUST be filed within 30 days after entry of the judgment appealed from.

1. A judgment on the merits also includes: Summary Judgment (MSJ was granted), JMOL, default judgments/involuntary dismissals on non-jurisdictional grounds (i.e. w/SMJ & PJ),
   and voluntary dismissals with prejudice.
2. Interlocutory Appeals are generally limited to: Denials or grants of injunctive relief, or
   Failure to certify a class action lawsuit.

Question 22

Claim Preclusion (Res Judicata) = Intelligent People Don’t throw the same party twice!

Answer 22

Claim Preclusion provides that a final judgment on the merits of a claim precludes the parties from re-
litigating the same claim in a subsequent action. Claim preclusion requires: (1) identical parties (or in
privity) in prior and subsequent case; (2) the prior action concluded in a final judgment on the merits by a
court of competent jurisdiction; and (3) the same claim is being asserted in the prior and subsequent case
(i.e. the claim arises out of the same transaction or occurrence as the previously litigated claim).

Question 23

Issue Preclusion (Collateral Estoppel) = “I’m sorry I must estop you from speaking bc you already brought this
issue up last time, at length.”

Answer 23

Issue Preclusion (collateral estoppel) 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. Issue preclusion requires:
(1) a valid and
Final judgment in the first action;
(2) the issue is Identical to the issue decided in the prior action;
(3) the
issue was actually Litigated, determined, and essential to the judgment in the prior action; AND
(4) the
party against whom enforcement of issue preclusion is sought (i.e. the party to be precluded) had a Full and
Fair opportunity to litigate the issue in the first action. A non-party to a prior action may assert issue
preclusion if the four-part test above is satisfied.
i. Thus, “offensive estoppel” is permitted (i.e. it’s fair for new plaintiff to assert same issue against the
defendant).
1. A plaintiff who was not a party to an earlier action in which the defendant was sued may be
allowed to sue the defendant in their own case, unless that plaintiff could’ve easily joined in
the earlier action or it would be unfair to the defendant.

Question 24

Diversity Jurisdiction

Answer 24

For a federal court to have SMJ over the action based on diversity of citizenship, two
requirements must be met: (1) there must be complete diversity between P’s and D’s, and
(2) the amount in controversy must exceed $75,000, excluding costs.

Question 25

Complete Diversity

Answer 25

To have complete diversity, all Πs must be citizens of different states than
all Δs. Determining citizenship depends on the nature of the party:
1. Natural Persons

a. A natural person’s citizenship is the state of her domicile,
which is the place where (1) there is presence in the state,
and (2) intent to remain.

2. Corporations
   a. Citizenship of a corporation is (1) any state where
   incorporated, and (2) where it has its PPB – which is where
   the managers direct, control, and coordinate activity (nerve
   center).
3. Unincorporated Associations (LLCs, Partnerships, etc)
   a. Any state in which a member is a citizen.
4. Decedents/Minors/Incompetents

Use their citizenship, NOT the representative’s.
ii. Alienage jdx if citizen of a state and citizen of a foreign country

Question 26

Amount in Controversy

Answer 26

i. A plaintiff’s good faith claim must exceed $75,000, exclusive of interest and costs. Does not matter that a plaintiff obtains less than this amount at judgment, it just matters what is pled.

ii. Aggregation Rules:
1. 1 P v. 1 D – plaintiff may aggregate claims (no limits)
2. 2 P v. 1 D – no aggregation unless plaintiffs have a common
undivided interest (i.e. a single right).
a. Joint owners of real estate have common right; Several
victims of same accidents do not have common right
3. 1 P v. 2 D – no aggregation unless joint tortfeasors/jointly liable.
iii. Equitable Relief:
1. To meet amount for injunction, this is met if harm to Π is over $75k,
or if amount for Δ to comply with injunction is over $75k.
2. Exclusions - (1) divorce; (2) alimony; (3) child custody; (4) to probate an estate

Question 27

Federal Question Jurisdiction

Answer 27

Federal courts also have jx over actions arising under the Constitution, laws, or treaties of
the US. The federal question must appear as part of Π's well-pleaded complaint, and
cannot be based solely on any defenses. Plaintiff must be enforcing a federal right.
a. Well pleaded complaint = claim is for enforcement of a federal right.

Question 28

California SMJ:

Answer 28

California superior courts are courts of general subject matter jurisdiction, and can hear any
case not dedicated to another division of the superior court.
a. Three classifications: (1) unlimited – exceeding $25k, can recover any amount or
equitable relief. (2) limited - $25k or less – limited to recovery of $25k. (3) small
claims – individuals/$7500 or less, corporations/$5000 or less.
b. Reclassification: If amount changes, matter can be reclassified on motion/hearing
by a party, or automatically by clerk. Can change from limited to unlimited if
possibility that recovery will exceed $25k. Can change from unlimited to limited
only if $25k is virtually unobtainable.

Question 29

VENUE

Answer 29

i. Proper venue determined at the time the case is filed
ii. Proper Venue = (Really Stupid People Pass): Venue refers to the proper district to bring the action.

Venue is proper in:
1. Really = in the district where any Δ resides if all in same state; if foreign Δ then any district
2. Stupid = in the district in which a substantial part of the events or omissions that give rise to
the claim occurred,
3. People = where a substantial part of property is situated, or
4. Pass = if none of the above, then in any district where any Δ is subject to personal jdx
NOTE - These rules don’t apply to removed cases, venue set in district embraced by state ct.

Question 30

Residence

Answer 30

1. Individual – residence is place of domicile
2. Corporations–residence is any district where subject to PJ w/ respect to the action in Q
3. Non-US Citizens – any district

Question 31

Transfer of Venue (Federal court to Federal Court ONLY)

Answer 31

1. Ct may transfer to another venue if (1) convenient for the parties & where the action could
   have original been filed (PJ, SMJ, & Venue appropriate), or (2) all parties consent
2. If venue was proper, new location should be center of gravity given public/pvt factors

Question 32

Forum Non Conveniens (used if other Ct is in a different country/judicial system)

Answer 32

A court may dismiss or stay an action based on FNC if the court finds, in the interests of
justice, that another forum is superior (even if venue is otherwise proper). The court
considers both public and private factors:
a. Public factors
i. (1) Availability of alternative forum; (2) Π's choice of forum; and (3) forum
state's interest in providing a forum for its residents

b. Private factors
i. (1) Convenience of the parties and witnesses; (2) location of the evidence;
and (3) where the cause of action arose

Question 33

Venue in California

Answer 33

1. Must be in the proper county. Local actions: where land is situated. Transitory Actions:
   where any Δ resides, where K entered or to be performed, where breach/harm occurred
2. Transfer may be sought if (1) There is no reason to believe impartial trial cannot be had in
   the original venue; or (2) Convenience of witnesses and ends of justice would be promoted;
   or (3) No judge is qualified to act.

Question 34

REMOVAL

Answer 34

1. A defendant may remove a case to a federal court sitting in the State where the claim was
   filed if: (1) the federal court has subject matter jurisdiction (original jurisdiction); (2) all
   defendants agree; (3) no defendant is a resident of the forum state (only if removal is
   sought under a Diversity Jurisdiction basis); AND (4) removal is sought within 30 days of
   either service of the Summons or receiving the initial pleading (whichever period is shorter).
   A plaintiff CANNOT remove a case to federal court. In addition, a case CANNOT be removed
   more than one year after commencement in a diversity action.

Question 35

Removal = SAR 30

Answer 35

Removal is Proper if:
a. S = Fed Ct has Subject matter jurisdiction;
b. A = All defendants consent (only D’s can remove a case!)
c. R = No defendant is a resident of the state, if diversity jurisdiction is basis of SMJ;
and
d. 30 = Removal action is brought within 30 days

Question 36

Requirements for Removal

Answer 36

1. An action originally filed in state court may be removed to federal court if the action could
   have originally been brought in federal court (IE: satisfied PJ, SMJ, and Venue), in the district
   embracing the state court where action was originally filed.
2. Only Δs may remove, and all Δs (who have been served) must join in removal
3. Diversity case exceptions: (1)no removal if Δ is a citizen of the forum state; (2) no removal
   more than one year after the case was filed in state court

Question 37

Procedure for Removal

Answer 37

Δs file notice of removal in federal court for district that geographically encompasses
the state court from which the action is being removed within 30 days after service.
1. If another Δ is served later, it restarts the 30 day clock. Δ must attach all docs served in
state action, must copy all parties, and file copy of notice of removal in state court.

Question 38

Remand Mandatory and Discretionary

Answer 38

Π may then move to remand to state court if federal jdx is improper within 30 days after
removal based on procedural defects (ex: Δ was citizen of forum state; can't stop removal, only
remand). A motion to remand based on lack of SMJ can be made at any time.
1. MANDATORY: If removal was improper, must remand back if:
a. LACK OF SMJX  can remand anytime
b. UNRELATED STATE CLAIMS  sever state law claims and remand if 1-fed and state
law claims in that case, and 2-fed ct doesn’t have supp jx over state claims
c. ACTIONS DESTROYING SMJ LATER  court can deny joinder OR permit joinder and
remand back to state court (e.g. joining additional Ds that defeats SMJx)

2. DISCRETIONARY: Judge has discretion + may remand if:
   a. Complex issues of state law will dominate case
   b. Ongoing state regulatory hearings

Question 39

Erie Doctrine

Answer 39

A. In diversity cases; in sup. jurisdiction cases where the court exercises supplemental jx over state law
claims, the federal court must apply state substantive law, but may apply federal procedural law.

i. If law is clearly substantive/procedural, courts will simply apply according to above rule

Clearly substantive state law issues (in which Ct would have to apply state law): (Can The State
Enforce)(1) elements of claim/defense; (2) SoL; (3) rules for tolling SoLs; (4) conflict or choice of law rules

B. If unclear whether law is substantive or procedural in nature, courts will generally use one of three tests:
i.

(1) Outcome Determinative Test – if applying/ignoring state rule would substantially affect the
“outcome” of the case, state law must be applied. (unless would apply fed law if it is important (i.e.
constitutional right))
(2) Balancing of Interests – does either federal or state system have a strong interest in having its
rule applied?
(3) Avoid Forum Shopping – if federal court ignoring state law will lead to a floodgate of federal
actions, then state law should apply.

Question 40

CALIFORNIA CONFLICT OF LAWS RULES TORTS

Answer 40

TORT ACTIONS (GOVERNMENTAL INTEREST APPROACH)
A. (1) ARE THE LAWS OF THE 2 STATES IDENTICAL?
i. No?  evaluate which state has an interest in the application of its law
B. (2) IF BOTH ST have an interest  true conflict exists
i. Compare the impairment to each state’s interest if the law of the other should is applied.

Question 41

CALIFORNIA CONFLICT OF LAWS RULES CONTRACTS

Answer 41

A. (1) IS THE CLAUSE ENFORCEABLE? - does the chosen state’s law have a substantial relationship or any other
reasonable basis for the parties’ choice?
i. State’s connection to the parties or their transaction or anything else
B. (2) If enforceable, DOES THE LAW CONFLICT WITH A FUNDAMENTAL CA POLICY?

i. Yes? – court must decide whether CA has a materially greater interest than the chosen state in the
determination of the specific issue

C. If there is no choice of law provision or it’s unenforceable –
i. The gov. interest approach generally applies

Question 42

SERVICE OF PROCESS

Answer 42

i. Process = two documents; a summons and a copy of the complaint
ii. Any nonparty who is at least 18 years old can serve process on Δs
iii. Can be served
1. Personal service - Give to Δ personally, anywhere
2. Substituted service (left w/ 3rd party) okay if at Δ's usual abode and serve someone of
suitable age and discretion who resides there
3. Service of Δ's agent okay if receiving service is w/in scope of agency
4. Other methods permitted by state law in which federal ct sits or in which service is to be
affected (state provision must be constitutional…rsbly calculated to give Δ notice)
iv. Service does not have to occur prior to SoL expiring; only complaint must be filed before
v. Timing: served within 90 days of filing complaint

Question 43

EXCEPTIONS TO SERVICE OF PROCESS REQUIREMENTS:

Answer 43

i. IMMUNITY FROM SERVICE – D cannot be personally served in a state if D is just there to appear
as a party, witness or attorney in a different civil case.
1. CA - NO IMMUNITY – from personal service if only in state as a witness
ii. SUBSEQUENT DOCs – filed w/ court (answers, discover requests, etc.)
1. Do not require formal service.
a. May be DELIVERED or MAILED to a party or agent:
b. if mailed  extra 3DAYS to respond (usually 30DAYS)
c. CA - If mailed  extra 5DAYS to respond (if OOS – 10DAYS)

Question 44

METHOD OF SERVICE: (CA – METHODS OF SERVICE INSIDE CALIFORNIA)

Answer 44

(1) PERSONAL SERVICE - Give to Δ personally, anywhere (CA – anywhere in CA)
Only if personal service “cannot be made w/ reasonable diligence”

(2) SUBSTITUTED SERVICE - (left w/ 3rd party) is allowed only if:
1. (1) at Δ's usual abode
2. (2) service is left someone of suitable age and discretion who resides there

FOUR REQ. UNDER CA FOR SUBSTITUTED SERVICE
a. (1) at Δ's usual abode
b. (2) left with a competent member of the household who is at least 18
c. (3) That person must be informed of its contents and
d. (4) Process must also be mailed by first-class mail, postage prepaid to D
– Service is effective on the 10 th day after mailing(3) SERVICE OF AGENT - okay if receiving service is w/in scope of agency
1. CORP. & OTHER BIZ – deliver process to agent, officer or general manager
a. May be served personally or
b. Left with someone apparently in charge at their officer during usual office hours
or registered agent

iv. (4) OTHER METHODS PERMITTED BY STATE LAW – Only authorized method in fed. court
without a court order. Allowed if:
1. (1) Reasonably calculated to give D notice and
2. (2) Permitted by the state where:
a. (1) Where the fed. court sits or (2) Where service is effected (occurs)
3. CA - SERVICE BY PUBLICATION: only available on affidavit from P’s attny
a. Must show D cannot be served, even after reasonable diligence to serve D in
another way. LAST RESORT METHOD.

Question 45

WAIVER OF SERVICE (CA- SERVICE BY MAIL)

Answer 45

P can request D to waive service by mailing D the
complaint + waiver form (REQ: “two copies of acknowledgement”).
i. D must respond within 30 DAYS (60DAYS if out of the US) (CA – 20 DAYS)
1. IF D DENIES OR FAILS TO RESPOND  P must serve through another acceptable method
and if D had no good reason to respond, D has to pay a penalty
2. IF D AGREES  D extends time to answer complaint from 21  60 DAYS from the date
waiver request was sent (90 DAYS if international)
a. SERVICE IS COMPLETE – when D executes the acknowledgement

Question 46

METHOD OF SERVICE OUTSIDE OF CALIFORNIA

Answer 46

Can be made out of state in any manner allowed by CA law or
iii. By mail, postage, prepaid, return receipt request – effective 10 th day after mailing
1. Easier than instate service by mail  Don’t need to send acknowledgement form and
have D sign and return it

Question 47

COMPLAINT

Answer 47

i. A complaint must contain:
1. (1) the grounds for SMJ (CA ≠ not req.)
2. (2) short and plain statement of the claim, showing entitlement to relief, and
3. (3) demand for relief
4. (4) AMOUNT OF DAMAGES – if P seeks damages, must state the amount
ii. Federal courts use notice pleading. In stating a claim, the pleading must put the opposing party on
notice of the claims against them sufficient for the other side to respond. Today, the standard is
slightly higher based on the Twombly/Iqbal decisions, where the facts must support a plausible
claim, which the judge determines by using her own experience and common sense.
1. Special Pleading (heightened): Certain claims must be pleaded with j or specificity
a. *Fraud – must give details (particularity)
b. Mistake
c. Special Damages
d. Judgements or official documents upon which the pleading party will rely
e. Civil conspiracy, Tortious breach of K
f. Unfair biz practices
g. Product liability + toxins

iii. California uses fact pleading (higher std) – must allege sufficient ultimate facts to support each
element of each cause of action.
iv. Certain claims must be pled with particularity (more detail) – fraud, mistake, special damages.

Question 48

CALIFORNIA COMPLAINT

Answer 48

a. STEP ONE: DOES IT MEET THE REQUIREMENTS?
a. (1) Statement of the CLAIM – entitlement to relief
b. (2) Demand for RELIEF – demand for relief sought
c. (3) AMOUNT OF DAMAGES – if P seeks damages, must state the amount
i. EXCEPTION: MUST NOT state the amount in:
1. Personal Injury or Wrongful Death Cases
2. Any case w/ Punitive damages
ii. BUT D may request STMT OF DAMAGES from P
1. P MUST provide within 15DAYS and before a default judgment
2. If P doesn’t provide, D can get ct order
d. LIMITED CIVIL CASES – must be noted in the caption
e. FICTICIOUS DEFENDANTS – If P is genuinely unaware of the identify of a D:
i. May name D as a “DOE” defendant and MUST:
1. (1) Allege that she is unaware of the D’s true identity and
2. (2) State a cause of action against the “Doe” Defend. (“charging allegation”)

b. STEP TWO: DOES IT MEET THE STANDARD
a. FACT PLEADING – (CA Standard) more detail – Statement of Facts Constituting a Cause of Action - stated in
ordinary & concise language (higher standard than fed ct.) – Must allege the ultimate facts on each element of
each cause of action

Question 49

DEFENDANT’S RESPONSE Motions (due 21 days after service; if waived service then 60 days from when mailed)

Answer 49

i. Motions (due 21 days after service; if waived service then 60 days from when mailed)
1. Motion for More Definite Statement – where pleading is vague + ambiguous (before answer)
2. Motion to Strike – improper, immaterial matter contained in pleading
3. Rule 12(b) Motion (defenses for Δ)
a. (1) lack of SMJ (can be brought anytime, even after appeal)
b. (2) lack of PJ*
c. (3) improper venue*
d. (4) insufficiency of process*
e. (5) insufficiency of service of process*
f. (6) failure to state a claim upon which relief may be granted [brought anytime thru trial)
g. (7) failure to join indispensable party. [can be brought anytime thru trial)
*NOTE - Numbers 2-5 are waived if not asserted in first response (motion or answer)
Essay Rule–The defenses of lack of personal jurisdiction, improper venue, insufficient
process, and insufficient service of process may be raised in a pre-answer motion to
dismiss. If a pre-answer motion is made, all of these defenses that the defendant then
has must be raised in that motion. The failure to include one of them in the pre-answer
motion to dismiss results in a waiver of the defense.

4. If motion denied, Δ must answer within 14 days

Question 50

Answer (due 21 days after service, OR 14 days after denial of motion) (CA same procedure)

Answer 50

1. An answer must respond to the allegations of the complaint, by (1) admitting, (2) denying,
   or (3) stating lack of sufficient information to admit/deny.
2. Failure to deny constitutes an admission on any matter except damages.
3. Answer must also raise any affirmative defenses (SoL, SoF, res judicata, etc)
4. Must raise COMPULSORY COUNTERCLAIM, otherwise waived

Question 51

i. Demurrer (CA)

Answer 51

1. A demurrer is a responsive pleading in CA, which is brought by Δ for failure to state
   facts sufficient to constitute a cause of action. The court takes all factual allegations as
   true and determines whether Π has alleged sufficient facts to support his causes of
   action.
2. GENERAL DEMURRER – 2 defenses (lack of SMJx, or failure to state sufficient facts…)
3. SPECIAL DEMURRER – asserts minor defenses (CA CALLM: failure to file Certificate of
   merit, existence of Another case b/w same parties re: same CoA, failure to plead
   whether Contract is oral/written, Ambiguous vague uncertain complaint (fed: more
   definite stmt), Lack of Legal Capacity, Liability Theories, Misjoinder of parties)

Question 52

Motion to Quash Service of Summons (CA)

Answer 52

(before or with a demurrer (or answer or MTS))
1. A defendant can move to quash service of a summons by claiming lack of PJ, improper
service, or improper service of process (FILING MAKES A SPECIAL APPEARANCE).
2. It must be filed before or with a demurrer (or answer or MTS), or else these defenses are
waived.
3. If denied, must answer within 15 days, and must seek writ of mandate within 10 days.
iii. Motion to Dismiss/Stay for Inconvenient Forum (MUST make before demurrer or MTS)
iv. Motion to Strike – for irrelevant, false, or improper matters

Question 53

Anti-SLAPP Motion to Strike (CA)

Answer 53

1. SLAPP lawsuits are strategic lawsuits against public participation. These are suits
   brought to chill the valid exercise of free speech and petition. When Π sues Δ for an act
   Δ took in furtherance of her free speech right or right to petition the government, Δ can
   make an anti-SLAPP motion to strike

GENERAL
APPEARANCE =
engages merits of
case OR asks for
relief (e.g.
demurrer, mtn to
strike, mtn to
transfer venue,
mtn to reclassify
case)
a. Δ must first show that Π’s claims arise from protected activity. Once this showing is
made, the burden shifts to Π to show probability of success.
b. Δ who wins can then file a suit for malicious prosecution – SLAPP back suit.

Question 54

CROSS-COMPLAINT

Answer 54

must be filed in a separate document than the answer
1. ONCE ASSERTED  prty served must respond within 30 DAYS
2. SAME RULES AS FED. LAW just different names

Question 55

COUNTERCLAIMS (ASSESS PJ, SMJ, SUPP!!!!!!!!!!!!!!!!!!)

Answer 55

(CA: CROSS-COMPLAINT against P, must be filed
before or at same time as Answer, but diff document)
i. A counterclaim is a claim against an opposing party.
1. There are two types of counterclaims: (1) compulsory and (2) permissive.
ii. Compulsory Counterclaims
1. A compulsory counterclaim is one in which arises from the same T/O as the Π’s claim.
2. It must be asserted or is waived in any subsequent proceeding.
iii. Permissive Counterclaims
1. A permissive counterclaim is any claim that does NOT arise from the same T/O (transaction
or occurrence) as Π’s claim.
2. It can be brought in a later action and is NOT waived if not asserted.

Question 56

CROSS-CLAIMS (ASSESS PJ, SMJ, SUPP!!!!!!!!!!!!!!!!!!)

Answer 56

(CA: CROSS-COMPLAINT against Co-Party)
i. A cross-claim is a claim against a co-party. It MUST arise from the same T/O as the underlying
claim, or else it may not be brought in this action. It is NOT required to be alleged and is thus NOT
waived if it is not asserted.
ii. Cross claims are never compulsory

Question 57

AMENDMENTS/SUPPLEMENTAL PLEADINGS

Answer 57

i. Amendment as of Right: (once w/in 21 days)
1. Π has a right to amend once w/in 21 days after Δ serves his first Rule 12 response
2. Δ has a right to amend a pleading once w/in 21 days after serving his answer.
ii. If no right, amendment requires written permission from the other side, or leave of court
iii. Amendment after SOL has Run – RELATION BACK—hard test to meet
1. To join a new claim after the SOL has run, the amended pleadings “relate back” if they
concern the same conduct, T/O as the original pleading.
2. To change a Δ – the pleading “relates back” if
a. (1) it concerns the same conduct, T/O,
b. (2) the new party knew of the action within 120 days of filing, and
c. (3) the new party knew, but for a mistake, it would have originally been named.

Question 58

RULE 11 Pleadings Certification + Sanctions

Answer 58

When presenting to the court a pleading, written motion, or other paper, Rule 11 requires an
attorney (or unrepresented party) to certify that to the best of her knowledge, information, and
belief, formed after a reasonable inquiry, the factual contentions have evidentiary support or, if
specifically so identified, will likely have evidentiary support after a reasonable opportunity for
further investigation or discovery; including that:
1. the paper is not for any improper purpose (not harass, delay, increase lit cost)
2. legal contentions are warranted by law (or non-frivolous argument to change law)
3. factual contentions and denials of factual contentions have evidentiary support (or will after
further discovery).

Question 59

Roadmap for Additional Parties

Answer 59

Is there an absent party that must be included? Compulsory joinder
Party with similar occurrences or transactions wants to be included? Permissive joinder
Is there a third party who Δ can shift liability to? Δ may use impleader
Stakeholder with multiple potential claimants (e.g., life insurance)? Interpleader
Numerous party members? Class action applicable? Class Action

Question 60

Compulsory Joinder

Answer 60

1. Rqmts: A party must be joined in a case when they are necessary or required because:
   a. (1) without the absent party, the court cannot accord complete relief among the
   existing parties, OR
   b. (2) the absent party’s interest may be harmed if he is not joined, OR
   c. (3) the absent party claims an interest which subjects an existing party to a risk of
   multiple or inconsistent obligations.
2. Feasibility:
   a. Joinder must also be FEASIBLE, meaning (1) the court has PJ over the party, and (2)
   joinder will not defeat diversity or venue.
   b. If joinder is NOT feasible, then the court must determine “whether in equity and good
   conscience” to either proceed without the necessary party or dismiss the case.
   i. Factors to be considered whether to dismiss the case include (1) prejudice to
   absent/present parties, (2) extent to which prejudice can be avoided, (3)
   adequacy of judgment without absent party, and (4) whether absentee will
   have adequate remedy (alt forum)

Question 61

Permissive Joinder

Answer 61

A party may be joined in the case as long as (1) the claims arise from the same T/O, and (2)
there is a common question of law or fact among the parties, and (3) Court has jx over the
joined parties and claims.

Question 62

Class Actions

Answer 62

1. (Step 1) FOUR REQUIREMENTS (CAN’T):
   a. Commonality – there are some questions of law or fact in common to class
   b. Adequacy – rep will fairly and adequately represent class
   c. Numerosity – too many class members for practicable joinder.
   d. Typicality – rep’s claims/defenses typical of those of the class
2. (Step 2) ONE OF THREE TYPES OF CLASS ACTIONS
   a. TYPE 1: Prejudice: class treatment necessary to avoid harm either to class members
   or to non-class party. Ex: many claimants to a fund. Individual suits might deplete
   the fund, leaving some without remedy.
   b. TYPE 2: Injunction or declaratory judgment (not damages) sought because class
   was treated alike by Δ. – appropriate notice
   c. **TYPE 3: Damages/Common Q: - individual notice
   i. (1) common questions predominate over individual questions; AND
   ii. (2) class action is the superior method to handle the dispute.
3. (Step 3) Court Requirements4. Notice Requirements
   a. ONLY IN TYPE 3 is notice required. Notice must be given to all reasonably
   identifiable members – telling people they may opt out or else will be bound, or can
   appear separately through counsel. Class rep pays to give notice
   a. The court must (1) certify the class at an early practicable time, and (2) appoint
   class counsel who will fairly/adequately represent the class.
   i. Certification is immediately appealable (even though not a final jdgmt)
   b. REP. CLASS MEMBERS must SATISFY PJ, SMJ, VENUE!!
4. Bound by Judgment
   a. ONLY IN TYPE 3 All class members are bound by a judgment unless they opt out.
   There is no right to opt out of a Type 1 or 2.
5. Settlement/Dismissal – stlment must be fair, reasonable and adequate
   a. The court must approve all settlements or dismissals. In TYPE 3 actions, the court
   gives notice to class members to get feedback on whether case should be settled or
   dismissed. Ct may give second opportunity to opt out
6. SMJ of Diversity Actions – as long as the representative is diverse from all Δs, and as long as
   the representative’s claim exceeds $75,000, SMJ is met.
7. CAFA
   a. The class action fairness act makes it a little easier to satisfy federal class
   certification requirements. Under CAFA:
   i. (1) only minimum diversity is required (any class member of diff citizenship
   than any Δ)
   ii. (2) amount in controversy in aggregate exceeds $5 million
   iii. (3) there are at least 100 members of a proposed class
   iv. (4) ANY defendant may remove, not all have to join
   b. However, a federal court must decline jurisdiction if (1) more than 2/3 of the Πs are
   citizens of the state, (2) a Δ from whom significant relief is sought is a citizen of that
   state, (3) the principal injuries occurred in that state, and (4) no similar class has
   been filed in the previous 3 years.
   c. A federal court may decline jurisdiction if more than 1/3 but less than 2/3 of the Πs
   are citizens of the state, and the primary Δ is a citizen of the state.

Question 63

California Class Action

Answer 63

1. California allows class actions “when the question is one of a common or general interest, of
   many persons, … and it is impracticable to bring them all before court, one or more may sue
   or defend for the benefit of all. This means you must show:
   a. (1) an ASCERTAINABLE CLASS of persons
   b. (2) WELL-DEFINED COMMUNITY OF INTEREST. In considering this element, you
   must consider: (1) whether common questions predominate, (2) representative is
   adequate, and (3) class will result in substantial benefit to parties and court.
2. There are NO SEPARATE TYPES of class actions.
3. Individual notice is not required, but may be given – court decides who pays.
4. Does not require class appointed counsel
5. Plaintiffs can aggregate all claims against defendants to reach $25k AIC for unlimited civil
6. Settlements/Dismissal – require ct approval

Question 64

Intervention

Answer 64

1. AS OF RIGHT: An absentee has a right to join a pending suit if the absentee’s interest may be
   harmed if 1) she is not joined & her interests are not now adequately represented + 2) ct
   has jx (diversity cases: interveners must establish independent SMJx, no SuppJx allowed).
2. PERMISSIVE: An absentee may join in a case if 1) she has a claim or defense that have at
   least one common question of law or fact with the pending case, 2) ct has jx (same div case
   limit as mandatory), and 3) Permissive joinder is discretionary with the court, and may deny
   joinder if prejudice or delay will arise.

Question 65

Impleader

Answer 65

(CA: CROSS-COMPLAINT against Third Party)
1. D may brings claim against a third party defendant (TPD) in order to obtain indemnity (full
reimbursement for any judgment against D) or contribution (partial reimbursement after
paying award) on the underlying claim. Right to implead within 14 days after serving an
answer, otherwise you need leave of court
a. Claim may be asserted only to obtain recovery, and that recovery must be for the
Δ/third-party Π's own liability to the original Π (can't deny liability)

2. P v. TPD: 1) claim arises from same T/O as original claim, and 2) fed SMJx (no suppjx!!)
3. TDP v. other party: 1) claim arises from same T/O, and 2) fed SMJx (ct usually has supp jx)
4. Steps to implead: (1) Δ files third-party complaint naming TPD; (2) serve process on TPD

Question 66

Interpleader

Answer 66

1. One holding property forces all potential claimants into a single lawsuit to avoid multiple
   litigation and inconsistency. Person with property is the stakeholder, and requires adverse
   claimants to determine if they have a valid claim.
2. RULE 22: Requires complete diversity, and excess of $75k, or fed question.
3. STATUTORY: Only minimum diversity and excess of $500 in issue. Service is proper on
   anyone in US (PJx is nationwide), and Venue is proper in any dist that claimant resides
   a. Minimum diversity = diversity btwn any two contending claimants

Question 67

Fed. Ct. Scope of Discovery

Answer 67

In Federal Court, a party in a lawsuit may obtain discovery of all non-privileged information that
is: (1) relevant to any party’s claim or defense; AND (2) proportional to the needs of the case
(considering the importance of the issues at
stake, amount in controversy, party’s access to relevant information and resources, the
importance of the discovery in resolving the issues, and the burden/expense vs. likely benefit).
Information within the scope of discovery need not be admissible in evidence to be discoverable.

Question 68

CA Ct. Scope of Discovery

Answer 68

In California Courts, a party in a lawsuit may obtain discovery of all non-privileged information
that is relevant to the subject matter involved in the pending action (this is broader than the
federal standard).

Question 69

RULE 26(f) CONFERENCE

Answer 69

(can't request discover until after this) - Parties give ct detailed discovery plan CA – not
required to discuss discovery plan

Question 70

DUTY TO SUPPLEMENT

Answer 70

exists in Federal Ct but not in CA if circs change after you respond to discovery

Question 71

REQUIRED DISCLOSURES:

Answer 71

material “then reasonably available” must be produced w/o request
i. Initial Required Disclosures: (DINE) within 14 days of mandatory M&C (later joined parties get 30 days after service)
1. Damages calculation, Insurance of D that might cover dmgs, Name/ID witnesses with
discoverable info, Electronically stored info & docs to support claim/defense
2. CA – no required disclosures
ii. Pre-trial Disclosures: 30 days before trial – detailed trial evid info
iii. Expert Witness Disclosure: 90 days before trial – Identity of trial EXW + signed/written report.
1. CA – may request simultaneous exchange of expert witness info. If not disclosed, can exclude expert from
testifying. Cannot discover info on consulting experts who will not testify @ trial.

Question 72

Depositions

Answer 72

1. Q'ing a person who gives sworn statements before a court reporter. Party–give written notice
   of depo to all parties. Non-Party–must subpoena, along with a SDT for docs, w/i 100 miles
2. Limited to 10 depos per side, can't depose same person twice, & can't exceed 7 hours.
3. CA – UNLIT: no presumptive time limit or number of depos to be taken in the case

Question 73

Requests to Produce Documents- Parties or Non-Parties

Answer 73

May be sent to a party, or a non-party (subpoena duces tecum for nonparties), requesting that
docs are made available for inspection/copying at a designated time and place. Must respond
within 30 days.

Question 74

Interrogatories - Party only

Answer 74

Written question to another party only, to be answered in writing under oath. Must respond
within 30 days. Limited to 25 per party. (CA – 35 UNLIT; FROGS no limit)

Question 75

Physical/Mental Examinations- Parties only

Answer 75

1. Only available through a court order, and limited to ONLY parties
   a. Includes those in legal custody/control (not employees)
2. Requires (1) health be in actual controversy, and (2) “good cause” is shown
3. Moving party may pick the doctor

Question 76

Requests for Admissions-

Answer 76

Written request by one party to another party ONLY to admit the truth of discoverable matters.
Must respond within 30 days.

Question 77

Required Disclosures

Answer 77

1. Initial Disclosures –w/in 14 days after 26(f)-must ID witnesses and copy/describe docs & tangible
   evidence likely to have discoverable info that disclosing party may use to support
   claims/defenses
   a. Includes ESI, computation of monetary relief, and insurance coverage
2. Experts – as directed by the court – disclose experts that may be used at trial, including a written
   report containing experts opinion, data, qualifications, compensation amt, etc
   a. Experts obtained in anticipation of litigation, but who are not expected to testify, may
   be discovered only upon a showing of exceptional circumstances
3. Pretrial – No later than 30 days before trial, must give detailed info about trial evidence,
   including docs and witnesses that will testify.

Question 78

SCOPE OF DISCOVERY
i. General Rule

Answer 78

Generally, party can request discovery of non-privileged matter that is:
a. (1) RELEVANT to a claim or defense of any party and
i. information can include inadmissible evidence (discovery is broader than admissibility)
ii. CA – “reasonably calculated to lead to discoverable evidence” (a little broader)
b. (2) PROPORTIONAL to the needs of the case
i. Factors: issues @ stake, AIC, parties’ access to information & resources, the importance of
discovery & whether burden/expense outweighs likely benefit)

Question 79

Work Product

Answer 79

1. Work product is any material that is prepared in anticipation of litigation. It can be prepared
   either by the attorney, the party, or one of their representatives.
   a. CA requires it be prepared by attorney or her agent
2. ABSOLUTE WORK PRODUCT is never discoverable
   a. Mental impressions, opinions, conclusions, and legal theories.
   b. (CA – Must be generated by ATTORNEY OR HIS AGENT ONLY)

CA LIMITED CIVIL:
1 depo only
Cominbed total of
35 (Rogs, RFPs,
RFA)
3. EXCEPTION: QUALIFIED work product is not discoverable by an opposing party unless (1) there is
a substantial need, and (2) it is not otherwise avail.
4. In order to withhold privileged material or work product, you must expressly describe the
material in writing, generally called a PRIVILEGE LOG, and describe the date, author, recipient,
and the privilege.
5. (3) CA – RIGHT TO PRIVACY – courts will balance the need for discovery w/ right to privacy

Question 80

ENFORCEMENT OF DISCOVERY RULES (SANCTIONS)
i. Protective Order

Answer 80

party may move for a protective order to prevent discovery of a certain matter that it
deems improper for discovery (improper=harassing, undue burden/expense, etc)

Question 81

ENFORCEMENT OF DISCOVERY RULES (SANCTIONS)
ii. Sanctions

Answer 81

1. 1st, party must certify to the ct that she tried in good faith to resolve discovery dispute
2. If a party fails to respond to discovery requests or gives insufficient responses, a party may file a
   motion to compel a party to answer.
   a. 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.
   b. Discovery is broad prior to trial—at discovery anything reasonably calculated to lead to
   relevant evidence is admissible (hence can likely get motion to compel answer at
   discovery stage)
3. Partial violation = 2 steps. Total violation goes straight to RAMBO + costs
   a. Step 1) order compelling party to answer, plus costs of bringing mx (atty fees)
   b. Step 2) Failure to comply w/ order = discovery sanctions: monetary sanctions, establishing
   facts as true, striking pleadings, disallowing evidence, dismissing plaintiff’s case(if bad faith
   shown), default judgment (if bad faith shown)
4. CA – prohibits “misuse” of discovery and a crt may sanction a party incl. a party’s lawyer – must
   give NOTICE and OPPORTUNITY to be heard

Question 82

Π may VOLUNTARY DISMISS

Answer 82

Π may VOLUNTARY DISMISS her action as of right any time before Δ serves and answer or MSJ.
Otherwise, need written agreement from opposing parties, or leave of court.
1. First dismissal is WITHOUT prejudice. Any subsequent dismissal is WITH prejudice, even if
the first action was in state court.
2. CA – VOLUNTARY DISMISSAL allowed at any time before trial and court’s discretion to dismiss
with or without prejudice

Question 83

INVOLUNTARY DISMISSAL:

Answer 83

may be allowed on ct order for failing to comply w/ order or FRCP
1. Dismissal w/o prejudice, unless based on lack of PJx, SMjx, improper venue
2. CA – MANDATORY DISMISSAL if the case is not brought to trial within 5YEARS after filing, or
process is not served within 3YEARS of filing
a. DISCRETIONARY DISMISSAL – case is not brought to trial within 2 YEARS of filing

Question 84

DEFAULT JUDGMENT

Answer 84

i. P requests Entry of Default Clerk enters Default on docket  Default judgment by clerk or judgeΠ entitled to
recovery
ii. Π can show that Δ has failed to answer within 21 days and ask the court to enter the Δ's default.
iii. CLERK can enter a default judgment against the Δ only if
1. (1) Δ failed to respond in any way,
2. (2) the claim itself is for a certain sum of money, (popular MBE point for Qs)
3. (3) Π provides an affidavit of the amount owed, &
4. (4) Δ is not a minor or incompetent.
iv. Otherwise, Π must prove damages in a hearing before a JUDGE prior to default jdgmt + 7 day notice if D
appeared in the case.
v. If Δ appears on the case in any way then:
1. Only the judge may enter a default
2. Δ gets additional notice of the default judgment
vi. Default judgment may be set aside (MTN TO SET ASIDE DEFAULT JUDGMENT) on any of the limited grounds
that apply to all judgments (mtn brought w/i 1 year + D shows good cause + ct’s discretion to grant)

Question 85

12(b)(6) MOTION (General Demurrer=failure to state sufficient facts) (BEFORE D answers)

Answer 85

i. Under FRCP 12(b)(6), Δ moves to dismiss for failure to state a claim. It tests only the sufficiency of
plaintiff’s allegations –
1. The court ignores legal conclusions and looks at allegations of fact. It asks, if the facts alleged
were true, would the plaintiff win?
ii. The court cannot look to anything evidence outside the four corners of the complaint (can't look at
evidence of the case), otherwise the court must treat the motion as a MSJ.

Question 86

JUDGMENT ON THE PLEADINGS (AFTER D answers)

Answer 86

Same std as 12b6 mtn to dismiss for failure to state a claim, but court reviews all pleadings.

Question 87

MOTION FOR SUMMARY JUDGMENT - FRCP 56 (within 30 days after close of discovery)

Answer 87

Moving party must show
1. (1) there’s no genuine dispute as to material issue of fact AND
2. (2) that she is entitled to judgment as a matter of law.
ii. Then, BOP shifts to non-moving party to show triable issue exists.
iii. Court must examine ALL evidence (depos discovery) in the light most favorable to NMP – weighs
evidence, but cannot rely solely on pleadings bc not made under oath. Summary judgment resolves
issues of LAW. If it is an issue of fact, it is reserved for the trier of fact and cannot be resolved by MSJ.
iv. MSJ can be partially granted, prohibiting litigation on some issues but requiring it on others
v. Not appealable until after trial on merits or final judgment.

Question 88

JURY TRIAL - SEVENTH AMENDMENT + CA CONST.

Answer 88

The Seventh Amendment right to a jury only applies to FEDERAL CIVIL ACTIONS AT COMMON LAW,
not for equitable actions. CA Constitution gives right to jury trial in civil case.
1. If the action involves legal and equitable issues, then the Π has a right to a jury for the legal
action first, then the court decides the equitable action.
2. REVERSED: In California, the equity claims are determined first, then legal claims. And if complaint
seeks equitable relief and damages are merely incidental, there is no right to a jury trial.
ii. Party will waive its right to a JT unless it is demanded properly and timely
iii. Must be demanded in writing + served within 14 days after service of the last pleading (CA 5
days) raising jury trial issue (withdrawal of demand requires consent of all parties)
1. Jury demand may be withdrawn only if all parties consent

Question 89

Jury

Answer 89

i. For Cause Strikes (bias, prejudice, relation to party)  no limit
ii. Peremptory challenges (strike for any race/gender-neutral reason)- Federal ct gives 3 per side, CA gives 6
per side + can’t discrim on race/religion/sex/national origin/gender
iii. # of Jurors: Fed: 6 min (less if parties agree), 12 max, unanimous verdict unless agr
CA: 12 jurors (unless agr) requiring 3/4 verdict allowing substitutes.

Question 90

Jury Misconduct

Answer 90

i. External matters allow verdict to be impeached
1. (bribes, verdict based on outside investigation, lied/concealed material facts during voir dire etc)
ii. Intrinsic matters do not allow impeachment of verdicts (on drugs, etc)

Question 91

Jury Instructions

Answer 91

Procedure: (1) Proposal by parties @ close of evidence, (2) Decision by court before final argument and
instruction given, (3) Specific Objections by parties outside jury (If objection not made on record  can’t
raise in post-trial motion or on appeal.)
1. EXCEPTION: Appellate ct can review instructions  if no timely objection, then PLAIN ERROR STD of
REVIEW (plain error in instructions that affected substantial rts).  if timely objection, then ABUSE OF
DISCRETION STD.

Question 92

JMOL (Mx for Directed Verdict/Nonsuit Motion in CA)

Answer 92

1. A mx for Judgment as a Matter of Law (JMOL) is an exception order that takes the case away
   from the jury, & the court decides the outcome of the action.
2. The court will only grant a JMOL (before case submitted to jury)
   a. (1) after the other side has been heard or at the close of evidence, AND
   b. (2) if reasonable persons could not disagree on the result.
   i. The evidence must be viewed in favor of the non-moving party.
3. CA – DIRECTED VERDICT | If D moves for this at the end of P’s case  MOTION 4 A NON-SUIT

Question 93

Renewed JMOL (Renewed Mx for Directed Verdict-CA)

Answer 93

1. A renewed JMOL is the same as a JMOL, but it comes AFTER the trial/verdict + within 28
   days after the judgment
2. If you did not move for a JMOL, you cannot move for a renewed JMOL (try mtn4new trial)
   a. CA-lacks the prerequisite; can make mx after trial regardless within 60d after
   service of notice of entry of judgment or 180d after entry of judg if no notice

Question 94

Motion for New Trial

Answer 94

1. After trial, a party may move for a new trial within 28 days after the judgment on one of the
   following grounds: (“WE NAP AFTER TRIAL”)
   a. (1) Judgment against Weight of evidence – only if verdict seriously erroneous
   b. (2) Excessive/Inadequate Damages - damage figure SHOCKS the conscience
   c. (4) Newly Discovered Evidence – that previously couldn’t be obtained w/ due diligence
   d. (5) Attorney, Party, Juror Misconduct (considers inadmissible evid.)
   e. (6) Prejudicial error – serious error makes judgment unfair (misstate law, wrong jury
   instructions, error on admissibility of evidence)
2. Judge may order a new trial:
   a. If Jury Trial  for any reason for which a new trial has been granted in an action at
   law in federal court
   b. If Bench Trial  for any reason an equity court would grant the hearing

Question 95

Remittitur/Additur

Answer 95

a. If jury's damage figure if excessive/inadequate:
b. Remittitur - Judge gives Π a choice of either having a new trial or Π takes a lesser
amount/award
c. Additur - Judge gives Δ a choice of either having a new trial or Δ paying a greater
amount/award (UNCONSTIUTIONAL under 7 th Am; only allowed in CA)

Question 96

MOTION TO SET ASIDE JUDGMENT OR ORDER – motion to relieve party from judgment or court order
(Void Now Mother Fucking Cunts)

Answer 96

Clerical Error Any Time
Mistake, excusable neglect (including viable defense) Reasonable time w/in 1 year of entry
Fraud*, misrepresentation, or misconduct by opposing party
If based on fraud  judge’s discretion to decide if it was actually fraud or to have a hearing

Reasonable time w/in 1 year of entry

New evidence that could not have been discovered without due diligence
for a new trial motion

Reasonable time w/in 1 year of entry
COULD have been found – 28 days
Judgment is void (EX: no smj) / satisfied / discharged Reasonable time (no max)
Any other reason that justifies relief (catch-all) Reasonable time (no max)

Question 97

FEDERAL APPEALS
i. Requirements:

Answer 97

1. A party must appeal within 30 days from entry of the judgment (unless class certification
   appeal, then 14 days)
2. Ct only reviews potential errors on questions of law, not fact.
3. Appellate court must have jurisdiction (final judgment or interlocutory appeal)

Question 98

Final Judgment Rule

Answer 98

Generally, You can only appeal from final judgments.
1. Final judgment is an ultimate decision by the trial ct of merits of the entire case
2. Non-final e.g.: MSJ denial

Question 99

Interlocutory Basis: Exceptions to the final judgment rule include: (“MIICCE”)

Answer 99

1. Multiple claims/parties – Partial Judgment Rule: Court enters a judgment as to fewer than all
   the claims or parties, it is deemed as a final judgment that is immediately appealable only if the
   court makes a express determination that there is no just reason for delay.
2. Interlocutory Orders as of Right – Usually can’t appeal interloc orders, BUT CAN APPEAL order
   re: Injunction, Appt of receivers, Admiralty Cases, Patent Infringement Accounting, Orders re:
   Property Possession.
3. Interlocutory Appeals Act – May appeal an order certified for appeal by district ct and agreed to
   by appellate courts if 3 conditions: 1) order involves controlling question of law; 2) issue of law
   has substantial difference of opinion; and 3) immediate appeal will materially advance ultimate
   resolution of the action.
4. Class Actions Certification – Appct has discretion to hear if 1) appeal brought within 14 days of
   order, 2) appeal doesn’t stay the district ct proceedings.
5. Collateral Orders (v narrow) – Appct has discretion to hear ruling on the issue if 3 conditions: 1)
   order pertains to matters unrelated to merits (thus collateral), 2) order conclusively decides a
   particular issue, and 3) delaying appeal until final judgment would effectively deny appellate
   review. (e.g. Bond conflict of law issue)
6. Extraordinary Writ – available only if 1) trial ct’s actions are serious abuse of power + 2) party
   can seek writ of mandamus (compel lower ct to do something) or writ of prohibition (to not do
   something)

Question 100

STANDARDS OF REVIEW

Answer 100

i. Questions of law=de novo - No deference to district judge, addresses legal issue as if never addressed
ii. Non jury questions of fact = affirm unless clearly erroneous - Some discretion/deference to district
judge
iii. Jury trial questions of fact = affirm unless rx people could not have made that finding (usually
means a complete lack of proof on a material issue)
iv. Discretionary matters = abuse of discretion – highly deferential to district judge.
1. (e.g. discovery or evidentiary rulings)

Question 101

RES JUDICATA (CLAIM PRECLUSION - one bite at the apple… = Same P AND Same D)

Answer 101

i. For res judicata to apply, the following must be shown: (Fuck My Claim Precluded!)
1. (1) there is a valid, final judgment on the merits;
a. Valid - valid as long as not void (lack of SMJ, etc)
b. Final - Generally the same as whether final for purposes of taking an appeal
i. FED COURT: Judgment is final when rendered. (final even when being appealed)
ii. CA COURT: judgment is final upon the conclusion of any appeals
c. On the merits - (Involuntary dismissals w/o prejudice do not qualify as on the
merits – lack of jdx, improper venue, failure to join indispensable party)
2. (2) both cases are brought by the same claimant against the same D;
3. (3) both cases involve same cause of action (or claim);
a. FED COURT (majority): T/O - All claims/causes of action arising out of the same T/O
b. CA COURT (minority): PRIMARY RIGHTS - all claims based on the same primary rights invaded
i. EX: claims for property damage and personal injuries are considered “separate claims” even if they
are from T/O because they are asserting different primary rights

4. (4) cause of action was actually litigated/could have been litigated, in the prior action
   a. Jdgmt often base on actual litigation, but default judgment/etc qualifies

Question 102

COLLATERAL ESTOPPEL (ISSUE PRECLUSION = Same D)

Answer 102

The doctrine of collateral estoppel bars a Π from re-litigating issues where:
1. (1) there is a valid, final judgment on the merits
2. (2) the issue was actually litigated in the first action,
3. (3) issue was essential to the judgment in the first action.
4. (4) must be identical issue in each action
5. (5) Asserted against ACTUAL PARTY in the first action.
a. Collateral estoppel may only be asserted against a party that was a party to the
previous case (or who was represented by that party).
b. Under the doctrine of MUTUALITY (traditional view), collateral estoppel may only
be asserted by one who was a party to the previous case.
c. NON-MUTUALITY (modern): Some courts, including CA, have abolished the
mutuality requirement, and allow a stranger to an action invoke the doctrine of
issue preclusion if: (Parklane factors)
i. (1) the opposing party had a full/fair opportunity to litigate in case 1
ii. (2) opposing party could foresee multiple lawsuits/had incentive to litigate
strongly
iii. (3) party asserting defense could not have joined easily in the first case
iv. (4) no inconsistent judgments/different procedures on the record
d. If defensively (someone wants something from you) you can use issue preclusion; if
offensively (you want something from someone) then you can possibly use issue
preclusion (then analyze using factors above)