Civ Pro Flashcards
Personal jdx is the
court’s authority to exercise authority over a particular defendant. Exercise is proper if:
(1) authorized by statute; and
(2) does not violate the Due Process Clause
Traditionally, a state has jdx over a D if:
(1) D is domiciled in the forum state and has an intent to stay there
(2) D consents to jdx in the forum state, either expressly or impliedly by general appearance in the forum
(3) D is served with process while in the forum state, so long as it is not induced by fraud or force
(4) In rem: D owns property in the forum state which is the subject of the litigation, or
(5) Quasi in rem: D’s property in the forum state can be seized to satisfy a judgment
Long-arm statute
In addition to traditional bases, states have long-arm statutes authorizing jdx over particular Ds
Constitutional requirements of PJ
The DPC of 14th Am limits a state’s power to exercise PJ over a non-resident D which requires (MT like “empty)
(1) D has minimum contacts with the forum, and
(2) The exercise of PJ does not offend traditional notions of fair play and substantial justice
CA long-arm statute
meets the constitutional limit
Minimum Contacts - Purposeful availment
Goes with minimum contacts
D, through her contact, has availed himself of the privileges of conducting activities in the forum state, thus invoking the benefits and protections of the laws of the forum state
Minimum contacts - D is said to have min contacts when there is:
(a) purposeful availment of the laws of the forum state, and
(b) a lawsuit is foreseeable in that forum state
Foreseeability
D’s contacts with the forum state are such that it is foreseeable to him that a suit could be brought against him there
Traditional notions of fair play and substantial justice are not violated when:
(1) the claim is related to D’s contacts within the forum
(2) it is convenient for the rest of the parties to litigate there, and
(3) the state has an interest in litigating the action in the forum state
Traditional notions of fair play and substantial justice - Relatedness:
The court has general personal jurisdiction over a D that engages in systematic and continuous activities within the forum state such that D is essentially at home in the forum state.
The court has specific personal jurisdiction over a D if the cause of action arose from D’s activities within the state, however minimum.
Traditional notions of fair play and substantial justice - Convenience
Litigating the forum state must be convenient to both parties, especially if D is put at a severe disadvantage in the litigation.
Traditional notions of fair play and substantial justice - State’s Interest
The state must have an interest in protecting its citizens from unfair litigation or in litigating that particular action.
Subject matter jdx
- Subject matter jurisdiction refers to the court’s authority to exercise its discretion over a particular controversy. Federal courts have limited jurisdiction and may only hear cases involving:
o (1) Federal question jurisdiction, or
o (2) Diversity jurisdiction.
Federal Question Jdx
o Federal courts may hear claims if the right or interest is grounded in federal laws or statutes, arising under the U.S. Constitution, laws, or treaties of the United States.
Diversity Jdx
o Federal courts may hear claims involving diversity of citizenship if:
n (a) There is complete diversity between the P and the D, and
n (b) The amount in controversy is greater than $75,000.
Complete Diversity
There is complete diversity when the when the citizenship of all Ps differs from the citizenship of all Ds.
Diversity for individuals: Citizenship is based on the individual’s domicile which is based on:
(i) Where the individual is physically present, and
(ii) Whether she has an intent to stay there.
Diversity for Corporations: Citizenship is based on either:
(i) The place of incorporation, or
(ii) The principal place of business (i.e. the headquarters or nerve center of the business where it directors, controls, and coordinates corporate activity NOT manufacturing or distribution centers).
Citizenship for unincorporated associations
Citizenship of the unincorporated association is every state where all members, including the general and limited partners, are citizens.
Citizenship for decedents, minors, and incompetents
Citizenship is based on where they are citizens, not where the executor or guardian is a citizen.
Amount in controversy
The amount in controversy is generally determined by the P’s complaint and must be a good faith estimate of her damages, excluding costs or interest and must be greater than $75,000. The court will not interfere, unless D can show, clear to a legal certainty, that P cannot recover more than $75,000.
P’s request of an injunction - if P is seeking equitable relief, courts will look either to:
(i) The value of the harm suffered by P, or
(ii) The cost of compliance to D
Aggregation of claims/parties claims
- One P can aggregate all claims against one D
- One P can aggregate claims against multiple Ds, if the Ds are jointly liable to P
Aggregation when multiples Ps
- If at least one P meets the amount, lower-amount Ps may probably use supplemental jurisdiction (see below) to enable them to join their claims together with the higher-amount P
- If no single P has a claim meeting the amount-in-controversy, aggregation by multiple Ps is NOT allowed
EXCEPTION: where two or more Ps unite to enforce a single title or right in which they have a common and undivided interest, then aggregation OK.
Aggregation for class actions
- 9th Circuit: OKAY if the named class representatives each have a claim over $75,000
- Other Courts: EVERY class member’s claim must be $75k+
Supplemental jdx
o A district court with jurisdiction may exercise supplemental jurisdiction over additional claims over which the court would not independently have SMJ, but that arise out of a common nucleus of operative fact.
o Supplemental jurisdiction allows a federal court to hear claims over which there is no diversity or federal question if:
n (1) The underlying claims is a federal question only. Constitutional or federal law (no diversity)
(a) Claims must be joined by P
(b) TEST: If the claims are from the same transaction/occurrence and arose from a common nucleus of operative facts, the claims may be heard in federal court.
n (2) The underlying claim is federal question or diversity
(a) Claims may be joined by anyone except P
(b) TEST: If the claims are from the same transaction/occurrence and arose from a common nucleus of operative facts, the claims may be heard in federal court (same test as above), BUT the court has discretion to hear it.
CA SMJ
o A CA superior court has general subject matter jurisdiction and can hear any case except those that invoke exclusive federal jurisdiction (e.g. bankruptcy, federal securities, etc.)
CA SMJ Types of Cases
Limited, unlimited, small claims
Limited
The amount in controversy is $25,000 or less.
Unlimited
The amount in controversy exceeds $25,000.
Small Claims
If P is an individual, the amount in controversy is $10,000 or less.
If P is an entity, the amount in controversy is $5,000 or less.
CA SMJ - Classification
P must initially determine the amount of demand or recovery, not including costs.
If P files a limited cause of action, she must note the classification on top of the complaint.
CA SMJ Reclassification
n Reclassification occurs when the action was originally misclassified or originally correctly classified but subsequent pleadings indicate it should be reclassified (+/‐ $25,000).
What must a court find for reclassification from an unlimited claim to a limited claim?
· (1) The judgment will be for $25,000 or less, and
· (2) That recovery in excess of $25,000 is impossible.
What must a court find for reclassification from a limited claim to unlimited claim?
· There is a reasonable possibility that the judgment will exceed $25,000.
· If P amends the complaint and the clerk reclassifies the action, then there is automatic reclassification.
Removal and Remand
· In order to determine if P can remand a case back to state court from federal court, it must first be determined whether removal to the federal court was proper initially.
Removal
o D may remove a case to a federal court that embraces the state court where it was originally filed, provided that the case could have been filed in federal court
Removal in federal court is proper if:
P could have originally brought the action in federal court;
o Subject matter jurisdiction exists (federal question or diversity)
o If removal is sought solely based on diversity jurisdiction only, no removal if any D is a citizen of the state in which the action was filed.
o International diversity: if there is an international P and international Deft then diversity is not met and case can’t be removed even if the amount in controversy is met.
n Removal is sought by ALL Ds w/in 30 days of receiving complaint; AND
n ALL D’s MUST AGREE to the removal.
Remand: P may remand back to state court if:
n (1) Remand is sought within 30 days of grant of order to remove case to federal court, or
n (2) There is no subject matter jurisdiction (30 day deadline does not apply).
NOTE: Refer back to subject matter jurisdiction analysis just completed under removal.
Federal Courts have discretion to remand a case back to state court if:
(1) All federal claims have been resolved
(2) Only state claims are remaining, and
(3) There is no diversity jurisdiction.
Venue:
o Venue is where the action may be brought and is proper in a district court where:
The district where any D resides, if ALL Ds reside in the same state;
Venue is where the action may be brought and is proper in a district where:
- Residence - the district where any D resides, if ALL D’s reside in the same state
- In a district where a substantial part of he claim arose; OR
- If NONE of the above apply. look to whether the case is solely based on:
*Diversity: the district in which any D is subject to Personal Jurisdiction
*Federal:the district in which any D may be found
n NOTE: If (3) is at issue, go through personal jurisdiction analysis
Determining Residence for venue purposes
o Individual: Residence is individual’s domicile (see above)
o Corporation: Residence will be EVERY district where the corporation would be subject to personal jurisdiction
A court may transfer venue even if it proper if:
(a) another district where case could have been filed originally
(b) subject to balancing test
*D may move for a transfer of venue when venue is improper
Transfer of Venue - Another District Where Case Could Have Been Filed Originally
*Transferee court must have:
Proper venue;
SMJ; AND
PJ
Transfer of Venue: Subject to Balancing Test
the convenience of the parties/witnesses and the interests of justice outweighs P’s interest in the choice of forum
Balancing Test for Transferring Venue is based on
Public Factors and Private Factors
Public Factors
o (i) What law applies
o (ii) Which community should be burdened with jury service, and
o (1).
Private factors balancing in favor of the transfer
o (i) Convenience of the parties
o (ii) Convenience of the witnesses
o (iii) Where the evidence is located, and
o (iv) Where the claim arose.
D may move for a transfer of venue when venue is improper and a court can
a. Dismiss the Case; OR
b. In the Interests of Justice, Transfer the Case to Any District Where the Case Could Have Been Filed Originally
o Transferee court must have:
o Proper Venue;
o Subject Matter Jurisdiction; AND
o Personal Jurisdiction.
Forum Non conveniens
conveniens provides that, if there is a far more appropriate court elsewhere, a court will stay or dismiss the action, without prejudice, to let P sue D there. This applies when transfer is impossible because different judicial systems are involved.
The moving party for forum non conveniens must show:
o DISMISSAL BY FORUM NON CONVENIENS:
To obtain a dismissal by forum non conveniens, D must:
a. Demonstrate an adequate alternative forum is available; AND
b. Show that considerations of party and forum convenience override the P’s choice of forum, CONSIDERING WHETHER:
P is a state resident (if so, he has a stronger claim to be able to have his case heard in his home state);
o The witnesses and sources of proof are more available in a different state or county; AND
o The forum’s own state laws will govern the action (transfer is more likely if a different state’s law controls)
Erie Doctrine
- A federal court must apply state substantive law of the forum state and federal procedural law in cases based on diversity jurisdiction only.
Examples of substantive law
Elements of a claim or defense in contract or tort; Statute of limitations; Rules for tolling; Burden of proof; Choice of law rules-privilege discussion
Examples of procedural law
Judge-Jury allocation
If there is a question of whether a law is substantive or procedural, apply three tests to make the determination:
Forum shopping deterrence, outcome determinative, and balance of interests
Forum shopping deterrence
If the federal court does not apply the state law and it would encourage litigants to flock to federal court, then the state law must be applied.
Outcome determinative
An issue is substantive if it would directly affect the outcome of the case.
Balance of interests
The federal court must weigh the interests of the state versus the federal system in having its own rule applied.
CA & Erie: For tort claims, the governmental interest approach must be applied:
(1) The court determines if the laws of two or more states are the same.
(2) If the laws of the states are not the same, the court evaluates which state has an interest in the application of its laws.
(3) If both states have interest, the court looks to see which state’s interest would be more greatly impaired.
CA and the Erie Doctrine
o A federal court in CA, for diversity actions must apply CA’s conflict of law rules in determining the applicable substantive law.
CA & Erie: For contract claims, the court looks to the choice of law clauses within the K:
- (1) If there is a choice of law clause in the contract, the court must determine whether the clause is enforceable.
TEST: Does the state have a substantial relationship to the parties? - (2) If the clause is enforceable, the court sees if state’s law conflicts with a CA fundamental policy.
If there is a conflict, the court must decide if CA has a materially greater interest than the other state. - (3) If no clause exists, or the clause is unenforceable, the court applies the governmental interest approach to see which state’s laws govern contract.
Service of Process
- P must give D notice of the action by delivering a (i) summons and (ii) a copy of the complaint.
o Summons: A summons is a formal court notice of suit and time for response.
Methods of Service
Personal Service
Substituted Service
Service on D’s Agent
Waiver by Mail
Corporations
Substituted Service
Process is left (i) at D’s usual place of abode (ii) with a person of suitable age and discretion who resides there.
Personal Service
Papers may be given to D in person by someone other than P.
Service on D’s Agent
Process is delivered to D’s agent if receiving the service is within the scope of agency.
Waiver by Mail
P may request a waiver of service, but it requires writing, addressed to D, a copy of the complaint and two copies of a waiver form, a prepaid means for returning the waiver form, and give D a reasonable time of at least 30 days after the request was sent to return the waiver.
If D timely returns waiver before being served with process,
D does not have ot serve answer to complaint until 60 days after request was sent. This acts as an incentive to waive service because normal period in which an answer must be served is 21 days after SOP.
If D fails to waive service, without good cause, court must impose on the D the expense that are incurred in making service and the reasonable expenses, including atty fees.
SOP to Corps
delivering summons and complaint to an officer, managing agent, general agent, or agent appointed/authorized by law to receive process.
SOP under State Law
Any way permitted by state law in either (i) the state where the federal court sits or (ii) the state where service is effected.
Immunity from Service
o When D is in the state to appear in another case, she is immune from service.
o CA: There is no immunity from service.
CA Service of Process (SOP)
Personal
Substituted
Service on D’s Agent
By Publication
Out of State
Out of state/foreign entity
CA SOP - Personal Service
Same as federal
CA SOP - Substituted Service
Substituted service is only permitted when personal service cannot be accomplished with reasonable diligence. Service must be made:
* (1) At D’s usual abode
* (2) Left with a competent member of the household who is at least 18 years old
* (3) D is informed of the contents, and
* (4) Process must also be mailed by first-class mail.
* Service is effective 10 days after mailing.
CA SOP - Service on D’s agent
Same as above
CA SOP - By Publication
Publication is permitted as a last resort if D cannot otherwise be located.
CA SOP - Out of State
Service on out-of-state Ds must be in accordance with CA law or by mail where a return receipt is requested. It is effective 10 days after mailing.
CA SOP - Out of state / foreign entity
First class mail with return receipt.
Pleadings - Rule 11
o (1) Rule 11 requires attorneys or pro se parties to sign all pleadings certifying to the best of her ability, and after a reasonable inquiry, that a complaint filed with the court is:
* (a) Not for an illegal purpose
* (b) The claim is not frivolous, and
* (c) Factual allegations or denials have evidentiary support.
o (2) A party has 21-days safe harbor to withdraw or fix pleadings to avoid sanctions under Rule 11.
o (3) If the court raises a Rule 11 inquiry sua sponte (i.e. on its own), the court does not have to give the party a safe harbor period.
CA Safe Harbor Rules under Rule 11
The 21-day safe harbor applies to both motions brought by the opposing party and the court. CA permits the court to order a party or her attorney, or both, to pay the expenses and attorney’s fees for bad faith tactics against the opposing party.
FRCP Complaint
(1) The Federal Rules Require
(2) Plausibility is determined by the judge’s own experience
(3) the complaint must include
(4) Special matters must be pleaded with particularity if based on:
FRCP Complaint: (1) fed rules require
- (a) Notice pleadings
- (b) That have sufficient information to put the other party on notice, and
- (c) Must allege facts supporting a plausible claim.
FRCP Complaint: (3) The complaint must include
- (a) A statement of the grounds for subject matter jurisdiction
- (b) A statement of the claims, and
- (c) The demand for relief.
CA Complaint
CA requires fact pleading where a party must make a statement of (i) ultimate facts constituting the cause of action, and (ii) a demand for relief, unless the cause of action is based on personal injury, wrongful death, punitive damages, or limited civil cases.
FRCP Complaint - (4) Special matters must be pleaded with particularity if based on:
- (a) Fraud
- (b) Mistake, or
- (c) Special damages
- (d) New Requirements from Twombly and Iqbal (July 2017 exam)
- Allege sufficient facts and the allegations are plausible
Defendant’s response
o D must respond to a complaint with a motion or answer within 21 days of service of process. If D responds to a complaint with a motion that is denied, D has 10 days to answer the complaint following the ruling on D’s denied motion.
Rule 12(b) raise any time even on appeal
*12(b)(1) Lack of Subject Matter Jurisdiction
Rule 12(b) Motion to Dimiss prior to filing an answer, D may file a motion raising the following:
o Must Raise in First Response (or else waived)
* 12(b)(2) Lack of Personal Jurisdiction
* 12(b)(3) Improper Venue
* 12(b)(4) Insufficiency of Process
* 12(b)(5) Insufficient Service of Process
Rule 12(b) Raise in any pleading, motion for judgment on the pleadings, OR at trial
- 12(b)(6) Failure to State a Claim (upon which relief can be granted)
- 12(b)(7) Failure to Join a Necessary or Indispensable Party under Rule 19
Rule 12(e) Motion for a more definitive statemetn:
where the claim is so vague or ambiguous that a party cannot reasonably draft a responsive pleading.
* A 12(e) motion MUST be raised before filing a responsive pleading
Rule 12(f) motion to strike:
where the pleading contains any insufficient defense, or redundant, immaterial, impertinent, or scandalous material
* A 12(f) motion MUST be raised before filing a responsive pleading
CA motion to strike
SLAPP
Anti-Slapp
*same as federal rules for motion to strike
CA SLAPP:
SLAPP suits are those brought to chill the valid exercise of free speech.
CA Anti-SLAPP motion to Strike:
D can make an anti-SLAPP motion if P sues D on her exercise of free speech. D must show:
* (i) P’s cause of action arose from a protected activity, and
* (ii) The burden shifts to P to show the probability of winning on the merits.
Answer
(1) An answer is a response to allegations in the complaint which D admits, denies, or states there is a lack of sufficient information to admit or deny the claims.
(2) D must also raise any affirmative defenses, or they are deemed waived.
(3) D’s failure to deny an allegation may also constitute an admission.
CA General Demurrer
D files a general demurrer specifying (i) that the facts in the complaint are insufficient to support the alleged cause of action and/or (ii) there is a lack of subject matter jurisdiction. The court looks at the complaint only.
CA Special Demurrer
D files a special demurrer to raise several affirmative defenses, including: (i) ambiguous complaint, (ii) failure to disclose which causes of action apply to different Ds, and (iii) P lacks legal capacity (e.g. case is already pending elsewhere, etc.)
CA Motion to Quash Service of Summons
This motion requires a special appearance to assert lack of personal jurisdiction, improper process, or improper service of process. This motion must be raised with a demurrer, answer, or motion to strike, or it is deemed waived.
Counterclaim
o A counterclaim is an offensive claim against an opposing party that must be filed with D’s answer.
Compulsory and Permissive
Compulsory Counterclaim
- (1) A compulsory counterclaim arises from the same transaction or occurrence as P’s claim and must be filed with the pending claim, or it is deemed waived.
- (2) The court must have SMJ over the counterclaim, but since the compulsory counterclaim arises out of same transaction or occurrence as the original claim, it likely falls under supplemental jurisdiction of the court and does not need independent SMJ.
Permissive Counterclaim
- (1) Permissive counterclaims are claims against the same P but arise from a different transaction or occurrence.
- (2) A permissive counterclaim need not be filed in the pending case, but if it is filed, it must have independent subject matter jurisdiction.
- NOTE: Go through subject matter jurisdiction analysis if permissive counterclaim is at issue.
Cross-claim
(1) A cross claim is a permissive claim against a co-¬party that must arise from the same transaction or occurrence as the underlying claim.
(2) Cross claims must have independent subject matter jurisdiction or supplemental jurisdiction.
NOTE: Go through subject matter jurisdiction analysis if a cross claim is at issue. If there is no subject matter jurisdiction, go through supplemental jurisdiction analysis next.
Amendments
By right and by leave of court
Amendments By right
a party can amend a pleading once as a matter of right, either:
o Before a responsive pleading is filed; OR
o If no response is required, within 21 days after serving the original pleading.
o Unless the court orders otherwise, any required response to an amended pleading must be filed either within the time remaining to respond to the original pleading; OR within 14 days after service of the amended pleading (whichever is later)
Amendment by leave of court
court will grant leave to amend a pleading when justice so requires
Relation back doctrine
Joining a new claim after SOL has run or Changing a D after SOL has run
Joining a new claim after the SOL has run
After the SOL has run, either party seeking to join a new claim will be permitted to relate back the new claim to the original filing date, if it concerns the same transaction or occurrence as the original claim.
Changing a D after the SOL has run
After the SOL has run, if P seeks to change the D, the pleadings will relate back to the original filing date if:
(1) It concerns the same transaction or occurrence
(2) The new D knew of the action within 90 days of its filing, and
(3) The new D knew that, but for P’s mistake, it would have been named as a party.
CA Relation back doctrine
o Relation back for fictitious Ds is permitted if:
(1) P filed the complaint before the SOL ran
(2) P named “Doe” in place of unknown D
(3) P Listed the charges
(4) P genuinely was unaware of the identity of D, and
(5) P substituted the true D within three years of filing her complaint
Supplemental Pleadings
o Court has discretion to permit supplemental pleadings that describe events occurring after the filing of an earlier pleading.
o Can permit supplemental pleadings, even though the original pleading is defective in stating a claim or defense
o Court may also order that the opposing party respond to the supplemental pleading within a specified time
Joinder
o Joinder of parties is the process of adding parties to the existing litigation that were not previously named.
Joinder Rule 19(a) required party
. A person who is subject to service of process and whose joinder will not deprive the court of subject-matter jurisdiction must be joined as a party if:
(A) in that person’s absence, the court cannot accord complete relief among existing parties; or
(B) that person claims an interest relating to the subject of the action and is so situated that disposing of the action in the person’s absence may:
(i) as a practical matter impair or impede the person’s ability to protect the interest; or
(ii) leave an existing party subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations because of the interest.
Joinder by court order
. If a person has not been joined as required, the court must order that the person be made a party. A person who refuses to join as a plaintiff may be made either a defendant or, in a proper case, an involuntary plaintiff.
Joinder as it pertains to venue
. If a joined party objects to venue and the joinder would make venue improper, the court must dismiss that party.
When joinder is not feasible
If a person who is required to be joined if feasible cannot be joined, the court must determine whether, in equity and good conscience, the action should proceed among the existing parties or should be dismissed. The factors for the court to consider include:
The factors for the court to consider include:
(1) the extent to which a judgment rendered in the person’s absence might prejudice that person or the existing parties;
(2) the extent to which any prejudice could be lessened or avoided by:
(A) protective provisions in the judgment;
(B) shaping the relief; or
(C) other measures;
(3) whether a judgment rendered in the person’s absence would be adequate; and
(4) whether the plaintiff would have an adequate remedy if the action were dismissed for nonjoinder.
Pleading the reasons for nonjoinder. When asserting a claim for relief, a party must state:
(1) the name, if known, of any person who is required to be joined if feasible but is not joined; and
(2) the reasons for not joining that person.
Permissive joinder
o If joinder of necessary party is not feasible, the court must either proceed without the party or dismiss the case.
Permissive Joinder - Ps and Ds may be joined if their claims:
(1) Arise from the same transaction and occurrence, and
(2) Raise at least one common question of law or fact.
n The court considers the following factors in deciding whether to proceed or dismiss a case without a party: Same as factors to consider to determine if a party is indispensable (see above).
Intervener Components
SMJ, Intervention as of Right, Permissive Intervention
Intervenor: SMK
o Subject Matter Jurisdiction: intervenor must meet SMJ
Supplemental Jurisdiction: does not apply, IF it messes up diversity
Invervention as of Right: non-party has the right to intervene where:
He has an interest in the property or transaction that is the subject matter of the action;
The absentee’s interests will be impaired if he is not joined; AND
The absentee’s interest is not adequately represented by existing parties
Permissive intervention: non-party may intervene where:
The absentee’s claim or defense and the pending claim have at least one common question of law or fact.
Within Court’s Discretion: the court will consider whether intervention will unduly delay or prejudice adjudication of the rights of original parties
CA Intervention
Intervention as of right and CA permissive intervention
CA Intervention as of right
o In CA, the courts look to whether the intervener’s interest is direct and immediate, in which case she must be included.
CA Permissive intervention
o In CA, if the intervener’s interest is indirect and inconsequential, then the court has discretion to include the absent party.
Interpleader
Interpleader allows a person holding property to bring everyone who claims that property as her own into one lawsuit. The court may also enjoin anyone who does not participate from suing elsewhere.
Rule 22 interpleader require:
(1) The party seeking to interplead to be diverse from every claimant
(2) The amount in controversy must be greater than $75,000
(3) That service of process be handled as it is in a normal lawsuit, and
(4) That the venue be considered as it would in a normal lawsuit.
Statutory Interpleader requires
(1) That one claimant be diverse from one other claimant
(2) The amount in controversy must be greater than $500
(3) That service of process allow for nationwide service of process, and
(4) That the venue be proper in any district where a claimant resides.
Impleader
o Impleader occurs when the original D wants to bring in a third party defendant (3PD) because that 3PD owes indemnity/contribution to the original D in the underlying claim.
o Supplemental jurisdiction is available to include the 3PD.
o D has a right to implead a 3PD within 14 days of serving her answer but needs the court’s permission after that period.
o After a 3PD is successfully impleaded, P can sue the 3PD and the 3PD can sue P.
CA Impleader (Called “cross complaint against third party defendant”)
o In CA, D has a right to implead a 3PD by filing her request to do so anytime before trial.
o In CA, the cross complaint need not relate to the 3PD’s indemnity or contribution but can be for any claim the 3PD may be liable for, so long as it arose from the same transaction/occurrence.
o A 3PD can raise defenses D could raise against P in a special demurrer.
Class Actions Rule 23
A class action is when a representative sues on behalf of class members. The representative must show: (CAN’T)
(1) Commonality
(2) Adequacy
(3) Numerosity
(4) Typicality
Class Action - Commonality
The class members’ claims must involve common questions of law or fact.
Class Action - Adequacy
The representative must be fairly and adequately able to represent the class members’ interests.
Class Action - Numerosity
There are numerous class members and joinder is impracticable.
Class Action - Typicality
The representative’s claims are typical of the class members’ claims.
Types of class actions
(1) Prejudice
(2) injunctive or declaratory releif
(3) damages
Class Action for Prejudice
· Class treatment is necessary to avoid harm to other members of the class. In this class:
o (1) No notice is required
o (2) Members cannot opt out
o (3) Any settlement or dismissal requires court approval, and
o (4) Only citizenship of the representative is taken into account.
Class Action for injunctive or declaratory relief
· Class treatment is necessary because all class members have been treated alike. (Same requirements for class actions based on prejudice must be fulfilled.)
Class Action for Damages
· Class treatment is necessary because:
o (1) Common questions of law or fact predominate, and
o (2) Class action treatment is the superior method of handling the dispute.
o In this class:
(a) Notice is required to all reasonably identifiable class members
Notice requirements: (i) nature of the class, (ii) definition of the class, (iii) class claims, (iv) the judgment has a binding effect, and (v) class members may obtain separate counsel.
The class representative pays for the notice.
The court may allow class members a second chance to opt out after receiving feedback from settlement or dismissal discussion.
(b) Class members have an ability to opt out, and
(c) Any settlement or dismissal requires court approval.
Class Action Amendments
- Notice by electronic means is now specifically mentioned in Rule 23(c)(2) as an appropriate means of providing notice to the class, given the proposed class has sufficient access to the internet. This amendment is consistent with the trend of courts, and society, to use electronic communications rather than traditional first-class mail.
- Preliminary approval is now required before ordering notice of a proposed settlement. Rule 23(e)(1) now requires the parties to demonstrate that the court will be able to approve the proposed settlement and certify the class, if not already certified. A defendant’s support of class certification for settlement purposes does not precluded it, however, from later objecting to a motion for class certification if the court rejects the proposed settlement.
- For settlement approval, Rule 23(e)(2) now requires that courts analyze four factors: (1) the adequacy of representation by class representatives and class counsel; (2) whether settlement negotiations were done fairly at arm’s length; (3) the adequacy of relief provided under the settlement (including the terms of any proposed award of attorney fees); and (4) the equity of treatment of class members relative to one another. The court will balance the proposed relief against the risks, delay, and costs of trial and appeal. This amendment was intended to provide a uniform list of core considerations to what previously varied from circuit to circuit.
- An objection to a proposed settlement must now indicate to whom it applies (e.g., does the objection apply to the objector only, some subset of the class, or the entire class), and must be stated with specificity. This amendment to Rule 23(e)(5) was designed to assist unrepresented objectors and discourage bad-faith objectors.
- Interlocutory appeal is available only for the actual denial or grant of class certification, but appeals under Rule 23(f) are not permitted to appeal the grant or denial of a preliminary-stage motion seeking approval to issue notice.
Federal class action fairness act - the court has separate SMJ for class actions:
(1) Of at least 100 members
(2) So long as any class member is of diverse citizenship from any D, and
* NOTE: Do not use “plaintiff” to describe class member. Just use “class member.”
(3) If the aggregated claims of the class exceed $5 million.
CA Class Actions
For CA class actions, the court must determine if there is (AW):
(1) An ascertainable class, and
(2) A well-defined community interest.
CA Class Certification requires the following (APB like “all points bulletin”)
(1) The representation is adequate
(2) Common interests or questions of law predominate, and
(3) The class will result in a substantial benefit.
In CA:
(1) There are no “types” of class actions.
(2) There is no notice requirement.
(3) Class members can opt out, but if a class member does not opt out, then she is bound by the judgment.
(4) Any settlement or dismissal requires court approval.
(5) There is no requirement that class counsel be appointed.
(6) All class claims are aggregated to satisfy the amount in controversy requirement.
Discovery Mandatory disclosures
Unless otherwise agreed by stipulation or ordered by the court, each party MUST provide the other parties:
o Initial disclosures of basic information
o Disclosures of expert testimony
o Pretrial disclosures of trial evidence
Scope of Discovery
o The scope of discovery is anything relevant to a claim or defense that is reasonably calculated to lead to discovery of admissible evidence, unless it is privileged.
Scope of discovery - experts
Parties must produce information regarding experts only if the experts will testify.
Scope of discovery - privileged information
Privileged information is not discoverable and the objecting party must state with particularity why it is protected.
Scope of discovery - work product
· (1) Work product is any material prepared in anticipation of litigation, by a party or the party’s agent, and is NOT discoverable, unless:
o (a) There is a substantial need for it, and
o (b) The requesting party could not obtain it elsewhere.
· (2) An attorney’s mental impressions, opinion, or legal strategy is never discoverable.
CA scope of discovery
The scope of discovery in CA is anything relevant to a claim or defense but must be balanced with the CA constitutional right of privacy.
o CA work product: Only the work product generated by the attorney, or her agent, is privileged.
Methods of Discovery
- Rule 26(f) requires parties to discuss any issues relating to preserving discoverable information, and to develop a proposed discovery plan that indicates the parties’ views and proposals concerning any issues relating to disclosure or discovery of electronically stored information.
- Mandatory meet and confer: The parties must confer as soon as practicable – and in any event at least 21 days before a scheduling conference to (i) discuss claims, defenses and settlement; (ii) develop a plan for discovery (and submit the plan to the court within 14 days of the mandatory meet and confer)
- Scheduling conference: The scheduling conference takes place after the judge issues the scheduling order settling deadlines for filings of pleadings, joinders, amendments, and discovery.
- Pre-trial conference: The pre-trial conference is a conference before the court and held as needed to move the case forward and to encourage settlement.
- Final pre-trial conference: The final pre-trial conference is where the parties finalize issues to be resolved at trial and evidence to be presented. The pretrial conference order is memorialized. Issues that are not in the pretrial conference order are generally excluded at trial.
Depositions
o Depositions are sworn statements by parties and non-parties who have knowledge of information relevant to the claim.
o Number of depositions limited to 10; limited to 7 hours of deposition per person in one day
o Subpoena duces tecum: This subpoena is an order to bring documents to the deposed party’s deposition.
Interrogatories
o Interrogatories are questions asked by opposing counsel, in writing, to be answered in writing.
o Number of interrogatories limited to 25
CA Interrogatories
CA only allows 35 interrogatories in unlimited civil cases but may serve more with a declaration of request.
REquest for production of docs
o A request for production of documents, ordered by subpoena requires the other party to make available for copying and inspection certain documents relevant to the claim.
CA request for production of docs
There is no limit on how many documents can be requested.
Request for Physical or mental examination of a party
o The court where the action is pending may order a party whose mental or physical condition—including blood group—is in controversy to submit to a physical or mental examination by a suitably licensed or certified examiner. The court has the same authority to order a party to produce for examination a person who is in its custody or under its legal control.
o Motion and Notice; Contents of the Order. The order:(A) may be made only on motion for good cause and on notice to all parties and the person to be examined; and(B) must specify the time, place, manner, conditions, and scope of the examination, as well as the person or persons who will perform it.
CA Physical or Mental examination
o A mental exam is only available through court order.
o A physical exam is permitted without a court order so long as the person’s physical condition is at issue. The requesting party’s attorney is permitted to attend the examination.
Requests for Admission
o A request for admission is a request by one party to another to admit the truth or genuineness of any matter or document requested
o CA requests for admission: The limit on such requests in CA is 35
Expert witnesses
o A party is entitled to depose any expert witness of an opposing party whose opinions may be presented at trial. Only in exceptional circumstances are opposing parties allowed to obtain discovery relating to experts NOT expected to testify.
Motion to Compel
If there is a total or partial failure to provide discovery, the party seeking to enforce discovery obligations may make a motion to compel, request costs, and certify, in good faith, she attempted to obtain discovery.
Enforcement of discovery obligations
motions, privilege, sanctions
Privilege
o If the mental/physical condition of a party or person in party’s control is at issue, the court may order – upon a motion for good cause shown – that the person be examined by a suitably licensed or certified examiner.
o Personal examined may obtain a copy of the report by asking for it, BUT by doing so waives his physician-patient privilege regarding that condition and must produce on demand copies of her own doctor’s reports or any other examinations regarding that specific condition.
Sanctions include:
(i) Treat matters as admitted
(ii) Disallow evidence on an issue
(iii) Establish the issue adverse to violating party
(iv) Strike the pleadings
(v) Dismiss the cause of action (bad faith)
(vi) Enter default judgment (bad faith)
(vii) Hold in contempt, and
(viii) Not available for physical/mental exams.
CA enforcement of discovery obligations
In CA, the parties must meet and confer before seeking court order to compel discovery obligations.
Pretrial Motions Rule 12(b)
How to Present Defenses. Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required. But a party may assert the following defenses by motion:
(1) lack of subject-matter jurisdiction;
(2) lack of personal jurisdiction;
(3) improper venue;
(4) insufficient process;
(5) insufficient service of process;
(6) failure to state a claim upon which relief can be granted; and
(7) failure to join a party under Rule 19.
12(b)(6) failure to state a claim upon which relief could be granted
o (1) D can move to dismiss a case for failure to state a claim.
o (2) The court must consider, in the light most favorable to P, if P would be able to win a judgment.
o (3) If P cannot, the court must dismiss the case.
o (4) The court does not examine evidence and only looks at the face of the complaint and any judicially noticed facts.
CA general demurrer is equivalent
Voluntary dismissal
o (1) P has a right to dismiss her own case, without prejudice, (i) before D serves her answer or (ii) before D serves her motion for summary judgment.
o (2) If P dismisses the second case, it is with prejudice, and the claim cannot be reasserted, so long as the second case was filed in federal court.
CA Voluntary dismissal
o (1) P can move to dismiss her case anytime before the trial begins without prejudice.
o (2) If P moves to dismiss after the trial begins, it is dismissed with prejudice.
Involuntary dismissal
o All courts grant involuntary dismissal for:
* (1) Failure to prosecute
* (2) Failure to abide by court orders, or
* (3) Failure to bring the case to trial within two years of filing the complaint.
CA involuntary dismissal
o The court has discretion to dismiss the case if:
* (1) It has not been brought to trial, or
* (2) D has not been served with process within two years of filing the complaint.
o The court must dismiss if:
* (1) The case has not been brought to trial within five years of filing the complaint, or
* (2) D has not been served with process within three years of filing the complaint.
Default judgment
o The court will enter default judgment if:
* (1) D has not responded
* (2) The claim is for a certain amount of money, and
* (3) The claimant gives an affidavit for the sum owed.
CA Default Judgment
The default judgment cannot exceed claim made by P.
Motion for Summary Judgment
o (1) The moving party must show:
* (a) There are no triable issues of material fact
* (b) That she is entitled to judgment as a matter of law, and
* (c) Her motion was brought within 30 days of the close of discovery.
o (2) The court looks at the evidence, including:
* (a) Documents made under oath
* (b) Deposition testimony or interrogatory answers, and
* (c) Verified pleadings.
CA Motion for summary judgment
The burden shifts to the non-‐moving party to show triable issues exist.
Seventh AM Right to jury trial
(1) P has a right to a jury trial for actions at law (i.e. damages), not equitable actions.
(2) P must demand a jury trial within 14 days after service of the last pleading raising jury triable issues, otherwise it is deemed waived.
(3) Federal courts try jury issues first, then equitable issues without the jury.
CA Right to Jury
In CA equitable issues are tried first and the equity clean up doctrine applies requiring that no jury is permitted if the crux of the claim involves equitable issues and damages are merely incidental.
D P must demand a jury trial once the trial date is set or 5 days after notice.
Number of Jurors
- Federal: At least 6 but no more than 12 without alternates.
- CA: 12 unless there’s an agreement to fewer without alternates.
Peremptory challenges
- Federal: Unlimited for cause strikes and 3 peremptory strikes either race or gender neutral.
- CA: 6 peremptory challenges and must not be based on race, gender, religion, national origin, or sexual orientation.
Verdict
- Federal: Jury verdict must be unanimous, unless agreed otherwise.
- CA: 3/4 of the jury.
