Civ Pro

Question 1

Subject Matter Jurisdiction

Answer 1

A court must have subject matter jurisdiction to hear a case. Lack of SMJ can be raised at any time

Question 2

Federal Question Jurisdiction

Answer 2

a federal court has federal question jurisdiction over all civil actions that arise under federal laws or the constitution.
Only includes gederal issues presented on the face of the well pleaded complaint, does not include defenses, answers, or counterclaims

Question 3

Diversity Jurisdiction

Answer 3

A federal court has diversity jurisdiction if there is complete diversity between the parties and the amount in controversy** exceeds 75k. **
Individuals are citizens where they are domiciled
corporations are citizens where they are incorporated and where they have their principal place of business/nerve center
Partnerships and LLCs are citizens where every individual partner/member is domiciled

Question 4

Supplemental Jurisdiction

Answer 4

Supplemental jdx is discretionary with the federal court
a court with SMJ over one claim may hear other claims if they share a common nucleus of operative fact
federal q: court can hear state law claims if they share CNOF
diversity:
counterclaims: compulsory yes, permissive no, unless they meet AOC/complete diversity requirements
cross claims: yes, if CNOF
joinder: cannot destroy complete diversity
Does not extend to claims by existing plaintiffs against multiple defendants, or plaintiffs joined as necessary parties

Question 5

Removal

Answer 5

• a defendant may remove a case from state to federal court if plaintiff’s claim could have been originally filed in federal court
• Removal to district court where the state action is pending
• must be done within 30 days of service, all defendants must consent
• Home court advantage rule

Question 6

Remand

Answer 6

case can be remanded back to state court if
-lack of SMJ at any time
-improper removal (lack of consent from all defendants, untimely, home court advantage rule), within 30 days of removal

Question 7

California Subject Matter Jurisdiction

Answer 7

Small claims: 12k or less for inviduals, 5k or less for other litigants
Limited cases: 35k or less
Unlimited: more than 35k
aggregates all claims, including cross claims

Question 8

Reclassification of California JDX

Answer 8

unlimited to limited: verdict will necessarily fall below 25,000.01
limited to unlimited: possibility will exceed 25k

Question 9

Personal JDX analysis

Answer 9

**Traditional bases: **served in forum state (federal, doesn’t count if you are there for court/depo), consent, domicile
Long arm statute: test whether it’s constiuttional
Minimum Contacts: purposely avail, foreseeablility, specific v. general (domicile or specific/continuous contacts)
Fairness: interest of forum state, burden on defendant, interest in judicial efficiency, shared interests in the states

Question 10

In Rem jdx

Answer 10

action against real or personal property to settle property rights of all persons

Question 11

Quasi in rem

Answer 11

determines only the interests of the parties to the action regarding property located in the forum state

Question 12

Service of Process

Answer 12

notice must be reasonably calculated to apprise D of pendency
must have summons and copy of complaint
Who: any nonparty 18 or older
When: wihtin 90 days after filed complaint
Methods: personal service, D’s usual place of abode wth a person o fsuitable age/discretion who lives there, delivering to D’s agent, othe rmethods allowed by law, officer/agent of corporation,
CA methods: publication and service on a nonresident by first class mail requiring a return receipt, requires follow up mailing for substituted service

Question 13

Federal exceptions to service of process

Answer 13

Federal interpleader act: nationwide personal jurisdiction
Bulge provision: 100 miles wihtin federal courthoes

Question 14

Waiver of process

Answer 14

P sends form requesting D waive service by returning form within 30 days, federally it extends time to file answer to 60 days

Question 15

Venue in California

Answer 15

Claim arose elsewhere: county where any D resides, any county if no D is from CA, where the contract was executed or performed, or where the injury occured
Transfer: fair trial can’t be held in original county, convenience requires, no judge qualified

Question 16

Federal Venue

Answer 16

venue is proper in a district in which any D resides as long as they all reside in the same state, or where a substantial part of the claim arose. Otherwise, anywhere where Dis subject to personal jurisdiction. the residence of an individual is their domicile, the residence of a business entity is where they are subject to personal jurisdiction

Question 17

Transfer in federal court

Answer 17

original venue proper: permitted to any district where case might have been brought or where all parties consent. applies law from transferor court
original venue improper: dismiss or transfer case to proper district, choice of law is transferee court,
forum non conveniens: may dismiss if most appropraite forum is state or foreng court

Question 18

Choice of Law

Answer 18

a federal court sitting in diversity will apply federal procedural law and state substantive law.
substantive laws: statute of limitations, elements of cliam/defense, conflict of law, burden of proof, things that will change the outcome
procedural: FRE, attoreys fees, jury issues
essentially: if there is a conflict between state and federal alw, and no federal rule is on point, court will apply state law if it is outcome determinative, or if it prevents forum shopping

Question 19

CA choice of law rules

Answer 19

Federal court in CA applies CA conflict of law rules
Tort: applies government intrest approach
Contract: gov’t interest absent a valid choice of law clause, choice of law clause is invalid unless chosen state has substnail relaionthsip to parties or transaction and it is consistent with CA public policy

Question 20

Government Interest Test

Answer 20

IF the laws of two or more states conflict, evaluate whether each state has an interest in applying their own law. If each state does, then balance impairment of each state’s interests.

Question 21

Complaint

Answer 21

Federal: notice pleading, short and plain statemetn to provide notice to opposint party
California: fact pleading
Special pleading: particularity needed for fraud or special damages
Must include: grounds for smj, statement of claim and entitlement to relief, demand for judgment of relief sought
Federal joinder: between same P and D, join as many claims of whatever nature
CA joinder: at least one common question of law or fact

Question 22

Reponse to Complaint

Answer 22

Must respond with answer or motion within 21 days of service (or 60 in federal if waived service)

Question 23

Answer

Answer 23

Fed timing: 21 days after service, 60 days if waived, or 14 days after response to motion to dismiss
CA timing: 30 days after service, or wihtin 10 days after demurrer resolution
must admit or deny and raise affirmative defenses or counterclaims
affirmative defenses: Statue of frauds, statute of limitations, fraud, res judicata, contributory negligence
CA: objecting to personal jdx in an answer is a general appearance and WAIVES PJ, D must file a cross complaint instead of alleging her cross claim in the answer

Question 24

Motion to Dismiss

Answer 24

Rule 12(b) motion (Fed):
anytime: lack of subject matter jdx, failure to state a claim, failure to join necessary party
waived if not first response:
lack of personal jdx, improper venue, insufficient service of process
standard: treat well pleaded facts as true, view pleading in light most favorable ot P
**CA: ** object with a demurrer or a **motion to quash **because parties must meet and confer before a demurrer

Question 25

Motion for judgment on the pleadings

Answer 25

allows a court to dispose of a case when material facts are not in dispute and judgment on the merits can be acheived based on the pleadings CA: must **meet and confer** first

Question 26

Motion for more definite statement

Answer 26

if pleading is so vague or ambiguous that a party cannot reasoanbly draft a responsive pleading, then the responding party may request a more definite statement

Question 27

Motion to strike

Answer 27

if pleading contains insufficient defense or reduant, immaterial, impertiinet, or scandalous material, then the court may upon motion or upon its own initiative order that it be stricken CA: requires **meet and confer**, must be within 30 days

Question 28

Reply to answer

Answer 28

Fed: within 21 days after being serviced with court order to reply (not ordinarily needed) CA: files separate answer to cross complaint

Question 29

Amendments to Pleadings

Answer 29

**As of right: ** -no later than **21 days** if no responsive pleading required -if responsitve pleading required, within 21 days of service of the responsive pleading -CA: allowed at **any time before** answer, demurrer, or motion to strike filed By leave of court: when justice requires and no undue prejudice to opposing party TIme to respond: 14 days after amended pleading or time left, whichever longer

Question 30

Relation back

Answer 30

an amended pleading will relate back to the date of the original pleading if it involves **same transaction or occurence** and provides notice to opposing party **adding a party**: party must receive notice within** 90 days** of complaint and **know or have reason to know** the action should have been brought against him but for a **mistake of identity** **CA:** Doe defendants if P can identify and serve D within 3 years

Question 31

Certification (Rule 11)

Answer 31

Signature required of attorney on every pleading or motion certifies that the filing was made after **reasonable inquiry** with proper purpose and certifies the legal and factual support of the claim Sanctions: cadn be initiated by motion or sua sponte, discretionary, must service notice on party and wait 30 days before filing with the court CA: party seeking sanctions must have exercised due diligence

Question 32

Compulsory Joinder

Answer 32

necessary party: **complete relief cannot be provided** to existing parties in their absence, disposition in their absence may **impair their ability** to protect their interest, or absence would leave existing parties subject to **multiple or inconsistent obligations** Bulge provision applicable Indispensible party: if a necessary party cannot be joined because of jdx or venue, court may dismiss considering the extent to which protective measures could prevent prejudice, whether judgment could be adequate, and whether there would be an adequate remedy if action was dismissed

Question 33

Intervention

Answer 33

of right: nonparty has an interest in subject matter that is not adequately represented and will be impaired, or thru statute permissive: movant has conditional righ tot intervene unders tatute or claim/defense share common nucleus of operative fact CA: intervenors interest must be direct and immediate timeliness: must consider prejudice and delay

Question 34

Impleader

Answer 34

nonparty is joined by D based on a claim of indemnity or contribution personal and subject matter must be satsifed, but supplemental jdx is available if same transaction occurence Bulge provision service

Question 35

Interpleader

Answer 35

allows a stakeholder to force all potential claimaints into single lawsuit **Federal Rule Interpleader: **must already have personal and smj over parties, only stakeholder needs to be diverse from claimants, venue must be proper too (basically normal) **Federal Statutory Interpleader:** diversity jurisdiction met if any two adverse claimants are diverse (**minimal diversity**) and property is **500** or more, **nationwide pj** and service of process permited, venue: any district where a claimaint resides

Question 36

Basic Class Action requirements

Answer 36

[CANT] Commonality: common questions of law or fact Adequacy: representatives must fairly represent class Numerosity: class is so numerous tha tjoinder is impracticable Typicality: claims/defenses of representatives are typical of the class

Question 37

Diversity Subject Matter jdx for class action

Answer 37

normal: diverseity between class representatives and opposing parties, at least one rep must have a claim exceeding 75k Class action fairness act: 100+ members with 5 million at stake and minimal diversity (any one plaintiff's citizenship is different than any one defendant's)

Question 38

Settlement and judgments in class actions

Answer 38

settlements can only be made with approval or the court and court must direct notice to all clas members bound judgment: generally binds all members except those who opted out

Question 39

Types of class actions

Answer 39

**risk of prejudice: **risk of mulitple inconsistent adjudications **final equitable relief**: class has general claim and want injunctive relief, individsible remedy would provide releif to each class member **common legal/factual questions** must predminate over individual questions

Question 40

California class action requirements

Answer 40

**Ascertainable** class well defined **community of interest** (common questions of law/fact predominate, class action will benefit parties, named class reps will adequately represent class)

Question 41

Mandatory Disclosures

Answer 41

**intial disclosures:** names/addresses of people with discoverable info, copies or descriptions of documents, items, computation of damages and insurance agreements, 14 days after discovery conference **testifying expert disclosures**: qualifications, publications, compensation, opinion and basis, and listof cases, 90 days before trial or 30 days after disclosure of opposing party's expert **pre trial**: all witnesses and exhibits to be used at trial, at least 30 days before trial, objections must be made 14 days after disclsoures unless good cause **ca:** initial disclosures within 60 days of court order

Question 42

Discovery scope

Answer 42

any non privileged matter relevant to a claim or defense is discoverable proportional to needs of the case CA: broader, any matter relevant to the subject matter exceptions: privilege, work product unless undue hardship and not mental impressions, non testifying experts, protective orders Must wait til after discovery conference and cannot ask for unreasonably cumulative, not if it can be obtained from more conventinet source,

Question 43

Discovery Conference

Answer 43

Fed: parties must meet and confer 21 days before CA: no meet and confer required, must have conference within 180 days of complaint

Question 44

Depositions

Answer 44

allowed after intitial disclosures FRE: 10 depositions of one day in duration, CA: no number limit, limited to 7 hours per witness notice to party required, subpeona or subpeona duces tecum for non party

Question 45

Interrogatories

Answer 45

only to party Fed: limited to 25 CA: limits individually drafted to 35, unlimited judicial council form must be fully and separately answered or objected to with specificity

Question 46

Requests to Produce or permit inspection

Answer 46

must be described with particularity and applies to documents and land under control of a party may be sent to nonparty only if subpeona 30 days to respond

Question 47

Physical/mental exam

Answer 47

only allowed of a party and only if physical/mental state is at issue. requires a showing of good cause and a court order CA: attorney must be allowed to attend

Question 48

Requests for admission

Answer 48

allowed for a party, but cannot be used in other proceedings, CA: limited to 35 absence good cause

Question 49

Motion to Compel

Answer 49

prerequisite to seeking sanctions, grounds include evasive, incomplete, or non response. must certify attempt in good faith to obtain discovery CA: must make reasonable efforts to resolve

Question 50

Sanctions

Answer 50

if a party fails to obey a court order regarding discovery, court may impose sanctions CA: misuse of discovery process shall result in monetary sanction unless substantial justification

Question 51

Temporary Restraining Order

Answer 51

preserve status quo pending a hearing, can be issued ex parte 14 days maximum (15 for california) elements: immediate irreparable harm likelihood of success on the merits balance of hardships without notice: certification of efforts made to give notice or reason why notice should not be required

Question 52

Preliminary Injunction

Answer 52

preserve status quo pre trial D must have notive and opportunity to be haerd requirements: liklihood of success on the merits, irreparable harm, balancing of harms

Question 53

Permanent injunction

Answer 53

plaintiff has succeeded on the merits requirements: irreparable harm, balancing of hardships

Question 54

Default judgment

Answer 54

a party has failed to plead or defend the action msut be shown by affadavit, after which entry of default is made by court clerk after entry is made, may seek default judgment, by clerk if sum certain and defendant is not minor, by court if party appeared, needs to determine damages default can be set aside for good cause

Question 55

Voluntary dismissal

Answer 55

P can dismiss without leave of court before opposint party serves answer/motion for summary judgment or by stipulations of all parties can dismiss with court order, court decides whether with/without prejudice, CA: after commencment of trial, P can only dismiss with prejudice

Question 56

Involuntary dismissal

Answer 56

If P fails to prosecute or comply with rules/court order, D can move to dismiss and is with prejudice CA: court must dismiss after five y ears have elapsed since filing of complaint or three years if complaint has not been served, may dismiss after two years

Question 57

Summary Judgment

Answer 57

no genuine dispute as to any material fact and movant is entiteld to judgment as a matter of law. court construes all evidence in light most favorabel to nonmoving party can be filed up til 30 days after close of discovery

Question 58

Right to a jury trial

Answer 58

guaranteed for civil action at law (money damages) but not equitable remedies CA: all actions at law Demand: must be in writing within 14 days after service of last pleading CA: demand must be wihtin five days after notice the case is set Jury size: at least 6, no more than 12, must be unanimous CA: must have 12 unless parties agree to fewer, doesn't have to be unanimous Selection: unlimited for cause, 3 preemptory not based on race or gender CA: further limits peremptory challenges so they can't be used on race, color, religion, sex, sexual orienation, age, disability

Question 59

Jury Instructions

Answer 59

parties file proposed instructions at close of evidence, objections msut be raised before jury is instructed to preserve for appeal court must inform parties of any instructions before closing arguments

Question 60

Motion for Judgment as a Matter of law

Answer 60

evidence cannot support a contrary verict, entitling movant to judgment as a matter of law can be made after plaintiff's case or after close of evidence

Question 61

renewed motion for judgment as a matter of law

Answer 61

federal: must have made a motion judgment for matter of law, must be filed within 28 days of entry of judgment CA doesn't require initial judgmnet as a matter of law, but must be made after the decision and before judgment

Question 62

Bench trial

Answer 62

court must make findings of fact and conclusion of law on the record at the close of evidence or in an opinion or memorandum filed by the court on appeal, finding of fact can only be set aside if clearly erroneous

Question 63

Motion for a new trial

Answer 63

must be made within 28 days of entry of judgment at the discretion of the court grounds: trial error, newly discovered evidence, prejudicial misconduct by parties, judge, jury, verdict is excessive or inadequate (remittitur allowed, additor not (unless CA) Harmless error not grounds for new trial the grant must include the reasons

Question 64

Relief from judgment

Answer 64

awarded if enforcement would cause injustice must be within a year of entry of judgment grounds: mistake, newly discovered evidence, fraud, CA: mandatory relief if default or dismissal caused by attorney mistake or neglect exception: no time limit for void judgment, judgment discharged, based on vacated judgment,

Question 65

Appeal

Answer 65

must be filed within 30 days of entry of judgment standard of review: questions of law de novo, discretionary rulings of judge: abuse of discretion

Question 66

Final Judgment Rule

Answer 66

only a valid final judgment on the merits can be appealed

Question 67

Collateral order rule

Answer 67

allows a court to hear and rule on a district court order if it conclusively determines the disputed issue, resolves an important issue that is completely separate from the mertis of the case, and is effectively unreviewable on appeal from final judgment

Question 68

Interlocutory Orders

Answer 68

some equitable nonfinal orders can be appealed immediatelty (injunctions, receivers, admiralty)

Question 69

Claim Preclusion (Res Judicata)

Answer 69

a final judgment on the merits precludes the parties from litigating the claim again Elements: Valid, Final judgment, on the merits, same cause of action (same transaction or occurence (fed)/ primary rights approach (CA)), same parties and their privies

Question 70

Issue Preclusion (collateral estoppel)

Answer 70

a final judgment on the merits precludes relitigation of issues that were necessarily decided in the previous action Elements: valid, final judgment on the merits same issue actually litigated (not default judgment in fed, but includes default in CA) Essential to the judgment Due process mutuality: can be used against or by one who was a party or in privity to a party