Civ Pro Flashcards
SMJ
Courts ability to hear and determine a case. Cannot be waived. Can come in under either Federal question jx or Diversity jx
SMJ - Federal Question Jx
Exists when issue is presented on the face of complaint (well-pleaded complaint).
CA – limited $25k or less; unlimited >$25k; Small claims $10k or less for individuals, $5k or less for other litigants
SMJ - Diversity Jx
All parties are diverse + Amount in controversy is more than $75k. Citizenship is determined by domicile at time of filing. Can aggregate claims.
Supplemental Jx
gives discretion to add claims that arise from common nucleus of operative facts. Must be one claim with original SMJ
Removal
Case may be removed from state court to federal court if (1) the case could have been brought in federal court, (2) all of the defendants agree to removal, and (3) a notice of removal is filed within 30 days of service of the document that first makes the case removable.
DJ: only removable if no D is citizen of state where filed. Can’t remove after 1 year
FQ: entire case may be removed. All D must consent
Remand
P may send back to state court if removal is improper
Lack of SMJ: P can remand at any time
Other Reasons: P can remand within 30 days
In personam Jx
Courts power over an individual person
4 bases: (1) voluntary presence, (2) domicile, (3) consent, (4) long-arm statute
To be subject to PJ, D must have such minimum contacts with forum state such that exercise of jx doesn’t offend traditional notions of fair play and substantial justice
Personal Jx: Minimum Contacts
Purposeful availment, foreseeability, and relatedness of P’s claim to D’s contacts
Purposeful availment: D’s contacts with forum must be purposeful and substantial
Foreseeability: D knew of or could anticipate being held accountable for her forum activities
Relatedness: Specific Jx & General Jx
Specific Jx
Arises when the cause of action is related to D’s contacts
General Jx
can arise even when the cause of action isn’t related to D’s contacts. D must have had “continuous and systematic contacts” with forum such that D is “essentially at home”
Fair Play and Substantial Justice
Court must examine factors
(1) interest of forum in adjudicating matter
(2) burden of D appearing in case
(3) interest of judicial system in efficient resolution
(4) shared interest of states protecting social policies
In Rem Jx
Court’s authority to determine issues concerning personal/real property. Property is present in forum
Quasi in Rem Jx
determines only interest of parties regarding property located in forum
Venue In California
Transitory action (Claim arose elsewhere)
County where D resides when action commences
Contract: Where K has executed/performed
Personal Injury/wrongful death: where injury occurred
Venue is Proper…
(1) where any D resides
(2) where substantial part of claims arose/property is located OR
(3) where court has personal jx over defendant if no (1) or (2)
Original Venue Proper
court may transfer to another district for convenience of parties AND in best interest of justice. Laws of original state apply
Original Venue Improper
court must either dismiss case OR if in best interest, may transfer to any place where it could have been originally brought or where parties consent to
Forum Non Conveniens
when there’s a more appropriate forum for litigation, but the cannot be transferred there, court may dismiss action pursuant to doctrine of forum non conveniens
Erie Doctrine
FQ: Federal substantive + procedural law controls as well as federal common law
DJ: State substantive law + federal procedural law
SJ: State substantive law
Service of Process
generally only allowed in limits of state where district court sits OR anywhere else allowed by state law (Long arm statute). Timing: Within 90 days of filing case
Exception: 100 Mile Bulge Provision
100 Mile Bulge Provision
Provides that out of state services is allowed even across state lines within 100 mile radius of court district where suit is pending
Waiver of Service
waiver must be in writing and addressed to individual D and must give D reasonable time of at least 30 days after request sent to return waiver. Extends time to answer from 21 to 60 days after waiver request is sent. 90 days if foreign.
CA: D’s waiver doesn’t extend time to respond to complaint
Temporary Restraining Order
preserves status quo until opportunity for full hearing. No longer than 14 days unless good cause. May be issued without notice if immediate and irreparable harm will result.
CA: TRO issues w/o notice to D generally can’t exceed 15 days
Preliminary Injunctions
Require Notice and a Hearing.
(1) irreparable harm w/o injunction, (2) likelihood of success on merits, (3) balance of hardships in favor of P, (4) feasibility of enforcement
Permanent Injunction
once issued, it continues until dissolved by court, but affected person may move for modification/dissolution. P must show actual success on merits
Complaint
(1) short plain statement of courts SMJ (2) P’s claim establishing entitlement to relief and (3) demand for relief sought
CA: All pleadings must contain statement of material operative facts constituting each cause of action and demand for relief and amount of damages
Timing: Within 90 Days of filing
Rule 12(b) Motion to Dismiss
lack of SMJ can be raised any time; lack of PJ, improper venue, insufficient process or service can be raised in pre-answer motion or answer otherwise waived
Rule 12(b) Defenses
lack of smj, lack of pj, improper venue, insufficiency of process, insufficiency of service, failure to state a claim, failure to join necessary party
Rule 12(b) Failure to State a Claim
- Claim for relief can be dismissed if it either fails to assert a legal theory of recovery that cognizable at law or fail to allege facts sufficient to support a cognizable claim
- In deciding a motion, cts will treat all well-pleaded facts of complaint as true, and resolve all doubts in favor of nonmovant and view pleading in light most favorable to nonmovant
Motion for Judgment on the Pleadings
after answer is filed, allows it to dispose of case when material facts aren’t in dispute and judgment on merits can be achieved based on contents of pleading
CA: Before filing motion, moving P must meet and confer to determine if resolution can be reached
Motion for More Definite Statement
responding party can move for motion for more definitive statement if claim for relief is so vague or ambiguous that party can’t reasonably draft responsive pleading
Motion to strike
when pleading contains insufficient defense or redundant, immaterial, scandalous material, courts may strike
CA: Within 30 days party can move to strike improper, false or irrelevant matter in pleading
Answer
must (1) respond to allegations in complaint and (2) raised affirmative defenses (if not, waived)
Timing: Within 21 days after being served with complaint. 60 days if D timely waived service.
CA: 30 days after being served and if D files motion to strike/demurrer within 10 days of service of denial
Reply
by P to Ds answer within 21 days after being served with order to reply
CA: P files separate answer to cross-complaint instead of reply
amendments - as of right
can be done once within 21 days after service or pleading within 21 days of responsive pleading/pre-answer motion
amendments - w/o right
may amend with written consent of adverse party or leave of court
Relation Back
Must respond within 14 days after service of amended pleading or time left on original pleading whichever is later
Relation Back - New Claim
relates back to date of original pleading if amendment asserts claim/defense that arose from same conduct, transaction or occurrence
CA: amended pleading must also involve the same accident/injuries and refer to same offending instrumentalities
Relation Back - New Party
relates back to date of original pleading if amendment asserts
(1) claims/defenses that arose from same transaction or occurrence
(2) New party receives notice within 90 days and
(3) D knew or should have known about action but for mistake of identification
CA: misnomer allows P to correct even when SOL runs
Rule 11 Sanctions
requires attorney/pro se party to sign all pleadings, motions, etc
CA: Party seeking sanctions must exercise due diligence. 21 days to correct conduct
permissive joinder
P and D may join one action if (1) claims relate to same series of occurences/transactions and (2) question of law/fact common to all parties
compulsory joinder
must be joined if unfair to litigate without them.
- necessary party
- indispensable party
compulsory joinder - necessary party
(1) complete relief can’t be granted without them (2) impairment of interest if not included (3) substantial risk of multiple/inconsistent obligations
compulsory joinder - indispensable party
if party can’t join because of jx or venue, ct may dismiss considering factors (1) extent to when judgement w/o party would prejudice them or existing parties, (2) extent to which protective measures could prevent injustice (3) whether judgement would be adequate (4) whether P would have adequate remedy if action is dismissed
intervention as of right
must be allowed if either (1) absentee’s interest would be harmed if not joined and no existing party can represent that interest OR (2) absentee has unconditional statutory right
permissive intervention
allowed in courts discretion if (1) absentee has claim/defense that shares common question of law, (2) absentee has conditional statutory right OR (3) absentee is govt agent and claim relates to govt officer/agency/statute
CA: Intervenor’s interest must be “direct and immediate”
interpleader
allows person holding property (aka stakeholder) to force all potential claimants into a single lawsuit
- rule interpleader
- statutory interpleader
rule interpleader
Requires that action involves (1) Federal question Or (2) AIC is $75k + Complete diversity between stakeholder and claimants
Statutory interpleader
Requires AIC be at least $500 + Minimal diversity between claimants (at least 2 are diverse)
Cross-claims - Requirements
(1) claim is based on same t/o and (2) must ask for actual relief from other party (damages. Must be answered within 21 days of service
Counterclaims
Must be answered within 21 days.
Compulsory – arise from same transaction or occurrence and doesn’t require adding party court doesn’t have jx of
Permissive – may bring claim that doesn’t arise from same t/o. Needs independent of jx
Impleader (third party claims)
Defending party can implead nonparty for liability of original claim.
Timing: Can be asserted any time after complaint is filed but 3P must get court’s permission if filed more than 14 days after service of original answer
Class Action Requirements
Numerosity, Commonality, Typicality, Adequacy
3 Situations when Class can be Certified
(1) risk of prejudice, (2) final equitable relief (3) common question of law/fact
CA RULE: requires ascertainable class + well defined community of interest
Common question of law/fact predominates, class action benefits parties and named reps adequately represent class
Class Action Fairness Act (CAFA)
Jx exists if (1) any class member is diverse of any opposing party (2) aggregated claims of class exceed $5million and (3) any D can remove
