Brainscape's Knowledge GenomeTM

Browse over 1 million classes created by top students, professors, publishers, and experts.


See full index

DSF Cal Bar > Civ Pro > Flashcards

Civ Pro Flashcards

You may prefer our related Brainscape-certified flashcards:
MBE flashcards
1
Q

Concurrent vs. Exclusive Jurisdiction

A

Congress can limit jurisdiction over matters of federal law to federal courts, but state courts presumptively have jurisdiction

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

CA - Three Types of SMJ

A

Unlimited (>$25,000), Limited ($25,000 or less), Small claims ($5,000 or less)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

Diversity Jurisdiction - Corporate Citizenship

A

Place of incorporation plus principal place of business, i.e., nerve center

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

Aggregation of claims for Amount-in-Controversy

A

Multiple plaintiffs with a common or undivided interest in the suit can aggregate their claims, but counterclaims are generally not counted.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

Relation back doctrine for a new party

A
  • Federal: Relation back applies if amendment
    (1) asserts claim/defense arising out of same T/O,
    (2) the new party receives a notice of action w/in 90 days after original complaint filed, and
    (3) D knew or should have known about action but for mistake concerning proper party’s identity.
  • CA: No relation back provision, but P can
    (1) correct a misnomer in naming D even when S/L has run, or
    (2) file a “Doe” complaint.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

Relation back doctrine for a new claim

A
  • Federal: When amendment to pleading relates to same transaction or occurrence as in original complaint, the amendment relates back to that date. For SoL purposes.
  • CA: Amendment must also relate to same accident/injuries & offending instrumentality.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

“Doe Complaint”

A

CA rule: P can file complaint against “John Doe,” then has three years to serve the right defendant. P must plead

(1) the facts giving rise to the cause of action and
(2) ignorance as to D.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

Supplemental Jurisdiction in a Federal Question Case

A

OK so long as arising out of common nucleus of operative fact

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

Supplemental Jurisdiction in Diversity Case

A

Complete diversity must be maintained; counterclaims, crossclaims, and claims resulting from permissive joinder need not meet amount in controversy if arising out of same transaction or occurrence

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

Removal jurisdiction requirements

A

Diversity: Only OK if no D is a citizen of the forum state, and occurs no later than one year after action is commenced; FQ: If FQ claims are joined with claims that aren’t independently removable, entire case can be removed.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

Personal Jurisdiction Requirements

A

(1) Voluntary presence in the satte while served,
(2) Consent (express or implied, including by driving in state),
(3) domicile (corporate domicile is place of incorporation),
(4) Long-arm statute

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

Due Process for PJ

A

D must have

(1) minimum contacts with the state such that
(2) maintenance of the action does not offend traditional notions of fair play and substantial justice.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

Minimum Contacts - Requirements

A

The defendant must have purposefully and substantially availed itself of the forum state’s laws such that it was reasonably foreseeable that the defendant would be haled into court. Specific jurisdiction may exist when the cause of action arose out of the defendant’s contacts with the forum state; general jurisdiction may exist where the defendant’s contacts with the forum state were so extensive that the defendant is “at home” in the forum state, and therefore subject to suit on any matter.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

Fair play and substantial justice - factors

A

Courts will balance

(1) interest of forum state in adjudicating matter,
(2) burden on D of appearing in case,
(3) interest of judicial system in efficient resolution of controversies, and
(4) shared interests of the states in promoting common social policies

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

Internet Website as Basis for PJ

A

Depends on degree of interactivity between the website and the forum, ranging from passive site to site that engages with forum state’s residents in a way that is integral to D’s busienss

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

Notice of claim - requirements

A

Notice must be reasonably calculated to give the defendant notice of the claim and an opportunity to object. Notice may be accomplished by in-person delivery, registered mail, etc.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

Service of Process While In State to Attend Trial or Deposition - OK?

A

Not on MBE, yes in CA.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

Venue - Federal Court

A

Venue is proper

(1) in any district where any D resides, if all reside in same state;
(2) where a substantial part of the events/omissions occurred; or
(3) where property that is subject of the action is located; OTHERWISE,
(4) where any D is subject to PJ.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
19
Q

Venue - California

A
  • Claim arose elsewhere or mixed action - county where D resides (or any county if D not resident)
  • Contract actions - county where contract was executed or performed
  • Tort - where injury occurred
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
20
Q

CA Transfer of Venue

A

Factors:

  • Fair trial cannot be had in original county
  • Convenience of witnesses and ends of justice require it
  • No judge of the court qualified to act
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
21
Q

Residence for Venue Purposes, Federal Court

A

For federal court venue purposes, an individual’s residence is his domicile, and a corporation “resides” in its principal place of business and any judicial district where it would be subject to PJ if that district were a state

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
22
Q

Federal Court Change of Venue Requirements

A
  • If original venue proper: Transfer OK to
    (1) any other proper district or
    (2) district where all parties consent, and
    (3) apply transferor court law for diversity cases and transferee court law for FQ cases
  • If original venue improper,
    (1) dismiss case or
    (2) transfer case to proper district if in interest of justice, and apply transferee court law for both diversity and FQ cases
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
23
Q

Can Fed Court lacking PJ transfer venue?

A

Yes, if it serves the interests of justice

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
24
Q

Forum Non Conveniens (Federal)

A

Only used when forum deemed most appropriate for the action is a foreign court

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
25
Q

Forum Non Conveniens (CA)

A

Court can stay/dismiss action in interests of justice if such action should be heard in a different state or country

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
26
Q

In a diversity case, which law applies?

A
  • Federal procedural law, State substantive law.
  • Procedural law is judge/jury allocation, assessment of attorney’s fees, determination whether claim is in law or equity.
  • Substantive law is elements of claim or defense, SoL and tolling provisions, and burdens of proof.
  • If not sure, apply state law if it would be outcome-determinative
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
27
Q

When to apply federal common law?

A

In

(1) FQ jurisdiction and
(2) in diversity jurisdiction if a “uniquely federal interest” is at stake.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
28
Q

Which conflict of law rules apply in federal court?

A

Forum state’s, so long as consistent with FF&C clause.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
29
Q

CA Conflict of Laws Rules

A

Balance the government interests, unless there is a choice of law provision that does not conflict with CA public policy

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
30
Q

Service of Process Methods FEDERAL

A

(1) Personal,
(2) At D’s usualy place of abode w/ a person of suitable age/discretion who resides there,
(3) D’s agent

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
31
Q

Service of Process Methods CA

A

Same as Federal, but substitute service requires follow-up mailing, and out-of-state Defendant can be served by return receipt mailing

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
32
Q

Effect of Waiver of Service (Federal and CA)

A
  • Federal: Extend time to respond to 60 days

* CA: Does not extend time

33
Q

TRO, procedural requirements

A

Up to 14 days, may e issued ex parte if irreparable harm might result.

34
Q

PI Requirements

A

Must be issued upon notice,

(1) P likely to succede on the merits,
(2) P likely to suffer irreparable harm,
(3) Balance of Equities in P’s Favor,
(4) Injunction in Public Interest

35
Q

Complaint Requirements (Federal and CA)

A
  • Federal: Notice pleading (short plain sttement of SMJ, claims, demand)
  • CA: Fact pleading (statement of all material, operative facts constituting each c/a and demand for relief, and amount of damages
36
Q

Rule 12(b)(6) analysis

A

(1) Identify and reject legal conclusions unsupported by facutal allegations,
(2) assume truth/veracity of well-pleaded facts, and
(3) using comon sense, determine if allegations plausibly give rise to relief.

37
Q

Anti-SLAPP Suit

A

CA motion to strike a complaint because P has filed a “strategic lawsuit against public participation.” Must be filed w/in 60 days of service of complaint.

38
Q

Timing for Answer - Fed and CA

A

Federal: 21 days (60 days with waiver of service); CA: 30 days after being served

39
Q

Amendment of pleadings - Federal

A

Once as of right within 21 days; otherwise, leave to amend should be freely given when justice so requires, even after trial, if opposing party has opportunity to prepare.

40
Q

Amendment of pleadings - CA

A

Once as of right anytime before date answer (or if demurrer is filed, before answer to demurrer). Also allowed upon stipulation of the parties or by leave of court.

41
Q

Rule 11 Sanctions

A
  • Federal: Court may impose sanctions (money penalty, atty fees, nonmonetary directives) to deter repretion of conduct by others similarly situated.
  • CA: Party seeking sanctions must
    (1) exercise due diligence,
    (2) give violating party 21 days to correct conduct.
42
Q

Permissive Joinder Requirements

A

[UPDATE FLASHCARD - CHECK BLUE ESSAY BOOK] Used to join

(1) P or D where c/a arises from same T/O w/ common Q of law or fact (Federal and CA) or
(2) D who is jointly and severally liable (just Federal).
* * Joined P: Cannot destroy diversity; Joined D: Need diversity + Amount in Controversy.

43
Q

Compulsory Joinder

A

(1) Complete relief cannot be provided to existing parties in absence of that person;
(2) disposition in absence of that person may impair that person’s ability to protect his or her interest; or
(3) Absence of that person would leave existing parties subject to multiple or inconsistent obligations. Note in diversity jurisdiction case, cannot destroy complete diversity.

44
Q

Indispensable party

A

Must dismiss case if party cannot be joined, depending on following factors:

(1) Would judgment without the necessary party prejudice them or existing parties;
(2) Could court institute protective measures to prevent prejudice; and
(3) Would P have an adequate remedy if action is dimissed.

45
Q

Intervention as of Right

A

Applies when:

(1) Nonparty has interest in property or transaction that is subject matter of the action,
(2) Disposition of th eaction may impair the nonparty’s interest, and
(3) the nonparty’s interest is not adequately represented by existing parties.

46
Q

Permissive intervention

A

Where

(1) an intervenor’s claim or defense shares a common Q of law or fact with original action, or
(2) the intervenor has a conditional right of intervention under the statute, the court must
(3) balance the movant’s interests against the chance of undue delay and prejudice to existing parties. SMJ must be met….

47
Q

Federal Statutory Interpleader (SMJ, PJ, Venue)

A

Federal Court has MSJ if any two adverse claimants are citizens of different states and property at issue exceeds $500; nationwide PJ permitted; Venue proper where any claimant resides.

48
Q

Joinder of Claims - Federal Jurisdictional Requirements

A
  • Diversity: P may aggregate all claims against D.
  • FQ: Nonfederal claims can be joined only if claims are part of same case/controversy (“Common Nucleus of Operative Fact”)
49
Q

Joinder of Claims - CA Requirements

A

Must be common questions of law or fact, and court may sever lawsuits to avoid undue delay or prejudice

50
Q

Cross-Claims: Federal SMJ, PJ, Venue Requirements

A

Cross-claims may only be brought if arising out of same T/O.

  • SMJ satisfied under supplemental jurisdiction;
  • PJ satisfied if case is properly in court to begin with;
  • If venue is proper over original claim, a party cannot object over cross-claim.
51
Q

Impleader Requirements

A
  • Federal: D1 must implead 3d party D for liability on original claim w/in 14 days of answer, or by leave of court. Independent SMJ required for P1 to file claim against 3d party D.
  • CA: Impleader by cross-complaint must arise out of same T/O as P1’s initial claim, or be based in a claim contained in P1’s initial complaint.
52
Q

Federal Class Action - Requirements to Certify Class

A

(1) Class so NUMEROUS joinder of all members impossible;
(2) COMMON questions of law or fact;
(3) Claims of representatives TYPICAL of class;
(4) Representatives fairly and adequately protect class’s interests, and EITHER
(5) (a) separate actions create RISK OF PREJUDICE to plaintiffs or defendants;
(b) case seeks EQUITABLE RELIEF; or
(c) common legal factual questions PREDOMINATE.

53
Q

Class Action - SMJ, Venue

A

In DJ, class reps must be diverse from opposing parties & at least one P must meet amount-in-controversy. When there is a defendant class, all representative Ds are considered for venue purposes.

54
Q

[LOOK UP CA CLASS ACTION DISTINCTIONS]

A

[LOOK UP CA CLASS ACTION DISTINCTIONS]

55
Q

Initial Disclosures - Fed and CA

A
  • Fed: w/in 14 days of discovery conference, must disclose reasonably available info re persons w/ discoverable info, docs supporting claims/defenses, computation of damages, relevant insurance agreement for satisfying judgment. Laziness is no excuse; can challenge another party’s failure to disclosure.
  • CA: No automatic disclosures
56
Q

Disclosure of Witnesses - Fed and CA

A
  • Fed: Disclose expert witnesses at least 90 days before trial or 30 days after opposing party’s disclosure of expert witnesses. Disclose other witnesses (except for impeachment) at least 30 days before trial, as well as docs and exhibits.
  • CA: No automatic disclosures
57
Q

Discovery Scope - Fed and CA

A
  • Fed: Any non-privileged matter relevant to any party’s claim or defense, proportional to needs of the case. Need not be admissible.
  • CA: Disclosure of all non-privileged material relevant to the subject matter of the litigation. Electronically stored info also discoverable.
58
Q

Limitations on Discovery

A

The right of discovery is not absolute, and a court may deny a motion to compel if

(1) discovery is unreasonably cumulative or can be obtained from a more convenient/less expensive source;
(2) proposed discovery is not relevant or proportional;
(3) CA only: court will balance privacy rights against discovery rights.

59
Q

Attorney Work Product - Fed and CA

A

ABSOLUTELY PROTECTED:

  • Fed and CA: The attorney or representative’s mental impressions, conclusions, opinions, and legal theories are absolutely protected.
  • Fed Only: Expert report drafts and disclosures, and comms btwn attorney and expert, are absolutely protected, unless they relate to compensation or underlying facts/data. LIMITED PROTECTION:
  • Documents and tangible things prepared in anticipatoin of litigation are not discoverable except if the other party shows a SUBSTANTIAL NEED and cannot, without UNDUE HARDSHIP, obtain the substantial equivalent by other means.
60
Q

Discovery Devices

A
  • Oral Depositions,
  • Interrogatories,
  • Requests to produce documents,
  • Phsyical/Mental Exams,
  • Requests for admissions
61
Q

Physical/Mental Exams

A

(1) Can only be ordered if in controversy,
(2) Must provide date/time/location/purpose of exam,
(3) Must provide name of doctor and opportunity to object,
(4) CA Only: Attorney must be permitted to attend physical exam

62
Q

How to Enforce Discovery

A

(1) Meet and confer in good faith, then

(2) file motion to compel

63
Q

Voluntary Dismissal - Fed and CA

A
  • Fed: Allowed at any time before MSJ w/out prejudice (unless this is second voluntary dismissal for same claim). [CHECK THIS.]
  • CA: Voluntary dismissal after commencement of trial is w/ prejudice
64
Q

Involuntary Dismissal - Fed and CA

A
  • Fed: Allowed for failure to prosecute or comply with rules or court order.
  • CA: Court must dismiss for failure to diligently prosecute if three years have elapsed without service of complaint, or five years have elapsed without progress. Court MAY dismiss if two years have elapsed since filing of complainte.
65
Q

Standard for MSJ - Fed and CA

A

(1) Movant must show that even if the court construes all evidence and resolves doubts in favor of nonmoving party, the movant is still entitled to judgment as a matter of law. I.e., no genuine dispute as to any material fact.
(2) If movant meets burden, burden shifts to non-movant to set forth specific evidence showing existence of a genuine issue of material fact.
(3) CA ONLY: Movant can then present evidence negating non-movant’s submission.

66
Q

Timing for MSJ (Fed and CA)

A
  • Fed: Movant may file at any time until 30 days after close of discovery
  • CA: Movant must file no later than 60 days after opponent’s general appearance; movant must serve all papers at least 75 days before hearing date.
67
Q

Right to Jury Trial

A

All actions at law receive a jury trial in federal court and CA court

68
Q

Jury Demand Requirements - Fed and CA

A
  • Fed: Serve w/in 14 days after service of last pleading related to issue that is to be tried by the jury.
  • CA: Serve w/in 5 days of notice that case is set.
69
Q

Jury Size - Fed and State

A
  • Fed: 6-12, no alternate jurors.

* CA: 12 unless all parties agree to fewer

70
Q

Jury selection - Rqmts for Juror Challenges (Fed and CA)

A

(1) Up to 3 peremptory challenges, which can be made for any reason except racial or gender bias (CA Only: Or age, national origin, ethnic group, etc.).
(2) Unlimited number of challenges for cause (e.g., bias or personal relationship to litigant).

71
Q

Jury Verdict Requirements - Fed and CA

A
  • Fed: Must be unanimous by a jury of at least six;

* CA: Only 3/4 vote required.

72
Q

Forms of Juror Misconduct

A

(1) False testimony during voir dire that avoided a valid basis to challenge for cause,
(2) violating confidentiality of deliberations (except to testify as to juror misconduct),
(3) improper influence by non-jruors,
(4) investigating facts outside those presented at trial.

73
Q

Bench Trial - Standard of Review for Findings of Fact

A

Clearly erroneous

74
Q

Judgment as a matter of law (directed verdict) requirements - Fed and CA

A
  • Federal: Must make motion before case presented to jury in order to renew w/in 28 days after entry of trial judgment. Standard is MSJ standard.
  • CA: Can make JNOV motion after trial w/out going for nonsuit first.
75
Q

Motion for New Trial - Standard

A

Allowed w/r/t some or all issues to prevent a miscarriage of justice

76
Q

Appeals - When Appropriate

A

Final Judgment (nothing left but to execute it) or interlocutory order (PI).

77
Q

Claim Preclusion (Fed and CA)

A

(1) Valid final judgment on the merits (CA Only: appeal or time for appeal must have expired),
(2) same T/O (CA Only: Same “primary rights” at issue),
(3) same parties.

78
Q

Issue Preclusion (Fed and CA)

A

(1) Valid final judgment on the merits,
(2) same Issue,
(3) Actually litigated (CA ONLY: default or consent judgment w/r/t issues actually raised in pleadings),
(4) essential to judgment.

DSF Cal Bar (12 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2024 Bold Learning Solutions. Terms and Conditions