Civ Pro Flashcards
Proper Court
JDX over persons involved, subject matter, proper venue
Defendant notice of suit and proper law used
PJ
Proper JDX over the parties
Ways to get PJ
Traditional
General
Specific
Traditional PJ
Personal Service
Consent
General Appearance
Domiciled
Personal Service Trad PJ
Present in the state when served (except when brought via fraud)
Consent Trad PJ
In advance through contract
General Appearance Trad PJ
If negotiates settlement Appearing to confirm settlement Seeking ex parte relief Local agent for service of summons Signing acknowledgment of service form Participation before filing motion to quash
CA Gen Appearance Trad PJ
Allowed for temp entering state jud proceed
Domiciled Trad PJ
Physical presence
Subjective intent to remain
General PJ
Domiciled for individual
Entity
Systematic and continuous contact with forum OR state of incorporation
Specific PJ Long Arm
Reach beyond own borders to assert JDX over nonresident under certain specified situations
If no long-arm, assumed to be in line with Federal rule
CA Specific PJ Long Arm
Any person or property up to limits of the Constitution
Minimum Contacts Long Arm
“[S]ufficient minimum contacts with the forum state such that asserting jurisdiction over him does not offend traditional notions of fair play and substantial justice”
Req to Meet Minimum Contacts
Purposeful Availment
Relatedness
Foreseeability
Fairness/Reasonableness
Purposeful Availment
Availed himself the benefits and protections: Presence in forum Doing business in forum Stream of commerce Effects from outside forum Internet sliding scale Property Contracts
Relatedness Minimum Contacts
The closer the contact related to claim less contacts need corp
Always at home in state of incorp and principal place of bus and others that render corp at home
Foreseeability Minimum Contacts
Reasonably foreseeable to be haled into court
Fairness Reason Minimum Contacts
Burden of defendant VS
Forum state’s interest in adjudicating
Plaintiff’s interest in convenient relief
Access to evidence and witnesses
Interstate efficiency
Shared interest in furthering social policy
SMJ
Proper JDX over subject matter
Types of SMJ
Fed Question
Diversity
Fed Question SMJ
I.e. Constitution, federal statutes, treaties
Well-Pleaded Complaint
When the federal law issue is presented in the plaintiff’s complaint only the complaint; not defenses
Exception Cases to Diversity
Probate
Domestic Relations
Req of Diversity
Complete Diversity
Amount in Controversy
Complete Diversity
All Plaintiffs/All Defendants diverse between the v
Where domiciled
Exceptions to Complete Diversity
Interpleader Only 2 adverse claimants Class actions over $5,000,000 Any member of the class diverse 75 persons died from same accident Only one defendant needs to be diverse
Domicile of Individuals Complete Diversity
Physical present
Subjective intent to stay permanently
Domicile of Corp Complete Diversity
State were incorporated
Principal place of business (PPB)
“Nerve center” where officers direct, control, and coordinate the corp’s activities (headquarters)
Domicile Unincorp Ass’ns Complete Diversity
Citizenship of all members
Domicile Incompetent Complete Diversity
Determined by them AND
NOT their representatives
Domicile Alienage Complete Diversity
No fed JDX between aliens UNLESS also US citizens on both sides
Amount in Controversy
Exceeds $75,000 at time of action
Aggregation of Amount in Controversy
One plaintiff v one defendant
Joint tortfeasor defendants
Multiple if common undivided interest BUT may have to pay defendant’s litigation costs if recovers less than $75,000
NOT allowed for counterclaims
Counterclaims not included to meet plaintiffs amount
Compulsory not required to meet
Permissive must meet
Supp JDX SMJ
Allows extension of subject matter JDX when additional claim does not have individual JDX AND based on common nucleus of operative fact
CA SMJ
General subject matter JDX UNLESS within exclusive JDX of another court
CA SMJ Classifications
Unlimited
Limited
Small Claims
If misclassified, may seek reclassification
CA Unlimited SMJ
Superior Court Amount exceeding $25,000 No limitations on: Pleadings Discovery Relief Available Can recover any amount
CA Limited SMJ
Superior Court $25,000 or less Limitations on use of process AND Equitable relief available Cannot recover more than $25,000
CA Small Claims SMJ
Small Claims Court
Individual $10,000 or less
Business $5,000 or less
Removal
Move case from state court to federal court if originally could have been brought there
Only defendants eligible to remove UNLESS defendant citizen of forum
To federal district court in same state action is pending
Within 30 days after service of initial summons or pleading
Remand
Attempts to remove are improper
Federal court can remand back to state court
Plaintiff must remand within 30 days of removal
No time limit if no subject matter JDX
Venue
Geographic district that is the
Proper place for particular case to be heard
Place of Proper Venue
District where claim occurred OR substantial part of claim arose OR where land in dispute is located
District where any defendant resides if all defendants residents of same state
CA Venue Claim Occurred
County where claim arose or where land in dispute located
CA Venue where Defendant Resides
County where any defendant resides when case is filed
If no defendants reside in CA, then any county
Catchall for Venue
If neither claim occurred or defendant resides, then venue proper where any defendant subject to PJ
Transfer of Venue when OG Venue Proper
Can transfer where could have been filed OR all parties consent
CA Transfer of Venue when OG Venue Proper
At judge’s discretion where interests of justice and convenience
Transfer of Venue when OG Venue Improper
Dismiss OR interest of justice, transfer to proper venue
Can be waived by absence of timely objection
CA Transfer of Venue when OG Venue Improper
Transfer to proper county when court in complaint improper
Forum Selection Clauses
Generally upheld
Forum Non Conveniens
May dismiss or stay case if far more appropriate forum (another state or country)
CA Forum Non Conveniens
May dismiss or stay case if more suitable forum (another state or country
Look to interests of justice
CA Forum Non Conveniens Interests
Public: which comm burdened with jury duty
Private: convenience, witnesses, evidence
Notice
Met if reasonably calculated to apprise interested parties of pendency of action and afford opportunity to present objections
Service of Process
Delivery of summons and copy of compliant
Method of Service of Process
By anyone at least 18 and not a party
Types of Methods of Service of Process
Personal Service
Substituted Service
Constructive Service
Personal Service
Always adequate
Personal delivery to defendant
Substituted Service
Left at defendant’s usual abode served upon someone of suitable age and discretion who resides there OR served to authorized agent
CA Substituted Service
Only if personal service cannot be accomplished
Defendant’s usual abode with a competent member of household at least 18 years old
Must be informed of contents
Must mail a copy to the party at the address
CA Corp Sub Service
Agent OR apparently in charge at office
CA Foreign Sub Service
Use method foreign prescribes or
Any method under law of place
Constructive Service
Served by registered mail ONLY IF defendant agrees to waive service of process
CA Constructive Service
Only if nothing else works
Affidavit that defendant cannot be served with reasonable diligence
Choice of Law Fed Q
Fed substantive and procedural laws
Choice of Law Diversity
Must apply state substantive law and federal procedural law
Prevent forum shopping if conflict between state law and fed law
If Procedural and FRCP on point, tests unnecessary
Tests for Diversity Choice of Law
Outcome Determinative Test
Balance of interests
Outcome Determinative Test
Substantive if substantially affects outcome
Balance of interests
Fed interest of fed law vs. state interest of state law
If state greater interest, substantive
CA Choice of Law
Deemed substantive under Erie
CA Choice of Law Tort Actions
Two state laws in conflict
Comparative impairment to each state’s interest
CA Choice of Law K Action w/out Choice of Law Provision
Comparative impairment of each state’s interest
CA Choice of Law K Action w/ Choice of Law Provision
No conflict:
Applied so long as reasonable basis and not conflict with CA policies
Conflict with CA policies:
CA applies IF CA has materially greater interest in CA laws applied
Pleadings
Documents that set forth claims and defenses
Notice of Pleadings
Provide opposing party with reasonable notice and nature of claim
CA Pleadings
Plead ultimate facts to support each element of COA
Exceptions:
PI or wrongful death
Rule 11 Pleadings
Requires signature that paper is proper legal contentions warranted by law
Factual contentions have evidentiary support
Does not apply to discovery documents
Sanctions of Rule 11
Sanctions may be imposed but subject to 21 day safe harbor rule
Allowed to withdraw or correct within 21 days
Complaint Req
Used by plaintiff to raise issues Identification of parties State of SMJ Statement of claim with enough facts to Support plausible claim EXCEPT fraud, mistake, and special damages Require specificity Demand for judgment Signature of plaintiff or attorney
CA Complaint Req
Identification of parties including fictitious “Doe” when unknown
Statement of claim
Specific facts supporting every element
Demand for judgment amount of damages sought UNLESS for punitive damages for PI or Wrongful Death
Signature of plaintiff or attorney
Rule 12 Answer Time
Answer by motion or answer within 21 days of service of process 60 if service waived
CA Answer Time
30 days to respond
Answer Req Rule 12
Defendant’s response to complaint
Must respond to allegations by denying, admitting, or lacks sufficient information failure to deny is an admission
Assert affirmative defenses
CA Answer Req
Factual details when asserting
Affirmative defenses
Motion for More Definite Statement
Complaint too vague
CA Motion for More Definite Statement
Special demurrer that pleading uncertain
Motion to Strike Pleading
Immaterial or redundant issues
CA Motion to Strike Pleading “Anit-Slapp”
Anti-Strategic Lawsuits Against Public Participation
Suits brought to chill exercise of free speech and petition shifts burden to plaintiff to show probability of winning on merits
12(b) Defenses
Failure to state claim upon which relief can be granted Failure to join party SMJ PJ Venue Process/Service
12(b) defenses anytime until trial concluded
Failure to state a claim on which relief can be granted
Failure to join party
12(b) defenses First response or waived
PJ
Venue
Process/Service
12(b) defenses anytime before all appeals exhausted
SMJ
CA Demurrer Two Types
General
Special
CA General Demurrer
Failed to state facts sufficient to constitute COA
Lacks SMJ
CA Special Demurrer
Only in unlimited cases
Can be raised in the answer
Uncertain pleadings same as more definitive statement
Unclear about which theories of liability asserted against defendants
Lack of legal capacity to sue
Existence of another cases between parties for same COA
Defect or misjoinder of parties
Failure to plead k is oral or written
Failure to file required certificate
CA Motion to Quash Service of Summons
Special appearance AND separate from answer
Before or concurrently with demurrer or answer
Lack of PJ
Insufficient process/service
Amend Rights
Right to amend once within 21 days of service
Otherwise, must get court approval but is granted freely if justice so requires
CA Amend Rights
Right to amend once before answer or demurrer to complaint is filed OR after demurrer but before hearing on demurrer
Otherwise, court approval
Granted liberally
Amend Relation Back
After SoL runs, can amed claim
Relates to same conduct, transaction, or occurrence
Claim Amendment
Relates back to date of OG pleading
Out of same transaction
CA Claim Amendment
Involve same accident or injuries and refer to same instrumentality
Person Amendment
Party knew of the OG action AND knew should have been named
CA Person Amendment
“Doe” amendments: OG complaint timely and with all “does” Plaintiff genuinely ignorant of identity Ignorance pled with specificity Must substituted named defendant within 3 years
Permissive Party Joinder
Claim arises out of same transaction AND one common question of fact or law
Must have SMJ
CA Permissive Party Joinder
Adverse claims OR COA defenses
From same transaction and present common q of law or fact
Necessary Party Joinder
Court cannot complete relief Absent party’s interest will be harmed Absent party is subject to multiple inconsistent obligations Must be joined if: Court has PJ Doesn’t destroy diversity
Necessary Party Joinder Unable to Join
If there is an alternative forum, assess likelihood & extent of prejudice
Whether can shape relief to avoid prejudice
May either dismiss b/c party indispensible OR proceed w/ case w/out necessary party
Impleader
Defendant can add a 3rd party defendant for indemnity or contribution
Supplemental JDX will apply b/c common nucleus of operative fact
Venue need not be proper
CA Impleader
Called a cross-complaint
Allows addition of any claim on which 3rd party defendant liable so long as same transaction or occurrence
Intervention
Nonparty claims an interest AND disposition in absence will impair rights
CA Intervention
Interest direct and immediate
Not allowed if indirect and consequential
Interpleader
One holding prop forces all potential claimants into one lawsuit
Two Types of Interpleader
Statutory
Rule 22
Statutory Interpleader
Only one claimant must be diverse from one other claimant
Amount in controversy $500 or more
Rule 22 Interpleader
Stakeholder diverse from every claimant
Amount in controversy exceed $75,000
Counterclaim
Offensive claim against an opposing party
Compulsory Counterclaim
Same transaction or occurrence raised in pending case or waived
Supp JDX so no independent SMJ required
Permissive Counterclaim
Same transaction or occurrence BUT may be raised in a separate case
No Supp JDX so independent SMJ required
CA Counterclaim
Uses cross complaint for all 3rd party actions
Cross Claim
Against a co-party
Must arise out of same transaction
Never compulsory
Supp JDX so no independent SMJ required
Class Action Requirements
Numerosity
Commonality
Typicality
Adequacy
Numerosity
Too many for joinder to be practical
Commonality
Question of law or fact are common
Typicality
Representative’s claims typical of class
Adequacy
Representation will fairly represent class
Types of Class Actions
Prejudice: necessary to avoid inconsistent results
Injunctive or declaratory relief is sought
Question of law/fact common to class: predominate over questions affecting individuals
Citizenship for Class Actions
Only citizenship of named rep is used
Amount in controversy satisfied by any named rep
Class Action Fairness Act
Relaxes the requirements for some
Any class member diverse from any defendant
Aggregation exceeds $5,000,000
100 members
CA Class Actions
Ascertainable class
Well-defined community of interest:
Common questions of law or fact
Representation will adequately represent class interests
Substantial benefit to parties and the court
No types
Notice not required and publication acceptable method
Discovery Standard
Reasonably calculated to lead to discovery of admissible evidence
CA Discovery Standard
Disclosure of all material to subject matter in pending lit
Mandatory Disclosures for Discovery
Initial disclosures supplying info about disputed facts
Expert testimony info
Pretrial disclosures
Initial disclosures supplying info about disputed facts
Persons likely to have discoverable info
Copies or descriptions of tangible evidence
Damages computation and supporting documentation
Expert testimony info
Identity of the expert
Qualifications
Written report
At least 90 days before trial
Pretrial disclosures
List of non-expert witnesses
List of documents or exhibits
14 days to object
CA Mandatory Disclosure
Not required BUT
May be requested
Depositions
Examination of a witness Occurs under oath Recorded by sound, video, or stenography Parties allowed Nonparties by means of subpoena Once only UNLESS court approval
Limitations of Depos
10 depositions
Cannot exceed 7-hour day
CA Limitations of Depos
No limits on number of depositions
But 20 day limit
Interrogatories
Questions propounded in writing to another party
Must be answered in writing under oath
Answer within 30 days
NOT for nonparties
Limitations of Interrogatories
25 questions, including suparts UNLESS
Court approval
CA Interrogatories
Unlimited form 35 specific interrogatories UNLESS court permits because of
Declaration of Additional Discovery
Request for Admissions
Admit the truth of discoverable matter NOT nonparties
CA Request for Admissions
Max 35 UNESS court permits because of
Declaration of Additional Discovery
Requests to Inspect and Produce
Party or nonparty w/ subpoena
Make available for review and copying documents, electronic copies, other tangible items, or permit entry on property
CA Requests to Inspect and Produce
Party
Nonparty similar effect to take
Deposition subpoena duces tecum
Electronically Stored Data
Meet to discuss and report to court
If not reasonably accessible due to burden or cost, court may still order and impose cost-sharing measures
Must take reasonable steps to preserve OR be sanctioned
CA Electronically Stored Data
Treated as docs and things
Request for physical or mental examination
Sought from an opposing party
Obtain court order upon showing physical or mental condition at issue AND good cause for an examination
CA Request for physical or mental examination
Allows defendant one physical exam of plaintiff as matter of right when plaintiff condition at issue
All others require court approval
CA Limited Cases Discovery
Only 35 total for ROGS, Inspection, and requests
CA Scope of Discovery
Right to privacy v. need for discovery
Discovery Privilege
Not discoverable
CA Discovery Privilege
Requires responding party to object with particularity identify document, author, date, recipients, specific privilege applicable
Discovery Physician/Patient Privilege
Many states recog but not FRCP
Considered under Erie
Discovery Attorney/Work Product
Material prepared in anticipation of litigation
Generally not discoverable UNLESS substantial need AND inability to obtain information otherwise
Discovery Absolute Privilege
Mental impressions, opinions, and legal theories
Generated by party or attorney, or rep of party
CA Discovery Absolute Privilege
Generated by attorney or his agent
Motion to Compel
Fails to respond to discovery
Must be served on all parties and include certificate attempt to confer
Discovery Sanctions
Holding a non-complying party in contempt
Striking pleadings, imposing fees, AND ordering default judgment
Voluntary Dismissal
One without prejudice
Court may grant after answer or MSJ UNLESS substantial prejudice to defendant
CA Voluntary Dismissal
Plaintiff may dismiss w/ prejudice unless parties agree or good cause
Involuntary Dismissal
At defendant’s request or court’s own motion usually with prejudice
CA Mandatory Dismissal
Not brought to trial within 5 years of complaint OR 2 years from filing til service of process
MSJ
No genuine issue of material fact AND entitled to judgment as a matter of law
Viewed in light most favorable to non-moving party
Evidence must be firsthand knowledge
Credibility not weighed here
Can grant partial
CA MSJ
No COA or meritless or no defense
Burden shifts to opponent to show
Triable fact exists
7th Amend
Preserves right to jury trial in civil actions at law
Judge decides issues of equity
Legal issues decided first, then equity
Must demand w/in 14 days after service of last pleading
Raising jury triable issue OR waived
Jury Composition
Each side has unlimited
challenges on voir dire for cause AND 3 peremptory challenges
Cannot be race or gender
Contains 6-12 jurors and unanimous vote required
CA Jury
Demand must be made at time case set for trial OR
W/in 5 days after notice of setting
Equity, then legal
CA Equitable Cleanup Doctrine
Main purpose equitable AND only legal issue concerns damages that are incidental
Judge may hear whole case; no jury required
CA Jury Composition
Each side has unlimited challenges on voir dire for cause AND 6 peremptory challenges
Cannot be race or gender
12 jurors and alternates
¾ vote required for civil
JMOL
One party files motion after
Other side has been heard at trial
“Reasonable people could not disagree on the result”
CA JMOL
Called directed verdict
Renewed JMOL
After jury reached verdict
Must have filed JMOL properly
“Reasonable people not disagree on result”
Within 28 days after entry of judgment
CA Renewed JMOL
15 days after mailing or service of notice of entry OR 180 days after entry of judgment
Motion for Judgment Notwithstanding Verdict
Not required to make JMOL first
New Trial
Within 28 days of entry of judgment
Grounds for new trial:
Prejudicial error making judgment unfair
New evidence that could not be obtained for OG trial
Prejudicial misconduct of party, attorney, or juror against weight of evidence
Excessive damages or inadequate damages
CA New Trial
15 days after mailing or service of notice of entry OR 180 days after entry of judgment
Motion to Set Aside Judgment
Clerical errors
Neglectful mistakes within one year after judgment
Newly discovered evidence could not be obtained for OG trial within one year after judgment
Fraud or representation within one year after judgment
Judgment is void for lack of due process
Conditional New Trial Remittitur
Judge orders new trial for defendant
To take place UNLESS plaintiff agrees to a reduced aware of damages
Judge found “excessive as to shock conscious”
CA Additur
Judge orders plaintiff new trial UNLESS defendant agrees to increased award
Damages were insufficient
Final Judgment Rule
Only final judgments may be appealed
Ultimate decision made by trial court on merits of entire case such that
Final judgment as to all parties and all COA
Exceptions of Final Judgment Rule
Injunctions and some interlocutory orders
Trial court certifies an interlocutory for appeal
Collateral orders i.e. procedural issues
Multiple claims or parties and some issues are pending BUT one issue is final
Extraordinary Writ
Aggrieved party may seek to compel lower court to act, or refrain from acting
Appeal Time
Within 30 days after entry of final judgment
CA Appeal
Exception for judgment of one of several parties within 60 days after service of notice of entry OR 180 after entry if no notice served
Standards of Review
De Novo
Clearly Erroneous
Light most favorable to affirming jury’s verdict
Abuse of discretion
Matters of Law
Reviewed de novo
Substitute judgment for that of trial judge
Questions of fact determined by a judge
Clearly erroneous standard
Questions of fact determined by a jury
Light most favorable to affirming the jury’s verdict
Mixed questions of fact and law
De novo
Matters discretionary to judge
Abuse of discretion standard
Only if clearly wrong
Claim Preclusion (Res Judicata
Precludes relitigation of a claim already decided in prior litigation between same parties
Claim Preclusion Req
Valid Final Judgment
Same plaintiff and defendant
Same claim
Valid Final Judgment
When judgment is rendered
CA Valid Final Judgment
When appeals have concluded
Claim Preclusion Same Claim
Same transaction or occurrence
CA Claim Preclusion Same Claim
Primary rights theory
Separate COA for each invasion of primary right
Issue Preclusion (Collateral Estoppel)
Precludes relitigation of a particular issue already decided in prior litigation
Issue Preclusion Req
Final judgment on merits
Same issue actually litigated
Issue was essential to judgment
Same party or in privity of prior suit
CA Issue Preclusion Same Party or In privity
Allows stranger to prior case to avoid liability when party against whom being used
Had fair opportunity to be heard on critical issue
Establish an issue
Fair and equitable
