Civil Procedure Flashcards
Scope of Discovery
CA Distinction
A party may discover relevant evidence of fact that may reasonably lead to relevant information (CA: all material related to sjm of litigation)
Need not be actually admissible under evidentiary rules
All relevant info that’s not privileged
CA: applies to electronically stored as well
Physical or Mental Examination
A party may request the court to order a physical exam when the party is claiming a physical or mental injury, and that the ordered exam is performed by a neutral physician, and the exam is limited to the injury at issue
Court may not order exam if examination is not at issue in case
All parties must be given prior notice of place, condition, scope, time, and identity of examiner
Court Order
For a party to make a discovery request, the request must be made through a court order
Deposition of a Non-Party
A party may request a non-party to be deposed if that non-party possesses relevant, discoverable info regarding the case
If party served with subpoena, they must also bring requested info and documents
Deposition
A deposition is when a party requests to question another party under oath prior to the commencement of trial - must serve subpoena
CA: 20 day limit upon notice of depo
Doctor/Patient Privilege
There is a privilege between doctors and patients that protects their communications as privileged information
However, when a party to a suit sees a physician for an injury related to claim of suit, privilege is waived and opposing party may seek testimony regarding treatment
Demand for a Jury Trial
There is a constitutional right to trial by jury in civil matters. However, the request must be made within 14 days of filing the complaint
AIC exeeds $20
7th amendment
Right extends to legal and not equitable issues
Motion to Strike
CA Distinction
When a party makes a motion and the motion is improper, the other party may make a motion to strike the request
CA: can move to strike irrelevant, false, or improper matters included in the pleading
Motion for Remand
A motion for remand back to state court a case that has been removed to federal court, will be granted if removal was improper
(30 days)
–> removal –> SMJ
Removal
Removal to federal court is proper when the federal court has subject matter jdx over the claims being litigated
Only D can remove case originally filed in state court to fed court, all Ds agree, within 30 days, D cannot remove is resident of forum state
Domicile
Currently lives with intent to remain
Companies: headquarter, PPB (nerve center)
Collateral Estoppel (summary adjudication)
Under collateral estoppel, a party may be estopped from relitigating an issue when the defendant was already sued by another party, the issue litigated in case 1 is the same as case 2, the issue is critical to case 1, and there was a full judgment on the merits
Service of Summons
CA Distinction
Proper summons can be established by personal service on the defendant or at his residence with a person of proper capacity, or by certified mail
Corps: companies have likely designated an appointed agent to whom it should be given
CA: required follow up mailing for D sub service
Venue
Venue is proper where a substantial part of the claim arises, where the defendant is domiciled, or where there is PJ
If filed in federal court, needs SMJ
CA:
real property disputes - where prop is located
transitory (claim arose anywhere) - any county D resides when action begins
if not in ca, proper in any county (typically in county action performed)
Subject Matter Jurisdiction
Federal Courts will not hear a case unless it has power over the subject matter of the case.
2 types: diversity or federal question
FQ: civil under constitution, laws, treaties of US
Diversity: citizenship - presence w intent to remain, AIC - >$75k and can agg
Diversity of Citizenship
Under diversity, the claim must be between citizens of different states and the AIC must exceed $75k
Citizenship = domicile, corps PPB
Includes cases between a citizen of a state and an international citizen
Federal Question
To satisfy federal question, the claim must be brought under federal law
Compolsury Joinder of Claims
Joinder is a device to join claims and parties.
Compulsory joinder is allowed if the claims are from the same transaction or occurrence (sufficiently related) and joining the claims would not destroy diversity
When dealing with real property disputes
When dealing with real property disputes, real property must be heard in the jurisdiction where the land is located
Stating claims in a complaint
CA Distinction
A claim must state with sufficient detail the claim in which it is asserting and the relief which it is seeking. Failure to state either with sufficient certainty may lead to a motion to dismiss
CA: must include statements for material and operative fact for each demand and amount in damages
Erie Doctrine
When a federal court is sitting in diversity jurisdiction, generally federal law rules on matters of procedure where there is a federal law that trumps state law
If there is no federal law on point, then the court must decide if it is a procedural or substantive matter
Court will look at:
Whether the federal court were to choose how to decide would it cause an influx of individuals seeking federal courts as a remedy (forum shopping) or
does the state have an important interest in how it is decided
then go into general Erie rule
Permissive Joinder of claims
When compulsory joinder is not satisfied, there is permissive joinder which can be granted by the discretion of the judge in the interests of justice (so long as diversity not destroyed)
CA SMJ
CA Distinction
Unlimited: more than $25k
Limited: less than $25k
Small claims: $10k, business $5k
Supplemental Jdx
Where the court has SMJ over one claim in the matter, it may exercise supplemental jdk over other claims if it arises from the common nucleus of operative fact and STO
Waiver of Service
P may request that D waive service (ok if within 30 days, 60 with request, CA no extension)
Appeal Timeline
Must be a final judgment on the merits
30 days within final judgment w exceptions
Class Action
Commonality
Adequacy
Numerosity
Typicality
CAFA: fed courts jdx w 100 or more Ps and over 5mil w minimal diversity
Counterclaim
Compulsory - STO
Permissive - no STO
Crossclaim
Party vs co-party
STO
Work Product Disclosure
WP sometimes required to disclose
Party seeking disclosure has to show that info not available by any other means and interests would be substantially prejudiced if not allowed to access
Amendments - Relation Back Standard
CA Distinction
Courts should allow the P leave to amend a complaint unless it would cause undue prejudice to the D. Amended complaint filed after SOL has run “relates back” to the original complaint and is not time-barred if:
OG complaint timely filed
New claims in amended complaint STO as original
CA: also same accident/injuries
Adding new party - ok if STO, received notice, and knew or should have known action brought against him
Pleadings
Pleadings need to state with specificity (esp fraud). Pleadings cannot be vague and need to state the relief they seek
Timing for Discovery
Discovery may be propounded on a party before initial disclosures are due without the propounding party asking for leave of court
The party seeking to propound discovery before initial disclosures is due bears the burden of establishing to the judge that good cause exists for propounding discovery early
Interrogatories
CA Distinction
Rogs may be asked by a party to another party. FRCP allows 25 interrogatories to another party. If a party receives any more than that, they may refuse to answer the remaining interrogatorries.
If propounding party needs more rogs, they must make a request and include a declaration that explains the need for the additional rogs
CA: unlimited form, 35 special
Motion to Compel
A MX to compel is sought when a party refuses to answer discovery by either not answering a specific interrogatory or refusing to produce documents
Before MTC, parties must confer with each other outside the court in the name of judicial efficiency
Motion must be served on all parties
Mandatory Disclosures
Both parties are required to make mandatory disclosures of certain information to the other party, which includes contact information for any potential witnesses, contact information for expert witnesses used at trial, and a final report generated by the expert
Procedural Issues with Rogs (READ)
Rogs sent out in discovery stage only, not pleading stage
Discovery Attack Plan
Discovery (gen rule)
Relevant
Non-priv
Type of Disco
Conclusion
Requests for Production of Documents
A party can serve discovery requests on a party and give the party 30 days to respond. They can request documents, ask questions in written form and if no responses, can ask the court to have a motion to compel
Res judicata (claim preclusion)
Claims that are not brought in the first suit can be barred from litigation in the second suit (3)
STO as calim in first trial
First trial - final judgment on merits
Same parties as first trial
Collateral Estoppel (issue preclusion)
Issues preclusion is based on an issue in the case, the issue actually litigated, the issue must have been the main or deciding factor of the case, normally cases need privity (same parties)
Final Judgment Rule
The federal courts of appeals have jurisdiction over appeals from the final judgments of the district courts. A final judgment is a decision by the court on the merits that leaves nothing for the court to do but execute the judgment. The notice of appeal must be filed within 30 days after the judgment or order appealed from is entered.
Thus, the order is not appealable unless it qualifies as an appealable interlocutory order.
Interlocutory Appeal
Although most interlocutory orders are not immediately appealable, there are some that have an immediate right of appeal such as with the granting or denial of an injunction, appointments of receivership; and certain admiralty cases.
Collateral Order
Under the collateral-order doctrine, a court of appeals has discretion to hear and rule on a district court order if it: (i) conclusively determines the disputed question, (ii) resolves an important issue that is completely separate from the merits of the action, and (iii) is effectively unreviewable on appeal from a final judgment.
Personal Jurisdiction AP
PJ governs whether or not a court may exercise power over parties.
Traditional: P/D/C
LAS: Due Process Requirements
1. Min contacts - intn shoe
2. Purposeful availment - purposeful, substantial, hailed
3. General jdx - continuous, systemic, essentially at home
4. Specific jdx - claim arises or closely relates to contacts
5. Fair play and substantial justice - interest of states, forum, judicial system, fairness to defendant
JMOL
Motion made by either party at the close of P’s evidence or all evidence and granted if no reasonable jury could differ as to the outcome
RJMOL
Motion after jury deliberates and delivers a verdict
Rule 12b MTD
CA Distinction
CA: general and special demurrer can also be filed and motion to quash service of summons to object
Answers
CA Distinction
21 days after being served if no mtd
CA: 30 days after being served
Rule 11 Sanctions
CA Distinction
Court may impose sanctions limited to what deters repetition of conduct by others simularly situated
CA: movant must have exercised due diligence, 21 days to correct
