Civil Procedure Flashcards
Subject Matter Jurisdiction (SMJ)
The federal courts can hear cases involving federal questions (laws or treaties of the United States) or where there is:
- complete diversity between the plaintiff(s) and defendant(s) and
- the amount in controversy exceeds $75,000.
SMJ - Complete Diversity
Complete Diversity exists when the plaintiff(s) and defendant(s) are:
- Citizens of different states or foreign nations.
- For a corporation, citizenship is determined by the corporate Principal Place of Business and any state in which incorporated.
- Partnerships are citizens of the domicile state of every partner.
SMJ - Amount In Controversy (AIC)
The Amount in Controversy must exceed $75,000.00. To meet this, the plaintiff can:
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Aggregate claims to meet the amount if there is one plaintiff and one defendant, or if there are joint tortfeasor defendants, or if there are two plaintiffs with a common undivided interest.
- If award is less than $75,000, the federal court will not enforce payment of the defendant’s litigation costs so long as the plaintiff acted in good faith in determining the amount.
- Use the value of an Injunctive Relief as the basis of the AIC.
SMJ - Supplemental Jurisdiction
If a federal court has subject matter jurisdiction over a claim, then it may exercise supplemental jurisdiction over additional state claims when they arise from a common nucleus of operative facts.
Supplemental jurisdiction does not require amount in controversy or diversity, and if not used solely to defeat diversity and the common nucleus requirement, then it will likely be granted.
California Subject Matter Jurisdiction
Civil court cases are categorized depending on how much money is at controversy.
- Limited Civil Cases: AIC of $25k or less. Restrictions on equitable, declaratory relief.
- Unlimited Civil Cases: AIC of over $25K, no other limits.
- Small Claims Cases: $10K or less, or for a business, $5K or less.
Removal
Defendants may remove a case to Federal Court so long as the court has SMJ.
Must file the removal motion within 30 days - 1 year of receiving the initial pleading.
Remand
A federal court MUST remand a case to state court if there is no federal SMJ.
A federal court MAY remand a case that originally had SMJ once the federal claims have been decided.
A motion to remand must be filed within 30 days of a request for removal.
Personal Jurisdiction (PJ)
PJ is the power of a court to have jurisdiction over an individual or entity. The exercise of PJ must meet the requirements of Due Process.
PJ - Traditional Basis of Due Process
Traditionally, PJ could only be exercised if the defendant:
- Consented to suit in the forum state, or
- Waiver through failure by the defendant properly to raise the objection to personal jurisdiction:
- “General appearance” in state court, if the defendant defends himself on the merits of the action. In a “Special appearance”, the defendant must strictly limit his objections to jurisdictional issues.
- In federal court, a defendant may waive an objection to personal jurisdiction by failure timely to assert it.
- Waiver through failure by the defendant properly to raise the objection to personal jurisdiction:
- Domiciled in the forum state, or
- Served with proper notice in the forum state.
PJ - Constitutional Limits/Long Arm Statute
If there is no traditional basis for the exercise of Personal jurisdiction, the court will next look to the state’s long-arm statute to determine whether the court has jurisdiction to reach out to another state, or country to exercise jdx over the defendant.
PJ - Constitutional Analysis/Minimum Contacts
To comport with due process, personal jurisdiction is only proper if the defendant has such minimum contacts with the forum state that the exercise of jdx comports with traditional notions of fair play and substantial justice.
Minimum contacts requires a showing of purposeful availment and foreseeability.
PJ - Minimum Contacts: Purposeful Availment
A party purposefully avails itself of the forum state if it has taken advantage of the benefits and protections of that state’s laws.
PJ - Minimum Contacts: Foreseeability
It is reasonably foreseeable that his activities in the forum state subject him to being haled into court there.
PJ - Minimum Contacts: Relatedness of the claim to the contact
The court will look at the quality and nature of the contacts. There is general jurisdiction if the defendant’s contact is so systematic and continuous that he is essentially at home in the forum.
There is specific jurisdiction if the contact is less than systematic and continuous, but the claim arises out of the defendant’s contact with the forum.
PJ - Minimum Contacts: Fairness Factors
The court will analyze whether exercising PJ over the defendant is fair. The factors assessed are:
- convenience of the parties in obtaining convenient relief,
- convenience of witnesses and evidence,
- burden of defendant to travel to forum state,
- state’s interest in regulating activity and protecting its citizens, and
- other interests such as interstate efficiency interest.
PJ - MNEMONIC
My Professor Frequently Reminded Everyone From California to Study in Overdrive.
- Minimum Contacts
- Purposeful Availment
- Foreseeability
- Relatedness between contact and claim
- Essentially at Home
- Fairness factors
- Convenience
- State’s Interest
- Other interests
Venue
Venue is proper where the claim arose or the defendant resides.
- Claim arose: in the district/county where the claim arose or where the land in dispute is located.
- Defendant resides: Any district/county where any defendants resides if all defendants are residents of the same state.
- Alternatively, if no district satisfies the venue requirement, venue is proper in any district where any defendant is subject to the court’s personal jurisdiction.
Transfer of Venue - Original Venue Proper
- Federal: Venue may be transferred to another federal court where the case could have been filed or all parties consent and there is proper personal jurisdiction, subject matter jurisdiction, and venue.
- California: The venue can be changed at the judge’s discretion where the interests of justice and convenience of the parties would be served by such a transfer.
Transfer of Venue: Original Venue Improper
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Federal: Court must dismiss or in the interests of justice, transfer to a proper venue where the case could have been brought and there is personal jurisdiction, subject matter jurisdiction, and venue.
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Improper venue can be waived by the parties and will be deemed waived in the absence of a timely objection.
- California: Allows for the transfer of venue to a proper county when the court designated in the complaint is not the proper court.
- Forum selection clauses in contracts are generally upheld.
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Improper venue can be waived by the parties and will be deemed waived in the absence of a timely objection.
Forum Non Conveniens
- Federal: A court may dismiss or stay a case if there is a far more appropriate forum elsewhere, such as another state or country.
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California: A court may dismiss or stay a case if another forum in another state or country is more suitable by looking at the interests of justice, including that the alternative forum is suitable and the private and public interest factors balance in favor of the alternative forum.
- Public Factors: What law applies, which community should be burdened with jury service; and
- Private Factors: Convenience, location of witnesses, evidence, etc.
Choice of Law - Rules Enabling Act / Supremacy Clause
Hanna - Rules Enabling Act/Supremacy Clause: The Fed Court will apply federal substantive law if there a Federal Rule/Statute on point.
Choice of Law - The Erie Doctrine Defined
If there is no Federal Rule/Statute on point, Discuss Erie Issue: A federal court sitting in diversity must apply state substantive law, including statutes of limitations and the state’s conflict of law rules, and federal procedural law. The goal is to prevent forum shopping.
If it is unclear whether a law is substantive or procedural, then the judge will typically employ one of these tests:
- Outcome Determinative Test (York): An issue is substantive if it substantially affects the outcome.
- Byrd (Balancing Test): The federal interest in having the federal law applied is balanced against the state interest in having the state law applied. If the state has a greater interest, the rule is substantive.
Choice of Law - The Erie Doctrine Application
If it is unclear whether a law is substantive or procedural, then the judge will typically employ one of these tests:
- Outcome Determinative Test (York): An issue is substantive if it substantially affects the outcome.
- Byrd (Balancing Test): The federal interest in having the federal law applied is balanced against the state interest in having the state law applied. If the state has a greater interest, the rule is substantive.
Pleadings - Complaint: Federal Court
Complaints in Fed Crt are called Notice Pleadings, which must contain:
- Identification of the parties.
- Statement of proper subject matter jurisdiction.
- Statement of claim showing factual basis on which plaintiff is entitled to relief. Notice pleading typically only requires stating enough facts to support a plausible claim, however fraud, mistake, and special damages must be pled with specificity.
- A demand for judgment.
- Signature of plaintiff and/or attorney.
Pleadings - Complaint: California
Complaints in California are called Fact Pleadings, which must contain:
- Identification of the parties.
- Statement of the claim including a “statement of facts constituting a cause of action, in ordinary or concise language.” Fact pleading requires pleading the specific facts supporting every element of each legal theory alleged.
- Demand for judgment, including the amount of damages sought, unless the damages sought are for actual or punitive damages for a personal injury or wrongful death action.
- Signature of plaintiff and/or attorney.
Responses - FRCP Rule 12
Rule 12 requires defendant to respond by either a motion or by answer within 21 days after service of process (within 60 days if service waived). California allows 30 days to respond.
Responses - Pre-trial Motions: Motion for a More Definite Statement
Complaint is too vague.
CA - Special Demurrer: Pleading is uncertain.
Responses - Pre-trial Motions: CA - Special Demurrers
Only allowed in cases classified as “Unlimited”. Can also be raised in answer.
- Uncertain pleading
- Complaint unclear about theories of liability
- Lack of legal capacity to sue
- Existence of another case
- Defect or misjoinder of parties
- Failure to plead whether a contract is oral or written
- Failure to file a required certificate
Responses - Pre-trial Motions: CA - General Demurrers
Pleadings failed to state facts sufficient to constitute a cause of action / Court lacks SMJ.
Responses - Pre-trial Motions: Motion to Strike
Pleadings contain immaterial or redundant issues.
CA – Anti-SLAPP (Anti Strategic Lawsuits Against Public Participation) motion to strike targeting suits brought to chill the valid exercise of free speech and petition. Shifts burden to Plaintiff to show a probability of winning on the merits.
Responses - Pre-trial Motions: Rule 12(b) defenses - Motions
- Lack of subject matter jurisdiction – Can be raised anytime before all appeals are exhausted.
- Lack of personal jurisdiction – Must be raised in the first response or deemed waived.
- Improper venue – Must be raised in the first response or deemed waived.
- Insufficient process – Must be raised in the first response or deemed waived.
- Insufficient service of process – Must be raised in the first response or deemed waived.
- Failure to state a claim on which relief can be granted – Can be raised anytime until trial concluded.
- Failure to join an indispensable party – Can be raised anytime until trial concluded.
Responses - Pre-trial Motions: CA - Motion to Quash
Done by special appearance and separate from answer, and made before or concurrently with the filing of demurrer or motion to strike or answer; the following defenses are deemed waived:
- Lack of Personal Jurisdiction – Defendant must raise PJ on or before the last day of his time to plead or it is waived.
- Insufficient process
- Insufficient service of process
Answer
Defendant’s response to complaint.
- Must respond within 21 days after service of process (or within 60 days if service waived. CA – 30 days to respond.
- Must respond by denying, admitting, or stating a lack of sufficient information to either, failure to do so can act as an admission.
- Must assert any affirmative defenses.
- CA – Fact pleadings requires factual detail regarding each legal element when asserting affirmative defenses.
Amended Pleadings - Federal: Plaintiff
A plaintiff has a right to amend once with 21 days of service, or 21 days after service of a responsive pleading or pre-answer motion.
Amending Pleadings - Federal: Defendant
A defendant has a right to amend once within 21 days of serving his answer. Otherwise, a party must seek leave of court to amend, which the court will grant freely if justice so requires.
Amended Pleadings - California
A plaintiff has a right to amend once before the answer or demurrer to the complaint is filed, or after the demurrer is filed but before the hearing on the demurrer. Otherwise, a party must seek leave of court to amend, which the court will typically grant liberally.
Amended Pleadings: Relation Back Doctrine
An amendment to a pleading overcomes the statute of limitations when:
- Claim is of the same transaction or occurrence as the original pleading;
- The new party received notice of the lawsuit and knew or should have known the action should have been brought against them.
Joinder of Party - Compulsory
A plaintiff must join all interested parties or face dismissal of the lawsuit. The court must ask:
- Should the absentee be joined;
- Can the absentee be joined; and
- If the absentee cannot be joined, should the action proceed?
Joinder of Party - Permissive
Parties may join as plaintiffs or be joined as defendants whenever there is SMJ and:
- Some claim is made by each plaintiff and against each defendant relating to or arising out of the same series of occurrences or transactions; and
- There is a question of fact or law common to all parties.
Joinder of Party - Impleader
Mechanism that defending party can use to add a third party defendant in order to seek indemnity, subrogation, or contribution.
Supplemental jurisdiction applies because the claim will meet the “common nucleus of operative fact” requirement and no independent basis for SMJ is required.
Joinder of Party - CA: Cross Complaint
Allows the addition of any claim on which the third-party defendant is liable so long as it pertains to the same transaction or occurrence.
Joinder of Party - Interpleader
An action where one holding property (stakeholder) forces all potential claimants (people who claim the property) into a single lawsuit to avoid multiple and inconsistent litigation.
- Statutory: Requires only that one claimant must be diverse from one other claimant and the amount in controversy must be $500 or more.
- Rule 22 Interpleader: Requires that the stakeholder must be diverse from every claimant and the amount in controversy must exceed $75,000.
Joinder of Claim
A plaintiff can join any number/type of claims against a defendant; when multiple plaintiffs or defendants are involved, at least one of the claims must arise out of a transaction in which all were involved.
Joinder of Claim - Counterclaim
Offensive claim against an opposing party.
Joinder of Claim - Compulsory Counterclaim
Arises from the same transaction or occurrence as the plaintiff’s claim and must be raised in the pending case or the claim is deemed waived.
Joinder of Claim - Permissive Counterclaim
Do not arise from the same transaction or occurrence and may be raised in the pending case or in a separate case.
Joinder of Claim - Cross Claim
Offensive claim against a co-party and must arise from the same transaction or occurrence. Cross claims are never compulsory.
Supplemental jurisdiction: An independent basis for SMJ not required since supplemental jurisdiction will extend to a cross claim.
Class Action Certification
Certification – A judge must determine that:
- Numerosity: the class must be so large joinder of all parties is impractical;
- Commonality: there is a common question of law or fact shared by the class;
- Typicality: the claims of named representatives are typical of the class; and
- Adequacy: the representatives fairly and adequately protect the interests of the class
***Certification can be appealed within 14 days of the certification decision, where the court of appeals has complete, unfettered discretion in deciding to hear the case.***
Discovery
Mandatory disclosure of information about the pending case to the opposing party. Incudes:
- Initial disclosures that supply information about disputed facts,
- Expert testimony information that identifies the qualifications of expert and his written report, pretrial disclosures that include a list of all nonexpert witnesses and,
- A list of documents or exhibits.
***CA does not require mandatory disclosure.***
Discovery - Meet and Confer
A meet and confer to plan discovery, this conference should be as soon as possible, and must take place 21 days prior to Scheduling Conference. Initial disclosures must be exchanged 14 days after the conference, unless the court stipulates otherwise.
Discovery - Scope of Discovery
Discovery shall include all information:
- Relevance to Claim/Defense
- Proportional to the needs of the case
- Expert Facts/Opinions
Discovery - Work Product Doctrine Exception
Work Product/Mental Impressions – Material a lawyer prepares for litigation is immune from discovery unless the opposition shows a substantial need and inability to gather the material without undue hardship. A lawyer’s mental impressions or opinions are immune from discovery.
Discovery - Motion to Compel
If a party fails to comply with a good faith and permissible discovery request, the other party may file a motion to compel. Typically, courts request that the parties meet and confer to attempt to resolve the dispute before the motion to compel stage. A motion to compel will ultimately be granted in the court’s discretion.
Discovery - Request for Admissions (Interrogatories)
Requests another party to admit the truth of any discoverable matter. The purpose is to identify areas that are not in controversy. Requests for admission may not be asked of nonparties. Response is due with 30 days of receipt of request.
Fed: 25 questions max / CA: 35 questions max
Discovery - Request to Inspect and Produce (Subpoena)
Federal: Any party may request another party, or a nonparty with subpoena, to make available for review and copying documents, electronic copies, or other tangible items, or permit entry onto property.
California allows for a party to make requests to inspect and produce on another party, but not for a nonparty.
Discovery - Physical or Mental Exams
When a person’s conditions is in controversy, a physical or mental exam of the person may be requested with court approval. The court requires good cause for the examination.
Discovery - Disclosure of Persons with Knowledge
A party has no obligation to include in their initial disclosures information concerning individuals who have discoverable information but whom the party does not intend to use in its defenses.
Discovery - Sanctions
For violations of discovery, sanctions may be imposed including holding a noncomplying party in contempt, striking pleadings, imposing fees, and ordering default judgment.
Disposition of Case without Trial - Dismissal
Voluntary: obtained by Plaintiff (without prejudice – can be relitigated);
Involuntary: obtained by Defendant (with prejudice – cannot be relitigated)
Disposition of Case Without Trial - Default Judgment
Occurs if the defendant fails to respond within 21 days after service (Federal), or 30 days of service in California.
Disposition of Case Without Trial - Motion for Summary Judgment (MSJ)
Will be ordered where the moving party can establish there is no genuine issue of material fact and that he is entitled to judgment as a matter of law. Evidence viewed in light most favorable to nonmoving party and based on firsthand knowledge. A court can grant a partial summary judgment as to one of several causes of action.
Right to Jury Trial
7th Amendment: Must be demanded by plaintiff in writing no later than 14 days after service of the last pleading or it is waived. If a case contains both a legal and equity issue, the jury decides the legal issues first and the judge determines the equity claim.
Final Judgment Rule
Only final judgments may be appealed. A final judgment is an ultimate decision made by the trial court on the merits of the case as to all parties and all causes of action.
Final Judgment Rule - Exceptions
A claim or issue may be immediately appealable (interlocutory) if it is too important to wait and requires that
1) the lower court must have conclusively determined the disputed question;
2) the issue must be separate from and collateral to the merits of the main issue of the case; and
3) the issue must be effectively unreviewable on appeal from the final judgment. Extreme cases only – immunity, double jeopardy, or some right that would negate the need for standing trial.
Time Limit for Appeals
Federal: 30 days after entry of final judgment;
California: within 60 days after service of notice of entry of judgment; or 180 days after entry of the judgment if no notice is served.
Appeals - De Novo Review
Appellate can substitute its judgment in place of trial judge’s on matters of law and mixed questions of fact and law.
Appeals - Clearly Erroneous Review
Applies to questions of facts determined by judge. Questions of facts determined by the jury are reviewed using the even more deferential standard of viewing the finding of fact in a light most favorable to affirming the jury’s verdict, and determining whether a reasonable jury could have reached the same conclusion.
- Harmless error: an error that does not affect substantial rights of the parties
Appeals - Abuse of Discretion Review
Applies to matters discretionary to the judge and means that such matters will only be overturned if clearly wrong.
Appeals - Harmless Error Review
An error that does not affect substantial rights of the parties.
Res Judicata
Claim Preclusion: A valid, final judgment, on the merits, precludes a second action on the same cause of action between the same parties or their privies.
Res Judicata - Approach
- Same Cause of Action
- Prior Judgment:
- Valid On the Merits
- Final
- On the Merits
- Persons Bound by Prior Judgment
Collateral Estoppel
Issue Preclusion: Collateral estoppel requires that the identical issue was actually litigated and determined in the first case, facts determined were essential to the judgment in the first case, the party against whom collateral estoppel is invoked had a full and fair opportunity to litigate the issue and there was final, valid judgment on the merits.
Collateral Estoppel - Approach
- Identical Issue
- Actually Litigated and Determined
- Necessarily Determined
- Full/Fair Opportunity to Litigate Issue
- Persons Bound/Privity by Valid Final Judgment on the Merits
- Mutuality of Estoppel: The mutuality rule states that a judgment cannot be used against a person who was not a party or in privity with a party, as such, that person has traditionally been barred from taking advantage of the judgment.
Collateral Estoppel - Persons who can invoke (Shield)
Shield - Non-Party Defendant
Defensive use of prior litigation to avoid liability in a subsequent suit will be allowed where the party against whom collateral estoppel is being asserted had a fair opportunity to be heard on the critical issue in the prior case.
Collateral Estoppel - Persons who can invoke (Sword)
Sword – Non-Party Plaintiff
Non-Mutual Offensive Collateral Estoppel – A nonparty to a prior action is allowed to use a prior judgment to establish liability against a party to that prior action where it is “fair” to that party.
Wait And See Attitude – No facts to indicate that P was deliberately refusing to join as a party in the previous suit to protect himself from an adverse judgment.
No Inconsistent Findings – Earlier suit is an aberration as there are no conflicting fact-findings on the issue in previous lawsuits.
Same Incentive/Foreseeability – Was foreseeable to D in the prior suit that other plaintiffs would bring subsequent suits in which they would seek to use collateral offensively against the party.
Approaches - Fed Subject Matter Jurisdiction
- Federal Question
- Well-Pleaded Complaint Rule
- Diversity
- Citizenship
- Amount In Controversy
- Aggregation
- Supplemental
- Removal
Approaches - Personal Jurisdiction
- Due Process
- Traditional Basis
- In-State Service
- Domicile
- Consent
- Statutory Authority – Long Arm Statute
- Minimum Contacts
- Purposeful Availment
- Purposeful or Deliberate Acts
- Frequency And Regularity
- Nature And Quality
- Nexus Test (Relation Between Cause Of Action And Contacts)
- Fair Play And Substantial Justice
- Convenience of the parties in obtaining convenient relief,
- Convenience of witnesses and evidence,
- Burden of defendant to travel to forum state,
- State’s interest in regulating activity and protecting its citizens, and
- Other interests such as interstate efficiency interest.
- Purposeful Availment
- Traditional Basis
- Service of Process
Approaches - Choice of Law
- Hanna-Rules Enabling Act/Supremacy Clause: Is There a Federal Rule/Statute “On Point”?
- If Not, Discuss Erie Issue:
- State Erie Rule
- Apply Rule
- Outcome Determinative Test (York)
- Byrd (Balancing Test)
Approaches - Disclosures/Discovery
- Required Disclosure
- Discovery
- Scope of Discovery
- Relevance to Claim/Defense
- Proportionality
- Work Product Exception
- Expert Facts/Opinions
- Scope of Discovery
- Discovery Methods/Devices/Medical Exams
- Use of Deposition Testimony/Interrogatory Answers as Trial Evidence
- Sanctions
Approaches - Res Judicata
- Same Cause of Action
- Prior Judgment:
- Valid On The Merits
- Final
- On the Merits
- Persons Bound by Prior Judgment
Approaches - Collateral Estoppel
- Identical Issue
- Actually Litigated and Determined
- Necessarily Determined
- Full/Fair Opportunity To Litigate Issue
- Persons Bound/Privity
- Persons Who Can Invoke
- Shield – Non-Party Defendant
- Sword – Non-Party Plaintiff
