Civil Procedure

Question 1

Subject Matter Jurisdiction (SMJ)

Answer 1

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.

Question 2

SMJ - Complete Diversity

Answer 2

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.

Question 3

SMJ - Amount In Controversy (AIC)

Answer 3

The Amount in Controversy must exceed $75,000.00. To meet this, the plaintiff can:

• 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.

Question 4

SMJ - Supplemental Jurisdiction

Answer 4

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.

Question 5

California Subject Matter Jurisdiction

Answer 5

Civil court cases are categorized depending on how much money is at controversy.

1. Limited Civil Cases: AIC of $25k or less. Restrictions on equitable, declaratory relief.
2. Unlimited Civil Cases: AIC of over $25K, no other limits.
3. Small Claims Cases: $10K or less, or for a business, $5K or less.

Question 6

Removal

Answer 6

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.

Question 7

Remand

Answer 7

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.

Question 8

Personal Jurisdiction (PJ)

Answer 8

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.

Question 9

PJ - Traditional Basis of Due Process

Answer 9

Traditionally, PJ could only be exercised if the defendant:

• Consented to suit in the forum state, or
  
  1. Waiver through failure by the defendant properly to raise the objection to personal jurisdiction:
     
     1. “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.
     2. In federal court, a defendant may waive an objection to personal jurisdiction by failure timely to assert it.
• Domiciled in the forum state, or
• Served with proper notice in the forum state.

Question 10

PJ - Constitutional Limits/Long Arm Statute

Answer 10

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.

Question 11

PJ - Constitutional Analysis/Minimum Contacts

Answer 11

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.

Question 12

PJ - Minimum Contacts: Purposeful Availment

Answer 12

A party purposefully avails itself of the forum state if it has taken advantage of the benefits and protections of that state’s laws.

Question 13

PJ - Minimum Contacts: Foreseeability

Answer 13

It is reasonably foreseeable that his activities in the forum state subject him to being haled into court there.

Question 14

PJ - Minimum Contacts: Relatedness of the claim to the contact

Answer 14

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.

Question 15

PJ - Minimum Contacts: Fairness Factors

Answer 15

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.

Question 16

PJ - MNEMONIC

Answer 16

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

Question 17

Venue

Answer 17

Venue is proper where the claim arose or the defendant resides.

1. Claim arose: in the district/county where the claim arose or where the land in dispute is located.
2. Defendant resides: Any district/county where any defendants resides if all defendants are residents of the same state.
3. 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.

Question 18

Transfer of Venue - Original Venue Proper

Answer 18

1. 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.
2. 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.

Question 19

Transfer of Venue: Original Venue Improper

Answer 19

1. 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.
   
   1. Improper venue can be waived by the parties and will be deemed waived in the absence of a timely objection.
      
      1. California: Allows for the transfer of venue to a proper county when the court designated in the complaint is not the proper court.
      2. Forum selection clauses in contracts are generally upheld.

Question 20

Forum Non Conveniens

Answer 20

1. Federal: A court may dismiss or stay a case if there is a far more appropriate forum elsewhere, such as another state or country.
2. 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.
   
   1. Public Factors: What law applies, which community should be burdened with jury service; and
   2. Private Factors: Convenience, location of witnesses, evidence, etc.

Question 21

Choice of Law - Rules Enabling Act / Supremacy Clause

Answer 21

Hanna - Rules Enabling Act/Supremacy Clause: The Fed Court will apply federal substantive law if there a Federal Rule/Statute on point.

Question 22

Choice of Law - The Erie Doctrine Defined

Answer 22

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:

1. Outcome Determinative Test (York): An issue is substantive if it substantially affects the outcome.
2. 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.

Question 23

Choice of Law - The Erie Doctrine Application

Answer 23

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.

Question 24

Pleadings - Complaint: Federal Court

Answer 24

Complaints in Fed Crt are called Notice Pleadings, which must contain:

1. Identification of the parties.
2. Statement of proper subject matter jurisdiction.
3. 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.
4. A demand for judgment.
5. Signature of plaintiff and/or attorney.

Question 25

Pleadings - Complaint: California

Answer 25

Complaints in California are called Fact Pleadings, which must contain:

1. Identification of the parties.
2. 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.
3. 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.
4. Signature of plaintiff and/or attorney.

Question 26

Responses - FRCP Rule 12

Answer 26

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.

Question 27

Responses - Pre-trial Motions: Motion for a More Definite Statement

Answer 27

Complaint is too vague.

CA - Special Demurrer: Pleading is uncertain.

Question 28

Responses - Pre-trial Motions: CA - Special Demurrers

Answer 28

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

Question 29

Responses - Pre-trial Motions: CA - General Demurrers

Answer 29

Pleadings failed to state facts sufficient to constitute a cause of action / Court lacks SMJ.

Question 30

Responses - Pre-trial Motions: Motion to Strike

Answer 30

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.

Question 31

Responses - Pre-trial Motions: Rule 12(b) defenses - Motions

Answer 31

1. Lack of subject matter jurisdiction – Can be raised anytime before all appeals are exhausted.
2. Lack of personal jurisdiction – Must be raised in the first response or deemed waived.
3. Improper venue – Must be raised in the first response or deemed waived.
4. Insufficient process – Must be raised in the first response or deemed waived.
5. Insufficient service of process – Must be raised in the first response or deemed waived.
6. Failure to state a claim on which relief can be granted – Can be raised anytime until trial concluded.
7. Failure to join an indispensable party – Can be raised anytime until trial concluded.

Question 32

Responses - Pre-trial Motions: CA - Motion to Quash

Answer 32

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:

1. Lack of Personal Jurisdiction – Defendant must raise PJ on or before the last day of his time to plead or it is waived.
2. Insufficient process
3. Insufficient service of process

Question 33

Answer

Answer 33

Defendant’s response to complaint.

1. Must respond within 21 days after service of process (or within 60 days if service waived. CA – 30 days to respond.
   
   1. Must respond by denying, admitting, or stating a lack of sufficient information to either, failure to do so can act as an admission.
   2. Must assert any affirmative defenses.
   3. CA – Fact pleadings requires factual detail regarding each legal element when asserting affirmative defenses.

Question 34

Amended Pleadings - Federal: Plaintiff

Answer 34

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.

Question 35

Amending Pleadings - Federal: Defendant

Answer 35

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.

Question 36

Amended Pleadings - California

Answer 36

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.

Question 37

Amended Pleadings: Relation Back Doctrine

Answer 37

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.

Question 38

Joinder of Party - Compulsory

Answer 38

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?

Question 39

Joinder of Party - Permissive

Answer 39

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.

Question 40

Joinder of Party - Impleader

Answer 40

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.

Question 41

Joinder of Party - CA: Cross Complaint

Answer 41

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.

Question 42

Joinder of Party - Interpleader

Answer 42

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.

1. Statutory: Requires only that one claimant must be diverse from one other claimant and the amount in controversy must be $500 or more.
2. Rule 22 Interpleader: Requires that the stakeholder must be diverse from every claimant and the amount in controversy must exceed $75,000.

Question 43

Joinder of Claim

Answer 43

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.

Question 44

Joinder of Claim - Counterclaim

Answer 44

Offensive claim against an opposing party.

Question 45

Joinder of Claim - Compulsory Counterclaim

Answer 45

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.

Question 46

Joinder of Claim - Permissive Counterclaim

Answer 46

Do not arise from the same transaction or occurrence and may be raised in the pending case or in a separate case.

Question 47

Joinder of Claim - Cross Claim

Answer 47

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.

Question 48

Class Action Certification

Answer 48

Certification – A judge must determine that:

1. Numerosity: the class must be so large joinder of all parties is impractical;
2. Commonality: there is a common question of law or fact shared by the class;
3. Typicality: the claims of named representatives are typical of the class; and
4. 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.***

Question 49

Discovery

Answer 49

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.***

Question 50

Discovery - Meet and Confer

Answer 50

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.

Question 51

Discovery - Scope of Discovery

Answer 51

Discovery shall include all information:

1. Relevance to Claim/Defense
2. Proportional to the needs of the case
3. Expert Facts/Opinions

Question 52

Discovery - Work Product Doctrine Exception

Answer 52

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.

Question 53

Discovery - Motion to Compel

Answer 53

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.

Question 54

Discovery - Request for Admissions (Interrogatories)

Answer 54

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

Question 55

Discovery - Request to Inspect and Produce (Subpoena)

Answer 55

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.

Question 56

Discovery - Physical or Mental Exams

Answer 56

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.

Question 57

Discovery - Disclosure of Persons with Knowledge

Answer 57

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.

Question 58

Discovery - Sanctions

Answer 58

For violations of discovery, sanctions may be imposed including holding a noncomplying party in contempt, striking pleadings, imposing fees, and ordering default judgment.

Question 59

Disposition of Case without Trial - Dismissal

Answer 59

Voluntary: obtained by Plaintiff (without prejudice – can be relitigated);

Involuntary: obtained by Defendant (with prejudice – cannot be relitigated)

Question 60

Disposition of Case Without Trial - Default Judgment

Answer 60

Occurs if the defendant fails to respond within 21 days after service (Federal), or 30 days of service in California.

Question 61

Disposition of Case Without Trial - Motion for Summary Judgment (MSJ)

Answer 61

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.

Question 62

Right to Jury Trial

Answer 62

7^th 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.

Question 63

Final Judgment Rule

Answer 63

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.

Question 64

Final Judgment Rule - Exceptions

Answer 64

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.

Question 65

Time Limit for Appeals

Answer 65

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.

Question 66

Appeals - De Novo Review

Answer 66

Appellate can substitute its judgment in place of trial judge’s on matters of law and mixed questions of fact and law.

Question 67

Appeals - Clearly Erroneous Review

Answer 67

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.

1. Harmless error: an error that does not affect substantial rights of the parties

Question 68

Appeals - Abuse of Discretion Review

Answer 68

Applies to matters discretionary to the judge and means that such matters will only be overturned if clearly wrong.

Question 69

Appeals - Harmless Error Review

Answer 69

An error that does not affect substantial rights of the parties.

Question 70

Res Judicata

Answer 70

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.

Question 71

Res Judicata - Approach

Answer 71

1. Same Cause of Action
2. Prior Judgment:
   
   1. Valid On the Merits
   2. Final
   3. On the Merits
3. Persons Bound by Prior Judgment

Question 72

Collateral Estoppel

Answer 72

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.

Question 73

Collateral Estoppel - Approach

Answer 73

1. Identical Issue
2. Actually Litigated and Determined
3. Necessarily Determined
4. Full/Fair Opportunity to Litigate Issue
5. Persons Bound/Privity by Valid Final Judgment on the Merits
   
   1. 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.

Question 74

Collateral Estoppel - Persons who can invoke (Shield)

Answer 74

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.

Question 75

Collateral Estoppel - Persons who can invoke (Sword)

Answer 75

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.

Question 76

Approaches - Fed Subject Matter Jurisdiction

Answer 76

1. Federal Question
   
   1. Well-Pleaded Complaint Rule
2. Diversity
   
   1. Citizenship
   2. Amount In Controversy
      
      1. Aggregation
   3. Supplemental
   4. Removal

Question 77

Approaches - Personal Jurisdiction

Answer 77

1. Due Process
   
   1. Traditional Basis
      
      1. In-State Service
      2. Domicile
      3. Consent
   2. Statutory Authority – Long Arm Statute
   3. Minimum Contacts
      
      1. Purposeful Availment
         
         1. Purposeful or Deliberate Acts
         2. Frequency And Regularity
         3. Nature And Quality
         4. Nexus Test (Relation Between Cause Of Action And Contacts)
      2. 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.
2. Service of Process

Question 78

Approaches - Choice of Law

Answer 78

1. Hanna-Rules Enabling Act/Supremacy Clause: Is There a Federal Rule/Statute “On Point”?
2. If Not, Discuss Erie Issue:
   
   1. State Erie Rule
   2. Apply Rule
      
      1. Outcome Determinative Test (York)
      2. Byrd (Balancing Test)

Question 79

Approaches - Disclosures/Discovery

Answer 79

1. Required Disclosure
2. Discovery
   
   1. Scope of Discovery
      
      1. Relevance to Claim/Defense
      2. Proportionality
      3. Work Product Exception
      4. Expert Facts/Opinions
3. Discovery Methods/Devices/Medical Exams
4. Use of Deposition Testimony/Interrogatory Answers as Trial Evidence
5. Sanctions

Question 80

Approaches - Res Judicata

Answer 80

1. Same Cause of Action
2. Prior Judgment:
   
   1. Valid On The Merits
   2. Final
   3. On the Merits
3. Persons Bound by Prior Judgment

Question 81

Approaches - Collateral Estoppel

Answer 81

1. Identical Issue
2. Actually Litigated and Determined
3. Necessarily Determined
4. Full/Fair Opportunity To Litigate Issue
5. Persons Bound/Privity
6. Persons Who Can Invoke
   
   1. Shield – Non-Party Defendant
   2. Sword – Non-Party Plaintiff