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Selected Topics (Part 1) > Civil Procedure > Flashcards

Civil Procedure Flashcards

1
Q

Civil Procedure - Personal Jurisdiction

Personal Jurisdiction

List

A
  1. Traditional Bases
  2. Long Arm Statute
  3. Minimum Contacts
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2
Q

Civil Procedure - Personal Jurisdiction

Traditional Bases

A
  1. Domicile
  2. Consent
  3. Presence in State
  4. In Rem Jurisdiction

Domicile
Individuals: Place where they permanently intend to reside
Corporations: (1) State of Incorporation OR (2) Principal Place of Business

.
Consent
A party may consent to jurisdiction by responding to the complain without challenging jurisdiction.
Consent is not established by a special appearance to challenge jurisdiction

.
Presence in State When Served
.
In Rem Jurisdiction
Dispute involves title to property located in the forum state.

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3
Q

Civil Procedure - Personal Jurisdiction

Long Arm Statute

A

A Long Arm Statute is always needed to exercise jurisdiction over non-resident defenants in absence of traditional basis.
.
ASSUME THERE IS A LONG ARM STATUTE

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4
Q

Civil Procedure - Personal Jurisdiction

Minimum Contacts

A
  1. Due Process
  2. General and/or Specific Jurisdiction
  3. Fairness

.
.
Due Process
Exercise of personal jurisdiction over a nonresident defendant must comport with due process. Due Process requires the defendant to have such minimum contacts with the forum state so that the exercise of personal jurisdiction does not offend traditional notions of fair play and substantial justice
.
.

General Jurisdiction
General jurisdiction is established where Defendant’s contacts with forum state is so systematic and continuous or constant and pervasive as to render defendant “at home” in forum state.
.
For Individuals general jurisdiction is limited to domicle or service in state
.
For Corporations general jurisdiction is limited to state of incorporation or PPoB
.
.
Specific Jurisdiction
1. Purposeful availment of the privileges and benefits of forum state
2. Forseeable to defendant that defedant would be haled to forum court, AND
3. Relatedness, which requires claim or cause of action arose out of or related to contacts with forum state.

.
.
Fairness
Consider several factors, including:
1. Trial forum not gravely difficult and inconvenient that Defendant at severe disadvantage
2. Forum state’s legitimate interest in providing redress for its resident
3. Plaintiff’s interest in convenient relief
4. Interstate judicial system interest in efficient resolution
5. Share Interest of state furthering fundamental substantive social policies

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5
Q

Civil Procedure - Service of Process

Service of Process

A

ONLY DISCUSS when there is a motion to quash/dismiss for insufficient service
.
Federal Rules

(1) Any person may serve a summons and complaint if they are:
* Above the Age of 18
* Not a party

(2) Adequate Service is effected by:

  • Personal Service
  • Service left at Defendant’s usual abode with person of suitable age and discretion who resides there,
  • Service on an Officer, Managing Agent, or Authorized Agent of a corporation, partnership, or similar entity, OR
  • According to state rules for service in forum state

.
.
California Rules

(1) Any person may serve a summons and complaint if they are:

  • Above the Age of 18
  • Not a party

(2) Adequate Service is effected by:

  • Personal Service
  • Substituted service
  • Service by mail
  • Service by publication
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6
Q

Civil Procedure - Subject Matter Jurisdiction

Subject Matter Jurisdiction

A

Two types of Subject Matter Jurisdiction:
1. Federal Question
2. Diversity

& Supplemental Jurisdiction
.
.
Federal Question
A claim or cause of action (but not anticipated defense) “arises under the US Constitution, Federal Law, or a Treaty.
.
.

Diversity
1. Complete Diversity between all plaintiffs and defendants
2. Amount in Controversy exceeds $75,000 as alleged by a complain in good faith
.
Corporations: Citizenship is established in state of incorporation and principal place of business
.
Alienage: Applies were one party is citzen of foreign nation and another party is citzen of US State. (Does not apply if foreign citizen is resident of US State)
.
.
Supplemental Jurisdiction
Federal court can entertain claims otherwise lacking subject matter jurisdiction if it shares a common nucleus of operative facts with the claim that does not otherwise invoke the court’s jurisdiction.

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7
Q

Civil Procedure - Venue

Federal Rules

A

Venue Proper
Venue for civil actions in federal court is proper in the judicial district:
(1) Where any Defendant resides (only if all Defenants reside in same state)
(2) Where substantial part of
(a) events or omissions giving rise to claim occurred, OR
(b) property involved is situated.
.
OTHERWISE –>
.
Actions based solely on diversity:
1. Any district where any defendant
2. Is subject to personal jurisdiction
3. At the time the action commenced

.
Action not based on diversity:
Any district where any defendant can be found
.

Residence
Corporate Residence is any district where the corporation is subject to personal jurisdiction
Natural Persons: Residence based on domicile
.
.
Transfer of Venue
If Original Venue Improper, court must dismiss, or in “interest of justice,” transfer case to proper venue.
.
If Original Venue Proper,venue may be transferred to

  1. Another District where action may have been brought if appropriate when balancing the relative conveniences of parties, witnesses, and evidence, OR
  2. Another district with all parties’ consent
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8
Q

Civil Procedure - Venue

California Rules

A

Venue Proper

Refers to the proper county
.

Local Action

  • Invovles title to property.
  • Venue appropriate in county where property located.

.
Transitory Actions

  • All non-local-actions are transitory
  • Venue proper in any county where Defendant resides at commencement of action

.
.
Transfer of Venue

Even when original venue is proper, court may transfer venue when:

  1. Reason to believe that impartial trial cannot be held in original county,
  2. No judge qualified in county to hear case, OR
  3. Convenience of witnesses and ends of justice are promoted
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9
Q

Civil Procedure - Venue

Forum Non Conveniens

A

In deciding whether to tranfer, courts consider:
.
(1) Public Factors
(a) Availability of the forum
(b) Plaintiff’s choice
(c) Forum’s interest
.
(2) Private Factors
(a) Convenience
(b) Location of Evidence

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10
Q

Civil Procedure - Eerie Doctrine

Eerie Doctrine

A

Only applies in diversity cases
.
Eerie Doctrine requires federal courts in diversity cases apply state substantive law and federal procedural law.
.
Where state and federal law conflict/overlap, federal laws prevail.
.
.
Conflict with Non-Procedural Federal Rule
If a federal rule is not procedural and conflicts with state law, consider:
1. Outcome Determinative
2. Balance of Interest
3. Forum Shopping

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11
Q

Civil Procedure - Removal & Remand

Removal & Remand

A

Removal
1. Requires Subject Matter Jurisdiction to remove from state to federal court
2. Removal Venue is federal court where state action filed
3. All Defendants Must Join in order to remove
4. Timeliness Requirement (within 30 days)
5. Defendant sued in state court in state of residence cannot remove to federal court for diversity

.
.
Remand
Takes a case from federal court to state court.
Only granted if moveant shows the federal court lacked subject matter jurisdiction

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12
Q

Civil Procedure - Abstention

Abstention

A

Doctrine by which federal court will retain jurisdiction over constitutional challenge to state law, but will refrain from deciding the question until state courts have interpreted the state law.
.
Exceptions
Federal court will intervene when:
1. Potential for great and immediate irreparable injury
2. bad faith in prosecution of state action, OR
3. harassment

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13
Q

Civil Procedure - Pleading

Federal - Notice Pleading

A

Pleading that sets forth a claim for relief, whether an original claim, counterclaim, crossclaim, or third-party claim, must contain:
1. Short and plain statement on which the court’s jurisdiction depends,
2. Short and plain statement showing pleader entitled to relief
3. demand for judgment for relief pleader seeks

  1. Complaint must contain factual allegations that taken as a whole render P’s claim “plausible”
  2. Court disregards any conclusory statements
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14
Q

Civil Procedure - Pleading

California - Fact (Code) Pleading

A

Complaint or cross-complaint must contain a statement of facts constituting the cause of action in ordinary and concise language.
.
Complaints and affirmative defenses must contain ultimate facts, not evidentiary facts or legal conclusions.
.
Legal conclusions and evidentiary facts may be stricken

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15
Q

Civil Procedure - Pleading

California - Doe Amendments

A

California allows plaintiffs to name Doe defendants and later add defendants by amendment (allows relationback) if:
1. Original complaint timely filed and contains charging allegations against all defendants, including Doe defendants
2. Plaintiff is genuinely ignorant of:

* Identity of fictitious defendant
* Facts giving rise to cause of action, _OR_
* Fact for which law provides cause of action
  1. Plaintiff’s ignorance pleaded in complaint.
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16
Q

Civil Procedure - Pleading

Federal - Amendments Relating Back

A

In federal court, a defendant may be added by amendment after the statute of limitations has run against that defendant.
.
Filing of the amended complaint relates back to the date of original filing IF:
1. Amendment arises out of same conduct, transaction, or occurence as original complaint, AND
2. Within 90 days after filing complaint, the new defendant:
* Received notice of action such that no prejudice, AND
* Knew or should have known that, but for mistake concerning identity, they would have been named originally

17
Q

Civil Procedure - Pleading

California - Demurrers

A

A demurrer is a pleading, not a motion.
.
Two Types:
1. General
2. Special

.
.
General Demurrer
NOTE: THis is a 12(b)(6) analog
.
Complaint fails to state facts sufficient to state a cause of action:
1. Doesnt plead ultimate facts
2. Leaves out an Element
3. On its face is barred by statute of limitations, OR
4. There is no such cause of action, OR
5. Court lacks subject matter jurisdiction, OR
6. Something similar

.
.
Special Demurrer
Grounds for special demurrer:
1. Plaintiff lacks capacity to sue
2. Another action pending between same parties on same cause of action,
3. Failure to join necessary party or misjoinder
4. Pleading is uncertain
5. Complaint fails to allege whether contract oral or written

18
Q

Civil Procedure - Joinder

Compulsory Joinder

A

Analysis
1. Is joinder proper?
2. Is joinder possible w/o destroying diversity
3. If joinder not possible –> determine whether absent party is indispensible.

.
.
Whether Proper
Joinder is proper, and the party is necessary and should be joined IF
1. In the party’s absence, complete relief cannot be accorded; OR
2. The absent party claims an interest relating to subject matter and disposition that without party:
* it would impair or impede the party’s ability to protect that interest
* it would leave any remaining party subject to substantial risk of incurring double, multiple, or otherwise inconsistent obligations

.
Destroying Diversity
Analyze whether joinder would destroy subject matter jurisdiction or personal jurisdiction
.
Joinder Not Possible –> Is Party Indispensible?
When party cannot be joined, court must determine whether in equity and good conscience the action should proceed or be dismissed because the absent party is indispensible, the court will consider:
1. The extent to which the judgment rendered without the party might prejudice that party or other parties
2. Whether prejudice can be avoided by appropriately shaping relief
3. Whether adequate relief can be granted without party
4. Whether plaintiff has adequate remedy if the action is dismissed

19
Q

Civil Procedure - Joinder

Permissibe Joinder

A

Where a third party seeks to join action as a plaintiff, OR a plaintiff seeks to join an additional defendant, joinder may be allowed where the claims:
1. reate to the same transaction or occurence, AND
2. involve common question of law or fact

20
Q

Civil Procedure - Motions

Summary Judgment

A

Ends a case, cause of action, or issue.
.
Movant must show:
1. No genuine issue of material fact
2. Movant prevails as a matter of law

21
Q

Civil Procedure - Motions

Trial Motions - FRCP

A

Motion for Judgment
* May be made by Defendant after close of Plaintiff’s evidence, or by either party at close of all evidence.
* Only be granted if no reasonable person could differ as to the outcome.
.
.
Renewed Motion for Judgment
* Timing: Within 28 days after entry of judgment.
* Only permitted if movant propertly and timely moved for judgment in first place.
* Substance: Motion only granted if no reasonable person could differ as to the outcome

.
.
Motion for New Trial
Granted if judge finds:
1. Verdict against great weight of evidence
2. Error in admission of evidence
3. Juror misconduct, OR
4. Inadequate or excessive verdict

22
Q

Civil Procedure - Class Actions

Class Actions

A

Class Certification
1. Numerosity - Large number of claimants
2. Commonality - Common questions of law and fact
3. Typicality - Lead Plaintiff’s claim is typical of members of class
4. Adequacy of Representation - Competency of Plaintiff’s counsel

AND One of the Following
1. Risk of inconsistent results
2. Injunctive or declaratory relief appropriate, OR
3. Common questions among class predominate over other claims

23
Q

Civil Procedure - Claim & Issue Preclusion

Claim Preclusion

A

Bars entire case once final judgment on merits has been rendered on particular cause of action.
.
Federal
1. Earlier judgment valid, final judgment on merits
2. Cases brought by same Plaintiff against same Defendant
3. Same claim involved in later lawsuit, AND
4. Claim was litigated or could have been litigated in prior action

.
California
Same as federal, but same claim and actually litigated requirements based on primary right doctrine
.
Primary right is the right to be free from particular harm, so a prior claim will not preclude a later claim if the two involve different rights.

24
Q

Civil Procedure - Claim & Issue Preclusion

Issue Preclusion

A

Binds Plaintiff or Defendant (or those in privity) in subsequent actions or different causes of actions between them.
.
Invoking party must show:
1. First case ended in valid, final judgment on merits
2. issue actually litigated and determined in first case
3. issue was essential to judgment

25
Q

Civil Procedure - Claim & Issue Preclusion

Offensive Collateral Estoppel

A

Where Plaintiff seeks to use results against Defendant who has lost previous similar case.
.
1. First case ended in valid, final judgement on merits
2. Issue actually litigated and determined in first case
3. issue was essential to judgment
4. Defendant had fair opportunity to be heard in first case, AND
5. Posture of case such that it is not unfair to apply offensive collateral estoppel

26
Q

Civil Procedure -

A

Selected Topics (Part 1) (7 decks)

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