Civil Procedure Flashcards
1
Q
Personal Jurisdiction Steps
not rule
A
- traditional bases
- long-arm statute
- Any exercise of jurisdiction over a non-resident defendant, minimum contacts, and compliance with traditional notions of fair play and substantial justice
2
Q
Personal Jurisdiction
A
my rule:
Personal jurisdiction involves the court’s power over a particular defendnat.
—-
Personal jurisdiction involves the power of a court over the particular defendant.
3
Q
Traditional Bases
A
There four traditional bases of jurisdiction are: domicile; presence in the state; consent; and in rem jurisdiction.
4
Q
Domicile
A
(1) Individual’s domicile is their place of residence, where the individual intends to permanently reside.
(2) Nerve Center test - Corporate domicile is limited to the state of incorporation and state of primary place of business
California - any state court in California has jurisdiction over California residents
5
Q
Consent
not rule
A
Consent is to appear before the court to challenge/submit lawsuit
Doing special appearance is not consent.
6
Q
Presence in State When Served
not rule
A
Defendant is served presently at the forum state
7
Q
In rem
not rule
A
In-rem jurisdiction refers to the power of a court over an item of real or personal property. The “thing” over which the court has power may be a piece of land or even a marriage. Thus, a court with only in-rem jurisdiction may terminate a marriage or declare who owns a piece of land. In-rem jurisdiction is based on the location of the property and enforcement follows property rather than person
8
Q
Long-arm Statute
not rule
A
A long-arm statute is requried to acquire personal jurisdiciton over non-residents.
—-
Always needed to exercise jurisdiction over non-resident defendant in absence of traditional basis
9
Q
Long-arm Statute (CA or default if not given)
A
The California long-arm statute provides that California courts may exercise jurisdiction over a non-resident defendant on any basis not inconsistent with the Constitution.
10
Q
Due Process/Minimum Contacts
A
Any exercise of jurisdiction over a non-resident should be consistent with due process, and that due process requires minimum contacts and compliance with traditional notions of fair play and substantial justice under International Shoe v. Washington.
11
Q
General Jurisdiction
A
General Jurisdiction requires systematic and continuous contacts such that defendant is “essentially at home,” which the Court considers nearly equivalent to domicile - for corporations, they are the states of incorporation and principal place of business; and for individual is where he is domiciled. In such case, the claim need not be related to the contacts.
12
Q
Essentially at home
A
(1) Individual – domicile
(2) Corporate (nerve center test) –
(a) State of incorporation
(b) Principal place of business
13
Q
Specific Jurisdiction
A
Specific jurisdiction requires: (1) purposeful availment of the privileges and benefits of the forum (by placing a product into the “stream of commerce”), (2) it was foreseeable to Defendant that they would be hauled into the forum court; and (3) that the cause of action arises from these contacts.
14
Q
Purposeful Availment
A
my rule:
Purposeful availment involves deliberate entry into or intentional targeting of their goods and service to the forum state so as to invoke the benefits and protections of the state.
—–
Purposeful availment requires some kind of intentional targeting of the state. Purposeful availment requires that there be a deliberate entry into, or targeting of goods or services into, a particular state so as to invoke the benefits and protections of the state.
15
Q
Arisen from Contacts
rule not stated
A
The relatedness requirement states that the claim or cause of action arose out of, or is related to, the contracts.
[this does not require that the specific product causing the harm be manufactured in the forum – just that the defendant have contacts related to the product in the forum so that there is a relationship among the defendant, the forum, and the litigation].
—
That the claim or cause of action arose out of, or is related to, the contacts, which is the relatedness requirement for specific jurisdiction.
(not stated) Under Ford Motor Co. v. Montana 8th Judicial District (2021), this does not require that the specific product causing the harm be manufactured in the forum – just that the defendant have contacts related to the product in the forum so that there is a relationship among the defendant, the forum, and the litigation.
16
Q
Fairness
A
The issue of fairness requires consideration of several factors, such as: (1) Trial in the forum is not gravely difficult and inconvenient; (2) The forum state has an interest in providing redress; and (3) Plaintiff’s interest in convenient relief.
17
Q
When to discuss notice requirement or adequacy of service of process
A
- Motion to Quash Service on the grounds of insufficient service,
- Motion to Dismiss for failure to properly serve, or
- The call of question otherwise raises it
18
Q
Service of Process (Federal)
A
Under FRCP 4, any person over the age of 18 who is not a party may serve a Summons and Complaint.
Adequate service is effected by:
a) Personal service,
b) Service left at the defendant’s usual abode with someone of suitable age and discretion,
c) Service on an officer, managing agent, or authorized agent of a corporation, partnership, or similar entity, or
d) According to state rules providing for service.
19
Q
Service Waiver to Accept Service by Mail (Orginial Mail) (Federal and CA)
A
Service may be waived if the defendant returns a waiver of service of process form that accepts service by mail
20
Q
Service to foreign country (Federal)
A
Service in a foreign country may be as provided by:
a) international agreement,
b) foreign law, or
c) unless otherwise prohibited by foreign law, by personal service or by mail, return receipt requested, (but personal service to a corporation from a foreign country is not permitted.)
— Service must in that case be by international agreement or foreign law.
21
Q
Service of Process (CA)
A
Any person over the age of 18 who is not a party may provide service. Adequate service is effected by:
a) Personal service;
b) Substituted service (leaving copy at authorized locations with specific individuals, plus mailing a copy);
c) Service by mail (if the defendant returns a Notice and Acknowledgment of Service); and
d) Service by publication (4 weeks in a newspaper of general circulation).
—
California authorizes service as follows (also by any person over the age of 18 who is not a party):
a) Personal service;
b) Substituted service (leaving copy at authorized locations with specific individuals, plus mailing a copy);
c) Service by mail (if the defendant returns a Notice and Acknowledgment of Service); and
d) Service by publication (4 weeks in a newspaper of general circulation).
22
Q
Service to out-of-state (CA)
A
If service is on an out-of-state defendant, service may also be accomplished by certified mail, return receipt requested.
23
Q
Service to Foreign Country (CA)
A
Service in a foreign country is effected by any method permitted under California law or by method pursuant to international law or country’s law in which service is effected, if the court finds the method is calculated to give notice.
—
Service in a foreign country may be by any of the methods otherwise stated (permitted under California law), or by any method pursuant to international law or the law of the country in which service is effected, if the court finds that method is calculated to give notice.
24
Q
Mailing (Federal and CA)
A
Ordinary mailing - No
Certified mail, substituted service (mail plus leaving a copy at the business with specific individuals), or mailing with a Notice and Acknowledgment of Receipt that is then returned by defendant
25
Subject Matter Jurisdiction
SMJ includes both federal question and diversity jurisdiction. Generally, the lack of SMJ is not waivable; it may be raised for the first time even on appeal. Each asserted claim must have an independent basis for federal SMJ. If the claim does not satisfy the federal question or diversity jurisdiction requirement, if permissible, federal court may hear the claim under the court’s supplemental jurisdiction.
*---*
Subject Matter Jurisdiction includes both Federal Question and Diversity jurisdiction. Generally, the lack of SMJ is not waivable; it may be raised for the first time even on appeal. Each claim asserted in federal court must have an independent basis for federal subject matter jurisdiction. If the claim does not satisfy the federal question or diversity jurisdiction requirement, federal court may hear the claim under the court’s supplemental jurisdiction.
26
Federal Question
Federal question jurisdiction requires the claim or cause of action must “arise under” the U.S. Constitution, Federal law, or a Treaty. One of those must be necessary to resolve the issue posed by a well-pleaded Complaint.
27
Diversity
Diversity jurisdiction requires that all the plaintiffs be from a different state than all the defendants, and that the amount in controversy exceeds $75,000 as alleged by the Complaint in good faith.
28
Rule of Citizenry
| for Diversity
1. Complete diversity requires that every plaintiff be of diverse state citizenship from each defendant.
2. Individuals are residents of where they intend to permanently reside.
2. Corporations are residents of both their state of incorporation and the state(s) where they have their principal place(s) of business.
3. There is complete diversity between an alien and a U.S. resident, unless the alien is a permanent U.S. resident.
4. If two aliens are suing each other, diversity jurisdiction does not apply to them.
29
Aggregation
| not rule
## Footnote
To Reach $75,000 amount in controversey
Plaintiff can aggregate all claims against one defendant and all claims against jointly and severally liable multiple defendants, BUT NOT separate claims against multiple defendants
Multiple plaintiffs cannot aggregate their claims against a single defendant unless they are enforcing a single title or right in a common and undivided interest
Cannot aggregate claim and counterclaim
30
Supplemental Jurisdiction
A federal court may entertain a claim otherwise lacking subject matter jurisdiction if such claim shares a common nucleus of operative facts with the claim that does invoke the court’s jurisdiction. The use of supplemental jurisdiction cannot be used to override the complete diversity.
## Footnote
- never used for diversity jurisdiction because state claims are brought in
- instead, use for bringing state claims to federal question
31
Rule for supplemental jx by the federal question
There is a supplemental jurisdiction when the state claim shares the same occurrence or transaction with the federal claim that invoke federal question jurisdiction – a claim that arises under the US Constitution, federal law or treaties.
*---*
There is supplemental jurisdiction in federal court to hear a state claim arising out of the same transaction or occurrence as the federal claim, which must be a claim that “arises under” the US Constitution, federal law, or treaties.
The test is that the two claims must derive from a common nucleus of operative fact and a plaintiff would ordinarily be expected to try them all in one judicial proceeding.
32
Supplemental Jurisdiction in dviersity jx for plaintiff
| important!!
Although amount of controversey is not met, the parties who are plaintiffs can assert supplemental jurisdiction when their claims share the same transaction or occurrence with the claim that invoke diversity jurisdiction, the current parties met complete diversity and adding those parties would not destroy diversity.
*---*
Although the amount of controversy is not met, parties who are plaintiffs can assert supplemental jurisdiction if diversity jurisdiction already exists between other parties, the claims arise out of the same transaction or occurrence as the original claim, and diversity is not destroyed.
33
Rule of supplemental jx on third-party defendant by third-party plaintiff (defendant)
Supplemental jurisdiction as ancillary jurisdiction is allowed in a diversity case, if the defendant becomes a third-party plaintiff and sues a third-party defendant, so long as the claim arises out of a common nucleus of operative facts, and the original plaintiff does not become a party to the third-party claim in a way that would destroy diversity.
34
Rule of supplemental jx by other parties not plaintiff
| important!!
Parties, other than plaintiffs, who assert claims (cross-claimants, counterclaimants) can also invoke supplement jurisdiction as ancillary jurisdiction in any federal question or diversity case **if the claims arise out of the same transaction or occurrence as the original claim – even if they are not diverse.**
35
Rule against the third party to do Contribution
So a defendant/third-party plaintiff can use supplemental jurisdiction to seek contribution against a third-party defendant irrespective of whether or not they are diverse.
Even in the absence of a sufficient amount in controversy, parties who are plaintiffs can assert supplemental jurisdiction (1) if diversity jurisdiction already exists between other parties, and (2) the claims arise out of the same transaction or occurrence as the original claim, and (3) diversity is not destroyed.
36
Supplemental Jurisdiction w/Defendant's Counterclaim
The Defendant must raise all its claims against Plaintiff that arise out of the same transaction or occurrence. This is called a compulsory counterclaim. Supplemental jurisdiction extends to compulsory counterclaims. No independent basis for subject matter jurisdiction is necessary to support a counterclaim, provided that the claim arises from a common nucleus of operative facts—such as the same transaction or occurrence.
37
Lack of SMJ / Appeal / District Court Enter Judgment
If lack of subject matter jurisdiction is not raised until the decision is final and all appeals are completed, the decision may only be collaterally attacked if a court permits it after balancing several factors:
o (1) whether lack of jurisdiction is clear;
o (2) whether jurisdiction depends on law, not fact;
o (3) whether the court is of limited, not general jurisdiction;
o (4) whether the question of jurisdiction was litigated; and
(5) whether strong policy exists against the court acting beyond its jurisdiction.
## Footnote
o (MB 2 CP, Q1)
38
Venue
| Starter Rule
To have venue transferred, the defendant must show either that the plaintiff’s chosen venue is **improper** or, if venue is **proper**, that venue should be transferred, **in the interest of justice, for the convenience of parties and witnesses**. If the venue is proper, transfer may be made to another district in which the action might have been brought or to which all parties consented. If the venue is improper, transfer to the proper venue that has subject matter jurisdiction and personal jurisdiction.
39
Proper Venue
Venue in civil actions in federal courts is proper in a judicial district:
(1) where any defendant resides, if all defendants reside in the same state, or
(2) where a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of the property involved is situated.
(3) If neither applies, then:
(a) for actions based solely on diversity, the district is proper where any defendant is subject to **personal jurisdiction** at the time the action is commenced and,
(b) for actions not based on diversity, **the district is proper where any of the defendant may be found.**
40
Residency (Venue)
(1) Residence for an individual is based on domicile.
(2) Residence for a corporation is in any district in which the corporation is subject to **personal jurisdiction.**
(3) Unincorporated association resides where it does business.
## Footnote
take the easiest route that would avoid doing the personal jurisdiction analysis
41
Subrule - Transfer of Venue
Venue may be transferred to another district where the action might have been brought if appropriate upon balancing the relative convenience of the parties, witnesses and evidence.
42
Venue (CA)
| Proper Venue
Venue in California refers to the proper county. Venue is proper in any county in which any defendant resides at the commencement of the action.
subrules:
* Venue in personal injury and wrongful death actions is also proper in the county in which the injury occurred.
* Venue is appropriate in the county in which the property is located.
* Venue in contract actions is proper in the county in which the obligation is to be perform or the contract was entered into
## Footnote
after second sentence, they are subrules depending on the facts
43
Subrule of Local actions (CA)
A local action is one involving title or harm to property
44
Subrule involving mixed actions (CA)
a) venue is proper where any defendant resides.
b) If the defendant is a corporation, the venue is proper in the county in which the obligation is to be performed or the contract was entered into, in which the breach occurs or the county in which the corporation has its principal place of business.
45
Transitory actions (CA)
a) Any county in which any defendant resides; and
b) Contract actions: County in which the obligation is to be performed or the contract was entered into; AND
c) Personal injury: county in which the injury occurred
46
Transfer of Venue (CA)
Even if the original venue is proper, the court may transfer venue when there is reason to believe that an impartial trial cannot be held in the original county, when there is no judge qualified in the county to hear the case, or when the convenience of witnesses and the ends of justice would be promoted by the change.
47
Forum non Conveniens (FNC)
Even if venue is proper, the court may dismiss the case if the venue is inconvenient upon balancing the public factors (availability of alternative forum, plaintiff’s choice of forum, forum state’s interest) and private factors (convenience of parties and witnesses, location of evidence, where cause of action arose.)
48
Erie Doctrine
| not rule, approach
1. Is there a federal rule on point? If no, use the state rule.
2. If FRCP/federal statute enacted under Rules Enabling Act (1934), it applies.
3. If the conflict between a Federal rule not enacted under Rules Enabling Act, and a State rule, is the use of one or the other outcome determinative? (York)
a) If yes, the rule is substantive, and you often use the state rule
4. Would use of the Federal rule so likely affect the outcome that it would violate significant federalism or state sovereignty concerns? (Byrd)
a) If yes, use state law.
5. Would failing to follow state law encourage forum shopping in federal court? (Hanna)
a) If yes, use state law, unless the choice is not so significant that it would influence a litigant’s choice of forum.
b) If no, the rule is procedural and federal rule is applied.
6. In any case, elements of claims and defenses (statutes of limitations, presumptions and burdens) are substantive, then use state law.
## Footnote
Note: most essays will only need the first three.
49
Removal
**Removal**
The defendants’ ability to remove the action from State Court to Federal Court depends on whether the Federal Court has subject matter jurisdiction.
*SMJ*
*proceed to SMJ rule-analysis*
*Removal Procedure*
Only defendants may remove a case to federal court, and where there are multiple defendants, all the defendants must join in the removal of the case. If any defendant is barred from removing the diversity case, the case is not removable even if the remaining defendants can remove.
*---*
Removal must be timely within **30 days after service of the Complaint.**
50
Removal (Analysis)
the defendants’ ability to remove the action to Federal Court depends on whether the Federal Court has subject matter jurisdiction.
There are two types of subject matter jurisdiction: federal question and diversity.
…
[rule-analysis of SMJ]
…
Where there are multiple defendants, all defendants must join in the removal. If any defendant is barred from removing the case, the case is not removable even if the remaining defendants can remove.
[analysis whether each defendant can remove]
51
Defendant-Forum Rule
| Removal
A defendant who is **sued in state court in their state of residence cannot remove a diversity case to the Federal Court in that state**, and **if such a defendant is one of multiple defendants, the remaining defendants cannot remove** the case to Federal Court, **even if the other defendants are from other states.**
52
Remand
Remand reverses removal and it is only granted if the moving party shows that the federal court lacked subject matter jurisdiction in the first place.
## Footnote
Note: State the removal and remand rules, then discuss subject matter jurisdiction??
B/c model answer is: SMJ, then removal.
53
Abstention
Abstention is a doctrine by which the federal court will retain jurisdiction over a constitutional challenge to a state law but will refrain from deciding the question until the state courts have interpreted the state law.
However, the federal court will intervene if there is a potential for great and immediate irreparable injury, bad faith in the prosecution of the state action, or harassment.
54
Exception to Absention
Where there is:
1. Potential for great and immediate irreparable injury,
2. Bad faith in the prosecution of the state action, or
3. Harassment.
55
Pleading (Federal)
A pleading which sets forth a claim for relief, whether an original claim, counterclaim, cross-claim, or third-party claim, shall contain:
(1) a short and plain statement of the grounds upon which the court’s jurisdiction depends unless the court already has jurisdiction and the claim needs no new grounds of jurisdiction to support it,
(2) a short and plain statement of the claim showing that the pleader is entitled to relief, and
(3) a demand for judgment for the relief the pleader seeks.
## Footnote
Pleading must be plausible
1) E.g., P and D formed a K; D breached K --> good enough
2) E.g., seller committed fraud
Explain whether it is short and plain
56
FRCP 8 Heightened Standard
To satisfy Rule 8, a complaint must contain a factual allegation that renders the plaintiff’s entitlement to relief plausible. Disregarding the legal conclusions, the complaint is sufficient when the remaining factual allegations suggest that the plaintiff has a plausible claim for relief.
*---*
SCOTUS has imposed a heightened requirement on FRCP 8. *Bell Atlantic co. v. Twombly*.
To satisfy Rule 8, a complaint must contain a factual allegation that, taken as a whole, render the plaintiff’s entitlement to relief plausible. In determining whether a complaint is sufficient, courts should disregard the complaint’s legal conclusions and determine whether the remaining factual allegations suggest that the plaintiff has a plausible – as opposed to a merely conceivable – claim for relief. *Ashcroft v. Iqbal*.
57
Pleading (CA)
CCP §425.10 requires that a complaint or cross-complaint contain a “statement of the facts constituting the cause of action, in ordinary and concise language.”
Complaints and affirmative defenses must contain “**ultimate facts**,” – the facts that raise the issues upon which the right to recover depends – not the evidentiary facts, and not the legal conclusions.
58
DOE Amendment
| Definition, not rule
DOEs is when the plaintiff is genuinely ignorant of the identity of the defendant(s) at the time he or she files the Complaint.
59
DOE amendment Permitted
The Doe amendment is permitted if:
(1) the original complaint is timely filed and contains charging allegations against all defendants, including Doe defendants;
(2) the plaintiff is genuinely ignorant of the identity of a fictitious defendant, the facts giving rise to a cause of action, or of the fact that the law provides a cause of action; and
(3) plaintiff’s ignorance must be pleaded in the complaint.
60
DOE Amendment
| rule of amendment
Once the plaintiff learns the true identity of the Doe defendant, he or she must amend the Complaint to the name of the Doe defendant and must serve them with a Summons and Complaint. The timing of the filing of the Doe amendments will relate back to the timing of the filing of the original Complaint, eliminating any statute of limitations issues.
61
California Amendments Relating Back
California “relation back” for statute of limitations, if:
a) Original complaint is timely filed and contains charging allegations against all defendants, including Doe defendants;
b) The plaintiff is genuinely ignorant of the identity of a ficitious defendant, the facts giving rise to a cause of action, or of the fact that the law provides a cause of action; and
c) Plaintiff’s ignorance must be pleaded in the complaint.
62
Federal Amendments Relating Back
The amended complaint would relate back to the date of filing the original complaint if:
(1) Amending complaint to add the new defendant arises out of the same conduct, transaction, or occurrence as in the original complaint; and,
(2) within **90 days after filing the original Complaint** and any **additional time** allowed by the court upon a **showing of good cause**, **new defendant:**
(a) **received such notice** of the action that it would **not be prejudiced in maintaining a defense** and
(b) **knew or should have known** that, **but for a mistake concerning party's identity**, the **action would have been brought against that newly added defendant**.
| my edits
63
Demurrers (CA)
Demurrer is a pleading, not a motion (unlike 12(b) motions to dismiss). It test the sufficiency of the complaint or answer.
64
General Demurrer (CA)
Use general demurrer on complaints that fail to state facts that constitute a cause of action, on its face is barred by statute of limitations, or there is no such cause of action, or the court lacks subject matter jurisdiction, or something similar.
65
Special Demurrer (CA)
There are grounds for special demurrers:
(1) Plaintiff lacks capacity to sue;
(2) There is another action pending between the same parties on the same cause of action;
(3) On the face of the complaint, it appears a party should have been joined or was misjoined (failure to join necessary party or misjoinder);
(4) Pleading is uncertain (pleading is unintelligible); and,
(5) Complaint fails to allege whether the contract is oral or written
66
Motion to Strike
Both federal and Ca allows the motions to strike irrelevant, false, or improper matter – which are usually incoherent or extraneous allegations that have nothing to do with a legitimate claim, or evidentiary but not ultimate facts.
67
Anti-SLAPP Motions to Strike the Complaint (CA only)
The anti-SLAPP statute requires the court to engage in a two-step process when deciding the special motion to strike:
(1) the court must determine whether the defendant has made a **threshold** showing that the challenged cause of action is one arising from **protected activity** within the meaning of the anti-SLAPP statute; and
(2) if the court finds that the defendant has made such a showing, it must then determine whether the plaintiff has **demonstrated** a **probability of prevailing on the claim**. If not, the motion to strike will be granted.
68
Certain suits are excluded from anti-SLAPP motion
a) Any action brought solely in the public interest or on behalf of the general public if the action would enforce an important right affecting the public interest, and would confer a significant benefit, whether pecuniary or nonpecuniary, on the general public or a large class of persons; or
b) The statement or conduct consists of representations of fact about that person’s or a business competitor’s business operations, goods, or services, made to customers, to engage in business.
If a motion to strike is granted, the prevailing party can then sue the original plaintiff for malicious prosecution.
69
Types of Joinder
1. Permissive Joinder
2. Compulsory Joinder
70
Compulsory Joinder
FRCP 19 questions (joinder) are analyzed in three steps:
1. Is joinder proper (is the party a “necessary” party)?
2. Is joinder possible without destroying jurisdiction?
3. If joinder is not possible, is the absent party “indispensable?”
## Footnote
Arises with motion to dismiss for failure to join
71
Joinder is proper
| sub-element of compulsory joinder
Joinder is proper (the party is “necessary” and the federal court should join the party) if:
(1) in the person’s absence complete relief cannot be accorded; or
(2) the person claims an interest relating to the subject matter and disposition without the person may:
(i) be impaired or impeded the person’s ability to protect the interest or
(ii) leave any remaining party subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations.
72
Joinder: is the absent party indispensable?
| sub-element of compulsory joinder
When a person cannot be joined, the court must determine, **in equity and good conscience**, whether the action should proceed, or be dismissed because the absent person is indispensable.
The court considers these factors:
1. Whether the court can grant remedy without person might prejudice the person or other parties?
2. Whether the court can fashioned the remedy to avoid prejudice?
3. Whether the remedy would be adequate without the person?
4. Whether plaintiff has an adequate remedy if the action is dismissed?
*---*
The court considers these factors:
(a) the extent to which a judgment rendered without the person might prejudice the person or other parties;
(b) whether the prejudice can be avoided by appropriately shaping the relief;
(c) whether adequate relief can be granted without the person;
(d) whether plaintiff has an adequate remedy if the action is dismissed.
## Footnote
focus on whether presence of absent party is needed for them to defend their interests
73
Permissive Joinder (party)
Where a third party seeks to join as a plaintiff or a plaintiff seeks to join additional defendants:
(1) do the claims relate to the same transaction or occurrence; and
(2) do they involve common questions of law or fact.
74
Permissive Joinder (claim) - for plaintiffs v. single defendant
A plaintiff can join all the claims it has against a single defendant.
75
Disovercy (Scope)
in both federal and California courts, need to discuss why the requested discovery is relevant.
76
Disovercy (Scope) (Federal)
In federal courts, discovery is limited to any non-privileged matter that is relevant to a claim or defense. It is not required that information itself be admissible at trial, and the proposed discovery must be proportional to the needs of the case.
77
Disovercy (Scope) (CA)
In California Courts, discovery is broader and information that is relevant to the subject matter involved in the pending action.
78
Method of Subpoena
| Rule
The documents from the party that are not privileged is discoverable. Documents discovery from a non-party must be by subpoena duces tecum.
*---*
1. documents discovery from a non-party must be by subpoena duces tecum
2. know which methods are used for what discovery
79
Phyiscal and Mental Examination
Party can request for mental or physical examination when (1) a party’s mental or physical state is at issue and (2) “good cause” for examination exists. It is only available upon court order and, and once order, the party must submit to the examination.
80
Method to Get Physical and Mental Examination
This kind of examination is only available upon court order, and once ordered, the party must submit to the examination.
81
Initial Disclosures (FRCP 26(f))
In Federal Court, within 14 days after a Rule 26 meeting, the parties must disclose:
(1) the names and contact information of individuals likely to have discoverable information supporting their claims or defenses;
(2) copies or descriptions of documents, electronically stored information, and things in their possession or control supporting their claims or defenses;
(3) computation of damages and the supporting material; and
(4) insurance agreements.
However, parties need not disclose impeachment material.
82
Disclosing Experts
At least 90 days before trial, a party must disclose any experts they intend to call at trial.
83
Disclosing all Witnesses
At least 30 days before trial, a party must disclose all witnesses, including witnesses by deposition along with the documents they intend to introduce, other than impeachment materials and witnesses.
## Footnote
parties need not disclose impeachment material.
84
Work Product (Federal)
| Rule
Work product is a document or tangible object created by a party or their attorney in anticipation of litigation.
Federal work product is discoverable only upon a **showing of substantial need** and **to avoid undue hardship**. The court must take steps to avoid the disclosure of an attorney’s mental impressions, opinions and conclusions.
85
Absolute Privilege (CA)
| not essay
there is an absolute privilege as to **writings reflecting an attorney’s impressions, conclusions, opinions or legal research.**
86
Qualified Privilege (CA)
| not essay
California qualified work product privilege provides that **work product is not discoverable** **unless** a denial of discovery will **unfairly prejudice a party in preparing their claim or defense**, or **will result in an injustice.**
87
attorney-client privilege
Attorney-client privilege protects against compelled disclosure of confidential communications between attorney and client, made for the purposes of obtaining legal reperesentation or advice.
88
Motion to compel
Movant filed motion to compel after the movant has in **good faith attempted** to **confer with resistor**.
* if granted, moveant get fees paid by other side unless it was not substantially justified.
* if rejected, non-moveant only get feeds paid if the motion was not substantially justified and may get protective order.
89
Sanctions for disobeying motion to compel
If resistor still does not complied, court ordered sanctions:
* court order declaring facts sought are established in favor of the movant.
* court order prohibiting the disobedient party from presenting certain claims or defenses
* stay or dismissal of entire action, or
* order of comtempt.
90
Summary Judgment (Federal)
| It is likely to be in midterm and final
Summary judgment end a case, cause of action or an issue. To be granted, movant must show **there is no genuine issue of material fact**; and **as a matter of law, movant prevails**.
## Footnote
On bar exams, summary judgment is a gateway issue that usually leads to claim or issue preclusion
91
Summary Judgment (CA)
| It is likely to be in midterm and final
Summary judgment end a case, cause of action or an issue. To be granted, movant must show:
1. There is no genuine issue of material fact; and
2. As a matter of law, movant prevails.
Once the moving party demonstrates that there is no issue of material fact and, as a matter of law, movant should prevail, the burden shifts to the opposing party to produce evidence demonstrating an issue of at least one material fact.
## Footnote
burden shifting
On bar exams, summary judgment is a gateway issue that usually leads to claim or issue preclusion
92
Commencement of Summary Judgment (Federal)
Federal courts, which allow MSJ’s after 20 days from commencement of an action
93
Commencement of Summary Judgment (CA)
California does not permit such motions until 60 days after the defending party has filed an appearance in the case
94
Motion for Judgment (Federal)
A Motion for Judgment may be made:
(1) after the close of plaintiff’s evidence (if by the defendant) or
(2) at the close of all the evidence (by either party).
The Motion may only be granted if no reasonable person could differ as to the outcome—that is, if a reasonable jury would not have a legally sufficient basis to find for the nonmoving party.
**So if there is a conflict in the evidence, the motion will not be granted.**
95
Renewed Motions for Judgment (Federal)
These post-trial motions are only permitted if the party properly and timely moved for judgment in the first place, and again may only be granted if no reasonable person could differ as to the outcome.
96
Motions for New Trial (Federal)
A motion for new trial will be granted if the judge finds that the verdict is against the great weight of the evidence, an error in the admission of evidence, juror misconduct, or an inadequate or excessive verdict.
97
Nonsuit (CA)
A motion for nonsuit can be brought after plaintiff’s opening statement or after the close of plaintiff’s evidence, and will be granted if the nonmoving party has failed to present—or indicate they will present—sufficient evidence to establish a prima facie case.
## Footnote
Nonsuit brought after plaintiff’s opening statement or after the close of plaintiff’s evidence
98
Directed Verdict (CA)
A directed verdict can be brought after the close of all evidence, but applies the same standard. It is functionally equivalent to the Federal Motion for Judgment.
## Footnote
Directed verdict motion brought after close of all evidence
99
Motions for Judgment Notwithstanding the Verdict (JNOV)
1. Same standard as the motion for nonsuit or for directed verdict
2. Brought after verdict rendered but no requirement for previous motion
100
Motions for New Trial
1. A motion for new trial will be granted if the judge finds that:
- the verdict is against the great weight of the evidence,
- an error in the admission of evidence,
- juror misconduct,
- an inadequate or excessive verdict.
PLUS:
2. Unfair accident or surprise
3. Judicial misconduct, and
4. Newly discovered evidence that the moving party could not have, by reasonable diligence, presented earlier
101
Proceeding when jury and non-jury issues
| Fed vs CA
1. FRCP
a) Try legal issues before a jury first
b) Then try equitable issues in a bench trial
2. California is reverse
a) try equitable issues in a bench trial
b) then try legal issues before a jury
c) but judges let juries give advisory opinion
102
Waiver of Jury Trial Right (Fed)
The 7th Amendment right to a jury trial can be waived. In Federal Court, the Complaint must contain a demand for jury trial, so the failure to include the demand may be a waiver in federal court.
However, FRCP 38(b) permits both parties to demand a jury trial within 14 days of the service of the last pleading, including an amended pleading, directed to a jury trial issue.
103
Waiver of Jury Trial Right (CA)
In California court, you must post a jury fee shortly before trial; the failure to do so is a waiver.
104
Class Actions
The test for certification of a class action is four elements: numerosity (a large number of claimants), commonality (common questions of law, fact, or both), typicality (the lead plaintiff’s claim is typical of the class members), and adequacy of representation (competent plaintiff’s counsel); PLUS, one of the following elements:
1. Risk of inconsistent results; OR
2. Injunctive or declaratory relief are appropriate; OR
3. Common questions among the class predominate over other claims
## Footnote
Likely test area is certification of class
(MB 2 CP, Q27).
105
Claim Preclusion (federal)
| tested!!
Claim preclusion bars an entire case, once a final judgment on the merits has been rendered on a particular cause of action. The party must show:
a) The earlier judgment is a valid, final judgment on the merits. “Final” in the federal court is when it is rendered by the trial court
b) The cases are brought by the same claimant against the same defendant;
c) The same cause of action is involved in the later lawsuit; and
d) The cause of action was litigated or could have been litigated in the prior action.
106
Res Judicata (CA)
Claim preclusion bars an entire case once a final judgment on the merits has been rendered on a particular cause of action. The party must show:
a) The earlier judgment is a valid, final judgment on the merits. Final” in California it is when final on appeal;
b) The cases are brought by the same claimant against the same defendant;
c) The same cause of action is involved in the later lawsuit; and
d) **Primary right at issue**
## Footnote
California follows the Primary Rights Doctrine - you can still sued though you forget. Being hurt in the body is different than being hurt while riding the bike when accident happened
107
Issue Preclusion (Federal)
Issue preclusion binds the plaintiff or defendant (or those in privity with them) in subsequent actions or different causes of action between them as to issues actually litigated and essential to the judgment in the first action. The party must show:
a) The first case ended in a valid, final judgment on the merits;
b) The issue is actually litigated and determined in the first case (not by consent or default judgment in Federal Courts); and
c) The issue was essential to the judgment (was it part of the cause of action?) If there are two grounds for a decision, the issue is NOT essential to the judgment.
108
Issue Preclusion (CA)
Issue preclusion binds the plaintiff or defendant (or those in privity with them) in subsequent actions or different causes of action between them as to issues actually litigated and essential to the judgment in the first action. The party must show:
a) The first case ended in a valid, final judgment on the merits;
b) The issue is actually litigated and determined in the first case (not by consent, but default judgments have preclusive effect in California); and
c) The issue was essential to the judgment (was it part of the cause of action?) If there are two grounds for a decision, the issue is NOT essential to the judgment.
109
Offensive Collateral Estoppel
Offensive collateral estoppel is where plaintiff use of collateral estoppel against a defendant who has lost previous similar cases. It is permitted when the party shows:
a) The first case ended in a valid, final judgment on the merits;
b) The issue is actually litigated and determined in the first case (not by consent or default judgment in Federal Courts, but default judgments have preclusive effect in California);
c) The issue was essential to the judgment (was it part of the cause of action?) If there are two grounds for a decision, the issue is NOT essential to the judgment;
d) The party against whom the judgment is to be used had a **fair opportunity to be heard**; and
e) The posture of the case is such that it would **not be unfair** to apply collateral estoppel.
110
Time to Appeal
1. 30 days to appeal from the entry of judgment
2. Filing of a motion for new trial or renewed judgment as a matter of law suspends
111
Good faith destruction of ESI
“Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good faith operation of an electronic information system.
112
Adverse Inference for Destruction of ESI
An adverse inference instruction should be based on a finding that:
(1) the defendant had an obligation to preserve the information;
(2) the defendant had a culpable state of mind, and
(3) the destroyed evidence was relevant to plaintiff’s claim such that a reasonable trier of fact could find that the evidence would support plaintiff’s claim
## Footnote
(MB 2 CP, Q21).
113
Testifying Expert
Opinions held by those testifying are discoverable to a limited extent.
114
Relief from a Final Judgment, Order, or Proceeding
On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or
(6) any other reason that justifies relief.
115
Timing
| Relief from a Final Judgment
A motion under Rule 60(b) must be made within a reasonable time – up to year after the entry of judgment, order or date of the proceeding.
