Civil Procedure

Question 1

Subject Matter Jurisdiction: California State Courts

Low

Answer 1

• The California Superior Court (a trial court) has general subject matter jurisdiction over all civil matters as long as another court or tribunal does not have exclusive jurisdiction.
• Civil court cases are divided into types depending on how much money is in controversy.
• Small Claims Case: A civil case filed in small claims court for $10,000 or less. If the plaintiff is a business (except for a sole proprietor), it can only sue for $5,000 in small claims court.
• Limited Civil Case: A general civil case that involves an amount of money of $25,000 or less. Restrictions are also placed on claims for declaratory relief, equitable claims, and a request for ancillary relief.
• Unlimited Civil Case: A general civil case that involves an amount of money over $25,000. An unlimited civil case is any case that is not a limited civil case. Unlimited civil cases also include other types of disputes that do not involve money, like cases to resolve (or “quiet”) title to real property, cases asking for civil restraining orders, and requests for name changes.

Question 2

Federal Subject Matter Jurisdiction: Intro Statement

High

Answer 2

• A federal court can only hear cases where it has subject matter jurisdiction, because it is a court of limited jurisdiction. A federal court has subject matter jurisdiction if: (a) there is a federal question; (b) there is diversity of citizenship among the parties; OR (c) supplemental jurisdiction is present. Subject matter jurisdiction is not waived if a party fails to raise it at trial. It may be raised at any time, even on appeal.

Question 3

Federal Subject Matter Jurisdiction: Federal Question

High

Answer 3

• Federal Question Jurisdiction exists if a well-pleaded Complaint alleges a claim that arises under: (a) federal law; (b) the U.S. Constitution; OR (c) United States treaties. The plaintiff MUST be enforcing a federal right, and the federal question of law must be present on the face of the Complaint. Raising a defense under a federal law is NOT sufficient to trigger federal question jurisdiction.

Question 4

Federal Subject Matter Jurisdiction: Diversity of Citizenship

High

Answer 4

• Diversity of Citizenship Jurisdiction exists when: (1) there is complete diversity of citizenship between all plaintiffs and defendants (no plaintiff can be from the same state as any defendant); AND (2) the amount in controversy exceeds $75,000. Diversity jurisdiction is determined at the time the action is commenced; a post-filing change of citizenship is irrelevant absent bad faith.
• Citizenship: A party’s citizenship is determined by their domicile.
• For a natural person, domicile is determined by the party’s: (1) residence (physical presence in the state); AND (2) subjective intent to make the state their permanent home. The above test also applies to permanent resident aliens. If a person resides in more than one state for an extended period of time, then the court will review factors, such as the person’s residence, voter registration/records, vehicle registration, location of bank accounts, and place of employment. Domicile continues until changed. Both residence and intent must be established concurrently for a change in domicile; the mere change of one without the other is not sufficient.
• A corporation has dual citizenship, and is deemed to be a domiciliary of: (1) the state of its principal place of business (the corporation’s “nerve center” – where officers direct, control, and coordinate the corporation’s activities); AND (2) any state where it is incorporated. Usually, a corporation’s principal place of business is its designated headquarters.
• An executor or personal representative is deemed to have the citizenship of the decedent or person being represented.
• A partnership, sole-proprietorship, limited liability company (LLC), or unincorporated association is deemed to be a domiciliary of the state of every partner/member/owner.
• Amount in Controversy: The amount in controversy is based on the damages alleged in good faith in the Complaint (not the actual award), unless it is legally certain that the plaintiff cannot recover the specified amount. A plaintiff may aggregate his claims against one defendant, or against multiple defendants if all jointly and severally liable. A claim for injunctive relief is valued by either the benefit to the plaintiff OR the cost of compliance for the defendant (the value of the injunction).

Question 5

Federal Subject Matter Jurisdiction: Alienage Diversity Jurisdiction

Low

Answer 5

• Diversity jurisdiction may also exist in an action by or against an alien (a citizen or subject of a foreign state). Alienage jurisdiction applies in two instances:
• In an action between (1) aliens (on one side), AND (2) citizens of a State (on the other side), PLUS (3) the amount in controversy exceeds $75,000. However, jurisdiction DOES NOT EXIST IF (1) an alien is a U.S. permanent resident, and (2) the alien is domiciled in the same State as a party on the other side of the action.
• In an action between (1) citizens of different States (U.S. citizens are present on both sides of the action), (2) in which aliens are additional parties; AND (3) the amount in controversy exceeds $75,000. Here, jurisdiction DOES NOT exist for cases among aliens (when both the plaintiff and defendant are aliens), unless U.S. citizens are present on both sides of the action.

Question 6

Federal Subject Matter Jurisdiction: Foreign State Diversity Jurisdiction

Low

Answer 6

• Diversity jurisdiction also exists between (1) a Foreign State as plaintiff, AND (2) citizens of a State or of different States, PLUS (3) the amount in controversy exceeds $75,000. A “Foreign State” includes a political subdivision of a foreign state or an agency/instrumentality of a foreign state.

Question 7

Federal Subject Matter Jurisdiction: Supplemental Jurisdiction

Medium

Answer 7

• If a federal court has original jurisdiction (subject matter jurisdiction) over some of the claims in the action, then it may exercise supplemental jurisdiction over additional state court claims when they arise from the same “case or controversy”. Generally, such claims must arise from a common nucleus of operative fact (the same transaction or occurrence).
• Supplemental jurisdiction CANNOT be used to overcome a lack of diversity. In a case where jurisdiction is based solely on diversity, a federal court DOES NOT have supplemental jurisdiction to hear claims by or against additional parties if their presence in the case would destroy complete diversity.
• For example, a plaintiff in a diversity case
  CANNOT assert supplemental jurisdiction if
  it would violate complete diversity.
  Additionally,** supplemental jurisdiction DOES NOT apply to claims by the original plaintiff against a third party defendant**. It also CANNOT be used for claims by parties proposed to be joined or intervene as plaintiffs under Required Joinder (Rule 19) or Intervention (Rule 24) if adding such party would destroy complete diversity.
• A federal court may decline to exercise supplemental jurisdiction over State claims when: (a) the claim raises a novel or complex issue of State law; (b) the claim substantially predominates over the claim(s) of which the district court had original jurisdiction; (c) the federal district court has dismissed all claims over which it had original jurisdiction; OR (d) in exceptional circumstances where there are other compelling reasons for declining jurisdiction. State claims do not substantially predominate over federal claims when the facts needed to prove each claim are identical or similar.

Question 8

Removal to Federal Court

High

Answer 8

• A defendant may remove a case to a federal court sitting in the State where the claim was filed if: (1) the federal court has subject matter jurisdiction (original jurisdiction); (2) all defendants agree; (3) no defendant is a resident of the forum state (only if removal is sought under a Diversity Jurisdiction basis); AND (4) removal is sought within 30 days of either service of the Summons or receiving the initial pleading (whichever period is shorter). A plaintiff CANNOT remove a case to federal court. In addition, a case CANNOT be removed more than one year after commencement in a diversity action.

Question 9

Remand from Federal Court to State Court

Medium

Answer 9

• A federal court MUST remand a case to state court if there is no federal subject matter jurisdiction. In addition, a federal court MAY remand a case that originally had federal subject matter jurisdiction to state court after the federal claims have been decided.
• A motion to remand must be made within 30 days after the filing of the Notice of Removal.

Question 10

Venue in Federal Court

Medium

Answer 10

• For civil actions brought in federal court, venue is proper in any district where: (a) any defendant resides (if all defendants are residents of the forum state); (b) where a substantial portion of the claim occurred; (c) where a substantial part of property is located (where property is the subject of the action); OR (d) if none of the above apply, then venue is proper in any judicial district in which any defendant is subject to the court’s personal jurisdiction. Proper venue is determined at the time the suit is filed; a subsequent move by a party DOES NOT generally warrant a change of venue.
• Transfer of venue and the applicable law depends on whether venue was proper when the suit was first filed.
• If venue was proper when the case was filed, the court MAY transfer venue if: (1) needed for the convenience of parties and witnesses or interests of justice; AND (2) the action could have initially been brought in the receiving court (proper venue, subject matter jurisdiction, and personal jurisdiction). The court has discretion whether or not to transfer the case. Following a transfer, the new court MUST apply the same substantive law as the original transferor court.
• If venue was improper when the case was filed, the court MUST either: (a) dismiss the case; OR (b) transfer the case to a proper court if the interests of justice require it. Following a transfer, the law applied is that of the new transferee court.

Question 11

Venue in California State Court

Low

Answer 11

• In a California State Court, the proper venue depends on whether the action is a local action or a transitory action.
• A local action is an action involving real property, and venue is proper in the county where the real property is located.
• For a transitory action, venue is generally proper in any county where any defendant resides. If no defendant resides in California, then venue is proper in any county where the court has personal jurisdiction over the defendant(s).
• Additional venue rules are also applicable to contract and tort actions.
• For contract actions, venue is proper in the county where the contract was executed or to be performed.
• For tort actions, venue is proper in the county where the act or omission giving rise to the tort occurred.
• Venue may be changed to another forum if: (a) the venue is improper; (b) there is reason to believe there will not be an impartial trial; (c) for the convenience of witnesses and in the interest of justice; OR (d) no judge is qualified to act.

Question 12

Residence of a Party for Venue Purposes

Medium

Answer 12

• A corporation or business entity’s residence includes ALL districts where it is subject to personal jurisdiction.
• Residence of an individual is determined by their domicile (residence and intent to make the place their permanent home).
• A non-resident of the U.S. (alien or U.S. citizen living outside the U.S.) may be sued in any judicial district.

Question 13

Personal Jurisdiction: Traditional Bases

High

Answer 13

• A court MUST have personal jurisdiction over a defendant for its judgment to be binding. Jurisdiction over a defendant normally falls into two categories: (1) the traditional bases of jurisdiction; and (2) a State’s long-arm statute.
• Traditional Bases of Jurisdiction: The traditional bases for asserting personal jurisdiction include: (a) domicile; (b) transient jurisdiction (presence in the State when served); (c) consent; OR (d) waiver (appearing in the action without objecting to jurisdiction). The above grounds comport with the Constitutional requirements of due process.

Question 14

Personal Jurisdiction: Long Arm Statute & Constitutional Minimum Contacts Analysis

High

Answer 14

• Long-Arm Jurisdiction: To exert personal jurisdiction over a defendant who is not a resident of the forum state: (1) the forum state must have a long arm statute; AND (2) the Constitutional requirements of due process must be met. California’s long-arm statute allows personal jurisdiction to the same extent as the Constitution and is the same as the constitutional analysis, which requires: (1) that the defendant have sufficient minimum contacts with the forum state, (2) so as not to offend traditional notions of fair play and substantial justice. Both prongs must be satisfied.
• Prong 1 – Minimum Contacts (Purposeful Availment & Reasonable Foreseeability) and Relatedness:
  Minimum contacts between defendant and forum state = (1) purposeful availment to forum state + (2) reasonable foreseeability of being hailed into forum state court, e.g., working, receiving compensation.
  Relatedness of P’s claim to D’s contacts with forum:
  General jurisdiction exists when the
  defendant’s contacts with the forum state are so substantial and of such nature that the defendant is essentially at home in the state. The claim DOES NOT need to relate to or arise from the defendant’s contacts in the forum state. An individual must be domiciled in the state for general jurisdiction to apply. For a corporation, general jurisdiction applies where the corporation is fairly regarded as “at home” (usually where the corporation is incorporated or headquartered).
  Specific jurisdiction exists when the suit arises out of or relates to the defendant’s contacts with the forum state. There MUST be a connection between the forum state and the underlying controversy (principally, an activity or an occurrence that takes place in the forum state). When there is no such connection, specific jurisdiction is lacking regardless of the extent of a defendant’s unconnected activities in the state.
  Regularly occurring sales of a product in a state DOES NOT justify the exercise of jurisdiction over a claim unrelated to those sales.
  With respect to conduct via the internet,
  a court will consider how interactive the website is. Generally, the more interactive a website is, the more likely a court will find personal jurisdiction. A passive website (one that contains only information) has been held to be insufficient to subject the owner to jurisdiction. Courts have held
  jurisdiction to be proper where defendants could reasonably anticipate that defamatory comments posted online would target readers in plaintiff’s home state.
• Prong 2 – Fair Play and Substantial Justice (Fairness):
  Even if the minimum contacts test is met, it MUST be fair and reasonable for the defendant to be sued in the forum state (so that traditional notions of fair play and substantial justice are not offended).
  However, the burden is on the defendant to show that it would be so unreasonable to defend himself in the forum state that it would constitute a violation of Due Process. The court will consider: the burden on the defendant of litigating in the forum state, the state’s interest in providing a forum; the plaintiff’s interest in a convenient forum for obtaining relief; and the interests of the judicial system to efficiently resolve disputes.

Question 15

Service of Process and Notice: California State Court Actions

Low

Answer 15

• In order for a court to have personal jurisdiction over a defendant, the defendant must be given adequate notice. Notice must meet the California statutory provisions for service upon a defendant.
• Process Server: Service may be made by any person who: (1) is at least 18 years old; AND (2) is not a party to the action.
• Time for Service: Under the California Rules of Court, the plaintiff generally MUST serve the Summons & Complaint (the “papers”) within 60 days after the filing of the Complaint. [Note: The California Code of Civil Procedure states that the papers must be served upon a defendant within
  3 years after filing the Complaint.] When the Complaint is amended to add a defendant, the added defendant must be served (and proof of service must be filed) within 30 days after the filing of the Amended Complaint.
• Modification of Time for Service: The court MAY extend or modify the time for service on (a) its own motion, or (b) the application of a party. Such application must be filed before the time for service has elapsed, and must include a Declaration in support (showing why service has not been completed, documenting the efforts that have been made to complete service, and specifying the date by which service is proposed to be completed).
• Proof of Service: Proof of service MUST be filed within 60 days after the filing of the Complaint.
• Method of Service: Under the California Code of Civil Procedure, service upon a defendant can be accomplished by:
  (a) personal delivery; (b) substituted service; (c) acknowledgement and receipt; (d) mail (only for an out-of-state defendant); OR (e) publication. In addition, service upon a defendant in a foreign country may be achieved by any of the methods above or as directed by the Court, so long as it is not prohibited by international agreement.
• Personal delivery is made by physically giving the papers to the person being served.
• Substituted service entails (1) leaving the papers with or in the presence of a competent person at least 18 years of age at the defendant’s office or usual place of business (during usual business hours), dwelling house, usual place of abode, or their usual mailing address (other than a post office box); AND (2) thereafter mailing a copy of the papers by first-class mail to the place where the papers were left.
• Service by Acknowledgement and Receipt requires (1) mailing the papers by first-class mail or airmail (postage prepaid) to the defendant, (2) along with two copies of the papers and acknowledgment form, AND (3) with a self-addressed stamped return envelope. Service is deemed complete on the date a written acknowledgement of receipt is executed. If the defendant fails to complete and return the acknowledgement form within 20 days from the date of mailing, the defendant is liable for reasonable expenses thereafter incurred in serving or attempting to serve the defendant by another method.
• Service by Mail is only available for out-of-state defendants, and requires sending a copy of the Summons and Complaint to the defendant by firstclass mail, postage prepaid, requiring a return receipt.
• Publication is available when: (1) upon affidavit it appears to the satisfaction of the Court that the defendant cannot with reasonable diligence be served in another manner specified under California law; AND (2) either (a) a cause of action exists against the defendant, (b) the defendant is a necessary or proper party to the action, or (c) the defendant has or claims an interest in real or personal property in California.

Question 16

Service of Process and Notice: Federal Court Actions

Answer 16

• In federal court, the Summons and Complaint must be served upon the defendant within 90 days of filing the
  Complaint. Otherwise, the court MUST either: (a) dismiss the action without prejudice against that defendant; OR (b) order that service be made within a specified time. However, if the plaintiff shows good cause for failing to serve within 90 days, the court MUST extend the time for service for an appropriate period.
• Service may be made by any person who: (1) is at least 18 years old; AND (2) not a party to the action.
• The method of service must be consistent with the Due Process Clause, which requires that notice be reasonably calculated to make the parties aware of the action and give them an opportunity to object.
• Service upon an Individual: An individual may be served by delivering the Summons and Complaint: (a) to the individual personally; (b) to someone of suitable age and discretion at the individual’s dwelling or usual place of abode; (c) to an agent authorized by appointment or by law to receive service of process; OR (d) in accordance with the state law of the forum state or where service is made.
• Service upon a Corporation, Partnership, or Association: A corporation, partnership, or unincorporated association may be served: (a) in accordance with state law of the forum state or where service is made; OR (b) by delivering the Summons and Complaint to an officer (i.e. CEO), managing
  agent, general agent, or authorized agent (by appointment or by law) of the corporation.
• Service upon a Foreign Defendant: Generally, a foreign defendant may be served by any manner not prohibited by international agreement. However, a foreign corporation, partnership, or association CANNOT be served by personal service. A court CAN authorize service via e-mail if: (1) no international agreement prohibits it; AND (2) it satisfies due process (reasonably calculated to notify the defendant of the action and give him an opportunity to object).

Question 17

Law Applied by Federal Courts: Erie Doctrine, Substance vs. Procedure, & Supremacy Clause

Medium

Answer 17

• The Erie doctrine applies when a federal case is brought under diversity of citizenship jurisdiction. Under the Erie doctrine, a federal court will apply its own federal procedural laws, but must apply state substantive law. Similarly, for claims heard under Supplemental Jurisdiction, a federal court will apply its own procedural law/rules and the state substantive law.
• Procedural laws include: civil procedure rules, statute of limitations, burden of proof, and rebuttable presumptions.
• Substantive laws include: choice of law rules, statute of frauds, damages, statute of limitations, preclusion law, evidentiary privileges.
• Since choice of law rules are considered substantive law, a federal court sitting in diversity MUST apply the forum state’s choice of law rules to determine the applicable state substantive law in the action. Once the applicable state law is determined, the federal court must apply that law as the state court would; it CANNOT make its own independent judgment on the construction of a law or statute. When no controlling state case law is available to the federal court for guidance, the court must predict how the state’s highest court would rule on the issue.
• However, federal law will apply for matters governed by the U.S. Constitution, laws passed by Congress, or valid federal law that preempts state law under the Supremacy Clause.

Question 18

Counterclaims

Low

Answer 18

• A counterclaim is a claim brought by a defendant against a plaintiff. There are two types of counterclaims: compulsory and permissive.
• A compulsory counterclaim MUST be stated in the party’s pleading, or that party is otherwise barred from asserting that claim in future litigation. A compulsory counterclaim is a claim that: (1) arises out of the same transaction or occurrence as the opposing party’s claim; AND (2) the claim does not require adding another party over whom the court cannot acquire jurisdiction.
• A pleading MAY state a permissive counterclaim, which is a counterclaim against an opposing party that is not compulsory. A permissive counterclaim may be filed with the Answer or asserted in a separate case.
• All counterclaims MUST meet subject matter jurisdiction requirements. Federal supplemental jurisdiction is ONLY available for compulsory counterclaims.

Question 19

Amending a Pleading: Relation Back Doctrine

Medium

Answer 19

• An amendment to a pleading relates back to the date of the original pleading when: (a) the amendment asserts a claim or defense that arose out of the same conduct, transaction, or occurrence as the original pleading allegations; OR (b) the law that provides the applicable statute of limitations allows the relation back.
• HOWEVER, an amendment to change a party or party name only relates back if: (1) the amendment concerns the same conduct, transaction, or occurrence as the original pleading allegations; (2) the new party received notice of the original action within 90 days of filing so that it will not be prejudiced in defending on the merits; AND (3) the new party knew or should have known that the action would have been brought against it, but for a mistake concerning the proper party’s identity.

Question 20

Sufficiency of Pleading: Well-Pleaded Complaint Rule

Low

Answer 20

• Federal courts use a notice pleading system. To survive a Motion to Dismiss (for failure to state a claim), a Complaint MUST contain sufficient factual matter to state a claim that is plausible on its face.
• Under Twombly and Iqbal, a Federal court will apply a Two-Part Test to determine whether a Complaint is sufficiently well-pleaded. First, the court will disregard any conclusory allegations. Second, taking all remaining factual allegations as true, the court determines whether the facts as alleged would make it plausible for the party to succeed in obtaining the relief sought.
• In alleging fraud or mistake, a party MUST state with particularity the circumstances constituting fraud or mistake – specific facts must be alleged. However, malice, intent, knowledge, and other conditions of a person’s mind may be alleged generally.
• Additionally, the Federal rules mandate that a pleading contain: (1) the grounds for the court’s jurisdiction (unless the court previously had jurisdiction); (2) the claim alleged; AND (3) a demand for the relief sought.

Question 21

Compulsory Joinder of Parties

Low

Answer 21

• A party MUST be joined in an action if: (1) that party is a necessary party; AND (2) joinder is feasible. If a party has not been joined as required, the court MUST order that the party be joined to the action. A party who refuses to join as a plaintiff may be joined as either a defendant or an involuntary plaintiff.
• A party is necessary if: (a) the court cannot grant complete relief among existing parties without the absent party; (b) the absent party claims an interest in the action that would be impaired or impeded (as a practical matter) if that person is not joined; OR (c) the party’s absence would leave an existing party subject to a substantial risk of multiple liability or inconsistent obligations. Courts have held joint tortfeasors to be permissive, not necessary parties.
• Joinder is feasible when: (1) joinder will not remove subject matter jurisdiction; AND (2) the court has personal jurisdiction over the necessary party.
• If joinder is NOT feasible, the court will consider the following factors when deciding whether to continue or dismiss the action: (1) the extent to which a judgment in the party’s absence might prejudice that party or the existing parties; (2) the extent to which any prejudice could be lessened or avoided; (3) whether an adequate judgment in the party’s absence could be rendered; and (4) whether the plaintiff would have an adequate remedy if the action were dismissed. Whether to continue or dismiss the action (when joinder is not feasible) is case specific and left to the discretion of the court.

Question 22

Joinder of Claims

Low

Answer 22

• A party may bring as many claims as it has against an opposing party, even if they are unrelated or do not have a common nucleus of operative fact (same case or controversy).
• If the claims are brought in Federal court, then ALL of the claims MUST satisfy Subject Matter Jurisdiction (either Federal Question, Diversity of Citizenship, or Supplemental jurisdiction). Under diversity of citizenship jurisdiction, all claims may be aggregated to satisfy the “amount in controversy” requirement. Under federal question jurisdiction, additional state claims may be joined ONLY IF they have a common nucleus of operative fact.

Question 23

Scope of Discoverable Information

Answer 23

• In Federal Court, a party in a lawsuit may obtain discovery of all non-privileged information that is: (1) relevant to any party’s claim or defense; AND (2) proportional to the needs of the case (considering the importance of the issues at stake, amount in controversy, party’s access to relevant information and resources, the importance of the discovery in resolving the issues, and the burden/expense vs. likely benefit). Information within the scope of discovery need not be admissible in evidence to be discoverable.
• In California Courts, a party in a lawsuit may obtain discovery of all non-privileged information that is relevant to the subject matter involved in the pending action (this is broader than the federal standard).

Question 24

Compelled Physical and Mental Examinations

Medium

Answer 24

• In California courts: In a personal injury case, any defendant may demand one physical examination of the plaintiff as a matter of right if: (1) the examination does not include any diagnostic test or procedure that is painful, protracted, or intrusive; AND (2) the examination is conducted at a location within 75 miles of the examinee’s residence. For non-personal injury cases, a party must make a motion to compel to perform an examination. The motion must be made in good faith AND show that the party’s health is in controversy.
• In Federal court: The court may order a party to submit to a mental or physical examination by a suitable licensed or certified examiner ONLY IF: (1) a motion is made on notice to all other parties and the person to be examined; (2) such mental/physical condition is in controversy; AND (3) good cause is shown. The Order must specify the time, place, manner, conditions, and scope of the examination, as well as the person(s) who will perform it.

Question 25

Document Subpoena to a Non-Party (Subpoena Duces Tecum)

Low

Answer 25

• Where a party serves a subpoena duces tecum (document subpoena) upon a non-party, the non-party may respond with a motion to quash or a written objection refusing to produce the documents requested. If such a motion or objection is filed/served, the burden then shifts to the subpoenaing party to establish the need for the discovery.

Question 26

Depositions

Low

Answer 26

• Party Depositions: Without leave of court, a party is permitted to conduct up to 10 depositions. Additionally, a party is permitted to conduct a deposition of any person or party so long as the deposition is: (1) limited to one day of no more than 7 hours; AND (2) proper notice is given.
• Notice: A party who wants to depose a person by oral questions must give reasonable written notice to every party to the action.
• Non-Party Deposition: When deposing a non-party, the non-party MUST be served with a subpoena (only nonparties within 100 miles of the courthouse may be subpoenaed).

Question 27

Interrogatories in Federal Court

Low

Answer 27

• Interrogatories are written questions directed to a party, who must answer them in writing and under oath.
• Scope: An interrogatory may relate to any discoverable matter. An interrogatory is NOT objectionable merely because it asks for an opinion/contention that relates to fact OR the application of law to fact. However, the court MAY order that the interrogatory need not be answered until (a) designated discovery is complete, (b) the pretrial conference, or (c) some other time.
• Number: Each party is allowed to serve 25 interrogatories upon any other party, including all subparts. Leave of court (or a stipulation from the opposing party) must be secured to serve a larger number. Parties CANNOT evade the 25-interrogatory limit by using “subparts” asking about discrete separate subjects. However, a question asking about communications of a particular type should be treated as a single interrogatory even though it requests that the time, place, persons present, and contents be stated separately for each such communication.
• Timing of Service: Unless leave of court is obtained, interrogatories CANNOT be served prior to the Initial Conference of the parties under Rule 26(f).
• Time to Respond: The responding party MUST serve its answers and any objections within 30 days after being served with the interrogatories. A shorter or longer time may be stipulated to or be ordered by the court.
• Answering Each Interrogatory: Each interrogatory MUST be answered separately and fully in writing under oath (to the extent not objected to).
• Objections: Each objection to an interrogatory MUST be stated with specificity. Any ground not stated in a timely objection is waived (unless the court excuses the failure for good cause).
• Responding Party: Interrogatories must be answered by: (a) the party directed to; or (b) any officer or agent (if that party
  is a corporation, partnership, association, or governmental agency).
• Signature: The person who makes the answers must sign them, and the attorney who objects must sign any objections.
• Use: An answer to an interrogatory may be used to the extent allowed by the Federal Rules of Evidence.
• Option to Produce Business Records: Instead of answering an interrogatory, the responding party has the option to specify relevant business records if: (1) the answer to an interrogatory can be ascertained from business records (including ESI); (2) the burden of deriving or ascertaining the answer will be substantially the same for either party; AND (3) the records are made available to the other party.

Question 28

Disclosure of Expert Testimony

Low

Answer 28

• The expert disclosure required depends on the type of expert at issue (e.g. testifying expert vs. non-testifying expert).
• Testifying Experts:
• Under the FRCP, a party MUST: (1) disclose the identity of any expert witness it may use at trial; AND (2) provide a written report of the expected testimony signed by the expert witness (unless otherwise stipulated or ordered by the court). The written report MUST contain: (i) a complete statement of the expert’s opinions; (ii) the basis and reasons for the opinion; (iii) any underlying facts/data and supporting exhibits; (iv) the expert’s qualifications and publications in the past 10 years; (v) the expert’s compensation; and (vi) a list of other cases that the expert testified in the past 4 years.
• The disclosure must be made: (a) at least 90-days before trial; OR (b) at times directed by the court. If the expert evidence is intended solely to contradict or rebut another expert’s written report or opinion on the same subject matter,
  then disclosure must made within 30 days after the other party’s expert disclosure.
• A party is ALLOWED to depose an expert witness (without leave of court) after the report is provided.
• Non-Testifying Experts:
• For Retained or Specially Employed Non-Testifying Experts, discovery by interrogatory or deposition is ALLOWED ONLY UPON a showing exceptional
  circumstances where it is impracticable for the party to obtain facts or opinions on the same subject by other means.
• For Consulting Experts Not Retained or Specially Employed in anticipation of litigation, courts are split on the issue and it’s arguable that discovery (even as to identity of the expert) is precluded.

Question 29

Asserting Privilege During Discovery

Low

Answer 29

• Under the FRCP, when a party withholds information by claiming it is privileged or subject to protection as trialpreparation
  material, the party MUST: (1) expressly make the claim; AND (2) describe the item or information sufficiently (without revealing the privileged information) so that privilege can be assessed – a “privilege log”.
• The failure to assert privilege properly MAY subject the party to sanctions or even waive the privilege.

Question 30

Motion to Compel Disclosure or Discovery

Medium

Answer 30

• A party may move for an order compelling disclosure or discovery.
• The motion MUST: (1) be on notice to all other parties and affected persons; AND (2) include a certification that the movant has in good faith conferred (or attempted to confer) with the person/party failing to make disclosure or discovery in an effort to obtain it without court action.
• Motion to Compel Disclosure: If a party fails to make a required disclosure (initial disclosure, expert testimony, pretrial disclosure), then any other party may move to compel the disclosure AND for appropriate sanctions.
• Motion to Compel a Discovery Response: If a party fails to make a proper discovery response, then the party seeking discovery may make a motion to compel. This motion may be made when there is a failure to: (a) answer a question asked by deposition (either by oral examination or written questions); (b) designate a person(s) for a deposition of a corporate or entity party; (c) answer an interrogatory; OR (d) produce documents or permit inspection.
• Motion Related to a Deposition: When taking an oral deposition, the party asking a question may complete or adjourn the examination before moving for an order.

Question 31

Motion for Judgment as a Matter of Law

Low

Answer 31

• A Motion for Judgment as a Matter of Law (JMOL) may be made at any time before the case is submitted to the jury. In California, the motion is called a motion for Judgment of Nonsuit.
• The motion must specify the judgment sought and the law and facts that entitle the movant to the judgment. The motion will be granted if: (1) the non-moving party has been fully heard on an issue during a jury trial; AND (2) the court finds that a reasonable jury would not have a legally sufficient basis to rule in favor of the non moving party on that issue.
• On a motion for JMOL, the court MUST draw all reasonable inferences in the light most favorable to the opposing party, and cannot substitute other inferences that might be regarded as more reasonable.
• A party may renew its motion for JMOL only if that party moved for JMOL before the case was submitted to the jury (California does not have this requirement). A renewed motion for JMOL must be filed within 28 days of the entry of judgment.

Question 32

Motion to Dismiss in Federal Court

Low

Answer 32

• Motion to Dismiss: Under Rule 12(b), a Motion to Dismiss may be made prior to filing an Answer. A Motion to Dismiss requires the court to: (1) consider the facts in the light most favorable to the non-moving party; AND (2) determine whether there is any basis upon which relief can be granted for the non-moving party. If there is any basis for relief, the court MUST deny the motion. The Court DOES NOT evaluate the merits of the case.
• Motion for Judgment on the Pleadings: A motion for any non-waivable defense may be made at any time early enough NOT to delay trial. However, it is referred to as a
  Motion for Judgment on the Pleadings if it is made after the defendant has answered.
• Grounds for Motion and Waiver: A party may bring a motion in order to dismiss one or more claims on certain specified grounds. Such grounds include: (1) lack of subject matter jurisdiction; (2) lack of personal jurisdiction; (3) improper venue; (4) insufficient process; (5) insufficient service of process; (6) failure to state a claim upon which relief can be granted; and (7) failure to join a necessary party.
  The grounds listed in (2)-(5) above are deemed waived if NOT raised in the first responsive pleading or Motion to Dismiss. A motion for lack of subject matter jurisdiction cannot be waived, and may be made at any time, even on appeal.

Question 33

Summary Judgment

Medium

Answer 33

• A court will grant a Motion for Summary Judgment when: (1) there is no genuine issue of material fact; AND (2) the movant is entitled to judgment as a matter of law. When reviewing the motion, the court MUST view the evidence in the light most favorable to the non-moving party. A court may grant the motion in full or in part (partial summary judgment). Papers submitted on a motion for summary judgment MUST cite to particular evidence in the record.
• In California, a party must include a statement of undisputed facts in the motion for summary judgment.

Question 34

Right to a Jury Trial in Federal Court

Medium

Answer 34

• The 7th Amendment guarantees a right to a jury trial for actions at law (legal claims), BUT NOT for actions in equity (equitable claims). If a case involves both legal and equitable claims, the legal claims will be tried first to the jury and then the equitable claims will be tried to the judge.
• A demand for a jury trial MUST be made within 14 days of service of the last pleading concerning the claims.

Question 35

Appeals: Final Judgment Rule

Medium

Answer 35

• In Federal court, a party may only appeal from a final judgment or decision (known as the “final judgment rule”). A final judgment/decision is one which ends the entire litigation on the merits (all claims against all parties are resolved), and leaves nothing for the court to do but execute the judgment. Note, certain exceptions to the final judgment exist.
• Appeals MUST be filed within 30 days after entry of the judgment appealed from.
• In California courts, a motion for judgment against one of the parties is considered a final judgment, and appeals must be filed: (a) within 60 days after the court clerk or a party serves a “Notice of Entry” of judgment; OR (b) within 180 days after entry of judgment (if no notice was served).

Question 36

Appeals: Interlocutory Appeals & Exceptions to Final Judgment Rule

Medium

Answer 36

• An interlocutory appeal is an appeal of a ruling by a trial court that is made before all claims are resolved in the action. An appellate court MAY consider interlocutory appeals on matters where the parties or court would be severely prejudiced, or would lose their rights if they waited to act (such as temporary restraining orders, preliminary injunctions, collateral issues, etc.).
• In Federal Court, several exceptions to the final judgment rule exist, including: 1. Injunction, 2. Certification by district court, 3. Class action certification, 4. Appointment of receiver, 5. Admiralty cases, 6. Collateral-order doctrine, 7. Bankruptcy cases, 8. Mandamus, and 9. Patent-infringement order.

Question 37

Claim Preclusion (Res Judicata)

High

Answer 37

• Claim Preclusion (res judicata) precludes the parties in an action from subsequently re-litigating any claim that was or could have been raised in that action. Claim preclusion has four elements: (1) the parties are identical or in privity; (2) the judgment in the prior action was rendered by a court of competent jurisdiction; (3) the prior action was concluded by a final judgment on the merits; AND (4) the same claim was involved in both actions (the claim arises out of the same transaction or occurrence as the previously litigated claim).
• In California courts, claim preclusion may only be used when all appeals are exhausted for the case.

Question 38

Issue Preclusion (Collateral Estoppel)

High

Answer 38

• Issue Preclusion (collateral estoppel) precludes a party from attempting to retry an issue if there has been a final judgment on the merits by a court of competent jurisdiction. Issue preclusion may be invoked if: (1) a valid and final judgment was rendered in the first action; (2) the issue is identical to the issue decided in the prior action; (3) the issue was actually litigated, determined, and essential in the prior action; AND (4) the party against whom enforcement is sought against had a full and fair opportunity to litigate the issue in the first action. A non-party to a prior action may assert issue preclusion if the four-part test above is satisfied.

Question 39

Choice of Law: Real Property Cases

Low

Answer 39

• In cases involving the title to real property or a contract for the sale of real property, the laws of the state where the real property is located will generally govern (known as the situs rule), as states have a strong interest in actions that affect real property located within their state.