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CA Bar > Civil Procedure > Flashcards

Civil Procedure Flashcards

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1
Q

When is minimal diversity permitted?

A

Statutory interpleader
Class actions with 100+ class members worth more than $5M
Interstate mass torts of 75+ dead

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2
Q

Rule for citizenship of representative parties for the purposes of DJ

A

Citizenship of the representative controls for the purposes of DJ

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3
Q

Exception to the rule for citizenship of representative parties for the purposes of DJ

A

Litigation is for decedent’s estate (decedent’s citizenship controls)

Litigation is for minor/incompetent person (minor/incompetent’s citizenship controls)

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4
Q

When is removal proper?

A

state court to fed court removal is proper only if case could’ve originally been brought in fed court

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5
Q

Removal requirements

A

Must remove within 1 year

All Ds must consent to removal within 30 days of service

Removal based on DJ only if DJ requirements are met AND action is brought in a state that no D is a citizen of (forum-defendant rule)

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6
Q

Supplemental jx

A

fed court with SMJ can hear additional claims that court wouldn’t independently have jx, but only if ALL claims constitute same case or controversy (common nucleus of operative fact)

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7
Q

What types of claims is supplemental jx permissible for?

A

Compulsory Counterclaim
Related crossclaim
Permissive joinder of parties

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8
Q

What is a compulsory counterclaim

A

D’s counterclaim that arises from same case/controversy

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9
Q

What is a related crossclaim

A

Related to claim that court has SMJ over + Not asserted by a P against person made a party under Rule 14/19/20/24

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10
Q

What is Personal Jx

A

whether court has power to reach the defendant

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11
Q

PJ Waiver Rules

A

must object to PJ in 1st filing or amendment of 1st filing otherwise D waives

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12
Q

In personam jx

A

generally required when judgment sought would impose personal obligation on D

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13
Q

General in personam jx

A

P can assert any claim even if unrelated to D’s contacts with forum state

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14
Q

Specific in personam jx

A

P’s claims against D must arise out of D’s minimum contacts with forum state

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15
Q

State long-arm statutes

A

Gives court specific in personam jx over out-of-state Ds only for D’s minimum contacts with the forum state

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16
Q

Minimum contacts elements

A

1) purposeful availment (to forum state), and 2) foreseeability of being sued in forum state

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17
Q

Exceptions to the rule that federal courts generally follow the state long-arm statute of the state they sit in

A

Federal Interpleader Act

Bulge Provision

Foreign Ds

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18
Q

How does Federal Interpleader Act establish PJ

A

Service anywhere in the US establishes PJ

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19
Q

How does the Bulge Provision establish PJ

A

service anywhere within 100 miles of fed courthouse (for impleading 3rd party Ds and joining necessary parties)

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20
Q

How do federal courts establish PJ over foreign Ds

A

P sues under fed law but no state has jx over D, fed court can exercise jx so long as D has sufficient contacts w/ US as a whole

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21
Q

In rem jx

A

gives court authority to determine issues concerning rights to real/personal property

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22
Q

Due process requirement for in rem jx

A

property must be located in state of lawsuit + suit settles everyone’s claims to property

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23
Q

Quasi in rem jx

A

adjudicates rights of a specific person who has property in forum state

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24
Q

Due process requirement for quasi in rem jx

A

if disputes are unrelated to property ownership, minimum contacts must be shown between D and forum state + property must be located in forum state

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25
Q

Notice & Service of Process

A

must serve summons & complaint to D to inform D of pending action & opportunity to object

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26
Q

General rule for service of process

A

Can follow the service rules of the state where the court is located OR where service is actually made

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27
Q

Methods of permissible service of process

A

In-person delivery
Leaving docs at D’s dwelling with resident of suitable age + discretion
Delivery to authorized agent
Registered mail

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28
Q

Special rules of service

A

Minor: must serve minor + guardian
Incompetent: must serve incompetent person + guardian

Partnership: can serve on general partner, attorney, or authorized agent

Corporation: can serve officer, director, managing agent, or appointed agent

Publication: only appropriate for quasi in rem or in rem actions when parties’ identities can’t be obtained through reasonable effort

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29
Q

How can service of process be waived?

A

P can notify D of action and request D’s waiver of service; D’s waiver extends D’s deadline to file an answer (21 -> 60 days)

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30
Q

Venue

A

where among the courts is the appropriate court to hear the case

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31
Q

D’s waiver of venue

A

D’s responsibility to object to improper venue at 1st opportunity, otherwise waiver

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32
Q

Where is federal venue proper?

A

proper in a district where 1) D resides if all Ds reside in same state, 2) substantial part of events giving rise to claim occurred, 3) property at issue is located, OR 4) any district where D is subject to PJ

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33
Q

Rule of transfer

A

generally only allowed if transferring to district with proper venue

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34
Q

Exception to rule of transfer

A

transfer to district w/o proper venue is ok if all parties consent

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35
Q

Conflict of law with regards to venue depends on?

A

depends on whether suit was brought in a district with/without proper venue

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36
Q

Which law controls if a suit is brought in a district with proper venue and is later transferred?

A

Law of 1st forum controls

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37
Q

Which law controls if a suit is brought in a district without proper venue and is later transferred?

A

Law of 2nd forum controls

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38
Q

Special venue rule for Federal Tort Claims Act

A

Venue is proper where P resides or where act/omission occurred

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39
Q

Special venue rule for foreign gov’t litigation

A

Venue is proper where substantial events occurred, where property is located, fed district court in DC

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40
Q

Choice of law for federal question

A

fed substantive & procedural law controls

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41
Q

Choice of law for DJ

A

fed procedural law controls for procedural issues (unless outcome-determinative, in which case use state procedural law); & use state law for substantive issues

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42
Q

Choice of law for supplemental jx of state-law claim

A

state substantive law for state-law claim

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43
Q

What is the test for federal/state law conflicts?

A

When there is a conflict between fed & state law and no fed statute/FRCP on point, the court will apply state law if it is outcome determinative, if the state’s interest outweighs fed interest, or if it would prevent forum shopping

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44
Q

What do state substantive laws include?

A

Conflict of law rules
Laws governing preclusion
Calculation of damages
Statute of limitations
Evidentiary privileges

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45
Q

Order of state authority for federal court adjudicating state law

A

Follow precedent from highest state court, if no precedent then predict how it would rule; respectful attention to lower state courts but not binding

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46
Q

What type of pleading does the FRCP typically require?

A

Notice pleading

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47
Q

What does notice pleading include?

A

Statement of court’s SMJ
Statement of claimant’s entitlement to relief
Claim for relief

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48
Q

When is special pleading required under the FRCP?

A

Must state with more particularity/detail if claim is for fraud, mistake, or special damages

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49
Q

Motion to dismiss for failure to state a claim (12b6)

A

Claim dismissed if it fails to assert legal theory of recovery recognized under law

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50
Q

How to evaluate a motion to dismiss for failure to state a claim (12b6)?

A

Reject unsupported legal conclusions + Assume truth of P’s well-pleaded facts + Resolve ambiguities in P’s favor

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51
Q

What is a motion for judgment on the pleadings?

A

pleadings agree entirety on facts and only the law is in dispute

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52
Q

What is a motion to strike used for?

A

used to delete pleading scandalous/prejudicial matters NOT relevant to case or to strike legally invalid defense

53
Q

When is the D’s answer due if the court denies D’s motion to dismiss?

A

Answer is due 14 days after notice

54
Q

Amendment as of right

A

may amend once anytime within 21 days of service of pleading or 21 days of D’s response

55
Q

Amendment by leave of court

A

after first amendment, leave to amend must be sought by court (granted freely)

56
Q

Doctrine of Relation back

A

In some circumstances, amendment is deemed to relate back to the date the original pleading was filed. If statute of limitations has run out, then relation back determines whether amended pleading is allowed (relates back) or time-barred (doesn’t relate back).

57
Q

Requirements to amendment to add/change party

A

Must 1) concern same case/controversy, AND 2) new party must’ve known or had reason to know that the action should’ve been brought against them.

58
Q

Response time to amended pleading

A

Unless court orders otherwise, responding party must respond to amended pleading within 1) time that remains to respond to original pleading, OR 2) 14 days service of amended pleading, whichever occurs LATER

59
Q

What is an interpleader

A

resolves problems of competing claims to same property

60
Q

What is an intervention

A

outsider who volunteers to enter a lawsuit, usually as additional plaintiffs under Rule 24

61
Q

Intervention as of right

A

available when outsider has interest in subject matter of lawsuit that may be compromised by the pending action

62
Q

Permissive intervention

A

court may give permission if there’s a common question of law/fact between intervenor’s claim and the main claim (relaxed standard)

63
Q

Do intervenors have supplemental jx over their claims?

A

No SJ if jx based on diversity - intervenors must independently satisfy complete diversity + $75k+

64
Q

4 components to statutory interpleader

A

$500 or more

SMJ based on minimal diversity

Nationwide service of process (to assert personal jx anywhere in US)

Proper venue any district where a claimant resides

65
Q

Impleader

A

D brings into the suit someone who is or may be liable to D for all or part of P’s claim against D

66
Q

Elements of a class action

A

must have 1) numerosity, 2) common questions of law/fact predominate over individual questions, 3) typicality of claims, AND 4) adequacy of representation

67
Q

How is DJ satisfied for class actions?

A

DJ satisfied if named reps are completely diverse from Ds AND at least one P has claim over $75k+

68
Q

FRCP 26 for Discovery

A

Generally may discover any evidence, info, or facts relevant to a party’s claim/defense and proportional to case’s needs. Court must consider whether burden or expense of proposed discovery outweighs its likely benefit. Finally, a party cannot discover privileged info.

69
Q

Discovery devices

A

Oral deposition
Written deposition
Interrogatories
Discovery & Inspection of docs and land
Physical & Mental Exam
Request for admission

70
Q

Pretrial conference requirements

A

1) attended by attorneys conducting trial, 2) file pretrial statement, 3) failure to comply = attorney pays costs and other side’s attorney’s fees

71
Q

Final judgment rule for appeals

A

appeals are only available from a final judgment that resolves all claims of all parties (final judgment rule)

72
Q

Partial final judgment exception for appeals

A

Partial final judgment where court may enter final judgment on some claims by expressly designated the order as final

73
Q

Interlocutory orders - exceptions to final judgment rule for appeals

A

Interlocutory orders are non-final, temporary court orders. Interlocutory orders include immediately appealable orders and discretionary interlocutory review.

74
Q

Immediately appealable orders

A

Orders for injunctions other than TROs

Orders affecting property possession

75
Q

Discretionary interlocutory review

A

any interlocutory order is appealable with leave of courts (trial & appellate) so long as 1) trial court certified the order for appeal, and 2) appellate court agrees to accept

76
Q

Is immediate appellate review permitted when a Court issues a Writ of Mandamus?

A

Yes, immediate appellate review permitted for an order that is an abuse of authority

77
Q

The 3 standards of appellate review

A

Questions of law - De Novo
Findings of fact - Clearly erroneous
Abuse of discretion

78
Q

Claim Preclusion/Res Judicata

A

Re-litigation is barred if 1) final judgment on merits of first suit, 2) second suit is between same parties or successors in interest, AND 3) second suit involves same claim/cause of action

79
Q

Claim preclusion - what does final judgment on the merits include

A

default judgment, summary judgment, dismissal w/ prejudice

80
Q

Issue preclusion/Collateral estoppel

A

Re-litigation is barred if 1) same issue of fact, 2) issue was actually & necessarily decided by valid binding judgment, AND 3) party to be precluded was a part to the first suit

81
Q

Issue preclusion - what does actually & necessarily decided mean

A

issues must’ve been actually litigated, not just those that might’ve been (doesn’t include default judgment)

82
Q

Mutual use of issue preclusion

A

parties from 1st action assert issue preclusion in 2nd action against other parties from 1st action

83
Q

Nonmutual use of issue preclusion

A

nonparties from 1st action assert issue preclusion in 2nd action against parties from 1st action

84
Q

Defensive nonmutual use of issue preclusion

A

used by D in 2nd action to avoid litigating an issue from 1st action

85
Q

Offensive nonmutual use of issue preclusion

A

used by P in 2nd action to establish issue from 1st action; permitted at court’s discretion (if P could’ve joined in 1st action, then offensive use shouldn’t be allowed)

86
Q

Who does P have to serve process on when suing the US, its agencies, or its employees?

A

1) the US attorney for the district where the suit is filed OR the civil-process clerk at the USAO, 2) the US Attorney General, AND 3) any agency/officer whose official conduct is being challenged.

87
Q

Omnibus motion rule

A

Under the omnibus motion rule, lack of PJ + improper venue + insufficient service of process must be consolidated in a single pre-answer motion or are otherwise waived.

88
Q

How may a party secure the right to a jury trial in a civil action?

A

Any party may secure the right to a jury trial in a civil action on any legal claim where the AIC exceeds $20 by 1) serving the other parties w/ a written jury demand no later than 14 days after the last pleading is served and 2) filing the demand w/ the court within a reasonable time after serving it.

89
Q

When can a clerk enter a default judgment?

A

A clerk may enter a default judgment when: 1) claim is for a sum certain, 2) request includes an affidavit establishing the amount due, 3) defaulting party failed to appear, AND 4) defaulting party is not legally incompetent or a minor. Otherwise, only the court may enter a default judgment.

90
Q

What is the 2-dismissal rule?

A

The 2-dismissal rule applies when the P voluntarily dismissed 1) the first action in fed or state court w/o a court order, AND 2) the second action based on the same claim in fed court by filing a notice of dismissal.

The 2nd dismissal will be with prejudice.

91
Q

What is a motion for JMOL used for?

A

A motion for JMOL is used to remove a case from the jury’s consideration when there is legally insufficient evidence for a reasonable jury to find in the nonmovant’s favor.

92
Q

When can a motion for JMOL be renewed?

A

The motion can be renewed within 28 days AFTER entry of judgment to seek to overturn an adverse verdict.

93
Q

Federal court treatment of additur

A

A federal court cannot grant a request to increase an allegedly inadequate jury award of damages (additur)

94
Q

Federal court treatment of remittitur

A

the court can reduce an allegedly excessive jury award or order a new trial on damages (remittitur).

95
Q

When can a party file a motion for sanctions with the court?

A

A party cannot file a motion for sanctions with the court until 21 days AFTER serving that motion on the alleged violator so that the violator has time to correct the violation under the safe-harbor rule.

96
Q

Can a federal court still exercise supplemental jx over remaining state-law claims if the federal anchor claim has been dismissed?

A

If the original federal claim that anchors a case (and its related state-law claims) to federal court is dismissed, the court MAY still exercise supplemental jx over the remaining state-law claims.

97
Q

What types of sanctions can a court impose on a party who fails to make required disclosures?

A

1) prohibit the use of the undisclosed evidence, 2) order the payment of the opposing party’s reasonable expenses, 3) inform the jury of the nondisclosure, and 4) impose any other appropriate sanction except for contempt of court.

98
Q

When must a notice for appeal be filed?

A

The notice of appeal must generally be filed within 30 days after the judgment or order being appealed was entered.

99
Q

Collateral-Order Doctrine for appeals

A

Under the collateral-order doctrine, a court of appeals has discretion to hear and rule on a district court order if it (1) conclusively determines the disputed question, (2) resolves an important issue that is completely separate from the merits of the action, and (3) is effectively unreviewable on appeal from a final judgment.

100
Q

A preliminary injunction binds whom?

A

A preliminary injunction binds the following people who receive ACTUAL notice of it: 1) parties, 2) their officers, agents, employees, attorneys, and 3) any person in active concert/participation with the aforementioned people.

101
Q

A federal court obtains PJ for a D through tag UNLESS?

A

A federal court obtains PJ over a D served with process while voluntarily present in the forum state UNLESS D was: 1) fraudulently brought into the state to be served, or 2) present in the state to attend an unrelated judicial proceeding.

102
Q

All attorney-expert communications are privileged except?

A

All attorney-expert communications are privileged unless they: 1) relate to the expert’s compensation, or 2) identify facts/data/assumptions provided by the attorney that the expert considered or relied on in forming expert opinions.

103
Q

When does a defendant-manufacturer have minimum contacts with the forum state?

A

When the defendant-manufacturer: 1) places goods in the stream of commerce, AND 2) purposefully targets that state.

104
Q

Deadline to file an answer after the pre-answer motion was denied?

A

14 days

105
Q

Deadline to file a 3rd party complaint without leave after original answer was served?

A

14 days

106
Q

Deadline to respond to an amended pleading?

A

14 days

107
Q

Deadline to submit proposed discovery plan & initial disclosures after initial conference?

A

14 days

108
Q

Deadline to demand jury trial after last pleading served?

A

14 days

109
Q

Deadline to serve pre-answer motion or answer after service of complaint, counterclaim, or crossclaim?

A

21 days

110
Q

Deadline to amend pleading as a matter of course after pleading was served?

A

21 days

111
Q

Deadline to hold initial conference before scheduling order is due?

A

21 days

112
Q

Deadline to serve reply to answer?

A

21 days

113
Q

Deadline to renew motion for JMOL?

A

28 days

114
Q

Deadline to move for new trial?

A

28 days

115
Q

Deadline to move to alter or amend judgment?

A

28 days

116
Q

Deadline to move for amended findings after final judgment?

A

28 days

117
Q

Deadline to file notice of removal after receipt of initial pleading

A

30 days

118
Q

Deadline to move to remand after notice of removal is filed?

A

30 days

119
Q

Deadline to submit pretrial disclosures before trial?

A

30 days

120
Q

Deadline to respond to interrogatories, requests for production & requests for admission?

A

30 days

121
Q

Deadline to move for summary judgment after close of discovery?

A

30 days

122
Q

Deadline to serve answer after service of process on US agency or employee?

A

60 days

123
Q

Deadline to disclose expert witness materials before trial?

A

90 days

124
Q

How is AIC determined for purposes of DJ when P requests equitable relief?

A

Equitable relief’s implicit monetary value is calculated by the LARGER of either:

1) cost to D if forced to comply w/ requested equitable relief (e.g., lost sales), OR

2) worth to P if requested equitable relief is granted (e.g., expected profits)

125
Q

Discovery requests generally can’t be served until?

A

Discovery requests generally can’t be served until the parties have held an initial planning conference to arrange for initial disclosures and prepare a discovery plan.

126
Q

When the 1st case was decided in State A, then the 2nd case was brought in State B and the P seeks to use nonmutual issue preclusion, how does the 2nd court determine whether preclusion applies?

A

The 2nd court will look to the law of the 1st forum that entered the 1st judgment.

E.g., if the law of the 1st forum permits nonmutual issue preclusion, that will control.

127
Q

When may a court extend a TRO beyond the 14-day limit or when the preliminary-injunction hearing takes place (whichever comes first)

A

If 1) opposing party consents, OR 2) movant provides good cause (unforeseeable event)

128
Q

To compel an organization’s attendance at a deposition, the written notice must?

A

Must describe the matters for examination w/ reasonable particularity

CA Bar (14 decks)

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