Civil Procedure Flashcards
1
Q
What is personal jurisdiction?
A
In personam personal jurisdiction refers to a court’s ability to exercise power over a particular defendant
2
Q
What are the traditional bases of personal jurisdiction?
A
Defendant is:
1. Domiciled in forum state;
2. Consents to personal jurisdiction; or
3. Present in forum state when served with process
3
Q
If no traditional basis for personal jurisdiction exists, what is required to establish personal jurisdiction over a defendant?
A
The exercise of in personam jurisdiction generally must be:
1. Authorized by state statute; and
2. Constitutional
4
Q
What does the statutory analysis of personal jurisdiction entail?
A
A federal court must analyze personal jurisdiction as if it were a state court in the forum state, so it must first look to the forum state’s applicable personal jurisdiction statute to determine if it authorizes personal jurisdiction over the defendant
5
Q
What is a long-arm statute?
A
A long-arm statute gives a state court personal jurisdiction over a non-resident defendant who performs certain actions or causes certain results within the forum state
6
Q
What are the two types of long-arm statutes?
A
- Some states have specific long-arm statutes that give their courts power over non-residents only in certain specified situations, such as the where the non-resident commits a tort while in the state or enters into a contract within the state
- Other states, like California, have long-arm statutes that give their courts power over any person to the full extent permitted by the Constitution
7
Q
What does the constitutional analysis of personal jurisdiction entail?
A
Even where the forum state’s statute arguably grants the court personal jurisdiction over the defendant, the exercise of personal jurisdiction must comport with constitutional requirements of due process, which requires that the defendant have sufficient contacts with the forum state such that the exercise of personal jurisdiction does not offend traditional notions of fair play and substantial justice
In general, the constutional analysis entails consideration of three factors:
1. Minimum Contacts
2. Relatedness
3. Fairness
8
Q
When does a defendant have sufficient minimum contacts with the forum state?
A
A defendant has sufficient minimum contacts with the forum state if:
1. the defendant purposefully availed itself of the privilege of conducting activities in the forum state, thus invoking the benefits and protections of its laws; AND
2. the defendant knew or reasonably anticipated that its activities in the forum state rendered it foreseeable that it may be “haled into court” there
9
Q
What does the “relatedness” analysis entail?
A
The court must consider the relatedness between the claim at issue and the defendant’s contacts with the forum state
* The closer the relationship, the more likely the court will find the exercise of personal jurisdiction fair and reasonable
10
Q
When does a court have “specific” jurisdiction?
A
If the plaintiff’s claim arises from or relates to the defendant’s contacts with the forum state, the court may exercise “specific” in personam jurisdiction over the defendant as to that claim ONLY
* If there is no relationship between the plaintiff’s claim and the defendant’s contacts, the court must have “general” in personam jurisdiction over the defendant to hear the case
11
Q
When does a court have “general” jurisdiction?
A
Regardless of whether the plaintiff’s claim is related to the defendant’s contacts with the forum state, the court has “general” in personam jurisdiction over the defendant if the defendant is “at home” in the jurisdiction
* General jurisdiction allows the court to exercise personal jurisdiction over the defendant as to ANY claim
NOTE: The court also has general in personam jurisdiction over a defendant if they are personally served with process while present in the forum state
12
Q
Where is an individual “at home”?
A
An individual is “at home” in the state in which he is domiciled:
1. the state in which the individual maintains a physical presence; AND
2. has the subjective intent to remain for the indefinite future
13
Q
Where is a corporation “at home”?
A
A corporation is “at home” in:
1. the state in which it was incorporated; AND
2. the state in which it has its principal place of business (i.e., the corporation’s “nerve center”–where officers direct, coordinate and control its business activities)
14
Q
Where is an unincorporated association “at home”?
A
An unincorporated association (i.e., partnership, LLC, etc.) is “at home” in every state in which its individual partners or members are domiciled
15
Q
What does the “fairness” analysis entail?
A
In determining whether exercising personal jurisdiction over the defendant is fair, the court will consider:
1. whether the forum is so gravely difficult and inconvenient that the defendant is put at a severe disadvantage;
2. the forum state’s legitimate interest in providing redress to its residents;
3. the plaintiff’s interest in obtaining convenient relief;
4. the interstate judicial system’s interest in efficiency; and
5. the shared interest of the states in furthering social policies
NOTE: These factors are ONLY considered if the court is exercising SPECIFIC jurisdiction
16
Q
What is subject matter jurisdiction?
A
Subject matter jurisdiction refers to a court’s power to hear a particular type of case
17
Q
What is the subject matter jurisdiction of federal courts?
A
Federal courts are courts of limited subject matter jurisdiction, meaning they only have the power to hear certain types of cases—the two main types of cases that can be heard in federal court are cases involving (1) federal question jurisdiction and (2) diversity of citizenship jurisdiction, which includes “alienage” jurisdiction
NOTE: A lack of subject matter jurisdiction cannot be waived
18
Q
When does “federal question” jurisdiction exist?
A
Federal question jurisdiction exists if the plaintiff’s claim “arises under” federal law (e.g., the Constitution, a federal statute or treaty)
19
Q
What is the “well pleaded complaint” rule?
A
The “well pleaded complaint” rule provides that, to invoke federal question jurisdiction, the federal question must appear as part of the plaintiff’s cause of action as set out in a well-pleaded complaint
* The plaintiff must be enforcing a federal right, and the plaintiff’s claim itself must “arise under” federal law
* The mere existence of a defense based on federal law does NOT give rise to federal question jurisdiction
20
Q
When does “diversity of citizenship” jurisdiction exist?
A
Diversity of citizenship jurisdiction exists if:
1. the case is between citizens of different U.S. states; AND
2. the amount in controversy EXCEEDS $75,000
NOTE: Diversity jurisdiction is referred to as “alienage” jurisdiction if the case is between a citizen of a U.S. state and a citizen of a foreign country
21
Q
What is the “complete diversity” rule?
A
The “complete diversity” rule provides that diversity of citizenship jurisdiction does NOT exist if ANY PLAINTIFF is a citizen of the SAME STATE as ANY DEFENDANT
* Whether there is complete diversity is determined at the time the case is filed
22
Q
What is the “amount in controversy” requirement for diversity of citizenship jurisdiction?
A
In addition to complete diversity (or alienage) between the parties, the plaintiff’s claim(s) must EXCEED $75,000 to invoke diversity of citizenship jurisdiction
* In calculating the amount in controversy, only the claim itself is considered; litigation costs or prejudgment interest on the claim are not included
* The plaintiff’s alleged amount is determinative UNLESS it is clear to a legal certainty that the plaintiff CANNOT recover more than $75,000
23
Q
When can claims be aggregated to satisfy the amount in controversy requirement?
A
For purposes of meeting the jurisdictional amount in controversy requirement, any single plaintiff may aggregate all of his or her claims against a single defendant
* The claims need not be related
24
Q
How is the amount in controversy calculated for claims of joint and several liability?
A
For claims of joint and several liability, the total claim amount is used to calculate the amount in controversy; the number of defendants is irrelevant
25
How is the amount in controversy calculated when the plaintiff seeks equitable relief?
When a plaintiff seeks **equitable relief**, such as an injunction, the amount in controversy is calculated using either of two tests:
1. one test looks at the value of the claim from the ***plaintiff's* viewpoint** and asks whether, if granted, the equitable relief requested has a value of more than $75,000 to the plaintiff
2. the other test looks at the value of the claim from the ***defendant's* viewpoint** and asks whether, if granted, the equitable relief requested will cost the defendant more than $75,000
26
What types of cases will a federal court decline to hear even when diversity of citizenship jurisdictional requirements are met?
1. **Domestic relations actions** involving the issuance of a ***divorce***, ***alimony*** or ***child custody*** decree; OR
2. **Probate proceedings**
27
What is the subject matter jurisdiction of California state courts?
California state courts have **general** subject matter jurisdiction and **can hear any case NOT within the exclusive jurisdiction of another court**
28
How are civil cases classified in California?
California civil cases are classified as
* **unlimited** civil cases
* **limited** civil cases
* **small claims** cases
29
What is supplemental jurisdiction?
Supplemental jurisdiction allows a federal court to hear an **additional claim *substantially related* to a claim over which the court has original subject matter jurisdiction**, even where the court would lack subject matter jurisdiction to hear the supplemental claim independently
30
What is required to properly invoke supplemental jurisdiction?
Supplemental jurisdiction requires that the additional claim arise from a **common nucleus of operative fact** as the claim that invoked original federal subject matter jurisdiction
* This requirement will ***always*** **be satisfied** if the supplemental claim arose out of the ***same transaction or occurrence*** as the original claim
31
What is the limitation on invoking supplemental jurisdiction in diversity cases?
In **diversity** cases, a **PLAINTIFF'S additional claims** generally **CANNOT** invoke supplemental jurisdiction
**EXCEPTION:**
In a **diversity** case involving **multiple plaintiffs**, this limitation does ***not*** preclude the court from exercising supplemental jurisdiction over a **plaintiff's claim that does not meet the amount in controversy requirement** (of course, the amount in controversy requirement must still be satisfied by at least one plaintiff)
* **BUT:** The **"complete diversity" rule *must still be satisfied***
32
When does a federal court have discretion to decline to exercise supplemental jurisdiction?
Even if the requirements for supplemental jurisdiction are satisfied, a federal court has discretion to decline to exercise supplemental jurisdiction if:
1. the ***supplemental claim*** raises a ***novel or complex issue of state law***;
2. ***state law issues would predominate*** in the case; OR
3. the ***original claim*** on which federal subject matter jurisdiction is based is ***dismissed early in the case***
33
What is removal jurisdiction?
Removal jurisdiction allows a **defendant** to have a case **originally filed in state court** ***removed*** to **federal court** if:
1. the ***action could have been initially filed in federal court*** (i.e., the federal court has subject matter jurisdiction over the case); AND
2. ***all defendants who have been served with process join in the removal***
**NOTE:** A ***plaintiff*** **can *NEVER* remove** a state court action to federal court
34
What are the limitations on removal in diversity cases?
If a case is **removable** ***solely*** on the basis of **diversity of citizenship** jurisdiction, the case ***cannot*** be removed:
1. if ***any defendant*** is a ***citizen of the forum state*** (the **"in-state defendant rule"**); OR
2. ***more than one year*** has elapsed ***since the case was filed in state court***
35
What is the process for removing a case from state court to federal court?
To remove a state court action to federal court, the **defendant** must:
1. **file a "notice of removal" in the federal court** stating the **grounds of federal subject matter jurisdiction**, and attaching all documents that were served on her in the state action; AND
2. **promptly serve a copy of the notice of removal on adverse parties and file a copy in the state court**
36
When must the defendant file a notice of removal?
The defendant must file the notice of removal **no later than 30 days after *service*** (not filing) of the **first paper showing that the case is removable**
* This typically means that removal must be made no later than 30 days after ***service of process***
37
What is the proper venue for a case removed from state court to federal court?
The defendant removes a state action to the **federal district court "embracing" the state court** where the case was filed
38
What is remand?
When a defendant removes a case to federal court and the **removal is improper**, the **federal court can remand the case back to state court**
39
What must a plaintiff do to seek remand?
If the **plaintiff believes the case should NOT have been removed** (for a reason ***other than*** lack of subject matter jurisdiction), they **must move to remand** the case back to state court ***no later than*** **30 days after the filing of the notice of removal** or the right to have the case remanded is **waived**
* **BUT:** If **removal was improper** because the federal court ***lacks subject matter jurisdiction***, there is **no time limit** on ordering remand
40
What is venue?
**Venue** refers to the ***proper geographic district*** in which to bring an action
41
Where is venue proper in FEDERAL court?
In **FEDERAL** court, a civil action may be brought in a judicial district in which:
1. any defendant resides, if all defendants reside in the same state;
2. a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of the property that is the subject of the action is located; or
3. any defendant is subject to personal jurisdiction with respect to the action, but ONLY IF there is no judicial district that satisfies (1) or (2)
**NOTE:** If the defendant resides OUTSIDE the United States, venue is proper in any federal judicial district; however, if another defendant DOES reside in the United States, venue must be proper as to such domestic defendant
42
Where do individuals and businesses "reside" for venue purposes in FEDERAL court?
For **venue** purposes in **FEDERAL** court:
* an **individual** resides in the **federal judicial district** where he or she is ***domiciled***
* a **business**, such as a corporation or unincorporated association, resides in **any federal judicial district** ***in which it is subject to personal jurisdiction with respect to the civil action in question***
* If a **state has more than one judicial district**, the business is deemed to reside in any district in that state within which the business's contacts would be sufficient to subject it to personal jurisdiction if that district were a state
43
What must a defendant do to have venue transferred in FEDERAL court?
To have venue transferred in **FEDERAL** court, the defendant must show either that:
1. venue is ***improper***; or
2. venue ***should be transferred***, in the ***interests of justice***, for the ***convenience of the parties***
44
When original venue is proper, what factors will a FEDERAL court consider in determining whether venue should be transferred in the interests of justice?
If a **FEDERAL** civil action was initially filed in a **proper venue**, the court has ***discretion*** to **transfer the action to a different federal district court** it determines to be the **"center of gravity"** for the case after **weighing** the following factors **public** and **private** factors:
* **Public Factors:** The court will consider ***what law applies***, what ***community should be burdened with jury service***, and the desire to ***keep a local controversy in a local court***
* **Private Factors:** The court considers the ***convenience of the parties***, looking at ***where the parties, witnesses and evidence are located***
* The **transferee** court **MUST** also have **personal jurisdiction** over the defendant(s) and **subject matter jurisdiction** over the action
45
What is a forum selection clause?
A **forum selection clause** is a contractual provision whereby the parties agree that a dispute between them will be litigated in a particular place, and **federal courts will ENFORCE forum selection clauses** if they are **NOT unreasonable**
* When there is a valid forum selection clause, the **court will only consider the following "public" factors** when determining whether to transfer venue:
(1) what law applies;
(2) what community should be burdened with jury service; and
(3) the desire to keep a local controversy in a local court
* When **transfer is to enforce a forum selection clause**, the **TRANSFEREE** court will **apply ITS OWN choice of law rules**
46
When original venue is PROPER for a diversity case and venue is transferred, which forum's choice-of-law rules apply?
When a **diversity** case was filed in a ***proper*** venue but transferred to another federal district court, the **transferee** court must apply the **TRANSFEROR COURT'S choice of law rules**
47
What may a FEDERAL court do if a civil action was initially filed in an improper venue?
If a **FEDERAL** civil action was initially filed in an **improper venue**, the court may either:
1. ***transfer*** venue ***in the interests of justice***; OR
2. ***dismiss*** the case
**NOTE:** If transferred, the ***transferee*** court must have **personal jurisdiction** over the defendant and **subject matter jurisdiction** over the action
48
When original venue is IMPROPER for a diversity case and venue is transferred, which forum's choice-of-law rules apply?
When a **diversity** case filed in a ***improper*** venue is transferred to another federal district court, the **transferee** court must apply **ITS OWN** **choice of law rules**
49
What is "forum non conveniens"?
**Forum non conveniens** applies when there is **another court** that is the **center of gravity** for the case, but the court **cannot transfer** the case to that court because it is in a **different judicial system**; instead, the court invoking forum non conveniens will **stay or dismiss** the case
* A **FEDERAL** court will consider the same ***public and private factors*** when determining whether to transfer venue when venue was initially proper (including the ***existence of a valid forum selection clause***)
50
What is the *Erie* doctrine?
In a **diversity of citizenship** case, a **FEDERAL court** is required to apply the ***substantive* law of the state** in which it is sitting, including that **state's *choice of law* rules**; however, **federal *procedural* law** applies
51
What does the *Erie* choice-of-law analysis entail?
The ***Erie*** **choice-of-law analysis** entails a **three-step process**:
* **Step 1:** If there is a **FEDERAL law or rule** addressing the issue that **directly conflicts** with **STATE law**, the **Supremacy Clause** preempts the conflicting state law and **requires application of the FEDERAL law or rule**
* **Step 2:** If there is **NO FEDERAL LAW OR RULE ON POINT**, the court **must apply the law of the forum STATE** if the issue is **SUBSTANTIVE**
* **Step 3:** In determining whether the issue is **“substantive,”** the court will **weigh the following** factors:
* ***Outcome Determinative:*** Whether applying or ignoring the state rule would affect the outcome of the case
* ***Balance of Interests:*** Whether the federal or state system has a strong interest in having its law applied
* ***Impact on Forum Shopping:*** Whether ignoring state law on the issue will cause parties to flock to federal court
**Examples of Substantive Laws:**
* Choice of law rules
* Elements of a claim or defense
* Statutes of Frauds
* Statutes of Limitations
* Rules for tolling statutes of limitations
* The standard for granting a new trial because the jury’s damages award was excessive or inadequate
52
How does a defendant receive notice of an action?
A defendant receives notice of a pending action through **service of process**, which consists of:
1. a **summons**, which is a formal court notice of the action and time for response; and
2. a copy of the **complaint**
53
Who can serve process on a defendant?
Any person who is **at least 18 years old** and **not a party** to the action
54
What is personal service?
Personal service, when **process is personally delivered to the defendant**, is always adequate
55
How can substituted service be done in FEDERAL court?
In **FEDERAL** court, substituted service can be done by serving process on (1) someone of **suitable age and discretion**, (2) at the **defendant's usual place of abode**, (3) who **resides** there
* Alternatively, service of process may be accomplished by ***delivering process to the defendant's agent*** or ***using methods permitted by state law***
**NOTE:** In federal court, substituted service ***may be used EVEN IF personal service is possible***
56
How can substituted service be done in CALIFORNIA state court?
In **CALIFORNIA** state court, substitued service can be done ONLY by serving process on (1) a **competent member of the household** who is **at least 18 years old**, (2) at the **defendant's usual place of abode**, (3) who is **informed of the contents**
* The process server must then mail a copy of the papers to the defendant at the address where the papers were left
**NOTE:** California allows substituted service ***ONLY IF personal service CANNOT be accomplished with reasonable diligence***
57
What must a complaint contain in FEDERAL court?
In **FEDERAL** court, a **complaint** must contain:
1. a statement of the ***grounds of subject matter jurisdiction***;
2. a ***short and plain statement of the claim*** showing that the plaintiff is entitled to relief; and
3. a ***demand for relief*** sought (e.g., damages, injunction, declaratory judgment)
58
What is the applicable pleading standard in FEDERAL court?
**FEDERAL** courts use ***notice*** **pleading**, meaning a complaint must only contain ***sufficient factual allegations*** to state a claim that is ***plausible on its face***
* Despite the general notice pleading standard, a plaintiff **must state facts with *particularity or specificity*** in alleging **fraud**, **mistake** and/or **special damages**
59
What must a complaint contain in CALIFORNIA state court?
In **CALIFORNIA** state court, a complaint must include:
1. a ***statement of facts constituting the cause of action***, in ordinary and concise language; and
2. a ***demand for judgment, including the amount of damages*** sought (***UNLESS*** the damages sought are (i) in a ***personal injury or wrongful death action*** or (ii) ***punitive damages***)
**NOTE:** In a **limited** civil case, the **caption of the complaint must state it is a limited case**
60
What is the applicable pleading standard in CALIFORNIA state court?
**CALIFORNIA** state courts use ***fact* pleading**, which requires the plaintiff to allege the **ultimate facts** (i.e., what the fact-finder must find for the party to prove its case) on **each element** of **each cause of action**
* Circumstances constituting ***fraud*** must be pleaded with ***particularity***
61
When does a plaintiff have a right to amend their complaint in FEDERAL court?
In **FEDERAL** court, the **plaintiff** has a **right to amend** her complaint **one time** no later than **21 days** after the ***defendant serves their first Rule 12 response (motion or answer)***
62
When does a defendant have a right to amend their answer in FEDERAL court?
In **FEDERAL** court, the **defendant** has a **right to amend** her answer **one time** no later than **21 days** of serving it
* If the defendant’s **first response was an answer** in which he **failed to raise** “waivable defenses” or affirmative defenses, he **may include such waivable defenses or affirmative defenses** in the **amended** answer
63
What is required for a party to amend their pleadings after the period for amendment as of right expires in FEDERAL court?
In **FEDERAL** court, **after the period to amend as of right expires**, the party seeking to amend their pleading **must seek leave of court** or **obtain the written consent of the opposing party**
* The court will **grant** leave to amend if **“justice so requires”** after considering (1) the ***length of delay***, (2) ***prejudice to the other party*** and (3) ***whether amendment would be futile***
64
When does an additional claim "relate back" to the original filing in FEDERAL court?
In **FEDERAL** court, an **amended** pleading that includes an **additional claim** will **“relate back”** to the original filing date if the amended pleading concerns the **same conduct, transaction or occurrence** as the original pleading
65
When does an additional defendant "relate back" to the original filing in FEDERAL court?
In **FEDERAL** court, an **amended** pleading that **replaces a wrongly named defendant with the correct defendant** will **“relate back”** to the original filing date if:
1. the amended pleading concerns the ***same conduct, transaction or occurrence*** as the original pleading;
2. the correct ***defendant had such knowledge of the case*** such that she will be ***able to avoid prejudice***; AND
3. the correct ***defendant knew or should have known*** that, but for the mistake, she ***would have been named originally***
**NOTE:** The **defendant’s “knowledge”** for the last two points **must exist within the period for service of process** (i.e., 90 days after the filing of the complaint)
66
When may plaintiffs and/or defendants be joined to an existing case in FEDERAL court?
Plaintiffs and/or defendants may be joined to an existing case if the claims:
1. arise from the **same transaction or occurrence**; and
2. raise ***at least*** **one common question of law or fact**
67
When is a nonparty a "necessary" party?
A nonparty is **necessary** if:
1. the court ***cannot accord complete relief among the existing parties*** without the absentee; OR
2. the ***absentee's interest may be harmed*** if they are not joined; OR
3. the ***absentee claims an interest that subjects a party (usually the defendant) to a risk of multiple obligations***
**NOTE:** Joint tortfeasors are **NEVER** necessary
68
What must be done if an absent nonparty is deemed a "necessary" party?
The court will determine if joinder of the necessary party is **feasible**, meaning:
1. the court has **personal jurisdiction** over the **absentee**; and
2. the court will have **subject matter jurisdiction** over the **claim by or against the absentee**
69
What happens if it is NOT feasible to join a necessary party?
The court must determine whether to **proceed without the necessary party** or **dismiss the case**, after considering:
1. whether there is an ***alternative forum available***;
2. the ***actual likelihood of harm to the necessary party***; and
3. ***whether the court can shape relief to avoid that harm***
**NOTE:** If the **court determines to dismiss** the case rather than proceed without the absentee, the **absentee is called an *"indispensable"* party**
70
What is a counterclaim?
A counterclaim is a **claim against an opposing party**, usually a claim by a defendant against the plaintiff
**NOTE:** California uses the term ***"cross complaint"***
71
What is a compulsory counterclaim?
A compulsory counterclaim is one that **arises from the same transaction or occurrence as the plaintiff's claim**, and it **must be raised** in the pending case or the claim is **waived**
72
What is a permissive counterclaim?
A permissive counterclaim is one that **does NOT arise from the same transaction or occurrence** as the plaintiff's claim, and it may (but need not) be filed in the pending action
* If a permissive counterclaim is raised, there **must be subject matter jurisdiction** over the counterclaim
73
What is a crossclaim?
A crossclaim is a **claim against a coparty** (e.g., one defendant against another defendant)
* It **MUST arise from the same transaction or occurrence** as the underlying action, **but it is NOT compulsory**
74
What is the general rule regarding disclosure of expert witnesses?
At a time directed by the court, each party must identify **expert witnesses who may provide testimony at trial** and provide **certain other disclosures**
75
What is the difference between an expert witness and a consulting expert?
An **expert witness** is an expert that a party may call to ***testify at trial***, whereas a **consulting expert** is an expert hired by a party to ***assist in preparing the case*** but whom the party ***does not intend to call as a witness***
* Facts known and opinions held by **consulting experts** are generally ***NOT discoverable absent "exceptional circumstances"***
76
What must be disclosed with respect to an expert witness?
Each party generally must disclose to the other parties the **identity of the expert witness** and a **written report** prepared by the expert that includes:
1. ***opinions*** that the expert witness will express;
2. the ***bases for the opinions***;
3. the ***facts used to form the opinions***;
4. the expert witness's ***qualifications***; and
5. the ***amount of compensation*** paid to the expert witness
77
What is the consequence of failing to make required expert witness disclosures?
If a party fails to disclose material that was required to be disclosed, they **cannot use the expert witness in the case unless the failure was JUSTIFIED or HARMLESS**
78
What are initial required disclosures in FEDERAL court?
In **FEDERAL** court, each party must disclose the following information to the other parties as **initial required disclosures**:
1. ***Identities of persons with discoverable information*** the party may use to support their claims or defenses (names, telephone numbers and addresses of such persons, and topics of discoverable information)
2. ***Documents and tangible things the party may use*** to support their claims or defenses that are ***in the party's control***
3. ***Computation of amount of monetary relief*** sought, along with ***supporting documents or ESI***
4. Any ***insurance that might cover all or part of the judgment*** in the case
79
When must initial required disclosures be made in FEDERAL court?
In **FEDERAL** court, unless otherwise provided by court order or stipulation of the parties, initial required disclosures must be exchanged **within 14 days of the FRCP 26(f) conference**
80
What is the consequence of failing to make an initial required disclosure in FEDERAL court?
The party **cannot use the undisclosed material** in the case **UNLESS** the failure to disclose was **substantially justified** or **harmless**
81
What is the scope of discoverable information in FEDERAL court?
In **FEDERAL** court, a party can discover anything that is **relevant to a claim or defense** and **proportional to the needs of the case**, considering:
1. the ***importance*** of the ***issues at stake*** in the action;
2. the ***amount in controversy***;
3. the parties' ***relative access to information***;
4. the ***parties' resources***;
5. the ***importance*** of the discovery ***in resolving the issues***; and
6. whether the ***burden or expense*** of the proposed discovery ***outweighs its likely benefits***
**NOTE:** Discoverable is ***broader*** than admissible; information ***need not be admissible*** to be discoverable
82
What is the scope of discoverable information in CALIFORNIA court?
In **CALIFORNIA**, a party can discover anything that is **relevant to the subject matter involved in the pending action**, and that is **admissible or** **appears** ***reasonably calculated to lead to the discovery of*** **admissible evidence**
**NOTE:** The **California** standard is ***broader*** than the **federal** standard
83
What is required to obtain a compelled medical examination of a party in FEDERAL court?
In **FEDERAL** court, a **court order is required to compel** a party (or a person in a party's custody and control) to submit to a **medical examination**
* The **requesting party** must show: (1) that the ***person's health is in actual controversy***; AND (2) ***good cause*** as to why the examination is ***necessary***
* If a compelled medical examination is ordered, the ***requesting party* chooses the licensed medical professional** to perform the exam
84
What is required to obtain a compelled medical examination of a party in CALIFORNIA state court?
In **CALIFORNIA** state court, a **defendant** may obtain **one *physical*** (not mental) **examination** of the **plaintiff** ***as of right*** when the plaintiff's **physical condition is in issue**
* A **court order is required** for:
(i) ***additional physical exams*** of the plaintiff;
(ii) ***mental*** or ***other*** types of ***exams***; OR
(iii) any ***exam of another party*** or a party affiliate
* An **attorney for the examinee** must be **permitted to attend** a ***physical* exam**, but the **attorney's presence** at a ***mental* exam** is **subject to the court's discretion**
85
What is work product?
**Work product** and **"trial preparation material,"** which is ***material prepared in anticipation of litigation*** is **protected** from discovery
* **FRCP:** In **federal** court, work product **need not be generated by a lawyer**; it can be prepared by the party or any of his representatives
* **CA:** In **California**, the material **must** be generated by the **attorney or her agent**
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What is qualified work product?
**Qualified work product** may be discovered if the requesting party can show **substantial need** and **undue hardship** in obtaining the materials in an alternative way
* However, **"opinion work product,"** which is a ***writing*** that reflects an ***attorney's impressions, conclusions, opinions or legal research***, is absolutely protected and **CANNOT be discovered**
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When may a party seek summary judgment in FEDERAL court?
In **FEDERAL** court, a summary judgment motion as to **any claim** may be made by **any party** at **any time until 30 days after close of all discovery**
* Summary judgment may be **complete** (disposing of all causes of action) or **partial** as to certain claims, defenses and/or issues
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What must be included with a summary judgment in FEDERAL court?
In **FEDERAL** court, a summary judgment motion **must** be supported or opposed with affidavits or other declarations made under penalty of perjury, depositions, sworn pleadings, admissions, answers to interrogatories, or other materials in the record
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What is the standard for granting a motion for summary judgment in FEDERAL court?
In **FEDERAL** court, a court will grant a motion for summary judgment when, ***viewing the evidence in the light most favorable to the NON-MOVING PARTY***:
1. there is **no genuine dispute of material fact**; and
2. the **moving party is entitled to judgment as a matter of law**
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When may a party seek summary judgment in CALIFORNIA state court?
In **CALIFORNIA** state court, a party may bring a summary judgment motion ***after* 60 days have elapsed** since the **general appearance** of the **party *against whom* the motion is brought**, or at an **earlier** time that the court may direct upon a showing of **good cause**
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What must be submitted with a summary judgment motion in CALIFORNIA state court?
In **CALIFORNIA** state court, a summary judgment motion **must** be supported or opposed with **admissible evidence** in the form of affidavits, depositions, pleadings, admissions, or answers to interrogatories, or other materials in the record
* The **moving party must also file and serve** a **separate statement of all material facts claimed to be undisputed**, with the **supporting evidence for each fact**
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What is the standard for granting a summary judgment motion in CALIFORNIA state court?
In **CALIFORNIA** state court, the standard for granting summary judgment is **nearly identical** **to the federal standard**
* In California, a **"summary judgment"** completely ***disposes of all causes of action***, but **"summary adjudication"** of ***less than all*** claims, defenses and/or issues may be sought by **separate motion or as an alternative** to a motion for summary judgment
* In California, once a **moving party meets its burden of production** to show that a ***claim or defense has no merit***, the **burden shifts to the opposing party** to show that a ***triable issue exists as to at least one material fact related to that claim or defense***
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What is a party's right to a jury trial in FEDERAL court?
In **FEDERAL** court, the **Seventh Amendment** preserves the **right to jury** in **"civil actions at law,"** but ***not*** in **suits at *equity***
* If a **case** includes claims for ***both* legal and equitable** relief:
(i) **first**, the **JURY** will decide the ***legal*** issues; AND
(ii) **second**, the **JUDGE** will decide the ***equitable*** issues
**NOTE:** The **Seventh Amendment** right to jury trial **applies** ***only*** in ***federal*** **civil cases**, not in state court civil cases
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What is a party's right to a jury trial in CALIFORNIA state court?
In **CALIFORNIA** state court, the **California Constitution** preserves the **right to jury** for **actions at law** that are identical or similar to those that existed at the time the California Constitution was adopted in 1850
* If an **action** involves distinct **legal and equitable** issues:
(i) **first**, the **JUDGE** will decide the ***equitable*** issues; AND
(ii) **second**, the **JURY** will decide the ***legal*** issues
**NOTE:** A **jury trial right does *not* exist** if the **legal issues are *merely incidental*** to the equitable issues (the **"equitable cleanup doctrine"**)
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When and how must a party demand a jury trial in FEDERAL court?
In **FEDERAL** court, a party **must demand a jury trial** in **writing** no later than **14 days** after service of the last pleading addressing a jury triable issue (***typically the answer***)
* If a party **fails** to make a timely jury demand, they **waive** the right to a jury trial
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When and how must a party demand a jury trial in CALIFORNIA state court?
In **CALIFORNIA** state court, a party **must "announce" a demand for a jury trial** at the time the **case is first set for trial** or **within 5 days after notice** of setting
* A party requesting a jury trial ***must also make*** a ***timely deposit of jury fees and expenses***
* The right to a jury trial may be **waived** only on **statutory grounds**, including ***written or oral consent***, ***failure to deposit advance jury fees*** or ***failure to make a timely jury demand***, but the trial court has broad discretion to relieve a party from waiver
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What is the "final judgment" rule?
Generally, **only *final* judgments** are **reviewable** **on appeal**
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When is a judgment final in FEDERAL court?
In **FEDERAL** court, a judgment is final when it **disposes of the entire case on its merits** by rendering judgment as to **all parties** and **all causes of action** involved and leaving nothing for the court to do but execute the judgment
* **BUT:** The court **may** enter a final judgment as to **LESS THAN ALL** of the claims or parties **ONLY IF** it makes an **express determination that there is no just reason for delay**
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When is a judgment final in CALIFORNIA court?
In **CALIFORNIA** state court, a **judgment** entered **against one of several parties** that **leaves no further issue** for resolution **as to that party** is considered a **final** judgment that may immediately be appealed by that party, and there is **no requirement** that the court make an **express determination that there is no just reason for delay**
* **BUT:** A **judgment** on an **issue or cause of action that is separate and independent** from the others in the action is ***not*** considered **final**
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When must an appeal be taken in FEDERAL court?
In **FEDERAL** court, an **appeal must be taken** by filing a notice of appeal with the district court **within 30 days from the entry of the judgment** appealed from (or **60 days when the United States is a party** to the action)
* However, if a **timely** (within 28 days) ***renewed motion for judgment as a matter of law***, ***motion for new trial***, or ***motion to set aside or amend the judgment*** is made, the running of the **30-day period is terminated**; upon **entry of an order** with respect to such post-trial motions, a **new 30-day period begins to run**
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When may a party's time for filing an appeal be extended in FEDERAL court?
Upon a showing of **excusable neglect** made **within 30 days after the time to appeal has expired**, a **FEDERAL** district court may **extend** the time for filing a notice of appeal by **30 days from the time it would otherwise have run** or **14 days from the date of the order** granting the extension, whichever is **later**
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When may a party's time to appeal be reopened in FEDERAL court?
A **FEDERAL** court may **reopen** the time to appeal for a period of **14 days** when:
1. the ***party*** seeking an extension ***did not timely receive notice of entry of the judgment***;
2. the ***motion for extension*** of time is ***filed within 180 days of the judgment*** or ***within 14 days of receiving notice of judgment***, whichever is ***earlier***; AND
3. the ***opposing party will not be prejudiced***
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When must an appeal be taken in CALIFORNIA state court?
In an **unlimited** civil case in **CALIFORNIA** state court, an **appeal must be taken** by filing a notice of appeal with the Superior Court that entered the judgment **within 60 days after service of the notice of entry of judgment** by the court clerk or party or **within 180 days after entry of the judgment if no notice was served**
**NOTE:** These rules are **very strictly applied**, and an **untimely notice of appeal** must be **dismissed**
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When are interlocutory orders appealable as of right in FEDERAL court?
In **FEDERAL** court, the following **interlocutory orders** are **appealable** by a party **as of right**:
1. **Injunction:** any order granting, continuing, modifying, dissolving or refusing to dissolve or modify an injunction (***but a TRO is not an injunction for appellate purposes***)
2. **Receivers:** any order appointing a receiver, or refusing to wind up or take steps to accomplish purposes of receiverships
3. **Property Possession:** any order whereby possession of property is changed or affected, such as orders dissolving writs of attachment and the like
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When are interlocutory orders appealable as of right in CALIFORNIA state court?
In an **unlimited** civil case in **CALIFORNIA** state court, the following **interlocutory orders** are **appealable** by a party **as of right**:
1. an order **made *after* an appealable judgment**
2. an order ***granting*** a **motion to quash service of summons**
3. an order ***granting*** a **motion based on forum non conveniens**
4. an order ***granting*** a **new trial**
5. an order ***denying*** a **motion for judgment notwithstanding the verdict**
6. an order ***granting or dissolving*** (or ***refusing*** to grant or dissolve) an **injunction**
7. an order directing payment of **monetary sanctions in *excess* of $5,000**
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What is claim preclusion (res judicata)?
Once a **final** **judgment *on the merits*** has been rendered on a particular cause of action, **claim preclusion (res judicata)** bars the ***claimant*** from asserting the ***same cause of action*** in a ***subsequent*** lawsuit against the ***same defendant***
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What do the concepts of "merger" and "bar" mean for purposes of claim preclusion (res judicata)?
**"Merger":** When the ***claimant* wins the earlier lawsuit**, the cause of action is said to have been ***"merged"*** into the judgment
**"Bar":** When the ***defendant* wins the earlier lawsuit**, the claimant is said to be ***"barred"*** by the earlier adverse judgment
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What are the requirements for claim preclusion (res judicata) to apply in FEDERAL court?
In **FEDERAL** court, claim preclusion will bar a claim in a subsequent case only if:
1. a ***valid, final judgment on the merits*** was entered in the earlier case;
2. ***both cases*** are brought by the ***same plaintiff*** against the ***same defendant***; ***AND***
3. the ***same cause of action*** is asserted in ***both cases***
> **MAJORITY:** The claim is the "same" for claim preclusion purposes if it ***arose out of the same transaction or occurrence*** as the claim in the earlier case
> **MINORITY:** Under the ***"primary rights" doctrine***, a plaintiff has ***separate claims for property damage and personal injuries*** that ***arise in a single event*** because the two ***injuries invade different primary rights*** (one to be free from personal injury, and one to be free from property damage)
**NOTE:** An earlier final judgment is ***not* "on the merits"** for claim preclusion purposes if it was:
1. entered ***"without prejudice"***;
2. based on ***lack of personal jurisidiction***;
3. based on ***lack of subject matter jurisdiction***;
4. based on ***improper venue***; OR
5. based on a ***failure to join an indispensable party***
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How do the requirements for claim preclusion (res judicata) in CALIFORNIA state court differ from the federal requirements?
The **CALIFORNIA** requirements for claim preclusion (res judicata) ***differ*** from the **federal** requirements in the following ways:
* **"On the Merits":** The earlier judgment is ***also* not "on the merits"** for claim preclusion purposes if based on the ***expiration of the statute of limitations***
* **"Final Judgment":** The earlier judgment is **not "final"** for claim preclusion purposes **until** (i) the ***conclusion of any appeal*** taken or, (ii) if no appeal is taken, the ***time for appeal has expired***
* **"Cause of Action":** California adheres to the ***minority*** **"primary rights" doctrine**, so a claim for ***personal injuries*** and a claim for ***property damages*** arising out of the **same incident** are ***separate claims*** for claim preclusion purposes
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What is issue preclusion (collateral estoppel)?
**Issue preclusion (collateral estoppel)** precludes a party (or its privy) from ***relitigating an issue*** that was ***previously litigated to judgment*** in a prior proceeding--the **issue is deemed conclusively established in the later case** without need to proffer evidence on it
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What is required to invoke issue preclusion (collateral estoppel)?
**Issue preclusion (collateral estoppel)** may be **invoked** only if:
1. the prior case ended in a ***valid, final judgment on the merits***;
2. the ***same issue*** was ***actually litigated and determined*** in the prior case;
3. the issue was ***essential to the judgment*** in the prior case, meaning (i) it ***must be clear how the issue was decided*** by the trier of fact and (ii) the ***judgment must depend on the issue of fact decided***;
4. the ***party against whom*** issue preclusion is being used ***must have been a party (or in privity with a party) in the prior case***; ***AND***
5. (i) the ***party invoking*** issue preclusion was a ***party (or in privity with a party) in the prior case*** (i.e., **"mutual"** issue preclusion); **OR**
(ii) if a ***nonparty*** to the prior case is ***invoking*** issue preclusion, it is ***fair to the party to be bound*** under the circumstances (i.e., **"nonmutual"** issue preclusion)
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Describe the differences between non-mutual DEFENSIVE issue preclusion and non-mutual OFFENSIVE issue preclusion
**NONMUTUAL DEFENSIVE ISSUE PRECLUSION**
When a ***nonparty*** wishes to rely on a prior judgment to ***avoid liability*** in a subsequent suit, there ***are often compelling reasons*** to allow them to do so
**NONMUTUAL OFFENSIVE ISSUE PRECLUSION**
**Federal** courts are ***more reluctant*** to allow a ***nonparty*** to rely on a prior judgment ***as a plaintiff in a subsequent case to obtain relief***, unless it is ***fair*** to the defendant under the circumstances
* In determining **fairness**, courts will **consider** whether:
(i) the party to be bound had a ***full and fair opportunity to litigate in the prior case***;
(ii) the party to be bound had a ***strong incentive to litigate in the prior case***;
(iii) the party ***asserting*** issue preclusion ***could have easily joined the prior case***; AND
(iv) there have been ***no inconsistent findings on the issue***
**CA:** In **California**, both **defensive *and* offensive** issue preclusion is **generally allowed**
