Civil Procedure

Question 1

What is personal jurisdiction?

Answer 1

In personam personal jurisdiction refers to a court’s ability to exercise power over a particular defendant

Question 2

What are the traditional bases of personal jurisdiction?

Answer 2

Defendant is:
1. Domiciled in forum state;
2. Consents to personal jurisdiction; or
3. Present in forum state when served with process

Question 3

If no traditional basis for personal jurisdiction exists, what is required to establish personal jurisdiction over a defendant?

Answer 3

The exercise of in personam jurisdiction generally must be:
1. Authorized by state statute; and
2. Constitutional

Question 4

What does the statutory analysis of personal jurisdiction entail?

Answer 4

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

Question 5

What is a long-arm statute?

Answer 5

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

Question 6

What are the two types of long-arm statutes?

Answer 6

1. 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
2. Other states, like California, have long-arm statutes that give their courts power over any person to the full extent permitted by the Constitution

Question 7

What does the constitutional analysis of personal jurisdiction entail?

Answer 7

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

Question 8

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

Answer 8

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

Question 9

What does the “relatedness” analysis entail?

Answer 9

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

Question 10

When does a court have “specific” jurisdiction?

Answer 10

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

Question 11

When does a court have “general” jurisdiction?

Answer 11

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

Question 12

Where is an individual “at home”?

Answer 12

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

Question 13

Where is a corporation “at home”?

Answer 13

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)

Question 14

Where is an unincorporated association “at home”?

Answer 14

An unincorporated association (i.e., partnership, LLC, etc.) is “at home” in every state in which its individual partners or members are domiciled

Question 15

What does the “fairness” analysis entail?

Answer 15

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

Question 16

What is subject matter jurisdiction?

Answer 16

Subject matter jurisdiction refers to a court’s power to hear a particular type of case

Question 17

What is the subject matter jurisdiction of federal courts?

Answer 17

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

Question 18

When does “federal question” jurisdiction exist?

Answer 18

Federal question jurisdiction exists if the plaintiff’s claim “arises under” federal law (e.g., the Constitution, a federal statute or treaty)

Question 19

What is the “well pleaded complaint” rule?

Answer 19

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

Question 20

When does “diversity of citizenship” jurisdiction exist?

Answer 20

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

Question 21

What is the “complete diversity” rule?

Answer 21

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

Question 22

What is the “amount in controversy” requirement for diversity of citizenship jurisdiction?

Answer 22

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

Question 23

When can claims be aggregated to satisfy the amount in controversy requirement?

Answer 23

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

Question 24

How is the amount in controversy calculated for claims of joint and several liability?

Answer 24

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

Question 25

How is the amount in controversy calculated when the plaintiff seeks equitable relief?

Answer 25

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

Question 26

What types of cases will a federal court decline to hear even when diversity of citizenship jurisdictional requirements are met?

Answer 26

1. Domestic relations actions involving the issuance of a divorce, alimony or child custody decree; OR
2. Probate proceedings

Question 27

What is the subject matter jurisdiction of California state courts?

Answer 27

California state courts have general subject matter jurisdiction and can hear any case NOT within the exclusive jurisdiction of another court

Question 28

How are civil cases classified in California?

Answer 28

California civil cases are classified as
* unlimited civil cases
* limited civil cases
* small claims cases

Question 29

What is supplemental jurisdiction?

Answer 29

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

Question 30

What is required to properly invoke supplemental jurisdiction?

Answer 30

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

Question 31

What is the limitation on invoking supplemental jurisdiction in diversity cases?

Answer 31

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

Question 32

When does a federal court have discretion to decline to exercise supplemental jurisdiction?

Answer 32

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

Question 33

What is removal jurisdiction?

Answer 33

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

Question 34

What are the limitations on removal in diversity cases?

Answer 34

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

Question 35

What is the process for removing a case from state court to federal court?

Answer 35

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

Question 36

When must the defendant file a notice of removal?

Answer 36

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

Question 37

What is the proper venue for a case removed from state court to federal court?

Answer 37

The defendant removes a state action to the federal district court “embracing” the state court where the case was filed

Question 38

What is remand?

Answer 38

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

Question 39

What must a plaintiff do to seek remand?

Answer 39

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

Question 40

What is venue?

Answer 40

Venue refers to the proper geographic district in which to bring an action

Question 41

Where is venue proper in FEDERAL court?

Answer 41

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

Question 42

Where do individuals and businesses “reside” for venue purposes in FEDERAL court?

Answer 42

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

Question 43

What must a defendant do to have venue transferred in FEDERAL court?

Answer 43

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

Question 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?

Answer 44

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

Question 45

What is a forum selection clause?

Answer 45

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

Question 46

When original venue is PROPER for a diversity case and venue is transferred, which forum’s choice-of-law rules apply?

Answer 46

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

Question 47

What may a FEDERAL court do if a civil action was initially filed in an improper venue?

Answer 47

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

Question 48

When original venue is IMPROPER for a diversity case and venue is transferred, which forum’s choice-of-law rules apply?

Answer 48

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

Question 49

What is “forum non conveniens”?

Answer 49

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)

Question 50

What is the Erie doctrine?

Answer 50

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

Question 51

What does the Erie choice-of-law analysis entail?

Answer 51

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

Question 52

How does a defendant receive notice of an action?

Answer 52

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

Question 53

Who can serve process on a defendant?

Answer 53

Any person who is at least 18 years old and not a party to the action

Question 54

What is personal service?

Answer 54

Personal service, when process is personally delivered to the defendant, is always adequate

Question 55

How can substituted service be done in FEDERAL court?

Answer 55

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

Question 56

How can substituted service be done in CALIFORNIA state court?

Answer 56

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

Question 57

What must a complaint contain in FEDERAL court?

Answer 57

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)

Question 58

What is the applicable pleading standard in FEDERAL court?

Answer 58

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

Question 59

What must a complaint contain in CALIFORNIA state court?

Answer 59

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

Question 60

What is the applicable pleading standard in CALIFORNIA state court?

Answer 60

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

Question 61

When does a plaintiff have a right to amend their complaint in FEDERAL court?

Answer 61

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)

Question 62

When does a defendant have a right to amend their answer in FEDERAL court?

Answer 62

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

Question 63

What is required for a party to amend their pleadings after the period for amendment as of right expires in FEDERAL court?

Answer 63

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

Question 64

When does an additional claim “relate back” to the original filing in FEDERAL court?

Answer 64

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

Question 65

When does an additional defendant “relate back” to the original filing in FEDERAL court?

Answer 65

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)

Question 66

When may plaintiffs and/or defendants be joined to an existing case in FEDERAL court?

Answer 66

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

Question 67

When is a nonparty a “necessary” party?

Answer 67

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

Question 68

What must be done if an absent nonparty is deemed a “necessary” party?

Answer 68

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

Question 69

What happens if it is NOT feasible to join a necessary party?

Answer 69

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

Question 70

What is a counterclaim?

Answer 70

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”

Question 71

What is a compulsory counterclaim?

Answer 71

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

Question 72

What is a permissive counterclaim?

Answer 72

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

Question 73

What is a crossclaim?

Answer 73

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

Question 74

What is the general rule regarding disclosure of expert witnesses?

Answer 74

At a time directed by the court, each party must identify expert witnesses who may provide testimony at trial and provide certain other disclosures

Question 75

What is the difference between an expert witness and a consulting expert?

Answer 75

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”

Question 76

What must be disclosed with respect to an expert witness?

Answer 76

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

Question 77

What is the consequence of failing to make required expert witness disclosures?

Answer 77

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

Question 78

What are initial required disclosures in FEDERAL court?

Answer 78

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

Question 79

When must initial required disclosures be made in FEDERAL court?

Answer 79

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

Question 80

What is the consequence of failing to make an initial required disclosure in FEDERAL court?

Answer 80

The party cannot use the undisclosed material in the case UNLESS the failure to disclose was substantially justified or harmless

Question 81

What is the scope of discoverable information in FEDERAL court?

Answer 81

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

Question 82

What is the scope of discoverable information in CALIFORNIA court?

Answer 82

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

Question 83

What is required to obtain a compelled medical examination of a party in FEDERAL court?

Answer 83

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

Question 84

What is required to obtain a compelled medical examination of a party in CALIFORNIA state court?

Answer 84

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

Question 85

What is work product?

Answer 85

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

Question 86

What is qualified work product?

Answer 86

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

Question 87

When may a party seek summary judgment in FEDERAL court?

Answer 87

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

Question 88

What must be included with a summary judgment in FEDERAL court?

Answer 88

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

Question 89

What is the standard for granting a motion for summary judgment in FEDERAL court?

Answer 89

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

Question 90

When may a party seek summary judgment in CALIFORNIA state court?

Answer 90

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

Question 91

What must be submitted with a summary judgment motion in CALIFORNIA state court?

Answer 91

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

Question 92

What is the standard for granting a summary judgment motion in CALIFORNIA state court?

Answer 92

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

Question 93

What is a party’s right to a jury trial in FEDERAL court?

Answer 93

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

Question 94

What is a party’s right to a jury trial in CALIFORNIA state court?

Answer 94

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”)

Question 95

When and how must a party demand a jury trial in FEDERAL court?

Answer 95

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

Question 96

When and how must a party demand a jury trial in CALIFORNIA state court?

Answer 96

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

Question 97

What is the “final judgment” rule?

Answer 97

Generally, only final judgments are reviewable on appeal

Question 98

When is a judgment final in FEDERAL court?

Answer 98

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

Question 99

When is a judgment final in CALIFORNIA court?

Answer 99

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

Question 100

When must an appeal be taken in FEDERAL court?

Answer 100

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

Question 101

When may a party’s time for filing an appeal be extended in FEDERAL court?

Answer 101

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

Question 102

When may a party’s time to appeal be reopened in FEDERAL court?

Answer 102

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

Question 103

When must an appeal be taken in CALIFORNIA state court?

Answer 103

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

Question 104

When are interlocutory orders appealable as of right in FEDERAL court?

Answer 104

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

Question 105

When are interlocutory orders appealable as of right in CALIFORNIA state court?

Answer 105

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

Question 106

What is claim preclusion (res judicata)?

Answer 106

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

Question 107

What do the concepts of “merger” and “bar” mean for purposes of claim preclusion (res judicata)?

Answer 107

“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

Question 108

What are the requirements for claim preclusion (res judicata) to apply in FEDERAL court?

Answer 108

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

Question 109

How do the requirements for claim preclusion (res judicata) in CALIFORNIA state court differ from the federal requirements?

Answer 109

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

Question 110

What is issue preclusion (collateral estoppel)?

Answer 110

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

Question 111

What is required to invoke issue preclusion (collateral estoppel)?

Answer 111

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)

Question 112

Describe the differences between non-mutual DEFENSIVE issue preclusion and non-mutual OFFENSIVE issue preclusion

Answer 112

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