Civil Procedure

Question 1

Traditional Bases

Personal Jurisdiction #1

Answer 1

There are four traditional bases of jurisdiction:
1. domicile (individual = where they permanently intend to reside; corporation = states of incorporation and PPOB)
2. presence in the state when served
3. consent (no special appearances) ; and
4. in rem jurisdiction (involving title to property).

Only need to satisfy one

Question 2

Long-Arm Statute

Personal Jurisdiction #2

Answer 2

Since not stated, we can assume under CA Civ Pro, “a court of this state may exercise jurisdiction on any basis not inconsistent with the Constitution of this state or of the United States”

Always needed to exercise jurisdiction over non-resident defendant in absence of traditional basis

Question 3

Due Process/Minimum Contacts

Personal Jurisidction #3

Answer 3

Due process requires the defendant to have such minimum contacts with the forum so that the exercise of personal jurisdiction does not offend traditional notions of fair play and substantial justice (International Shoe). There are two types of minimum contacts: general and specific jurisdiction.

Question 4

General Jurisdiction

Due Process/Minimum Contacts

Answer 4

the contacts must be “systematic and continuous” or “constant and pervasive” as to render defendant “essentially at home” in the forum.

• essentially at home = court considers nearly equivalent to domicile
• claim need not be related to the contacts

Question 5

Specific Jurisdiction

Due Process/Minimum Contacts

If GENERAL juridiction is NOT satisfied, apply this

Answer 5

1. Purposeful availment of the privileges and benefits of the forum (either “stream of commerce” or “stream of commerce” plus …); and
2. It was foreseeable to Defendant that they would be haled into the forum court; and
3. That the claim or cause of action arose out of, or is related to, the contacts, which is the relatedness requirement for specific jurisdiction.

Question 6

Fairness

Due Process/Minimum Contacts (PJ #4)

NEED to discuss regardless of general or specific

Answer 6

• Trial in the forum is not gravely difficult and inconvenient;
• The forum state has an interest in providing redress;
• Plaintiff’s interest in convenient relief;
• Interstate judicial system’s interest in obtaining the most efficient resolution; and
• Shared interest of states in furthering fundamental substantive social policies.

At least discuss first three factors

Question 7

Service of Process

FEDERAL

Unless you see a Motion to Quash Service on the grounds of insufficient service, or a Motion to Dismiss for failure to properly serve, or the call of the question otherwise raises it, do not discuss the Notice requirement or the adequacy of service of process

Answer 7

Any person over the age of 18 who is not a party may serve a Summons and Complaint

Service effected by:
* personal service
* service left at the defendant’s usual abode with someone of suitable age and discretion,
* service on an officer, managing agent, or authorized agent of a corporation, partnership or similar entity
* according to state rule providing for service

Foreign Service:
* international agreement
* foreign law, or
* unless otherwise prohibited by foreign law, by personal service or mail, return receipt requested (except personal service is not permitted on a corporation in a foreign country)

Question 8

Service of Process

CA

Answer 8

Any person over the age of 18 who is not a party may serve a Summons and Complaint

Service effected by:
* personal service;
* substituted service (leaving copy at authorized locations with specific individuals, plus mailing a copy);
* service by ordinary mail (BUT ONLY if the defendant returns a Notice and Acknowledgment of Service); and
* service by publication (4 weeks in a newspaper of general circulation)

If service is on an out of state defendant, service may also be accomplished by certified mail, return receipt requested.

Service in a foreign country may be by any of the methods otherwise stated, or by any method pursuant to international law or the law of the country in which service is effected, if the court finds that method is calculated to give notice.

Question 9

Subject Matter Jurisdiction

Answer 9

SMJ includes both federal question and diversity jurisdiction

IRAC EACH

Question 10

Federal Question

SMJ

Answer 10

the claim or cause of action “arises under” the U.S. Constitution, Federal law; or a Treaty.

Question 11

Diversity

SMJ

Answer 11

(1) complete diversity between plaintiffs and defendants, and
* Citizenship of Person - domicile
* Citizen of Corporation – 1) state of incorporation and 2) its principal place of business (nerve center test)
* Citizenship of alien—resident or subject of foreign nation and not a legal resident of US in same state as other party (There is complete diversity between an alien and a U.S. resident, unless the alien is a permanent U.S. resident. If two aliens are suing each other, diversity jurisdiction does not apply to them.)

(2) an amount of more than $75,000 in controversy as set out in a good faith pleading.
* Plaintiff can aggregate all claims against one defendant and all claims against jointly and severally liable multiple defendants, BUT NOT separate claims against multiple defendants
* Multiple plaintiffs cannot aggregate their claims against a single defendant unless they are enforcing a single title or right in a common and undivided interest
* Cannot aggregate claim and counterclaim

Question 12

Supplemental Jurisdiction

Answer 12

There is supplemental jurisdiction in Federal Court to hear a state claim arising out of the same transaction or occurrence as the Federal claim, which must be a claim that “arises under” the U.S. Constitution, Federal Law, or treaties. The test is that the two claims must derive from a common nucleus of operative fact and a plaintiff would ordinarily be expected to try them all in one judicial proceeding.

• supplemental jurisdiction as ancillary jurisdiction is allowed in a diversity case, if the defendant becomes a third-party plaintiff and sues a third-party defendant, so long as the claim arises out of a common nucleus of operative facts, and the original plaintiff does not become a party to the third-party claim in a way that would destroy diversity.
• Parties, other than plaintiffs, who assert claims (cross-claimants, counterclaimants) can also invoke supplemental jurisdiction as ancillary jurisdiction in any federal question or diversity case if the claims arise out of the same transaction or occurrence as the original claim—even if they are not diverse.
• Amount in controversy does not need to exceed $75,000 once Federal Jurisdiction is established.
• need to have SMJ to trigger this

Question 13

Venue

FEDERAL

involves motion to transfer/change venue

1. Determine whether original venue AND proposed venue are EACH proper venue
2. THEN discuss the rules for changing venue

Answer 13

Venue in civil actions in federal courts is proper in a judicial district:
* where any defendant resides, if all defendants reside in the same state, or
* in a judicial district where a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of the property involved is situated.

If neither applies, then, for actions based solely on diversity, venue is proper in any district in which any defendant is subject to personal jurisdiction at the time the action is commenced and, for actions not based on diversity, any district in which any defendant may be found.

TRANSFER
Once you determine that venue is proper in both districts, then consider whether venue should be transferred. Venue may be transferred to another district where the action might have been brought if appropriate upon balancing the relative conveniences of the parties, witnesses and evidence.

• relates to the proper federal district in which to bring an action
• resides for CORPORATION = subject to personal jurisdiction

Question 14

Venue

CA

Answer 14

PROPERTY: A local action is one involving title to property. Venue is appropriate in the county in which the property is located.

OTHER ACTIONS: All other actions are transitory, and venue is proper in any county in which any defendant resides at the commencement of the action.

CONTRACT: venue in contract actions is also proper in the county in which the obligation is to be performed or the contract was entered into

PERSONAL INJURY: venue in personal injury and wrongful death actions is also proper in the county in which the injury occurred.

TRANSFER
Even if the original venue is proper, the court may transfer venue when there is reason to believe that an impartial trial cannot be held in the original county, when there is no judge qualified in the county to hear the case, or when the convenience of witnesses and the ends of justice would be promoted by the change.

• Venue relates to the proper COUNTY in which to bring an action

Question 15

Forum Non Conveniens

Venue

applies in federal and CA state courts

Answer 15

1. Is there proper venue?
2. PUBLIC (availability of alternative forum, plaintiff’s choice of forum, forum state’s interest) v. PRIVATE (convenienve of parties and witnesses, location of evidence where cause of action arose)

Question 16

Erie Doctrine

whether the law or rule in question is substantive (state) or procedural (federal) law

Answer 16

1. If there a Federal rule on point, do the state and federal rules/laws on the issue conflict? If they do not conflict, the inquiry is over and you use the Federal rule.
2. If the rule is either in the FRCP or a Federal statute, was it properly enacted under the Rules Enabling Act of 1934? If so, the federal rule or statute applies.
3. If the rule is not in the FRCP or a Federal statute enacted under the Rules Enabling Act, and the federal law and state law conflict, is the use of one or the other outcome determinative? If yes, the rule is substantive and, in most cases, you use the state rule or law. (York)

only really need to discuss first three

4. If the use of either is not outcome determinative, however, on balance, will use of the Federal rule so likely affect the outcome that it would violate significant federalism or state sovereignty concerns? If so, use the state law. (Byrd)
5. Finally, would failing to follow state law encourage forum shopping in federal court? (Hanna) Ultimately, even if the difference is outcome-determinative, if the choice is not so significant it would influence a litigant’s choice of forum, the rule is procedural, and the federal rule is applied.
6. In any case, elements of a claim or defense, statutes of limitations, and choice of law rules are substantive—use State law.

Question 17

Removal

Answer 17

Removal from state court to federal court requires federal subject matter jurisdiction, so a removal issue necessarily raises subject matter jurisdiction issues. Only defendants may remove a case to federal court, and where there are multiple defendants, all the defendants must join in the removal of the case.

UMBRELLA then SMJ

• A defendant who is sued in state court in their state of residence cannot remove a diversity case to the Federal Court in that state, and if such a defendant is one of multiple defendants, the multiple defendants cannot remove the case to Federal Court, even if the other defendants are from other states.
• Removal must be timely—within 30 days after service of the Complaint.

Question 18

Remand

Answer 18

only granted if the moving party shows that the federal court lacked subject matter jurisdiction in the first place.

quickly state THEN SMJ

Question 19

Abstention

Answer 19

doctrine by which the Federal Court will retain jurisdiction over a constitutional challenge to a state law but will refrain from deciding the question until the state courts have interpreted the state law.

EXCEPTION: Where there is
* potential for great and immediate irreparable injury,
* bad faith in the prosecution of the state action, or
* Harassment.

Question 20

Pleading

FEDERAL

Answer 20

A pleading which sets forth a claim for relief, whether an original claim, counterclaim, cross-claim, or Third Party claim, shall contain
1. Short and plain statement of the grounds upon which the court’s jurisdiction depends,
2. A short and plain statement of the claim showing that the pleader is entitled to relief; and
3. A demand for judgment for the relief the pleader seeks

pleading must be plausible

Question 21

Pleading

CA

Answer 21

Complaint or cross-complaint requires a “statement of facts constituting the cause of action, in ordinary and concise language”

Complaints and affirmative defenses must contain “ultimate facts,”—the facts that raise the issues upon which the right to recover depends—not the evidentiary facts, and not the legal conclusions.

Question 22

Doe Amendments (Fictitious Defendants)

CA

Answer 22

California “relation back” for statute of limitations, if:
1. Original complaint is timely filed and contains charging allegations against all defendants, including Doe defendants;
2. The plaintiff is genuinely ignorant of the identity of a fictitious defendant, the facts giving rise to a cause of action, or of the fact that the law provides a cause of action; and
3. Plaintiff’s ignorance must be pleaded in the complaint

Plaintiff must amend the complaint promptly once identity is learned and must serve them with a summons and complaint.

Question 23

Amendments Relating Back

FEDERAL

Answer 23

Defendant added after SOL has run, IF:
1. Amendment arises out of same conduct, transaction or occurrence as original complaint; AND
2. Within 90 days after filing complaint, new defendant (a) received notice of action such that no prejudice and (b) knew or should have known that, but for a mistake concerning identity, they would have been named originally.

Question 24

Demurrer

CA

PLEADING NOT A MOTION

Answer 24

GENERAL
Equivalent to a federal 12(b)(6) motion – complaint fails to state facts that constitute a cause of action, on its face is barred by statute of limitations, etc.

SPECIAL
* Plaintiff lacks capacity to sue
* There is another action pending between the same parties on the same cause of action
* Failure to Join Necessary Party or Misjoinder
* Pleading is uncertain
* Complaint fails to allege whether the contract is oral or written

two types

Question 25

Motion to Strike

Answer 25

Permits motion to strike for:
* Involves irrelevant, false, or improper matter
* Usually incoherent or extraneous allegations
* Evidentiary rather than ultimate facts

Question 26

Anti-SLAAP

arises in defamation (from speech or protected by 1st Amend)

SLAAP = strategic lawsuit against public participation

Answer 26

The anti-SLAPP statute requires the court to engage in a two-step process when deciding the special motion to strike:
(1) the court must determine whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity within the meaning of the anti-SLAPP statute; and
(2) if the court finds that the defendant has made such a showing, it must then determine whether the plaintiff has demonstrated a probability of prevailing on the claim. If not, the motion to strike will be granted.

Question 27

Compulsory Joinder

arises with motion to dismiss for failure to join

Answer 27

1. Is joinder proper – is the party a necessary party? (Focus on whether plaintiff can obtain full relief without the absent party)
2. Is joinder possible without destroying (diversity) jurisdiction?
3. If joinder is not possible, is the absent party indispensable? (Focus on whether presence of absent party is needed for them to defend their interests)

Question 28

Permissive Joinder

where a third party seeks to join as a plaintiff or a plaintiff seeks to join additional defendants

Answer 28

1. claims relate to same transaction or occurence
2. common question of law or fact

plaintiff may join all claims it has against a defendant

Question 29

Scope of Discovery

Federal and CA

Answer 29

Federal Courts – discovery is limited to any nonprivileged matter that is relevant to a claim or defense

CA Courts – discovery is broader – information that is
relevant to the subject matter involved in the pending action

Question 30

Initial Disclosures

Federal

Answer 30

in Federal Court, within 14 days after a Rule 26(f) meeting, the parties must disclose:
1. the names and contact information of individuals likely to have discoverable information supporting their claims or defenses;
2. copies or descriptions of documents, electronically stored information, and things in their possession or control supporting their claims or defenses;
3. computation of damages and the supporting material; and
4. insurance agreements.

parties need not disclose impeachment material

Question 31

Work Product

Federal and CA

Answer 31

FRCP—discoverable on showing of substantial need/avoid undue hardship; avoid the disclosure of an attorney’s mental impressions, opinions and conclusions

CA—Absolute privilege: attorney’s impressions, conclusions, opinions or legal research

CA Qualified privilege: work product not discoverable unless denial of discovery will (1) unfairly prejudice a
party in preparing their claim or defense, or will (2) result in an injustice

Question 32

Summary Judgment

Answer 32

To be granted, movant must show:
1. There is no genuine issue of material fact; and
2. As a matter of law, movant prevails.

Question 33

Class Action

Answer 33

Test for certification:
1. Numerosity (large number of claimants)
2. Commonality (common questions of law, fact)
3. Typicality (lead plaintiff’s claim is typical of the members of the class)
4. Adequacy of Representation (competency of plaintiff’s counsel) PLUS, any one of the following:
* Risk of inconsistent results; or
* Injunctive or declaratory relief are appropriate; or
* Common questions among the class predominate over other claims

Question 34

Claim Preclusion (res judicata)

Federal and CA

Answer 34

FEDERAL
1. Earlier judgment is a valid, final judgment on the merits. Final in the federal court is when rendered;
2. The cases are brought by the same claimant against the same defendant;
3. The same cause of action is involved in the later lawsuit; and
4. The cause of action was litigated or could have been litigated in the prior action

CA
“Primary Right Doctrine,” which states that a primary right is the right to be free from a particular harm. Thus, a cause of action that involves different rights (such as an accident that involves both personal injury and property damage), would be a problem in resolving a res judicata issue. A California court would not hold that a property damage claim “could have been litigated” in a suit for personal injury.

Question 35

Issue Preclusion (collateral estoppel)

Answer 35

The party must show:
1. The first case ended in a valid, final judgment on the merits;
2. The issue is actually litigated and determined in the first case (not by consent or default judgment in Federal Courts, but default judgments have preclusive effect in California); and
3. The issue was essential to the judgment (was it part of the cause of action?) If there are two grounds for a decision, the issue is NOT essential to the judgment.

binds the plaintiff or defendant (or those in privity with them) in subsequent actions or different causes of action between them as to issues actually litigated and essential to the judgment in the first action.

Question 36

Offensive Collateral Estoppel

Answer 36

permitted if the following elements are shown:
1. The first case ended in a valid, final judgment on the merits;
2. The issue is actually litigated and determined in the first case (not by consent or default judgment in Federal Courts, but default judgments have preclusive effect in California);
3. The issue was essential to the judgment (was it part of the cause of action?) If there are two grounds for a decision, the issue is NOT essential to the judgment;
4. The party against whom the judgment is to be used had a fair opportunity to be heard; and
5. The posture of the case is such that it would not be unfair to apply collateral estoppel.

use of collateral estoppel by a plaintiff against a defendant who has lost previous similar cases.