Civil Procedure

Question 1

Subject matter jurisdiction (SMJ)

Answer 1

Federal courts are courts of limited jurisdiction and can only hear cases where it has SMJ. SMJ exists if there is a federal question, if there is diversity of citizenship, or in the case of supplemental jurisdiction.

Question 2

Subject matter jurisdiction (CA)

Answer 2

California divides SMJ into three defined categories:

(1) Unlimited civil cases – Requires greater than $25k amount in controversy and includes the full range of motions and remedies.

(2) Limited civil cases – Requires less than or equal to $25 amount in controversy and limited to claims requiring monetary remedies.

(3) Small claims cases – Requires a claim less than or equal to $10k or $5k if a business entity, no attorneys allowed, pro se only.

Question 3

Federal question

Answer 3

A federal question arises under federal law, the U.S. constitution or U.S. treaties. Raising a federal defense is not sufficient.

Question 4

Diversity jurisdiction

Answer 4

Diversity jurisdiction exists when there is a complete diversity of citizenship between litigants and the amount in controversy is greater than $75k.

Question 5

Citizenship

Answer 5

Citizenship for a person depends upon their domicile. A domicile is where a person resides, with intent to make the state their permanent home of record.

Corporations may have two states of citizenship, determined by their principal place of business or the state in which incorporated.

Question 6

Amount in controversy (AIC)

Answer 6

In federal courts, the AIC must be greater than $75k and alleged in good faith. A plaintiff can aggregate claims to get to $75k if making multiple claims against one defendant.

Question 7

Supplemental jurisdiction (SJX)

Answer 7

A federal court SMJ may exercise SJX over state claims when they arise from a common nucleus of operational facts. A federal court may decline SJX over state claims when the claim raises a novel or complex issue of state law, it substantially predominates over the original federal claim or if the court has dismissed the claim which had original jurisdiction.

(Look for the situation where SMJ is invalid, if so, the court will not be able to exercise SJX either)

Question 8

Removal to federal court

Answer 8

Only a defendant may remove a case to federal court. This requires that the federal court has SMJ, no defendant is domiciled in the forum state, and removal is sought within 30 days.

(A plaintiff may never remove a case to federal court – they authored their complaint and chose to bring the case in the forum they selected)

Question 9

Remand to state court

Answer 9

A remand occurs when a case is sent from federal court to state court. This typically occurs when there is invalid SMJ. A federal court may remand a case that originally had SMJ, at the court’s discretion, once the federal claims have been decided.

Question 10

State vs federal jurisdiction

Answer 10

State courts can try federal question cases, as long as there is no implied restriction by Congress. States may not discriminate because a case is based strictly on federal law.

Question 11

In personam jurisdiction (IPJ)

Answer 11

IPJ is required for a court to exercise judgment, and normally falls into two categories – the traditional bases of jurisdiction and the modern bases of jurisdiction.

Question 12

Traditional bases of jurisdiction

Answer 12

The traditional bases of jurisdiction include domicile, presence when served, consent and waiver.

Question 13

Modern bases of jurisdiction

Answer 13

The modern bases of jurisdiction are the long arm state and constituionality.

Question 14

Long arm statute

Answer 14

Many states have adopted long-arm statutes which allow personal jurisdiction over non-residents. While long-arm statutes can differ by state, jurisdiction under a long-arm statute must satisfy the constitutional requirements for the exercise of jurisdiction. Many states, like CA, have adopted long-arm statutes which extend personal jurisdiction to the limit of the Constitution.

(If you don’t have a traditional bases or a long arm statute, you can’t exercise jurisdiction out of the state – so expect you’ll have a long-arm statute)

Question 15

Constitutionality

Answer 15

To satisfy the Constitutional requirements for personal jurisdiction, the defendant must have such minimum contacts with the forum state as to not offend traditional notions of fair play and substantial justice. In determining whether such minimum contacts are present, courts look to three things – (1) the extent of the contacts, (2) the relatedness to the cause of action, and (3) whether the exercise of jurisdiction would be fair.

Question 16

Purposeful

Answer 16

The contacts were purposeful if the defendant availed themselves of the benefits and protections of the forum state’s laws.

(Knowledge that your product is being sold in another state is not enough. You need to advertise, send goods, activate a two-way website, etc. Also, if you drive on another state’s roads, you availed yourself of the protections of their traffic laws – purposefully availed.)

Question 16

Contacts

Answer 16

In determining minimum contacts, the court looks at whether the defendant purposefully availed himself of the forum state, and whether the exercise of jurisdiction by the forum state would be foreseeable.

Question 17

Foreseeable

Answer 17

The contacts were foreseeable if the defendant could foresee being haled into court based on contacts in the forum state.

Question 18

Relatedness

Answer 18

The relatedness of a contact to the controversy determines if the court will exert general or special jurisdiction.

Question 19

General jurisdiction

Answer 19

Exists if contacts are so systematic and continuous that the defendant is essentially at home in the forum state.

Question 20

Specific jurisdiction

Answer 20

Exists if general jurisdiction does not exist the court looks to see whether contacts relate to or give rise to the cause of action.

Question 21

Fair play and substantial justice

Answer 21

Requires courts to consider the burden on defendant, the state’s interest, plaintiff’s relief interest, interstate judicial system’s interest in efficiency and shared social policy interests.

Question 22

Judgment on the pleadings

Answer 22

Can be motioned for when material facts are not in dispute and the pleadings reveal merit of the claim for either party. Filed only after an answer has been filed and pleadings are closed.

Question 23

Venue

Answer 23

Venue is proper in any district where any defendant is a resident, where a substantial portion of the claim occurred. or where a substantial part of property is located. Otherwise, venue is proper in any judicial district where any defendant is subject to personal jurisdiction. Venue may be transferred for party convenience or in the interest of justice, if the action could have been brought in the receiving court.

Question 24

Venue (CA)

Answer 24

In CA, if the suit is considered a local action (involves real property) then the venue will be considered a transitory action, and venue will be considered proper in the county where any defendant resides.

Question 25

Forum non conveniens

Answer 25

Allows a court to decline jurisdiction and dismiss an action if the court where the action was brought would be a seriously inconvenient forum and an adequate alternative forum exists in a foreign country.

Question 26

Service

Answer 26

Must be made within 90 days, but upon showing of good cause, the court must extend additional appropriate period. Requires a summons and complaint. Failure to serve in time results in a dismissal without prejudice.

Question 27

Service of process

Answer 27

Process may be served by anyone 18 years of age or older who is not a party to the case. The federal methods of service upon individuals are deliver to the defendant personally, leave at defendant’s dwelling with someone who is of suitable age and discretion who resides there, or deliver to defendant’s agent. If the defendant has waived the right to personal service, process can be served by sending a copy of the summons and complaint by first-class mail.

Question 28

Service upon corporations

Answer 28

Process may be served upon corporation by hand delivery to an officer or designated agent of the corporation. Otherwise, process may be served by any method authorized by state law in the state where the action is pending or in the state where service occurs.

Question 29

Waiver of service

Answer 29

Provides a defendant additional time to respond to the complaint. The defendant must be mailed two copies of the summons and complaint and a request to waive form, along with a prepaid, addressed return envelope. This waiver must be returned within 30 days in the continental US, or 60 outside the US, then the person need not reply to the complaint until 60 days after service, or 90 outside the US.

In CA, waiver of process does not allow additional time to answer.

Question 30

Answering

Answer 30

A pleading must be answered within 21 days of receipt of service.

In CA, pleadings must be answered within 30 days.

Question 31

12(b)(6) motions

Answer 31

These motions subject the movant to the personal jurisdiction of the court, however are an attempt to have the case dismissed due to: (1) lack of SMJ, (2) lack of PJ, (3) venue is improper, (4) insufficient process, (5) insufficient service of process, and (6) failure to state a claim for which relief can be granted.

Question 32

Demurrers

Answer 32

In CA, a demurrer functions similar to a 12(b)(6) motion in federal court, whereas a motion to quash is used to claim a lack of PJ, insufficient process or service of process.

A general demurrer is used to claim a failure to state a claim for which relief can be granted, and a special demurrer for other reasons.

Question 33

Scope of discovery

Answer 33

Discovery shall include all information relevant to any party’s case that is not privileged. This discovery must be proportional to the needs of the case. (i.e. the cost of compiling the discovery cannot greatly exceed that of the original claim)

In CA, a party may obtain discovery of all non-privileged information that is relevant to the subject matter of the case. (For privileged, consider work product, which typically is not shared)

Question 34

Physical of mental exams

Answer 34

When a person’s physical or mental condition is in controversy, a physical or mental exam of the person may be requested. Physical and mental examination are the only discovery tools for which advance court approval is required. The court requires a showing of “good cause” for the examination.

Question 35

Disclosure of persons with knowledge

Answer 35

A party has no obligation to include in their initial disclosures information concerning individuals who have discoverable info but whom the party does not intend to use. This includes expert witnesses that provide service, but their reports will not be admitted, and they will not be called to testify.

Question 36

26(f) conference

Answer 36

A meet and confer to plan discovery, this conference should be as soon as possible, and must take place 21 days prior to scheduling conference. Initial disclosures must be exchanged 14 days after the 26(f) conference, unless the court stipulates otherwise.