Civil Procedure Flashcards
Initial Notice Pleading (Complaint)
When is special pleading required? what are the requirements?
- Sufficient facts to show the claim is PLAUSIBLE not just possible in a short plaint statement showing the plaintiff is ENTITLED to relief
- identify parties
- grounds for SMJ
- demand relief sought
- signed by P lawyer
CA: allows DOE for unknown party & requires fact pleading (specific facts supporting each element of each legal theory)
**Fraud, Mistake, Special Damages: **
1. Complaint MUST have particular or specific circumstances to support the claim.
2. General claims about mental state is fine.
Just saying the person is negligent is NOT enough.
Ask why are they negligent? What facts are you saying that show they were negligent
When can the court of appeals hear a case?
When does an appellate court lack jurisdiction over an appeal?
Interlocutory appeal Exceptions?
**30 days from the day of FINAL judgment on the MERITS of ALL actions and ALL parties involved **
**Interlocutory appeal Exceptions **= where the parties would be severely prejudiced or would lose their rights if they waited to act
**A) partial judgment rule = **
1) Multiple claims/parties
2) court EXPRESSLY determines there is no just reason for delay
3) court MAY enter final judgment for some (not all) of claims/parties that do NOT overlap because they are specific and distinct
**B) preliminary/permanent Injunction **= (extended TRO 28 day or more)
C) Certification or Denial of a class action is immediately appealable if within 14 days a permission to appeal is filed with the circuit court, But the court does NOT have to hear it.
D) Collateral Order Doctrine = issue is COMPLETLY distinct from the merits of the case + involves a legal question + essentially unreviewable if party has to wait for final judgment to appeal
**E) Extraordinary Writ **= federal court is CLEARLY violating duty by abuse of discretion duty + no other adequate means of relief + extraordinary circumstance
F) Discretionary Interlocutory appeal = BOTH courts must agree to allow the appeal + had the decision gone the other way it would end the litigation more quickly + the descision is a controlling question causing a difference of opinion in the LEGAL interpretation of the question NOT factual interepretation
MBE TIP = If the lower court orders a new trial this is NOT a final judgment and the the appellate court has NO jurisdiction and should dismiss
Collateral Bar Example = think about the Cohen case where NJ passed a law in the middle of the case that required Plaintiff to pay the attorney costs if they lost. the D sought P to put a bond to ensure they would be able to pay if they lost the action, but lower court denied. It was allowed to be appealed because the bond was a completly DISTINCT issue from the shareholders lawsuit against the corp AND if corp waited till the end of the suit to appeal P may NOT have any money
–> Conversely in Mohawk = court chose not to apply the Collateral Bar rule against bringing in attorney client information because they felt this issue could be fixed after final judgement on appeal by excluding the wrongful evidence and its fruits in a new trial
Diversity jurisdiction SMJ is not allowed in what types of cases?
- Domestic relations
- Probate proceedings
Summary Judgement
When is the last point you can file a motion for summary judgment?
At what point in the trial?
1) BEFORE the trial starts
2) within 30 days after the close of discovery
3) Judge ONLY reviews FIRST-HAND KNOWLEDGE evidence that is UNDER OATH
4) in the light most favorable to the non-moving party
5) will grant the motion in full or in part if = no genuine issue of material fact + movant is entitled to judgment as a matter of law
6) court will allow non-moving party more time to get more evidence that they can use to oppose the motion if they file with the court a declaration stating what the evidence would be
MBE TIP: Summary Judgement
–> DENIED if any conflicting: reports, statements, affidavits, one party EXPRESSLY questions the witnesses credibility
—> Valid evidence = —> Evidence under oath: affidavits, declarations, depositions, interrogatories
—> NOT valid Evidence: witness affidavit about what someone else would say, referencing facts asserted in the pleadings
—> DO NOT GET TRICKED: if the facts are talking about witness opinion or credibility. the other party must EXPRESSLY have an issue with it to be a conflict
Example: Employer filed for summary judgment claiming the employee was a “liar who filed it falsely” DENY the SMJ because there is an EXPRESS conflict between what the employer is saying and employee is saying
Amend pleading
Supplemental pleading
Relation back
* Amend pleading = no need to ask court if within 21 days from the date you served the complaint/answer. After that, courts LIBERALLY allow amended pleadings if justice so requires and will only be denied if it will cause actual prejudice to the other party
* Relation back **
* New claim/defense = if the SOL period has run out you can argue that the claim or defense you are trying to add arose out conduct, transaction, or occurrence set out in the OG pleading
* ** D mistaken Identity =
(1) new defendant concerns the same conduct, transaction, or occurence as the OG Complaint,
(2) within 90 days of filing the complaint so new D is not prejudiced
(3) new D should have known she would have been called into court but for P’s mistake
* Supplemental pleading = court must give permission and will typically allow if it is an event, occurrence, or transaction that occurs AFTER the date of the original pleading
MBE TIP: Right to amend claim is allowed for ANY reason
MBE TIP: ALWAYS WRONG = election of remedies doctrine
Cross-Claim
Supplemental Jurisdiction will extend to a cross-claim where a party is suing another party on the same side of the V as them and can be filed IF the claim arises from the same transaction or occurrence. BUT it is NOT required within the same action, and can be brought up in another suit later on.
Entry for Default Judgement
What is the procedure?
Defendant fails to respond within 21 days (CA state court: 30 days) or 60/90 with waiver of service then the plaintiff can enter a default with the court or clerk. Once filed, This will NOW cut off any chance D had to respond, even if past the 21 days and he can NOT contest liability, unless granted a motion to set aside the judgment.
**Notice **= 7-day certified mail Notice MUST be given to the other party ONLY IF they APPEARED at some point during the action or any act by the other party that CLEARLY indicates they contest.
**THE CLERK OF THE COURT **
1) if the defendant does not respond,
2) D is not a minor or imcompetent,
3) damages are CERTAIN money amount
4) plaintiff swears to amount in affidavit
COURT WILL HOLD A HEARING just based on the pleading.
1) If damages are uncertain then the motion must be filed with the judge.
Impleader
Interpleader**
Intervention
**Impleader = brining in a 3rd party claim **
1. The defendant can assert a Third-party claim ONLY to obtain recovery from the third party for any portion of the defendant’s liability he may owe the Plaintiff (indemnity, contribution, insurance)
2. file a 3rd party complaint + serve it +within 14 days of sending the answer or with the courts permission
3. Supplemental Jurisdiction applies so it does not matter if D is in the same state as the third party. Also, the third party can file a claim against the OG plaintiff if the claim arises out of the same transaction or occurrence.
Permissive Intervention = Courts MAY allow a party to intervene into the action if the claim has a common question of law or fact as the main action
* Plaintiff Intervention requires independent SMJ
* Defendant can use Supplemental Jurisdiction
Intervention by Right = Court MUST allow a person who has NO OTHER alternative to seek redress OR his rights will be impaired by not being a party in the action.
Interpleader = When 1 person who holds property forces all the other people that claim the property into 1 lawsuit to avoid multiple and inconsistent cases. allows a stakeholder to a dispute that involves PROPERTY the ability to join ALL other people that may have a claim to the property into 1 suit to avoid multiple and inconsistent cases.
Stuatory Impleader –> if the stakeholder bringing the claim holds the actual property then the court will have nationwide PJ over anyone that is binding if:
1) minimum 2 claimants that are diverse
2) property is over $500
3) venue is where at least 1 defendant resides
* Rule Interpleader = SMJ + PJ + Venue is necessary
In Rem Jurisdiction = binds all (you want the property)
* real property, personal property (car), intagible property (bank account) court will exercise jurisdiction OVER everyone, even people not apart of the suit, so that its judgement is binding and applies to ALL
Quasi in Rem Jurisdiction = binds only D + P (you want to attach judgement to property)
* only applies to plaintiff and defendant
MBE TIP - make sure it says = contribution, indemnity, subrogation - insurance in the facts (Asserting that it was the third party that really did the action and should be liable is NOT sufficient)
Valid impleader or cross claim = If I am found liable, then you need to pay the damages
Invalid = I am not liable this guy I am bringing the claim against is liable and this is my defense
Supplemental Jurisdiction
Cross Claims
Requirements:
1. court has SMJ over the original claim by FQJ or DJ
2. new claim arises from the same common nucleus of operative facts
3. DJ only case, diversity would not be broken by adding the claim
NOTE in a DJ case = Claims BY OG Plaintiff, proposed plaintiff, or required platiniff are NOT allowed, unless they have their own Independent $75k and diversity from D
ONLY exception = a plaintiff that does not meet the $75k requirement CAN join in with another plaintiff who meets the $75k requirement IF the facts arise from the same transaction or occurence and wont destroy diversity
Its within the courts discretion to deny certain supplemental jurisdiction claims:
(a) state law claim is novel or complex
(b) state law claim will likely dominate the federal claim, unless the facts needed to prove both claims are similar
(c) federal claim has been dismissed
(d) exceptional circumstances w/ compelling reason, like an ongoing state proceeding
**Cross Claims only come in under supplemental jurisidcition and allow a co-party to make a claim against another co-party on the same side of an already existing claim. **
1) claim must arise out of the same transaction or occurence as the original action
2) ask for actual relief from the co-party
MBE TIP: Supplemental Jurisdiction always allowed for:
- D compulsory counterclaims against the P
- 1 P using Joinder to assert all claims against D
- A co-party suing the other co-party on same side of V
- D Impleads a 3rd party through indemnity
- Indemnity party wants to assert claims against P or D
Not allowed - independent SMJ needed:
- OG plaintiff vs. 3rd party new defendant
- Compulsory Joinder
- Joinder of Defendants
- Intervention
MBE TIP: within the courts discretion look for words like MAY not MUST
MBE TIP: look at what the specific claim that the motion to dismiss is for. and apply the rules just to that claim
eg: a cross claim
Service of Process
D has a right to know when he is being sued
1. Within 90 days of filing the complaint
2. deliver summons + complaint directly to plaintiff
3. by any person NOT in the action that is 18+
4. delivery person file report or affidavit with court, but failure to will NOT affect service
- Federal = time extentsion for good cause
- CA = 60 days to serve, if add new D then new D gets 30 days
Constructive Service = certify mail to D + D MUST waive service
Substituted Service
* deliver complaint copy and summons to someone of suitable age and discretion who LIVES there* (CA: 18 + usual abode + mail copy + tell person about it)*
* authorized agent
* any method permitted by state law
**Corporation: **
* Federal: Mail a copy to each D + Deliver to officer or manager/partner or authorized agent or according to state law where court sits OR where process is being made
* CA: to authorized agent OR person who looks in charge at office during biz hours
Foreign Country:
* as the court directs
* in accordance with the countries laws
* within rules of international treaty
* NO personal service to Foreign Business
MBE TIP: Insufficient Service of Process where a judgement is entered will be void
MBE TIP:
Insuffcient Service of Process = improper service
Insufficient Process = object something wrong with docs
MBE TIP: service is according to the state law rules the court sits in OR if there is a long arm statute then also the state law where the person is being served
MBE TIP: 100 mile bulge rule –> 100 mile radius of the court house against out of staters who are either: 3rd party defendant or Indispensible party needed
Subject Matter Jurisdiction
SMJ involves the court’s power over a particular type of case = FQ, DCJ, supplemental Jurisdiction
Federal Question Jurisdiction occurs when on the face of a well-pleaded complaint P is trying to enforce a federal law, US constitution, or US treaty. It is NOT enough to just raise some federal issue in the complaint or for a defense to raise the federal law. Additional state claims may be joined ONLY IF they have arise out of a common nucleus of operative fact. (federal securities = stock market)
Diversity of citizenship jurisdiction when the amount in controversy exceeds $75k and the suit is between completely diverse citizens.
- amount in controversy must exceed $75k and is determined by the plaintiff’s good faith allegation AT THE TIME of filing.
- Complete diversity between the opposing sides means each plaintiff must be of diverse state citizenship from every defendant. An individual’s citizenship is determined by their domicile.
Corporation = Incorporation + PPB
Foreign Corporation = Any place of incorporation + 1 PPB
Personal Jurisdiction
**PJ is the court’s ability to exercise power over a particular defendant and without it their holding will NOT be binding. **
Traditionally, PJ based on: domicile, presence in the state when served, and consent.
Modernly, Long arm Statutes + Constitutional
**Long Arm Statute **= gives the court PJ over an out-of-state D. Some states, like CA, give courts the power over any person to the extent it is within the state’s constitutional limits. Other, states list specific instances when it applies.
Constitutional Limits = must be sufficient minimum contact with the forum state such that it does not offend traditional notions of fair play and substantial justice. these factors include: contacts, relatedness, and fairness.
**Minimum Contacts **= requires a showing of purposeful availment AND forseeability. = D purposefully availed itself of the privilege of conducting activities in the forum state, thus invoking the benefits and protections of its laws. + D knew or it was reasonably anticipated that its activities in the forum made it foreseeable he may be haled into court their to defend an action.
**Relatedness **= D’s contacts with the state must be sufficiently related giving the court either general or specific jurisdiction.
* General = D’s contacts with the forum state are systematic and continuous, such that he is found to be essentially “at home,” which allows a court to hear ANY case
* Specific = Claim arises or relates to D’s contact with the forum state, which allows the court to hear ONLY that claim
Fairness = GJ fairness presumed. SJ courts MUST weigh the factors to determine if their exercise of power is fair and substantial justice
1) burden to D = forum is SO gravely difficult and inconvenient it puts D at a severe advantage, including evidence, witnesses, traveling, but wealth is not determinative
2) Plaintiffs relief interests = litigating in the forum, convenient and effective relief, evidence, witness, injured hard to travel
3) Forum states interest = provide redress to its citizen within its state and regulating the activities that happens within its borders
4) judicial systems interest in efficient ajudication
5) shared policy interests between the states
Invalid Minimum Contacts:
- Foreign abroad company using independent contracters in the US is not sufficient contacts in that state
- just knowing a product may end up somewhere is not enough
Valid Minimum Contacts:
- intentionally target + serving the needs of the state
- Sometimes: sufficient regular flow of bussiness within the state
- defendant could reasonably anticipate his defamatory online postings would target readers in plaintiffs home state
- website will have contact with the state IF it is interactive and targets the people in the forum
- Sending a tortious Email
MBE TIP: if question is about contacts, if the minimum contacts could be either way, look for the answer that talks about minimum contacts = “Reasonably Anticipate” or “fair play and sub justice”
Special Federal Jurisdiction
100-mile bulge provision
Rule 12
Rule 12: failure to raise an objection to personal jurisdiction in the initial response
100-mile bulge provision = Federal court will exercise jurisdiction over any defendant joined by impleader or required joinder, who is served or waives service within a US Judicial District NOT MORE than 100 miles from where the summons was issued
Amount in Controversy
Aggregating Claims
Equitable Relief
Legal Certainty Test
Must be MORE than $75,000.
* Does NOT include, pre-judgment interest, costs, and attorney fees (unless contract or law says otherwise).
**Valid Aggregating to meet the requirement: **
* 1 Plaintiff can use Claim Joinder to join ALL of her claims against 1 Defendant, even if the claims are unrelated
* 1 Plaintiff can aggregate ALL her claims against the same Defendants that are jointly and severally liable
* Multiple plaintiffs can aggregate their claims against the defendant IF the claim is 1 single common interest they all have that can not be divided
NOT valid:
* Defendants Counterclaims do NOT add into Plaintiffs OG claim
* 5 plaiintiffs being hit by 1 car because each plaintiff has a different injury (will be allowed under supplemental jurisdiction if it wont break DJ)
* 1 plaintiff suing for damage to her house: seller for frause and contractor for breach of contract
Equitable Relief = 2 options:
* (A) If the injunction was denied against Plaintiff would the harm value to the Plaintiff exceed $75k?
* (B) If the injunction was granted in favor of Plaintiff, would the relief requested cost the Defendant more than $75k to comply?
**Legal Certainty Test **= Whatever the Plaintiff claims in good faith to exceed the $75,000 will be accepted, UNLESS at the time of filing it is CLEAR with LEGAL CERTAINTY that she can NOT recover more than that amount. A final judgment being less than $75k amount will not void the judgment because the requirement is set at the time of filing.
- MBE TIP: If a party is added by joinder, or a party voluntarily dismisses themself to meet the requirement, then the diversity requirement will be looked at again to ensure compliance.
- MBE TIP: MUST Have a US Citizen on each side of the V
Removal
Remand
**Removal **
1. ONLY DEFENDANT can remove a case from the state court to the federal court, as long as he does NOT live in that state
2. MUST be forum in the SAME state by filing a notice in the federal district court (otherwise it’s not proper and a court will remand back to state court)
3. file a notice of removal in federal court stating why there is SMJ (FQ or DJ)
4. Motion is filed within 30 days of Last D to receive service of a document showing removal eligibility, but NO more than 1 year from the date the case was filed. (document could be: initial pleading upon service OR notice that Plaintiff voluntarily dismissed an in-state D) — unless P acted in bad faith
5. all defendants joined in the motion or consented
6. Promptly serves a COPY of the notice to all adverse parties + files a COPY of the notice with the state court
REMAND
1. If plaintiff believes the Defendants removal to federal court is NOT proper
2. move to remand the case back to state court within 30 days of removal being filed, otherwise its a waiver.
A lack of SMJ claim can be brought anytime, even on appeal.
A federal court MAY choose to remand a case back to state court after the federal question claims have been resolved.
Upon removal to federal distict court, the defendant embraces the state court venue where it was originally filed, regardless if the venue was improper or not and consents to PJ. BUT Before removal, if D starts the litigation process in state court (filing a counterclaim, starting discovery), he waives his right to removal.
MBE TIP: Make sure Defendant is the one doing the removing, NOT the plaintiff
MBE TIP: Make sure ALL defendants agree to remove
MBE TIP: 30 day max — Diversity case 1 year max
MBE TIP: Defendant can NOT move it to fed court if he lives in that state
Essay TIP = failure to remove to federal court wihin 30 days EVEN IF a federal claim is involved will NOT allow removal anymore
Federal Venue
**AT THE TIME the Plaintiff files a claim in Federal Court, the proper venue for her to file the action is determined. For this reason, a person moving AFTER filing, will NOT not destroy venue. **
**Venue is proper in any court with SMJ + PJ AND: **
* (a) Any district court where at least 1 defendant resides and all other defendants live in the same state
* (b) Any district court that a SUBSTANTIAL portion of the claim arised (injury, contract signed)
* (c) Fall back: venue is proper in any district court that has PJ over the Defendant
**For venue purposes to determine where a person or business RESIDES the following is used: **
* A person RESIDES in his Domicile
* For a Defendant that lives outside the US, venue is proper in ANY district in the US and the joinder of such a defendant shall be disregarded in determining where the action may be brought with respect to other defendants.
* ANY type of business, incorporated or not, IF they are the D being sued resides anywhere the court has PJ over them, including = PPB, where they are incorporated, where the claim arised
* If that business is acting as a plaintiff suing someone else, then the residence is where the PPB is
* if a suing a corporation within a state that has multiple disctrict courts, then each district court within the state is treated like its own state, and venue will be proper in any of the district states where the corproations contacts are enough that the district state has PJ over the corporation If that does not exist, then the corporation will be deemed to reside in the district state in which he has the MOST significant contacts.
Reminder: if a Defendant removes the case from state court to federal court he embraces the state where the claim was initially filed, thus consenting to Venue and PJ
VALID: ONLY if venue is proper, then ALL parties CAN consent to transfer to an improper venue
Transferring a Venue
Forum Selection Clause
- Where venue is improper, the court may grant a defendants motion for dismissal or transfer the case to another court within the same judicial system if (1) the transferee court has subject matter jurisdiction, personal jurisdiction, and would be a proper venue; and (2) the transfer is in the interests of justice. The law of the new transferee court will be applied.
- When a defendant seeks to transfer venue
from a proper forum it must be established that: (1) the case could have been brought within the transferee court as it has subject matter, personal jurisdiction, and is a proper venue; (2) the transfer must be convenient and (3) the transfer must be in the interests of justice considering the ORIGINAL proper venue state’s choice of law will rule. District courts are afforded great discretion when deciding permissive venue transfer requests.
Forum Non Conveniens = Even if venue is proper, it is within the courts discretion to decline to exercise jurisdiction if there is a court or forum that can more conveiently hear the case and they are unable to transfer to that court because its a court that is FOREIGN or not within its system. If the court is unable to transfer the case, the court will stay or dismiss the action. Under Piper Aircraft, courts will balance both private and public factors.
**Interest of Justice/Public Factors **= availability of alternative forum, P choice of forum, Forum states interest in providing a forum for its residents, burden of jury to hear the case
Conveienence/Private Factors = convenience/burdens of the parties and witnesses, location of evidence, and where the cause of action arose
Federal Courts and California State Courts recognize Forum Selection Clauses in Contracts and will adhere to them upon motion to transfer ONLY IF it is within the interest of justice to do so by weighing the PUBLIC FACTORS ONLY. The NEW forum courts laws will apply.
California Venue Rules
In CA state court, venue is proper in the county in which any defendant resides or PPB AT the time of filing the action OR the county where the dispute arised for a tort or contract claim. If neither are met, then fallback option is any county that has PJ over the D. Real Property MUST be in the county where the property is located.
**Change venue if: **
* court named in the complaint is wrong court,
* reasonable impartial trial,
* the interest of justice,
* no qualified judge to act
Motion for Judgment as a matter of law
Renewed Motion for Judgement as a matter of law
**(CA: Directed verdict) **
EXAM TIP: If denied explain the underlying tort issue + why it’s a genuine conflict
Judgment as a matter of law =
1. After Plaintiff has been FULLY heard on the issue, the Defendant can motion for JMOL at the close of the plaintiffs case, OR Either SIDE can motion for JMOL after BOTH sides have rested, but it MUST BE BEFORE case goes to jury, Judge will enter a directed verdict if = a reasonable person would AGREE that looking at ALL the evidence that has been heard throughout trial in light MOST favorable to the non-moving party there would be NO disagreement in the result.
RJMOL
1. Motion for JMOL was properly made during trial after the non-moving party has been heard + before case goes to jury
2. RJMOL made within 28 days after the judgment is entered NO EXTENSIONS!!!
3. RJMOL is based on same grounds as the OG JMOL motion
Judge is not weighing the evidence or determining the credibility of the witnesses, he is looking at the evidence that is presented and seeing if its sufficient that a jury COULD find for the non-moving party, if evidence is insufficient to do that, then the court will grant JMOL
Right to a jury trial in civil actions
What amendment?
Jury Instructions?
The 7th Amendment gives the right to a jury trial in ALL Federal Civil Actions at law for money damages over $20
1. FEDERAL civil action at law - 7th amendment
2. for Money damages ONLY
3. demand for a jury trial MUST NOT be made later than 14 days after the last pleading is received regarding a jury triable issue. (~answer) It applies to counterclaims and cross-claims
- judge decides issues regarding equity, if BOTH = the jury will decide the issues of fact regarding the damages first, then the judge will determine the issues about the equity claim.
- does NOT apply in state court because it was never incorporated into the states.
Selecting a jury = each side has unlimited challenges for cause (bias, prejudice, impartial) and 3 pre-emptory race-gender neutral challenges. Jury can be 6-12 ppl and requires a unanimous vote.
- Any financial relationship between the juror and the party on trial is a presumption of bias and juror should be striked for cause (even $1 of stock)
Jury Instructions = before or at the close of evidence the parties will give the judge their proposed instructions. party MUST object to the instructions the first chance they can without the jury listening, otherwise, objection is waived, unless plain error that affected the persons substantial rights regardless of objections
Preserved Objection = objection made on the record specifically naming the matter being objected to
Judgment without going to trial
PRE-trial Motions
- voluntary dismissal
- default judgement
- motion to dismiss
- motion for judgment on the pleasing
- motion for lack of SMJ anytime even on appeal
- Motion for summary judgment
