Civil Procedure

Question 1

Amendments

Answer 1

Under federal rules, a pleading may be amended once within 21 days of service, or 21 days of service of a responsive pleading or pre-answer motion if it requires a response, or may seek leave of court which shall be granted freely.

Under California rules, a plaintiff has the right to amend once before the answer or demurrer to the complaint is filed, otherwise must seek leave of court to amend.

Question 2

Amount in Controversy

Answer 2

In federal courts, the amount in controversy (AIC) must exceed $75,000 and be alleged in good faith. Claims can be aggregated if there is one plaintiff and one defendant, joint tortfeasor defendants, or multiple plaintiffs with an undivided interest.

Note - P’s claims against one D need not be related. Joint tortfeasors are OK because they are treated as a single defedant.

Question 3

Timeliness of Answers

Answer 3

A pleading must be answered within 21 days of receipt of service (or within 60 days if service is waived). In California, pleadings must be answered within 30 days.

Question 4

Attorney Work Product Privilege

Answer 4

Material an attorney prepares for litigation is immune from discovery unless the opposing party shows a substantial need and inability to gather the material without undue hardship. Absolute privilege applies to mental impressions and opinions. Qualified privilege extends to other materials such as interview notes.

Question 5

California Conflict of Law Rules

Answer 5

California conflict of law rules are deemed substantive law under Erie.

For tort actions, courts apply the governmental interest test to balance the comparative impairment to each state’s interest in having its own law applied.

For contract disputes, it depends on whether there is a choice of law provision in the contract. If there is not, courts will apply the governmental interest test. If there is, courts will honor that provision unless it conflicts with California’s public policies.

Question 6

California Right to Jury Trial

Answer 6

The California Constitution grants an absolute right to a jury trial. The demand must be made at the time the case is set for trial or within 5 days after notice of setting. Unlike federal procedures, equitable issues are tried by the judge first.

Question 7

California Terminology (Third Party Actions)

Answer 7

California uses the term “cross complaint” for all third party actions, such as counterclaims, cross claims, and impleader.

Question 8

Citizenship

Answer 8

Individuals are citizens of the state where they are domiciled, meaning where they presently reside and intend to remain. Corporations are citizens of every state in which they are incorporated and have their principal place of business.

Question 9

Class Action Certification

Answer 9

A class action is one where a large number of plaintiffs file suit jointly. In order to be certified as a class action, the judge must determine that individual suits would be impractical, there is a common question of law or fact shared by the class, and the named representatives will sufficiently represent the class.

Question 10

Collateral Estoppel

Answer 10

Collateral estoppel (issue preclusion) precludes litigation a particular issue that has already been decided in prior litigation. A subsequent suit based on the same issue will be precluded if the same issue was actually litigated, there is a valid, final judgement on the merits, the issue was essential to the judgement of the first case, and the party being precluded was a party to the first lawsuit.

Mnemonic - “SAFE P” (same issue, actually litigated, final judgment, essential to prior judgment, party to first suit)

Question 11

Complaint Requirements

Answer 11

A complaint is used by a plaintiff to raise issues. A complaint must identify the parties (CA allows “Doe”), contain a statement of proper SMJ (federal only), a statement of the claim (notice or fact pleading), a demand for judgment (CA must include amount sought if applicable), and be signed by the plaintiff or his attorney.

Question 12

Compulsory Counterclaims

Answer 12

Compulsory counterclaims arise from the same transaction or occurrence and must be raised in the pending case or the claim is deemed waived. An independent basis for SMJ is not required since a court will have supplemental jurisdiction over the claim.

Question 13

Compulsory Joinder of Parties

Answer 13

A plaintiff must join all necessary parties or face dismissal of the suit. A party is necessary if the court cannot provide complete relief without them, their interests will be harmed if they are not joined, or they may be subject to multiple inconsistent obligations.

Question 14

Counterclaims

Answer 14

Counterclaims are offensive claims against an opposing party and may be permissive or compulsory.

Question 15

Cross Claim

Answer 15

A cross claim is an offensive claim against a co-party and must arise from the same transaction or occurrence. Cross claims are never compulsory, but supplemental jurisdiction will extend and an independent basis for SMJ is not required.

Question 16

Demand for Jury Trial

Answer 16

A party must make a demand for a jury trial in writing no later than 14 days after service of the last pleading that he is raising an issue triable by a jury, or it is waived.

Question 17

Depositions

Answer 17

A deposition is the examination of a witness under oath and recorded by video, audio, or a stenographer. Parties can be deposed upon request, and nonparties can be deposed by subpoena. A party is initially limited to 10 depositions, which are normally limited to one 7-hour day.

Question 18

Diversity Jurisdiction

Answer 18

Diversity jurisdiction exists when there is complete diversity of citizenship between litigants and the amount in controversy exceeds $75,000.

Subheadings -
Complete Diversity
Amount in Controversy

Question 19

Erie Doctrine

Answer 19

A federal court sitting in diversity must apply state substantive law and federal procedural law. If it is unclear whether a law is substantive or procedural, the court will look to whether the state law would change the outcome of the case. If it would change the outcome, the law is substantive. A court may also balance the federal and state interests in having the law applied.

Examples of substantive law include conflict of law rules, laws governing preclusion, statutes of limitations, and laws governing evidentiary privileges.

Question 20

Exceptions to the Final Judgment Rule

Answer 20

The following orders may be appealed before a final judgment:

a. Injunctions and some interlocutory orders;
b. Trial orders certifying an interlocutory order for appeal;
c. Collateral orders, such as those regarding procedural issues;
d. Multiple claims or parties are involved and some issues are pending, but the issue is resolved as to one claim and the judge expressly determines the order as to that party is final;
e. Extraordinary writ - if an order is not otherwise appealable and the circumstances are exceptional, the aggrieved party may seek a writ of mandate to compel the lower court to act/refrain from acting; or
f. Certifications of class actions

Note for (d) - In California, a judgment as to one of several parties is considered a final judgment and may be appealed (an express determination is not required)

Question 21

Fair Play and Substantial Justice

Answer 21

The exercise of jurisdiction must also be fair. In considering fairness, the court will look to factors such as the forum state’s interest in regulating activity within its borders and protecting it’s citizens, the burden on the defendant in litigating in the forum, and other interests the court deems relevant.

Question 22

Federal Question Jurisdiction

Answer 22

Federal question jurisdiction arises under federal law, the U.S. Constitution, or a U.S. treaty. Raising a federal defense is not sufficient for purposes of federal question.

Question 23

Final Judgment Rule

Answer 23

Only final judgments may be appealed. A final judgment is an ultimate decision made by the court on the merits such that the only thing left for the court to do is enter judgment.

Question 24

Foreseeability (PJ)

Answer 24

The contacts with the forum were foreseeable if the defendant could reasonably foresee being haled into court there.

Question 25

Forum Non Conveniens

Answer 25

Forum non conveniens allows a court to decline jurisdiction and dismiss an action if the court where an action was brought would be extremely inconvenient and there is a far more appropriate forum elsewhere, such as another state or foreign country.

Question 26

General Jurisdiction

Answer 26

General jurisdiction exists if the defendant had systematic and continuous contacts with the forum state such that he is essentially “at home” in the forum.

Question 27

Impleader

Answer 27

Impleader is a mechanism a defending party can use to add a third party defendant in order to seek indemnity, subrogation, or contribution. Supplemental jurisdiction applies to impleader and venue need not be proper for the third party defendant.

Question 28

In-State Defendant Limitation on Removal

Answer 28

If removal is sought on the basis of diversity jurisdiction, the case may only be removed if no defendant is a citizen of the forum state.

Question 29

Interpleader

Answer 29

Interpleader is an action where one holding property (stakeholder) forces all potential claimants into a single lawsuit to avoid multiple and inconsistent judgments. Statutory interpleader requires that only one claimant be diverse from one other claimant and the AIC is at least $500. Rule 22 interpleader requires complete diversity (i.e., stakeholder must be diverse from every claimant) and the AIC must exceed $75k.

Question 30

Interrogatories

Answer 30

Interrogatories are questions produced in writing to another party which must be answered under oath and within 30 days. Federal rules permit a maximum of 25 interrogatories unless the court orders otherwise. California rules permit an unlimited number of form interrogatories and 35 specific interrogatories.

Question 31

Intervention

Answer 31

Intervention applies when a non-party claims an interest in the property or transaction that is the subject of the pending suit and disposition in his absence will impair his rights.

Question 32

Permissive Joinder of Parties

Answer 32

Plaintiffs and/or defendants may be joined to an existing case if the claims arise from the same transaction or occurrence and raise at least one common question of fact or law, so long as there is SMJ.

Question 33

Judgement as a Matter of Law

Answer 33

A judgment as a matter of law (JMOL) occurs when one party files a motion after the other side has been heard at trial contending that a reasonable jury could not find for that party. The movant must make this motion prior to the submission of the case to the jury.

Notes - this is essentially a request to take the case away from the jury. In California this is called a motion for a directed verdict

Question 34

Judgment on the Pleadings

Answer 34

A party can move for a judgment on the pleadings when material facts are not in dispute and the pleadings reveal merit of the claim for either party. A judgment on the pleadings may only be filed after an answer has been filed and pleadings are closed.

Question 35

Grounds for New Trial - Juror Misconduct

Answer 35

Testimony that a juror used extraneous, prejudicial information or outside improper influence is grounds for a new trial. Misunderstanding the standard of proof, mental states, and relying on evidence that was directed to be disregarded are not grounds for a new trial.

Question 36

California Long-Arm Statute

Answer 36

California’s long-arm statute allows personal jurisdiction to the full extent permitted by the U.S. Constitution. Under the U.S. Constitution, due process requires the defendant must have such minimum contacts with the forum state as to not offend traditional notions of fair play and substantial justice.

Note - this is followed by the minimum contacts/fairness analysis

Question 37

Mandatory Disclosures

Answer 37

Mandatory disclosures include initial disclosures that supply information about disputed facts, expert testimony information, and pretrial disclosures. California does not require the mandatory disclosure of any information.

Question 38

Minimum Contacts

Answer 38

In determining whether the defendant has minimum contacts with the forum, the court will look to whether the defendant purposefully availed himself of the benefits and protections of the forum state’s laws, the foreseeability he would be haled into the forum state to litigate, and the relatedness of his contacts with the cause of action.

Question 39

Motion for a New Trial

Answer 39

A party may request a new trial after the judgment has been entered based on errors made at trial. The motion must be made within 28 days after entry of judgement (CA - 15 days after mailing or service of notice of entry of judgement). Grounds for a new trial include prejudicial errors, juror misconduct, new evidence that could not have been obtained for the original trial through due diligence, or the judgement was against the weight of the evidence.

“I H8 this verdict!” to remember 28 days

Question 40

Motion for Summary Judgment

Answer 40

A motion for summary judgment (MSJ) will be granted when the moving party can establish there is no genuine issue of material fact and that he is entitled to judgment as a matter of law. The evidence is viewed in the light most favorable to the non-moving party and credibility of the evidence is not weighed. A court can grant a partial summary judgment as to one of several causes of action. A party may file an MSJ until 30 days after the close of discovery.

Question 41

Motion to Dismiss

Answer 41

A court may dismiss a claim without legal merit if it determines the facts are insufficient to sustain a prima facie case.

Question 42

Indispensable Party

Answer 42

A necessary party must be joined if the court has personal jurisdiction over them and will not destroy diversity in a diversity action.

If a party is necessary but cannot be joined, the court must decide if they are indispensable, and if so, dismiss the action. Factors for determining whether a party is indispensable include prejudice to the parties in their absence and whether that prejudice can be reduced or avoided, whether a judgment rendered would be inadequate, and whether the plaintiff would have an adequate remedy if the action were dismissed for non-joinder.

Question 43

Offensive Collateral Estoppel

Answer 43

Jurisdictions that do not employ the rule of mutuality allow a stranger to the prior case to rely on a prior judgment, although courts are generally more hesitant to allow the offensive use of collateral estoppel if doing so would be unfair to the defendant.

Question 44

Permissive Counterclaims

Answer 44

Permissive counterclaims do not arise from the same transaction or occurrence and may be raised in the pending case or a separate case. There is no supplemental jurisdiction for permissive counterclaims; the court must have an independent source of SMJ.

Question 45

Personal Jurisdiction

Answer 45

Personal jurisdiction refers to a court’s power over the persons or property involved in the case or controversy before it. In personam jurisdiction (IPJ) is the power a court has over an individual party. The traditional bases for IPJ include domicile, presence when served, consent, and waiver. If no traditional basis for jurisdiction exists, the state’s long-arm statute may provide a modern basis for IPJ.

ANALYSIS
Personal Jurisdiction
Traditional Bases
Long-Arm Statute (i.e., constitutionality)

Minimum Contacts
* Purposeful availment
* Foreseeability
* Relatedness
Specific jrx
General jrx

Fair Play and Substantial Justice
* Forum State’s Interest
* Burden on Defendant
* [Other factors if applicable]

Question 46

Physical or Mental Examinations

Answer 46

A request for a physical or mental examination of a party may be sought by an opposing party if the party has placed their physical or mental condition at issue and there is good cause for an examination. The requesting party must obtain a court order.

Question 47

Notice or Fact Pleading

Answer 47

Federal courts require notice pleading, meaning that the party must be given reasonable notice of the nature and scope of the claim(s) being asserted.

California state courts require fact pleading, meaning that the party must plead ultimate facts to support each element of their cause of action and a demand for relief.

Question 48

Purposeful Availment (PJ)

Answer 48

Minimum contacts requires the defendant purposefully availed himself of the benefits and protections of the forum state’s laws.

E.g., advertising, sending goods, driving on another state’s roads all count; knowledge your product is being sold somewhere is not enough

Question 49

Relatedness (PJ)

Answer 49

The court will also consider the relatedness between the claim at issue and the defendant’s contacts in the forum. The closer the relationship, the more likely the court will find it fair to assert personal jurisdiction.

Question 50

Relation Back

Answer 50

An amendment to a pleading overcomes the statute of limitations when the claim arises from the same transaction or occurrence as the original claim, the new party knew of the original action and is not prejudiced in maintaining a defense, and the new party knew or should have known that but for a mistake, they would have been named in the original complaint.

Question 51

Remand

Answer 51

When a defendant attempts to remove a case to federal court and the removal is improper, the federal court can remand the case back to the state court. The plaintiff must move to remand the case within 30 days of the removal; however, if they can raise the issue of SMJ at any time.

Question 52

Removal Jurisdiction

Answer 52

A civil action may be removed from state court to federal court if the case could have originally been brought in federal court, all defendants agree, and the motion is filed within 30 days of receiving the complaint.

Approach:
Removal
SMJ
All Defendants Agree
Within 30 Days

Question 53

Renewed Judgement as a Matter of Law

Answer 53

A renewed JMOL occurs after the jury has reached a verdict, contending that a reasonable jury could not have found for the other party, and asks for judgement as a matter of law. A party must have moved for a JMOL prior to the submission of the case to the jury to file a renewed JMOL. A renewed JMOL must be filed within 28 days (CA - 15 days) after entry of judgment.

CA distinction - this is called a judgement notwithstanding the verdict (JNOV) and the losing party was not required to make a motion for a directed verdict previously unlike federal rules

Question 54

Res Judicata

Answer 54

Res judicata (claim preclusion) precludes re-litigation of a claim that has already been decided in prior litigation between the same parties. A subsequent suit based on the same claim will be barred where there was a valid final judgement on the merits, a sufficiently identical claim was previously asserted, and the parties are identical.

Mnemonic - “PAM” (parties, previously asserted, merits)

CA Distinctions:
- Federal final judgment = after judgment rendered, CA final judgment = when appeals have concluded.
- Sufficiently identical claim: California follows the primary rights doctrine, which allows a separate cause of action for the invasion of each primary right, even if both occured from the same transaction/occurrence (e.g., one car accident causing both property and physical damage would implicate two different rights)

Question 55

Right to a Jury Trial

Answer 55

In federal court, the Seventh Amendment preserves the right to a jury trial in civil actions at law, but a judge decides the issues of equity. If a case has both legal and equitable issues, the jury decides the factual legal issues first, then the judge determines the equity claim.

Question 56

Rule 11 Sanctions

Answer 56

Every pleading, written motion, or other paper filed with the court must be signed by the attorney of record, certifying to the best of the attorney’s knowledge that the paper is proper, the legal contentions are warranted by law, and the factual contentions have evidentiary support. Sanctions may be imposed by the court on its own initiative. If a motion for sanctions is served, the served party has 21 days to withdraw or correct the pleadings that gave rise to the sanctions (safe-harbor) before the party may file the motion.

Note - Rule 11 does not apply to discovery documents.

Question 57

Rule 26(f) Conference

Answer 57

The federal rules require the parties to meet and confer regarding a discovery plan at least 21 days prior to the Scheduling Conference. Initial disclosures must be exchanged 14 days after the 26(f) conference unless the court provides otherwise.

Question 58

Rule 9 Complaints

Answer 58

A complaint that alleges fraud or mistake must plead with particularly the circumstances constituting fraud or mistake.

Question 59

Scope of Discovery

Answer 59

Discovery shall include all information relevant to any party’s case that is not privileged. The discovery must be proportional to the needs of the case.

Exam tip: If a party objects to discovery based on relevance, your answer should address an explanation of why the information is relevant and any arguments regarding the burden or expense of the requested discovery.

Question 60

Service of Process

Answer 60

Process may be served by anyone 18 years of age or older who is not a party to the case. Federal rules permit service of process upon individuals through personal service, leaving the summons and a complaint at the defendant’s dwelling with a person of suitable age and discretion, or delivery to the defendant’s agent. Insufficient service of process must be raised in the first response or it is deemed waived.

Question 61

Service upon Corporations

Answer 61

Process may be served upon corporations 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. Personal service is not permitted for foreign corporations.

Question 62

Specific Jurisdiction

Answer 62

Specific jurisdiction exists when a cause of action arises from or is closely related to the defendant’s contact with the forum state. The forum state will have jurisdiction over the defendant for that cause of action only.

Question 63

Standards of Review

Answer 63

De Novo: Matters of law are reviewed de novo, which means the appellate court can substitute its judgment for that of the trial judge. Mixed questions of law and fact are reviewed de novo.

Clearly Erroneous: Questions of fact determined by a judge are reviewed using a clearly erroneous standard.

Abuse of Discretion: Matters discretionary to the judge are reviewed using an abuse of discretion standard, which means such matters will only be overturned if clearly wrong or without an appropriate basis.

Questions of fact determined by a jury are viewed in the light most favorable to the affirming jury.

Question 64

Subject Matter Jurisdiction

Answer 64

Federal courts are courts of limited jurisdiction and can only hear cases where subject matter jurisdiction (SMJ) exists. SMJ exists if there is a federal question, if there is diversity of citizenship, or if there is supplemental jurisdiction.

CA Distinction: California state courts divide SMJ into three defined categories:
1. Unlimited (greater than $25k; all remedies available)
2. Limited (less than $25k; limited to monetary remedies)
3. Small Claims (less than/equal to $10k or $5k if business entity; no attorneys)

Question 65

Supplemental Jurisdiction

Answer 65

A federal court may exercise supplemental jurisdiction over claims that do not themselves invoke federal SMJ, but the additional claim share a common nucleus of operative fact with a claim that does properly invoke federal SMJ. A common nucleus of operative fact means that the claim arises from the same transaction or occurrence.

Under federal question jurisdiction, the additional plaintiff can join if the claim relates to the existing federal question claim.

Under diversity jurisdiction, additional plaintiff can join if it relates to existing claim AND they do not destroy diversity.

Question 66

Timely Appeals

Answer 66

In federal court, a party must file notice of appeal within 30 days after the entry of final judgment. In California courts, a party must file a notice of appeal within 60 days after service of notice of entry of judgment or 180 days after entry if no notice is served.

Question 67

Timely Service

Answer 67

Service of a complaint and summons must be made within 90 days of filing the complaint. Upon a showing of a good cause, a court may extend the time for service to an appropriate period. If no such showing is made, the court must dismiss the complaint without prejudice.

Question 68

Transfer of Venue

Answer 68

Federal Rules
If the original venue was proper, venue may be transferred to another federal court where the case could have been brought originally or all parties consent, and there is proper PJ and SMJ. If the original venue was improper, the court must dismiss the case or in the interests of justice, transfer to a proper venue.

CA Rules
If the original venue was proper, the venue can be changed at the court’s discretion where the interests of justice and convenience of the parties would be served by such a transfer. If the original venue was improper, California rules allow for the transfer of venue to a proper county when the court designated in the complaint is not the proper court.

Question 69

Venue

Answer 69

Venue refers to which geographic district is the proper place for a particular case to be heard.

Federal Rules
Venue is always proper in the district where a substantial part of the claim arose or where the land in dispute is located. For transitory actions, venue is proper in any district where any defendant resides if all defendants reside in the same state.

CA Rules
Venue is proper in the county where the claim arose (torts), where the land in dispute is located (property), or where the contract was entered into or expected to be performed (contracts). Venue is also proper in a county where any defendant resides at the time the case is filed. If no defendants reside in California, then any county is acceptable.

If no district satisfies the requirements above, venue is proper in any district where any defendant is subject to PJ.

Question 70

Motion to Compel

Answer 70

If a party fails to respond to discovery that has been properly served, the party seeking the information may move to compel such discovery. A motion to compel must be served on all parties and accompanied by a certificate that the movant has in good faith attempted to to confer with the opposing party and obtain disclosure.

Question 71

Discovery

Answer 71

Discovery is generally permitted with regard to any matter relevant to any party’s claim or defense in the action that is not otherwise privileged. Evidence need not be admissible at trial to be discoverable.

Question 72

Discovery Challenge

Answer 72

When discovery is challenged, the court must weigh the party’s interests in seeking discovery against the privacy interests of the party resisting discovery.