Civil Procedure Flashcards
Third Party Complaint Pleading Standard
An original defendant may only implead a third party by alleging derivative liability.
The original defendant may not merely claim that the plaintiff sued the wrong plaintiff.
Grounds for a New Trial
Proper grounds for a new trial include:
1. Verdict is against the weight of evidence
2. Juror misconduct
3. Inadequate verdict.
Elements of Claim Preclusion
AKA Res Judicata
Res judicata applies when three elements are present:
1. the decision was a final judgment on the merits; and
2. the same cause of action and the same parties or their privies were involved in both cases.
3. The same claim (cause of action) is asserted in the prior and subsequent case (same T/O)
Elements of Issue Preclusion
AKA Collateral Estoppel
1) the former judgment must be valid and final;
2) the same issue is being brought;
3) the issue is essential to the judgement;
4) the issue was actually litigated.
Traditional Bases for Personal Jurisdiction
- Domicile
- Physical Presence in Jurisdiction @ Time of Service
- Consent
- Waiver
FRCP
Long-Arm/Constitutional Basis for Personal Jurisdiction
Assertion of personal jursidiction must not offend traditional notions of fair play or substantial justice.
Steps to Establishing PJ
- Long-Arm Statute: need a long arm statute.
- Minimum Contacts: must establish purposeful availment and foreseeability
- Relatedness: whether the party’s contacts with jurisdiction are related to the claim.
- Fairness: assertion of jurisdiction must be fair
Personal Jurisdiction Fairness Considerations
- The inconvenience to the defendant,
- The state’s interest in hearing the action and protecting the parties
- Interstate efficiency
Where is Venue Proper?
FRCP
Venue is proper in any judicial district where:
- Any defendant resides (if the defendants all reside in the same district), or
- A substantial part of the events giving rise to the cause of action occurred, OR
- If 1 and 2 are not feasible, any district where any defendant is subject to personal jurisdiction.
Where is Venue Proper?
California
General Rule: venue is proper in any county where any defendant resides.
Contract Disputes: county where contract was entered into or performed
Personal Injury: county where injury occurred.
Choice of Law When Venue is Transferred
If Venue Was Proper
* Diversity Cases: apply the law that would have been applied by the transferor court.
* Federal Question Cases: federal law
If Venue Was Improper
* Diversity Cases: the court must apply the CoL rules of the state the transferee court is sitting
* Federal Question Cases: apply federal law
Ex Parte Issuance of a TRO
FRCP
Rule: the court may issue a TRO without notice to the non-moving party only if:
1. Specific facts in an affidavit or verified complaint clearly show that immediate and irreparable harm will result to the movant before the non-moving party can be heard, AND
2. The movant’s attorney certifies in writing any efforts made to give notice to the non-moving party and why notice should not be required.
Relate Back Doctrine: Amended Pleading that Adds New Party
FRCP
If a pleading is amended to add a party to the complaint, the defendants will relate back if:
- they concern they same conduct, transaction, occurrence as the original complaint,
- The new party knew of the original action, and
- The new party also knew, but-for a mistake, she would have been named a defendant in the original case.
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Discovery Disclosure Requirements
FRCP
FRCP requires mandatory disclosure of information about the pending case to the opposing party.
There are three types of mandatory disclosures:
1. Initial Disclosures that supply info about disputed facts,
2. Expert Testimony: ID of expert, qualifications, written report.
3. Pretrial Disclosures: list of witnesses, documents, exhibits
NO MANDATORY DISCLOSURE IN CALIFORNIA.
Scope of Discovery
FRCP & California
Relevant materials are discoverable even if not admissible so long as they are reasonably calculated to lead to discoverable evidence.
Discovery of Privileged Materials
FRCP and California
Federal: privileged materials are not discoverable.
California: requires the responding party to object with particularity (ID the document, author, date, and recipients) and specify the applicable privilege.
Attorney Work Product Doctrine
General Rule
Work product, material produced in anticipation of litigation, is generally not discoverable unless there is a substantial need and an inability to obtain the information by another means.
Absolute Privilege under Work Product Doctrine
FRCP, CA
Absolute privilege applies to mental impressions, opinions, conclusions, legal theory
FRCP: applies to things created by the party, the party’s attorney, another representative of the party
California: applies to things created by the party or her agent.
What is a motion to dismiss for a failure to state a claim called in California courts?
General demurrer.
Motion to Strike
Motion aimed at pleadings that contain immaterial or redundant issues.
California’s Anti-SLAPP
Anti-SLAPP enables a party to make a motion to strike in suits that are brought to chil the valid exercise of the freedom of speech.
Effect of Anti-Slapp Motion: a party that makes a anti-slapp motion to strike shifts the burden on the plaintiff to show a probability of winning on the merits.
California Demurrer
Used to respond to the complaint.
General Demurrer
California Civil Procedure
- Pleading failed to state facts sufficient to constitute a cause of action
- Court lacks SMJ
Special Demurrer
California Civil Procedure
Only allowed in cases classified as unlimited (>$25000)
- Uncertain pleading (motion for a more definite statement).
- Complaint unclear about theories of liability being asserted
- Lack of Legal capacity to sue
- existence of another case on the same cause of action
Purposeful Availment & Foreseeability
(Minimum Contacts Standard)
A defendant’s contacts with the forum state must be assessed to determine if
- the defendant purposefully availed himself to the benefits and protection of the forum state,
- such that it is reasonably foreseeable that her activities would subject her to being haled into court there.
Removal
+ Rule for Diversity Cases
Rule: removal allows a defendant to have a cause originally filed in state court to be remoced to federal court if the case could have been brought in either federal or state court.
- Diversity Cases: defendant may not remove to federal court if he is a citizen of the forum state
- Venue: a federal court in the state where the case was originally filed.
