Civil Procedure

Question 1

Subject Matter Jurisdiction (SMJ)

Answer 1

Federal courts are courts of limited jx and can only hear cases where they have SMJ.

SMJ exists if:
1) there is a federal question;
2) there is diversity of citizenship; or
3) there is supplemental jx.

Question 2

Subject Matter Jurisdiction (CA)

Answer 2

CA divides SMJ into 3 categories:

1) Unlimited Civil Cases: requires > $25,000 amount in controversy and includes the full range of motions and remedies.

2) Limited Civil Cases: requires ≤ $25,000 amount in controversy and limited to claims requiring monetary remedies.

3) Small Claims Cases: requires a claim ≤ $10,000 (or ≤ $5,000 if a business entity). Pro se only/no attorneys allowed.

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

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.

College students: may leave the state for college but if they intend to return home, they have not changed their domicile.

Corporations: may have 2 states of citizenship, determined by the corporate Principal Place of Business and the state in which they incorporated.

Question 6

Amount in Controversy (AiC)

Answer 6

In federal courts, the AiC must be > $75,000 and alleged in good faith.

A plaintiff can aggregate claims to get to $75,000 if making multiple claims against one defendant.

Question 7

Supplemental Jurisdiction (SJX)

Answer 7

A federal court SMJ may exericse SJX over state claims when they arise from a common nucleus of operational facts.

A federal court may decline SJX over state claims when:
1) the claim raises a novel or complex issue of state law;
2) it substantially predominates over the original federal claim; or
3) if the court has dismissed the claim which had original jx.

(E.g., 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:
1) that the federal court has SMJ;
2) no defendant is domiciled in the forum state; and
3) removal is sought within 30 days.

A plaintiff may never remove a case to federal court.

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 2 categories:
1) the traditional bases of jx; and
2) the modern bases of jx.

Question 12

Traditional Bases of Jurisdiction

Answer 12

The traditional bases of jx include:
1) domicile;
2) presence when served; and
3) consent and waiver.

Question 13

Modern Bases of Jurisdiction

Answer 13

The modern bases of jx include:
1) Long Arm Statute; and
2) Constitutionality.

Question 14

Long Arm Statute

Answer 14

Many states (including CA) have adopted long-arm statutes which allow PJ over non-residents to the extent allowed by the Constitution.

(E.g., Jx under a long-arm statute must satisfy constitutional requirements for the exercise of jx. So you need the traditional bases of jx OR a long-arm statute).

Question 15

Constitutionality (for PJ)

Answer 15

To satisfy the Constitutional requirements for personal jx, 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 3 things:
1) the extent of contacts;
2) their relatedness to the cause of action; and
3) whether the exercise of jx would be fair.

Question 16

Minimum Contacts

Answer 16

In determining minimum contacts, the court looks at whether:
1) the defendant purposefully availed himself of the forum state; and
2) the exercise of jx by the forum state would be foreseeable.

Question 17

Purposeful Contacts

Answer 17

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

(E.g., 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.

If you drive on another state’s roads, you availed yourself of the protections of their traffic laws - purposefully availed).

Question 18

Foreseeable Contacts

Answer 18

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

Question 19

Relatedness of Contacts

Answer 19

The relatedness of a contact to the controversy determines if the court will exert General or Special Jurisdiction.

Question 20

General Jurisdiction

Answer 20

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

Question 21

Specific Jurisdiction

Answer 21

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 22

Fair Play & Substantial Justice

Answer 22

Requires courts to consider the burden on:
1) the defendant;
2) the state’s interest;
3) plaintiff’s relief interest; and
4) interstate judicial system’s interest in efficiency and shared social policy interests.

(“The Burger King factors”)

Question 23

Judgment on the Pleadings

Answer 23

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 24

Venue (Federal)

Answer 24

Venue is proper in any district where:
1) any defendant is a resident;
2) where a substantial portion of the claim occurred; or
3) where a substantial part of proeprty is located.

Otherwise, venue is proper in any judicial district where any D is subject to PJ.

Venue may be transferred for party convenience or in the interests of justice, if the action could have been brought in the receiving court.

Question 25

Venue (CA)

Answer 25

If the suit is considered a local action (i.e., involves real property), then the venue will be set in the same county as the real property. Otherwise, the venue will be considered a transitory action and venue will be considered proper in the county where any defendant resides.

Question 26

Forum Non Conveniens

Answer 26

Allows a court to decline jx 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 27

Service

Answer 27

Must be made within 90 days, but upon showing of good cause, the court must extend an additional appropriate period.

Requires summons and complaint.

Failure to serve in time results in a dismissal without prejudice.

Question 28

Service of Process

Answer 28

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:
1) deliver to the defendant personally;
2) leave at defendant’s dwelling with someone of suitable age and discretion who resides there; or
3) deliver to the 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 29

Service upon Corporation

Answer 29

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 sate law in the state where the action is pending or in the state where service occurs.

Question 30

Waiver of Service

Answer 30

Federally, provides a defendant additional time to respond to the complaint (except not in CA). The defendant must be mailed 2 copies of the summons and complaint and a request to waive form along with a pre-paid, addressed return envelope.

This waiver must be returned within 30 days in the continential U.S., or 60 days if outside of the U.S., then the person served need not reply to the complaint until 60 days after service, or 90 days if outside of the U.S.

Question 31

Answering

Answer 31

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

In CA, pleadings must be answered within 30 days.

Question 32

12(b)(6) Motions

Answer 32

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

Question 33

Demurrers

Answer 33

In CA, a demurrer functions similar to a 12(b)(6) motion in federal court.

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.

A Special Demurrer for other technical reasons.

Question 34

Scope of Discovery

Answer 34

Discovery shall include all info relevant to any party’s case that is not privileged. The 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 info that is relevant to the subject matter of the case.

(For privileged, consider work product, which typically is not shared).

Question 35

Physical or Mental Exams

Answer 35

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 36

Disclosure of Persons with Knowledge

Answer 36

A party has no obligation to include in their initial disclosures info concernin gindividuals 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 37

26(f) Conference

Answer 37

A meet and confer to plan discovery. This should be done ASAP and must take place 21 days prior to the Scheduling Conference.

Initial disclosures must be exchanged 14 days after the 26(f) conference unless the court stipulates otherwise.

Question 38

Interrogatories

Answer 38

A party may request 25 interrogatories, and if more are needed, bring this issue up at the 26(f) conference.

Parties have 30 days to respond to interrogatories.

Question 39

Depositions

Answer 39

A formal interview under oath. A party is initially limited to 10 depositions, but the parties may stipulate a certain number. Depositions are normally limited to one day, and at the most 7 hours on that day.

Question 40

Work Product Doctrine

Answer 40

Material a lawyer prepares for litigation is immune from discovery unless the opposition shows a substantial need and inability to gather the material without undue hardship.

Absolute privilege applies to mental impressions, notes, or opinions.

Qualified privilege applies to other materials that can be discoverable upon showing of substantial need and inability to acquire the materials elsewhere.

Question 41

Res Judicata (Federal)

Answer 41

Prohibits parties from relitigating claims.

Requires that:
1) same parties (or in privity, did the original litigant pass away?),
2) a final judgment on the merits of the original case, and
3) same claim based on same transaction or occurrence as that previously litigated.

Question 42

Res Judicata (CA)

Answer 42

All appeals must be exhausted. A dismissal with prejudice equals a final judgment on the merits. If the Plaintiff wins, then the new claim is merged. If the Defendant wins, then the new case is barred.

Still same 3 requirements as federal, though:
1) Same parties
2) Final judgment
3) Same transaction or occurrence

Question 43

Collateral Estoppel

Answer 43

Issue Preclusion: precludes a party from relitigating a specific issue.

Requires:
1) Final judgment on the merits
2) the issue is identical to the issue previously decided
3) issue was actually litigated and essential to the prior case
4) the opposing party had an opportunity to litigate the issue in the original case.

If one state initially issues a judgment, that state’s laws determine if it can be used non-mutually in another state.

Question 44

The Erie Doctrine

Answer 44

In a federal case under diversity, the court will apply its own federal procedural laws but must apply state substantive law. The forum state’s laws will be used to determine which state rules will apply.

Question 45

Statute of Limitations

Answer 45

Limits the amount of time a plaintiff may bring a claim. Encourages resolution of claims within a reasonable time before evidence has been lost or facts have become unclear through:
1) the passage of time,
2) defect of memory, or
3) death or disappearance of witnesses.

Question 46

Relation Back

Answer 46

An amendment to a pleading overcomes the statute of limitations when:
1) the claim arises from the same transaction or occurrence as the original claim and
2) the new party received notice of the lawsuit and knew or should have known the action should have been filed against the new party.

Question 47

Class Action Certification

Answer 47

A class action law suit is one where a large number of plaintiffs file suit.

In order to receive class status, a judge must determine that:
1) the class must be so large joinder of all parties is impractical,
2) there is a common question of law or fact shared by the class,
3) the claims of named representatives are typical of the class, and
4) the representatives fairly and adequately protect the interests of the class.

Question 48

Class Action Fairness Act (CAFA)

Answer 48

Allows federal courts to preside over class action cases when:
1) the amount in controversy exceeds $5 M,
2) the class is at least 100 persons, and
3) minimal diversity exists (at least one plaintiff and one defendant are diverse).

Question 49

Summary Judgment

Answer 49

Should be granted if the pleadings, discovery, and affidavits bear no genuine issue of material fact and the movant is netitled to a judgment as a matter of law.

Either party can file until 30 days after the close of all discovery.

Question 50

Judge or Jury [for legal and equitable claims] (both Federal and CA)

Answer 50

Under the 7th Amendment, if a case contains both legal and equitable claims arising from a common nucleus of operative facts:

Federal: legal claims tried by jury first; equitable claims tried by judge afterward.

CA: equitable claims tried by judge first, legal claims tried by jury afterward.

Question 51

Judgment as a Matter of Law (JMOL)

Answer 51

Occurs if a party has been fully heard and no reasonable jury could find for that party. The movant must make this motion prior to submission of the case to the jury, and if they do, after the verdict against them, they can move for a renewed JMOL.

Question 52

Renewed Motion for Judgment as a Matter of Law (RJMOL) (Federal and CA)

Answer 52

A renewed motion for a JMOL may be filed no later than 28 days (federal) or 15 days (CA) after entry of the judgment and is limited to those issues raised in the JMOL.

If the party did not file the motion prior to assignment to the jury, they have not preserved the right to file a renewed JMOL.

Question 53

Insufficiency of Evidence

Answer 53

In situations where a plaintiff fails to raise the issue of insufficiency of evidence in a motion for JMOL, RJMOL, or a new trial, the plaintiff has failed to preserve and cannot raise this issue on appeal.

Question 54

Judicial Order for a New Trial

Answer 54

A judge can order a new trial for any reason that a party could motion for one.

(E.g., the common scenario where a judge overhears jurors mention they didn’t understand the jury instructions. In this case, the judge may order a new trial sua sponte).

Question 55

Joinder of Claims

Answer 55

A plaintiff can join any number or type of claims against a defendant. These can include state claims and federal claims, and they are not required to be related - you only need:
1) the same litigants and
2) one of the cases must meet the requirements of SMJ.

Question 56

Joinder of Parties

Answer 56

Compulsory joinder: a plaintiff must join all interested parties or face dismissal of the lawsuit. The court must ask:
1) should the absentee be joined;
2) can the absentee be joined; and
3) if the absentee cannot be joined, can sufficient relief be granted?

Permissive joinder: parties may join as plaintiffs or be joined as defendants whenever:
1) some claim is made by each plaintiff and against each defendant relating to or arising out of the same series of occurrences or transactions; and
2) there is a question of fact or law common to all parties.

Simply being jointly or severally liable does not deem a party a necessary party.

Question 57

Jury Miscellaneous

Answer 57

If an action is not one where a jury might be demanded, a court cannot grant a jury without both parties’ consent. The court may try any jury issue with an advisory jury. If both parties consent, the court may allow a jury trial on a non-jury trial issue and the effect is binding.

Question 58

1791 Rule

Answer 58

If a party would have been entitled to a jury in 1791 (before the common law/equity split), then the party is entitled to a jury today.

Question 59

Right to Jury in Civil Court

Answer 59

The right to a jury trial in civil cases is only guaranteed in federal courts - state laws determine jury rights in state courts.

Question 60

Motion to Dismiss

Answer 60

A court may dismiss a civil claim without legal merit by determining if sufficient facts are pled to sustain a prima facie case for the alleged cause of action. If not, the court will not evaluate the merits of the case.

If the motion is based on insufficient process, proper procedure would be to file a motion to dismiss, not with an answer stating affirmative defense per FRCP 12(b).

Question 61

Motion for New Trial (Federal and CA)

Answer 61

Ordered when there is:
1) an error during trial,
2) juror misconduct,
3) verdict is excessive or inadequate, or
4) the verdict is against the weight of the evidence.

A motion for a new trial must be filed no later than 28 days (federal) or 15 days (CA) after the judgment has been entered.

A RJMOL motion can be filed simultaneously with a new trial motion. If RJMOL is approved, the court should conditionally rule on motion for new trial. (An RJMOL should be filed if against the evidence, Motion for New Trial if there is an error).

Question 62

Juror Misconduct

Answer 62

Testimony that a juror used extraneous, prejudicial information or improper outside influences is grounds for a new trial.

Misunderstanding of the standard of proof, mental states, and relying on evidence that was directed to be disregarded are NOT grounds for a new trial.

Question 63

Final Judgment Exceptions

Answer 63

A claim or issue may be immediately appealable (i.e., interlocutory) if:
1) it is too important to wait and requires that the lower court must have conclusively determined the disputed questions,
2) the issue must be separate from and collateral to the merits of the main issue of the case, and
3) the issue must be effectively unreviewable on appeal from the final judgment.

Question 64

Appeals

Answer 64

Must be within 30 days unless the party is the US government or agent thereof - then, the appeal must be filed within 60 days (both federal and CA).

However, if a timely renewed motion for JMOL, for a new trial, or to set aside or amend the judgment of the day, the running of the 30 days is terminated. Upon a ruling of those post-trial motions, a new 30-day period begins to run.

Question 65

Issues Eligible for Review on Appeal

Answer 65

Requires the loser to preserve the issue during trial, typically by making an objection, then raising the issue on appeal.

If the issue is of fact, the appellate court will give great deference to the trial court’s handling, as well as the jury determination. The appellate court will not reverse if they find that the error was harmless.

Question 66

Harmless Error

Answer 66

An error that does not affect substantial rights of the parties.

Question 67

Default Entry

Answer 67

If a party has made an appearance yet later defaults, they must be given a 7-day notice of the default entry hearing. If they never appeared, they are not afforded a 7-day notice adn go straight to default.

Note - if a party files a motion for lack of PJ, it’s still an appearance, so if that party fails to reappear, they are still entitled to a 7-day notice.

Question 68

Default Amount in Controversy

Answer 68

As long as the original amount pleaded meets the AiC requirement and was plead in good faith, the actual award does not affect whether the AiC requirement was met.

(E.g., originally pleads $80,000 in good faith, gets awarded $1, AiC is still met).

Question 69

Amending a Complaint

Answer 69

A pleading may be amended once within 21 days of serving, 21 days after services of a responsive pleading or pre-answer if it requires a response, or after seeking leave of the court or written consent of the adverse party.

If a party moves to dismiss a claim twice without leave of the court, it acts as an adjudication on the merits - dismissed with prejudice.

For statute of limitations purposes, an amendment to a pleading that arises from the same transaction or occurrence set forth in the original pleading is generally deemed filed on the date the original pleading was filed.

Question 70

Additur and Remittitur (Federal and CA)

Answer 70

In cases where jury awards are deemed insufficient, a court may invoke ADDITUR (providing the losing party the option of adding to their judgment or facing a new trial) or when excessive, REMITTUR (offering the winning party the option of lowering their award or facing a new trial).

Federal courts do not permit aditur, but may invoke remittur.

Question 71

Standards of Review

Answer 71

Clearly erroneous: applies to bad fact-finding.

De novo review: when the error is due to a pure matter of law.
- Mixed questions of law and fact are typically subject to de novo review.

Abuse of discretion: when the court makes a bad decision that is plainly wrong or without appropriate basis.

Question 72

Sanctions

Answer 72

The court has discretion to impose sanctions sufficient to deter repetition of conduct. The court will not fine the party because of the lawyer’s misconduct, nor will they dismiss a case with prejudice.

Question 73

Rule 11 Sanctions

Answer 73

Every pleading, written motion, or other paper filed with the court must be signed by the attorney of record, certifying that to the best of the attorney’s knowledge, information, and belief formed after a reasonable inquiry:
1) the document is not being presented for an improper purpose;
2) the legal contentions are warranted by existing law; and
3) factual contentions and denial have evidentiary support.

A court may order sanctions on its own initiative. If an opposing party motions for sanctions, they must give notice of their intention to do so to the opposing counsel and allow them 21 days to withdraw or correct the matter before the opposing party may file the motion. Sanctions may be for monetary penalties or more frequently non-monetary directives.

Question 74

Writ of Mandamus

Answer 74

An order directing a judge to act/enjoin when it’s been determined that an appeal would be insufficient to correct the problem at hand, and that the trial court’s actions constitute a serious abuse of power in need of immediate rectification.

Question 75

Findings and Conclusions

Answer 75

Required to be provided by a court when there is no jury and the case is tried solely on facts. This can be done when there is no need to assess the credibility of the witnesses.