Civil Procedure

Question 1

Traditional bases for personal jurisdiction

Answer 1

Voluntary appearance (physically present and served with process)
Domicile
Consent

Question 2

Essay Approach for Personal JX

Answer 2

1. Is there a traditional basis for pj? (voluntary served, domiciled, consent) – if so, stop there.
2. Is there a long-arm statute? (usually goes to limits of constitution)
3. Due process analysis!

• Minimum contacts (purposeful availment, foreseeability, relatedness (general jx v. specific jx))
• Fair Play and Substantial Justice (interest of forum state, burden on D, interest in judicial efficiency, shared interest of states)

Question 3

Transfer of venue essay approach (district to district)

Answer 3

1. Is venue appropriate in the original district where the lawsuit was filed?

a. Venue is proper in any judicial district where any defendant resides, if all defendants reside in the same state; or
i. individual: domicile
ii. business: residency requires a PJ analysis for the particular district
b. Venue is proper in a judicial district in which a “substantial part of the events or omissions” on which claim is based occurred; or
c. If neither of above apply, fall-back is district in which any D is subject to PJ. Should the case be transferred to the new venue?

2. Should the case be transferred to the new venue?
   a. Is it appropriate in the new district?
   b. Is there personal jurisdiction?
   c. Is there SMJ?
3. Is the transfer to the new venue in the interest of justice?

Question 4

Removal question approach

Answer 4

1. Does the federal court have subject matter jurisdiction? If not, removal is not appropriate.
2. If it does have SMJ, do procedural limitations still bar?
   - notice within 30 days of service
   - all Ds must consent
   - in diversity case, if any D is citizen of state where claim is filed, can’t remove (“home court advantage”)

Question 5

Bases for subject matter jurisdiction

Answer 5

Federal Question, Diversity

Question 6

Diversity Jurisdiction Requirements

Answer 6

i) complete diversity between plaintiffs (individual = domicile; corporation = incorporation AND principle place of business)

ii) AIC over $75k (measured by good faith estimate, aggregation only allowed if one P v. one D)

Question 7

When is aggregation allowed for diversity?

Answer 7

One p v. one d

One p v. multiple Ds, if Ds are joint and severally liable

Multiple Ps v. one D, if enforcing a single title/right

class action fairness act

Question 8

California subject matter jx

Answer 8

Small claims: $10,000 o r less;

Limited claims: $25,000 or less

Unlimited: more than $25,000

Question 9

Supplemental Jurisdiction

Answer 9

Federal cases: claim has common nucleus of operative fact (same transactino or occurence) with anchor federal claim

Diversity case: allows related claims by Ps against single D (so long as diverse!), but bars plaintiff claims against parties added by joinder, intervention, or impleader; allows most claims by D, except permissive counterclaims

Question 10

Court’s discretionary rejection of supplemental jurisdiction

Answer 10

Raises novel / complex issues of state law

substantially predominates

all other original claims have been dismissed

other compelling reasons

Question 11

Traditional bases for personal jurisdiction

Answer 11

VDC

voluntary service
domicile
consent

Question 12

constitutional requirements for personal jurisdiction

Answer 12

Minimum contacts, fairness

Question 13

Minimum contacts (PJ)

Answer 13

Purposeful availment (purposeful and substantial contact)

Foreseeability (reasonably anticipate being sued)

Relatedness (conduct in relation to action – includes SPECIFIC (arising out of contacts) and GENERAL JX (D “at home” in forum state)

Question 14

Fairness factors (PJ)

Answer 14

Interest of forum state

Burden on Defendant

interest of judicial system in efficient resolution

shared interests of states in promoting common policies

Question 15

Three bases for appropriate venue

Answer 15

a. Venue is proper in any judicial district where any defendant resides, if all defendants reside in the same state; (note will require domicile analysis for individual, PJ analysis for business)

b. Venue is proper in a judicial district in which a “substantial part of the events or omissions” on which claim is based occurred; or

c. If neither of above apply, fall-back is district in which any D is subject to PJ.

Question 16

Controlling law when transfer

Answer 16

Original venue was proper: law of transferor

Original venue was improper: law of transferee

Forum selection clause: transferee

Question 17

California venue rules

Answer 17

Property actions: where land is located

Contract actions: where contract was entered into or expected to be performed

Tort actions: where act or omission giving rise to the tort occurred

Question 18

Choice of Law Essay Approach

Answer 18

1. Is it federal or diversity jx? (Might require quick SMJ analysis. If federal, use federal substantive and procedural.)
2. If it’s diversity jx, does it fall on the list of substantive stuff? (Apply state substantive law, federal procedural law.)

Substantive includes:
- conflict of law rules
- laws governing preclusion
- laws altering damages calculations
- laws governing SOL
- laws governing evidentiary privileges
- anything else that would change the outcome of the case

Procedural includes:
- judge jury allocation
- assessment of attorney’s fees
- equitable/legal

3. Is it unclear whether it’s procedural or substantive? Ask if there’s a valid federal statute on point, a valid federal rule on point, or no federal rule on point.

If there’s a valid federal statute, follow it.

If there’s a valid federal rule, ask whether it enlarges, abridges, or modifies a substantive right. If it doesn’t, apply federal rule. If it does, only apply federal rule if it incidentally affects litigatn’s substantive rights.

If there’s no federal rule on point, apply state law if the failure to do so would lead to different outcomes in state v. federal court (lead to forum shopping).

Question 19

Substantive law

Answer 19

• conflict of law rules
• Laws governing preclusion
• Laws altering damages calculations
• Laws governing SOL
• Laws governing evidentiary privileges
• anything else that would change outcome of case

Question 20

procedural law

Answer 20

• judge / jury allocation
• assessment of attorney’s fees
• equitable v. legal

Question 21

California conflict of law rules

Answer 21

Property: governed by CA law except if title owned by US government

Torts: balance each state’s interests

Contracts: if there’s an enforceable choice of law clause (substantially related to parties/transaction), honor it unless it’s contrary to CA public interest. If it’s unenforceable or there’s no choice of law clause, balance each state’s interest.

Question 22

Complaint

Answer 22

Starts action! Requires:
- grounds for SMJ
- statement of claim, entitlement to relief
- demand for judgment

Question 23

Notice pleading

Answer 23

The default. requires:
- short and plain statement sufficient to show entitled to relief
- Must plead facts sufficient to show substantive plausibility
- no mere recitation of elements / broad conclusory statements

Question 24

special pleading

Answer 24

pleading with specificity, required for certain cases like fraud and special damages

Question 25

Bases for motion to dismiss (12b)

Answer 25

• Lack of smj
• Lack of personal jurisdiction (waived if not included)
• Improper venue (waived if not included)
• Insufficient process / service (waived if not included)
• Failure to state a claim
• Failure to join necessary party

Question 26

Answer

Answer 26

Must admit or deny and raise affirmative defenses and compulsory counterclaims. What’s not denied is deemed admitted!

TIMING: 21 days

Question 27

Amendments to pleadings

Answer 27

As of right: once within 21 days

By leave of court: when justice requires, and no undue prejudice

Question 28

Relation back

Answer 28

Adding new claim: 1) original complaint was timely AND 2) new claim arises out of same T or O

Adding new party: 1) new claim arose from same conduct; 2) new party received notice within 90 days of original complaint; AND 3) party knew or should have known that but for mistake, would have been originally named

Question 29

California motions against complaint

Answer 29

General demurrer
Special demurrer
Motion to quash service of summons
motion to strike
anti-slapp motion to strike

Question 30

general demurrer (CA)

Answer 30

Like a federal 12b motion. Requires parties to meet and confer first.

Purposes:
- challenge subject matter jurisdiction
- allege P has not set forth sufficient facts to establish a cause of action

Question 31

Special demurrer (CA)

Answer 31

Like a federal 12b motion. Requires parties to meet and confer first.

Grounds:
- lack of legal capacity
- existence of another pending action
- defect in joinder
- uncertain pleading
- failure to plead whether a contract is written or oral
- failure to file certificates

Question 32

Motion to strike (CA)

Answer 32

A party may move to strike irrelevant, false, or improper matters, or any pleading that conflicts with CA law or court order. Must meet and confer first.

TIMING: 30 days of pleading

Question 33

Motion to quash service of summons (CA)

Answer 33

D’s objection to court’s exercise of personal jurisdiction; must be filed before an answer or other motion against complaint (or it’s waived).

Question 34

Anti-SLAPP motion to strike (CA)

Answer 34

D may move to strike a claim in the complaint when they can show that plaintiff’s claim rose from Defendant’s exercise of protected First Amendment rights. Burden shifts to P to show he will probably win on the merits.

Question 35

Cross-complaint (CA)

Answer 35

Method for D raising affirmative relief against plaintiff. Catch-all term that covers counterclaims, crossclaims, and impleaders (under the fed rules).

Can be compulsory or permissive

Question 36

Relation back in CA

Answer 36

Adding new claim: relates back if original complaint was timely, new claim arises out of same T or O, involves same accident and injuries, and refers to same offending instrumentality

Correcting misnomer: may correct a misnomer even when statute of limitations has run

Adding true name in “doe” cases”: May substitute true name of D within 3 years if:
i) original complaint was timely and contained sufficient factual allegations;
ii) P explains that they were genuinely ignorant of P/s identity, cause of action, or legal redress; AND
iii) P’s ignorance was pleaded in the original complaint

Question 37

Compulsory Joinder of Parties Question Approach

Answer 37

1) Is the party necessary for a just adjudication?
a. can’t provide complete relief
b. might impair interest
c. risk of inconsistent judgment or double liability)

2) Is there personal jurisdiction and subject matter jx over that party?
a. Remember bulge provision can apply!

3) If not, do we proceed without them or dismiss the case because they’re “indispensable”?
a. Extent to which judgment would prejudice parties in person’s absence
b. Extent to which prejudice could be reduced or avoided by protective provisions
c. Whether a judgment rendered would be adequate
d. Whether P would have adequate remedy if action were dismissed for nonjoinder