Civil Procedure

Question 1

Joinder of claims (Rule 18)

Answer 1

Under rule 18, a single plaintiff is permitted to join all claims against a single defendant so long as a court has subject matter jurisdiction over each claim.

Question 2

Issue Preclusion

Answer 2

(1) The issue to be precluded was the same issue as in a previous case, (2) the issue was actually and necessarily litigated, (3) the issue was subject to a valid and binding final judgment, and (4) the party to be precluded was a party in the first suit.

Question 3

Notice pleading

Answer 3

Federal courts require notice pleading, meaning that they must put forth facts which support a plausible claim, and put the opposing party on notice of that claim. Detailed factual allegations are not required, but a party must plead facts sufficient to show that a claim has substantive plausibility.

A complaint, or any pleading which states a claim, must contain the following 3 elements: (1) a short and plain statement of the court’s SMJ, (2) a short and plain statement that claimant is entitled to relief, and (3) a short and plain statement of relief sought.

Question 4

Special pleading

Answer 4

FRCP Rule 9 requires that certain claims (i.e. fraud) be pleaded with greater particularity. A complaint must plead with particularity the facts and circumstances giving rise to fraud. This includes provision of facts which support the various elements of fraud (i.e. the defendant’s misrepresentation, scienter, the plaintiff’s justifiable reliance, causation, damages, etc.)

Question 5

Supplemental jurisdiction

Answer 5

Supplemental claims not allowed in the following circumstances (if anchor claim is based on diversity jurisdiction):
- Permissive joinder by plaintiff that would destroy complete diversity
- Claims by existing plaintiffs against parties added via Rule 14 (impleader), Rule 19 (compulsory joinder), Rule 20 (permissive joinder), or Rule 24 (intervention)
- Claims by persons to be added as plaintiffs via Rule 19 (compulsory joinder) or Rule 24 (intervention)

Note – these exceptions do not apply if anchor claim is based on Federal Question jurisdiction; in such cases, a court may exercise supplemental jurisdiction over claims that involve the joinder or intervention of additional parties if the claims satisfy the common-nucleus-of-operative-fact test (pendant party jurisdiction)

Cross-claims between defendants of the same state do fall within supplemental jurisdiction even if both defendants are from the same state

Question 6

Rule 11 sanctions

Answer 6

Can be initiated either by motion or by the court sua sponte. But note, a court may not impose a monetary sanction under Rule 11 on its own initiative without issuing a show cause order

Question 7

Removal

Answer 7

Ds can unilaterally remove an action from state court to federal court so long as the case could have initially been brought in federal court (that is, there is federal SMJ). When a removal notice is filed, the state court’s jurisdiction ends automatically.

Plaintiffs may respond by filing a motion for remand back to state court if removal is not proper due to a lack of subject matter jurisdiction.

Procedure:
(1) is there SMJ?
- If there is FQJ, removal is proper.
- If there is DJ, removal is proper so long as the case was not initially brought in a court of a state in which any D resides.
(2) Other removal limitations?
- Timing: did D file a motion for remove timely (within 30 days of receiving the complaint)?
- Did all Ds consent to removal?

Question 8

Personal Jx - Essay Framework

Answer 8

(1) Define PJ - includes IPJ, In-Rem, and Quasi-In Rem
(2) Traditional bases - voluntary presence, domicile, or consent.
(3) States also have long-arm statutes which may allow for the exercise of PJ over out-of-state defendants
(4) Due process requires that a D have sufficient contacts with the forum state so as not to offend the notions of fair play and substantial justice
(5) Minimum contacts - purposeful availment, foreseeability, and relatedness (general jx may be exercised even where D’s contacts do not give rise to the cause of action, so long as D had “continuous and systematic” contacts with the forum state that are so substantial, D is essentially “at home” in the state; specific jx is alternatively available if D’s contacts gave rise to the cause of action - specific jx requires a lower threshold of contacts)
(6) Fair play and substantial justice - look at interest of state in hearing the case, burden on defendant, and judicial efficiency/economy considerations.

Question 9

General jurisdiction - Corporations

Answer 9

For corporations, the continuous and systematic contacts threshold usually only is met where the corporation is incorporated or has its principal place of business

Question 10

Collateral Estoppel (Offensive Use)

Answer 10

On essays, make sure to point out that offensive use of collateral estoppel must be fair. Courts are hesitant to allow for offensive use of collateral estoppel if the defendant is sued by a new plaintiff, so courts may often exercise discretion to evaluate whether such use would give rise to unfairness

Question 11

Motion for Summary Judgment

Answer 11

A motion for summary judgment will be granted if there is no genuine dispute as to any material fact such that the movant is entitled to judgment as a matter of law. A genuine issue of material fact exists when a reasonable jury could return a verdict in favor of the nonmoving party.

Question 12

12(b)(6) Motion

Answer 12

A motion to dismiss for failure to state a claim (Rule 12(b)(6)) is often raised when a party fails to plead sufficient facts to support a cognizable claim, or fails to assert a legal theory of recovery that is cognizable at law. The Supreme Court has adopted a 2 step mechanism for addressing 12(b)(6) motions. First, all conclusory allegations (allegations which are unsupported by sufficient facts such that they do not meet the Twiqbal plausibility standard) must be disregarded. Second, based on the remaining facts and claims, the court must determine, assuming all facts as true, whether a cognizable injury or plausible legal claim has been raised.

Question 13

Amendments - New Claims

Answer 13

An amendment to a pleading will relate back to the date of the original pleading when the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out, or attempted to be set out, in the original pleading.

Question 14

Intervenor - SMJ

Answer 14

A claim of an intervenor must be supported by its own jurisdictional basis

Question 15

Venue

Answer 15

Venue exists (1) in any district where a defendant resides, if all defendants reside in the same state, or (2) where a substantial portion of the events or omissions giving rise to the cause of occurred, or where a substantial portion of the property at issue is located

As a fall back (if neither (1) or (2) apply), courts generally find venue proper in a district in which any defendant is subject to personal jurisdiction.

Question 16

Venue - residence

Answer 16

For natural persons, residence is where the person is domiciled

For corporations or other legal entities capable of being sued, venue is proper in any district that has personal jurisdiction over that entity. For states with multiple judicial districts, the corporation is said to reside in any district where the entity’s contacts with that district would be sufficient to subject it to personal jurisdiction if that district were a state.

Personal jurisdiction exists over corporations that are incorporated in the state

Question 17

Change of venue

Answer 17

change of venue is proper when for the convenience of the parties and witnesses, in the interest of justice.

Question 18

Diversity Jurisdiction

Answer 18

Amount in controversy must be > $75k.

Watch out for: statutes that change the damages calculation; injunctive relief - can give monetary value to relief sought; multiple defendants - aggregate dollar amounts if jointly liable

Question 19

California venue rules

Answer 19

for actions involving real property - where property is located

for contract actions - where contract was executed or performed

for tort actions - county where act or omission giving rise to the tort occurred

Question 20

Permissive Joinder of Parties (Rule 20)

Answer 20

Parties may be joined if (1) their claims arise out of the same transaction or occurrence and (2) if there is a common question of law or fact between them

CANNOT destroy complete diversity

Question 21

Compulsory Joinder of Parties (Rule 19)

Answer 21

Parties must be joined if absence will:
(1) prevent court from granting relief to existing parties
(2) prejudice absent party’s interest, or
(3) subject existing party to multiple, inconsistent obligations

Question 22

Amended Claim - New party

Answer 22

A party may amend their claim to include a new party if (1) the new party is added within 90 days of service of the original pleading, (2) the new party knew or should have known that but for a mistake, he or she was the intended defendant, and (3) the amendment asserts a claim or defense that arose out of the same conduct, transaction, or occurrence as the original pleading

Question 23

Discovery

Answer 23

Things to mention:

• Under Rule 26, can seek discovery of any non-privileged information
• must be proportional to the needs of the case (cannot be unduly burdensome in time or expense)
• inadmissible evidence is discoverable. So broader than scope of admissibility
• explain why relevant to claim or defense
• burden or expense on the other party,
• why information is non-privileged

Question 24

Interrogatories

Answer 24

Interrogatories are a discovery device which require a party to answer, in writing and under oath, various questions proffered by the other party. Questions can relate to any non-privileged matter relevant to any party’s claim or defense

Each interrogatory must be answered fully and SEPARATELY under oath

Limit = 25 interrogatories (but in CA, you can serve 35 specially drafted interrogatories or an unlimited number of Judicial Council form interrogatories)

30 days to respond

Question 25

Requests for Admissions

Answer 25

Requests for Admissions are a discovery device which require the opposing party to answer, under oath, either in the affirmative or negative as to various statements or facts.

Question 26

Request for production of documents

Answer 26

A request for production of documents may be issued on a party (or a nonparty via a subpoena duces tecum). Requests for production of documents allow a party to inspect or procure documents in the custody, possession, and control of the other party (or non-party)

Must respond within 30 days

Question 27

Mental or Physical Examination

Answer 27

A party may, during discovery, seek a mental or physical examination of the other party if that other party has placed their mental or physical condition at issue and if good cause exists for such an examination. When ordering such an examination, the requesting party must provide the party to be examined notice of the examination, the date and location of the examination, the identify and qualifications of the examiner, and the scope of the examination.

Question 28

Timing of Discovery

Answer 28

Discovery requests, per rule 26f, may only be served after an initial discovery conference unless the court orders otherwise

Question 29

Experts

Answer 29

The identify of experts who may testify as expert witnesses must be disclosed to the other party. This mandatory disclosure must occur at least 90 days prior to trial.

The other party may discover the expert’s reports, data/facts/assumptions provided to that witness by the party’s counsel, and compensation paid to that expert.

But drafts of expert reports and communications between expert and attorney NOT discoverable

Information pertaining to a consulting, non-testifying expert is only discoverable in exceptional circumstances

Party may depose any expert witness of an opposing party whose opinions may be presented at trial

Question 30

Choice of Law - CA

Answer 30

For tort claims, CA uses the Government Interest Approach, wherein the following stepwise analysis is performed:
(1) court first determines if two laws are identical,
(2) if not, court determines whether each state has an interest in apply its own law
(3) if each state has an interest, a conflict exists, and the court determines the impairment of each state’s interest if the law is not applied.

For contract claims, CA courts apply the government interest approach unless a choice of law provision exists in the contract. If so, CA courts honor the provision unless it is contrary to public policy.

For property claims, CA courts apply the law of the jurisdiction in which the property is located

Question 31

Service of Process

Answer 31

Personal service may be made by any non-party that is 18 years of age or older. Service may be made either by (1) personally serving the D, (2) leaving the summons and complaint at the D’s dwelling or abode with someone who resides there and is of suitable age and discretion, (3) mailing the summons and complaint to an authorized agent of D, or (4) by any other method allowed by the state in which the forum court sits or the state where the D will be served.

Question 32

CA distinction - substitute service of process

Answer 32

When substitute service of process is made, CA requires a follow-up mailing of the summons and complaint to D.

Question 33

Personal jx - Fairness factors

Answer 33

(1) interest of state in adjudicating matter
(2) burden on D to have adjudication in the state
(3) judicial efficiency - interest of the judicial system in efficient resolution
(4) shared interests of states in promoting common social policies

Question 34

Venue essay approach

Answer 34

1) is original venue proper?
- SMJ
- PJ
2) Is venue in new district proper?
- SMJ
-PJ
3) Is transfer to new venue in interest of justice?

General rules:
venue is proper (1) in any district where a D resides if all Ds reside in the same state, (2) where a substantial portion of the events or omissions which gave rise to the action occurred, or where a substantial portion of the property at issue sits, and (3) if neither (1) or (2) is applicable, as a fall-back, any district where a court can exercise PJ over any D.

For (1), an individual D resides where he or she is domiciled. A corporation resides in any district that has PJ over the corporation. If it is a state with multiple judicial districts, each district is evaluated as thought it were its own state

Question 35

Attorney-client privilege

Answer 35

Remember - this only applies to communications relating to legal advice

Also does not apply when there is crime/fraud, a dispute between attorney and client, and disputes between clients.

Question 36

CA Government Interest Test

Answer 36

(for torts and contracts actions (that do not have a choice of law provision))

1) determine if each state has a different law; (2) determine what each state’s interest is in applying their own law; (3) determine the impairment on each state if that state’s law is not applied

Question 37

Work product

Answer 37

Protects materials prepared by party in anticipation of litigation

Exceptions to work-product privilege:
(1) other party cannot reasonably obtain material with undue hardship, and (2) other party would be substantially prejudiced if not allowed to access materials

Absolutely privileged - mental impressions of attorney

Question 38

CA distinction - jury trial

Answer 38

right arises from CA constitution

Question 39

CA distinction - JMOL

Answer 39

In CA, known as directed verdict

Question 40

JMOL

Answer 40

Viewing the evidence in the light most favorable to the opposing party, and drawing all reasonable inferences from the evidence in favor of the opposing party, no reasonably jury could find for the opposing party

Question 41

JNOV (renewed JMOL) - CA distinction

Answer 41

In CA, there is no requirement that a party move for a directed verdict prior to moving for a JNOV

Question 42

Service of corporations

Answer 42

(1) any method permitted by law of foreign country
(2) certified mail

In CA, must be by first-class mail with a return receipt

Question 43

Physician-patient privilege

Answer 43

Waived if patient places their physical condition at issue

In CA - statements made to a licensed physician for the purposes of medical treatment or diagnosis are privileged

Question 44

Deposition of non-party

Answer 44

Need to serve non-party with a subpoena (make sure to mention in essays)