Civil Procedure

Question 1

Rule of Summons

Answer 1

Service of the summons and complaint can be made by any non-party who is at least 18 years old.

Personal service is adequate.
Substitute Service can be effectuated by first class mail.

Question 2

Rule of Personal Jurisdiction
(List Order)

Answer 2

A court must have proper jurisdiction over the parties to an action. Jdx is proper where there is a sufficiently close relationship between the defendant and the forum state.

Then analyze:
Traditional Basis
Long Arm Statute
Minimum Contacts
Purposeful Availament
Specific Jdx.
General Jdx.
Fairness Factors

Question 3

Traditional Basis for Jdx

Answer 3

A traditional basis for personal jurisdiction exists where a defendant consents to the forum, is domiciled in the forum state, or is present in the state when served.

Question 4

California’s Long Arm Statute

Answer 4

California’s long-arm statute is coextensive with the limits of the constitution so the minimum contacts analysis will be employed to determine if there is personal jurisdiction.

Question 5

Minimum Contacts

Answer 5

Due Process requires that minimum contacts must exist between the D and the forum so that the suit does not offend traditional notions of fair play and substantial justice.

Minimum contacts asks if there is purposeful availment, foreseeability, and relatedness.

Look to :
- Purposeful Availment
- Forseeability
- Relatedness: Specific Jdx., General Jdx.
- Fairness

Question 6

Minimum Contacts: Purposeful Availment

Answer 6

The issue is whether the defendant’s contacts suggest he purposefully availed himself of the benefits and protections of the forum state such that he could reasonably expect to be hailed into court in the forum.

Question 7

Minimum Contacts: Specific Jurisdiction

Answer 7

If the plaintiff’s claim is directly related to defendant’s contacts with the forum state, there will be specific jdx for that claim only.

Question 8

Minimum Contacts: General Jdx.

Answer 8

The modern rule for general jurisdiction requires the defendant to have systematic and continuous contacts with the forum state such that the defendant is “essentially at home” in the forum state.

Question 9

Fairness Factors

Answer 9

The exercise of jurisdiction must be fair and reasonable. Factors to determine whether the exercise of jurisdiction is fair include:
(1) the interest of the forum state,
(2) the burden on the defendant of appearing in the case,
(3) the interest of the judicial system in the efficient resolution of controversies, and
(4) the shared interests of the states in promoting common social policies.

Question 10

Venue

Answer 10

Venue is proper in any county where the claim arose (injury occurred) or the defendant resides.

Question 11

Removal

Answer 11

A defendant may remove to federal court if a case brought in state court, but could have properly been brought in federal court.

However, when the basis for subject matter jurisdiction is diversity and one of the defendants is a citizen of the forum state, the action is not removable.

All defendants must agree to the removal and must remove no later than 30 days after service of the first removable document, but never later than one year after the initial filing.

Question 12

Discovery

Answer 12

Discovery
* A party may discover all relevant evidence that would be useful in proving a fact/claim.
* A party may not discover privileged evidence unless it falls within an exception.
* A party may also discover evidence even if it is inadmissible if it would reasonably lead to admissible evidence.

Pre-Trial Meetings
At the beginning of discovery, the parties must engage in a meet and confer at a discovery conference.

Initial Disclosures
The parties must exchange mandatory disclosures of key witnesses and evidence. - CA does not require.

Meet and Confer
Before filing a motion to compel with the court, (which can be filed if a party is unreasonably delayed or unresponsive to discovery tools), the parties must engage in a good faith meet & confer.

Question 13

Claim Preclusion (Res Judicata)

Parties, Action, Merits (PAM)

Answer 13

Res judicata (claim preclusion) precludes relitigation 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 the first claim meets the following requirements:
1. The same plaintiff and same defendant were parties (or privies) in the prior case and subsequent case.
2. The **same claim/action **(cause of action) is asserted in the prior case and the subsequent case.
* Federal: All legal theories arising from the same transaction or occurrence are the same claim.
* California follows the primary rights theory, which allows a separate cause of action for the invasion of each primary right. Thus, a plaintiff may sue separately for personal injury and property damage, even if both occurred from the same transaction or occurrence.
3. There is a **valid final judgment on the merits ** (FR: valid final judgment; CA: appeal has run)

Question 14

Issue Preclusion (Collateral Estoppel)
SAFE

Answer 14

**Collateral estoppel (issue preclusion) precludes relitigation of a particular issue that has already been
decided in prior litigation. A subsequent suit based on the same issue will be barred where the first claim meets the following requirements:
1. The same issue was;
2. Actually litigated;
3. There is a **final judgment on the merits **(FR: valid final judgment; CA: appeal has run).
4. The issue was essential to the judgment in the prior case.

Defensive Use: Can only be used against someone who was a party in prior litigation.
Offensive Use:
1. Traditionally, the person sought to be collateral estoppee had to be a party (or a privy) in the prior case to assert collateral estoppel in the subsequent case.
2. CA allows a “stranger” to the prior case to rely on a prior judgment if doing so is “fair.”

Question 15

Discovery Tools

Answer 15

Basis for Objection
Must be specific and clear
Improper Discovery Device
Use the right discovery tool, request for documents must be used to get documents.

Mental/Physical Exam: Party can get an order to compel exam if it is done by a licensed examiner and if the mental/physical health of the other party is in question in the claim. Must also have good cause to do it.

Depositions:
* California - No limits
* FRE: 10 Max; can get more with leave of court, parties and non-parties (need to subpoena).

Interrogatories: Questions propounded in writing to another party, which must be answered in writing under oath and the responding party must respond within 30 days
* FRE: 25 Max
* CA: Unlimited form; 35 specific

Question 16

Joinder of Parties

Answer 16

Permissive Joinder 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.
* Must still have subject matter jurisdiction.
* Can’t destroy diversity

Compulsory Joinder: Joinder will be compelled of necessary parties if feasible.
A party is necessary if:
* The absent party’s interest will be harmed if he is not joined; or
* The absent party is subject to multiple inconsistent obligations
- A necessary party must be joined if (1) there is personal jdx. and joining doesn’t destroy diversity.
- If a necessary party cannot be joined, the court will consider (1) if there is an alternative forum available; (2) proceed; (3) or dismiss.

Interpleader

Impleader/ Cross Complaint (CA)
Impleader is a mechanism a defending party can use to add a third party defendant in order to seek indemnity, subrogation, or contribution.
* Supplemental jdx will apply; Venue need not be proper;

Cross Claim
Co-party; same transaction/occurence; actual damage

Question 17

Interpleader

Answer 17

Interpleader
Interpleader is an action where one holding property (the stakeholder) forces all potential claimants (people who claim the property) into a single lawsuit to avoid multiple and inconsistent litigation.

There are two types of interpleader:
1. **Statutory: **Requires only that one claimant be diverse from one other claimant and the amount in controversy must be $500 or more – No
2. **Rule 22 interpleader: **Requires that the stakeholder must be diverse from every claimant and the amount in controversy must exceed $75,000 – Nationwide Service

Question 18

Amendment

Answer 18

A plaintifff may amend the complaint once for free before D answers. After that, requires court permission.

Relation back
A claim may relate back to the date of the additional filing for statute of limitation purposes if:
- the additional claim is from the same transaction or occurence.
**- for a new party - **
- must relate to same transaction/occurrence;
- party must have had notice;
- other party must have known but for a mistake, they would have been listed as the party.

CA also allows for a plaintiff to put in a “Doe” name and correct in 3 years

Question 19

Choice of Law (Erie)

Answer 19

**Under the Erie doctrine, a U.S. district court sitting in diversity must apply the substantive law of the forum state where the district court sits and Federal procedural law.

If it is unclear what type of law is in question they will use a variety of tests to determine which law to use.
* the outcome determinative test - if the outcome depends on whether state or federal law is used, use state;
* forum shopping test - if the parties look to specific districts to get a specific type of outcome, use state law;
* balance of the interests (balance fed/state law, use whichever has a stronger interest).

Question 20

Class Actions

Answer 20

A Class action is a case where a named representative sues on behalf of a group.

Federal Class Actions Require:
* Numerosity
* Typicality
* Adequacy
* One of the following is true:
* a. Prejudice: Class treatment is necessary to avoid prejudice ;
b. Injunctive or declaratory relief is sought; or
c. Questions of law/fact common to the class predominate over questions affecting individuals, and a class action is a superior method to resolve the issues (e.g., damages for a mass tort).

California class actions
A California class action is allowed if there is:
1. An ascertainable class; and
2. A well-defined community of interest among class members – the Court looks to whether
a) Common questions of law or fact predominate;
b. The representative will adequately represent the
class interests; and
c. The class will result in substantial benefit to the parties and the court.