Civil Procedure Flashcards
Personal jurisdiction
Court must have proper jurisdiction.
1. Consent
2. Domicile (physical presence and intent to remain)
3. Served in forum state
4. long arm statute
Long arm statute requirements
A defendant must have sufficient minimum contacts with the forum state such that asserting jurisdiction over him does not offend traditional notions of fair play and substantial justice. A defendant must have purposely availed himself of the benefits and protections of the state such that it is reasonably forseeable that his activities in the forum state subject him to being haled into court there. A court has specific jurisdiction if the claim is directly related to defendants contact with the forum state. The exercise of jurisdiction must be fair and courts consider the convenience of the parties, the forum states interest in regulating activity within its borders, and any other interests.
Subject matter jurisdiction
Court must have proper subject matter jurisdiction.
1. Federal question arises under federal law.
2. Diversity of citizenship complete diversity and 75k in controversy.
a. individuals are citizens where they are domiciled
b. corps are citizens where the business is incorporated and where they have their principal place of business
Supplemental jurisdiction
Must arise from the same transaction or occurance.
Remove and remand
Removal - Def may remove if case could have been brought there in the first place. (within 30 days)
Remand - Court may remand if removal was improper.
Venue
Venue concerns which geographic district is the proper place for a particular case to be heard. Venue is proper where the claim arose or the defendant resides. If neither applies then anywhere where defendant is subject court’s personal jursidiction. Forum non conveniens allows a court to dismiss or stay a case if there is a far more appropriate forum elsewhere.
Service
Service can be made by anyone who is 18 years old and not a party to the action.
1. Personal service is always adequate.
2. Substituted service, left at def usual abode with someone of suitable age and discretion who resides there or served to authorized agent (or state law)
a. California allows substituted service only if personal service cannot be accomplished with reasonable diligence.
3. Registered mail if defendant agrees to waive service of process.
Choice of law in diversity actions
Erie doctrine - fed court sitting in diversity jurisdiction must apply state substantive law and federal procedural law.
If unclear whether substantive or procedural:
a. outcome determinative - issue is substantive if it substantially effects the outcome OR
b. balance of interests- fed vs state interests
Complaint requirements
- identify parties
- state SMJ
- demand for judgement
- signature
Federal Rule 12(b) defenses
a. lack of SMJ (raised any time)
b. lack of PJ (raised in first response)
c. improper venue (first response)
d. insufficient process (first response)
e. insufficient service (first response)
f. failure to state a claim (anytime)
g. failure to join an indespensible party (anytime)
Answer
21 days to respond, california 30 days
Amending pleadings
May amend once within 21 days (before answer california)
Pleadings amendments relate back if they concern the same conduct, transaction, or occurance
Defendants relate back if they:
1. concern the same conduct, transaction, or occurance
2. the new party knew of the original action
3. new party knew that but for a mistake she would have been named orginally
California relation back “Doe” Amendments
Amendment permitted if genuinely ignorant of the identity which is pled with specificity in the complaint
Permissive joinder
Pla or def 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. Still must have independent SMJ.
Joiner of a necessary party
- party is necessary if
a. cannot provide complete relief w/o
b. absent party’s interest would be harmed by exclusion
c. absent party is subject to multiple inconsistent obligations - necessary party must be joined if
a. court has PJ
b. joining doesn’t destroy diversity
Impleader
Defending party wants to add third party defendant to indemnify. No independent basis for SMJ required.
Intervention
nonparty claims interest
Interpleader
One holding property forces all potential claimants into a single law suit.
* Statutory - requires only one claimant be diverse and amount in controversy must be $500 or more
* Rule 22 - Stakeholder must be diverse from every claimant and greater than $7,500
Compulsory counterclaims
arise from same transaction or occurance and must be raised or waived. supplemental jurisdiction applies no need for SMJ.
Permissive counterclaims
Anything, no supplemental jurisdiction.
Class action requirements
- Numerosity
- Commonality
- Typicality
- Adequacy of representation
- Type of class (not in CA)
a. prejudice if not granted
b. injunctive relief is sought
c. questions of law/fact common to the class
Rule 26 mandatory disclosure
CA rule
- Initial disclosures
a. likely to have discoverable information
b. copies of tangible evidence
c. damages computation
d. insurance documents - Expert testimony
a. identify expert
b. qualifications
c. written report - Pretrial disclosures -including a list of all nonexpert witnesses
CA does not require mandatory disclosure
Discovery tools
Depositions
Interrogatories - 25 federal, 35 CA
Requests for admission - 35 CA
Requests to inspect and produce documents/tangible items
Electronically stored data - must meet to coordinate and preserve
Request for physical or mental examination- condition is at issue and there is good cause
Scope of discovery
Relevant materials can be discovered even if they are not admissible so long as the item is reasonably calculated to lead to the discovery of admissible evidence. CA recognizes a right of privacy which is balanced against the need for discovery.
Material prepared in anticipation of litigation is generally not discoverable unless there is a substantial need and the inability to obtain the information through other means.
Absolute privilege applies to mental impressions, opinions, conclusions, and legal theories.
Motion for summary judgement
No genuine issue of material fact.
1. evidence viewed in light most favorable to the nonmoving party.
2. Firsthand knowledge evidence, credibility not weighed
3. court can grant partial summary judgement
Judgement as a matter of law
After side has been heard, contending reasonable people could not disagree on the result.
Renewed JMOL or JNOV
15 days after mailing of notice of entry of judgement or 180 days after the entry of judgment.
Grounds for new trial
a. prejudicial error
b. new evidence
c. prejudicial misconduct
d. against the weight of evidence
e. excessive or inadequate damages
Motion to set aside judgment
a. clerical errors
b. neglectful mistakes
c. newly discovered evidence
d. fraud
e. lack of due process
f. timing (not more than 1 year after judgement)
Final judgement rule
Only final judgements may be appealed except for
a. injunctions
b. trial court certifies an interlocutory appeal
c. collateral orders
d. multiple claims
e. extraordinary writ
f. certification of class actions
Time limits for appeals
Fed: 30 days after entry of final judgement
CA: 60 days after service of notice of entry of judgement or 180 days after the judgment if service is not served.
Standards of review
- matters of law are reviewed de novo
- question of fact uses clearly erroneous standard
- mixed de novo
- matters discretionary to the judge - abuse of discretion
Res judicata
precludes relitigation of a claim that has already been decided in prior litigation.
1. Valid final judgements on the merits (CA when appeals have concluded)
2. Same plaintiff and same defendant (or privies)
3. Same claim
CA primary rights theory - may sue separately for personal injury and property damage etc.
Collateral estoppel
Precludes relitigation of a particular issue that has already been decided in prior litigation.
1. Valid final judgment (CA when appeals have concluded)
2. Same issue was actually litigated
3. Issue was essential to the judgment
4. Same plaintiff same defendant or privies - NOT IN CA - allows a stranger to rely on a prior judgment if doing so is fair
a. defensive use - party had a fair opportunity to be heard on the critical issue
b. offensive use only when fair and equitable (balancing test)
