Civil Procedure 24-29

Question 1

What are the California statutory provisions for service upon a defendant?

Answer 1

Made be made by any person who:

Is at least 18 years old; AND

Not a party to the action.

*Under CA Court Rules, the Summons & Complaint must be served upon the defendant within 60 daysafter filing the Complaint with the court.

Note: The California Code of Civil Procedure states that service must be within 3 years after filing the Complaint.

Priority: Low

Question 2

Under the California Code of Civil Procedure, how may service upon a defendant be accomplished?

Answer 2

By:

Personal delivery;

Substituted service;

Acknowledgment and receipt;

By Mail (only for an out of state defendant); OR

Publication.

*Service to a Defendant in a foreign country may be done by any method above or as directed by the court (so long as it’s not prohibited by an international agreement).

Priority: Low

Question 3

What law is applied under the Erie Doctrine in federal court?

Answer 3

The court will apply its own federal procedural laws, but MUST apply state substantive law.

(A federal court sitting in diversity MUST apply the forum state’s choice of law rules to determine the applicable state substantive law in the action)

Priority: Medium

Question 4

When may a Preliminary Injunction be issued?

Answer 4

Upon notice to the adverse party; AND

If the moving party gives security in an amount the court deems proper.

*The Federal Rules of Civil Procedure allow the court to issue both a restraining injunction or a mandatory injunction.

Priority: N/A

Question 5

What must the moving party show for a Preliminary Injunction to be issued?

Answer 5

Likelihood of success on the merits;

Likely threat of irreparable harm to the movant;

That the harm alleged by the movant outweighs any harm to the non-moving party; AND

The injunction is in the public interest.

Priority: N/A

Question 6

What is a Temporary Restraining Order (TRO), and when is it available?

Answer 6

An emergency remedy used to maintain the status quo pending the outcome of a hearing or application.

It is ONLY available when the moving party will suffer immediate and irreparable harm.

Priority: N/A