Civil Procedure 24-35 Flashcards
What are the California statutory provisions for service upon a defendant?
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
Under the California Code of Civil Procedure, how may service upon a defendant be accomplished?
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
What law is applied under the Erie Doctrine in federal court?
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
When may a Preliminary Injunction be issued?
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
What must the moving party show for a Preliminary Injunction to be issued?
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
What is a Temporary Restraining Order (TRO), and when is it available?
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
For an ex parte TRO, what must a party (or his attorney) show?
Provide specific facts in sworn statement that clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition; AND
Certify in writing any efforts made to give notice to the adverse party or why notice should not be required.
*An ex parte TRO expires after 14 days, unless an extension is granted for good cause or if the opposing party consents.
Priority: N/A
When does an amendment to a Pleading relate back to the original pleading?
When:
The amendment asserts a claim or defense that arose out of the same conduct, transaction, or occurrence as the original pleading allegations; OR
The law that provides the applicable statute of limitations allows the relation back.
Priority: Medium
When does an amendment to a change a party name relate back to the original pleading?
The amendment concerns the same conduct, transaction, or occurrence as the original pleading allegations;
The new party received notice of the original action within 90 days of filing (so that it will not be prejudiced in defending on the merits); AND
The new party knew or should have known that the action would have been brought against it, but for a mistake concerning the proper party’s identity.
Priority: Medium
What is a Compulsory Counterclaim?
A claim that:
Arises out of the same transaction or occurrence as the opposing party’s claim; AND
Doesn’t require adding another partywhom the court cannot acquire jurisdiction.
*A permissive counterclaim is a counterclaim that is NOT compulsory.
Priority: Low
Under the Same Transaction Occurrence test, what 4 factors do federal courts look at?
Whether the issues of fact and law raised by the claims are largely the same;
Whether res judicata would bar a subsequent suit on the counterclaim/cross-claim;
Whether substantially the same evidence supports or refutes plaintiff’s claim and defendant’s counterclaim/cross-claim; AND
Whether there is any logical relation between the claims.
*These factors apply to both counterclaims AND cross-claims.
Priority: Low
When presenting papers to a Federal Court, what must a party certify under Rule 11?
That:
It is not being presented for any improper purpose;
The claims, defenses, and other legal contentions were warranted and non-frivolous;
The factual contentions have evidentiary support or will likely have it after further discovery; AND
The denials of factual contentions are warranted.
*Sanctions may be issued for failure to comply.
Priority: N/A
