Civil Procedure 24-46

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

Question 7

For an ex parte TRO, what must a party (or his attorney) show?

Answer 7

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

Question 8

When does an amendment to a Pleading relate back to the original pleading?

Answer 8

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

Question 9

When does an amendment to a change a party name relate back to the original pleading?

Answer 9

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

Question 10

What is a Compulsory Counterclaim?

Answer 10

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

Question 11

Under the Same Transaction Occurrence test, what 4 factors do federal courts look at?

Answer 11

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

Question 12

When presenting papers to a Federal Court, what must a party certify under Rule 11?

Answer 12

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

Question 13

What is the two-part test (under Twombly and Iqbal) that a Federal Court will apply to determine whether a Complaint is sufficiently well pleaded?

Answer 13

Part 1: The court will disregard any conclusory allegations.

Part 2: Taking all remaining factual allegations as true, they will determine whether the facts as alleged would make it plausible for the party to succeed in obtaining the relief sought.

Priority: Low

Question 14

What must be plead for a well-pleaded Complaint alleging fraud or mistake?

Answer 14

The circumstances constituting fraud or mistake must be alleged with particularity (specific facts must be alleged).

Malice, intent, knowledge, and other conditions of a person’s mind can be alleged generally.

Priority: Low

Question 15

Under the Federal Rules of Civil Procedure, when maymultiple plaintiffs join in one action (Permissive Joinder)?

Answer 15

If:

Joint and several relief is asserted by them OR the claim arises out of the same transaction or occurrence;

A common question of law or fact to all plaintiffs exist; AND

Subject matter jurisdiction exists for each claim.

*The process is similar for multiple defendants.

Priority: Medium

Question 16

How many claims may a party bring against an opposing party?

Answer 16

As many claims as it has, EVEN if they are unrelated or do not have a common nucleus of operative fact.

If the claims are brought in Federal Court: at least one of the claims must satisfy Subject Matter Jurisdiction.

Priority: Low

Question 17

A party MUST be joined in an action if that party is necessary AND joinder is feasible.

When is a party necessary?

Answer 17

A party is necessary if:

The court cannotgrant complete relief without the absent party;

The absent party has an interest in the action that would be impaired or impeded if that person is not joined; OR

The party’s absence would leave an existing party subject to a substantial risk of multiple liability or inconsistent obligations.

Priority: Low

Question 18

A party MUST be joined in an action if that party is necessary AND joinder is feasible.

When is joinder feasible?

Answer 18

When:

Joinder will notremove subject matter jurisdiction; AND

The court has personal jurisdiction over the necessary party.

*If joinder isn’t feasible, the court will consider whether to continue or dismiss the action.

Priority: Low

Question 19

In California courts, in a personal injury case, when can a defendant demand a physical examination of the plaintiff as a matter of right?

Answer 19

If:

The examination doesn’t include any diagnostic test or procedure that is painful, protracted, or intrusive; AND

The exam is conducted at a location within 75 miles of the examinee’s residence.

*For non-personal injury cases, a party must make a motion to compel to perform an exam. (Must be made in good faith and show the party’s health is in controversy).

Priority: Medium

Question 20

In Federal Court, the court MUST permit Intervention as of Right if the non-party can demonstrate what?

Answer 20

That:

The application to intervene is timely;

It has an interest in the subject matter of the action;

The protection of this interest would be impaired because of the action; AND

The non-party’s interest is not adequately represented by existing parties to the litigation.

Priority: N/A

Question 21

If Intervention as of Right is NOT warranted, a court MAY still allow Permissive Intervention when?

Answer 21

If the non-party:

Files a timely motion; AND

Either:

Has a claim or defense that shares a common question of law or fact with the main action; OR

Is given a conditional right to intervene by a federal statute.

*Courts will consider if the intervention will unduly delay or prejudice the adjudication of the original party’s rights.

Priority: N/A

Question 22

Class Actions

When can one or more members sue on behalf of an entire class?

Answer 22

The class is so numerous that joinder of all members is impracticable (numerosity);

There are questions of law or fact in common to the class (commonality);

The claims or defenses of the representative parties are typical of the claims/defenses of the class (typicality); AND

The representative parties will fairly and adequately protect the interests of the class (adequacy of representation).

Priority: N/A

Question 23

Class Actions

Once the class action requirements are met, the class will be certified when?

Answer 23

If:

Separate actions would create a risk of inconsistent adjudications or harm the interest of other members;

The party opposing the class has acted/refused to act on grounds that apply to the class and the grounds of relief would be appropriate to the class as a whole; OR

Common questions of law/fact to the class predominate over questions affecting individual members and a class action is superior to other methods of adjudication.

Priority: N/A