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Bar Prep Summer 2014 > Civil Procedure > Flashcards

Civil Procedure Flashcards

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1
Q

Personal Jurisdiction, in General

A

PJx involves the ability of a court to exercise power over a particular defendant or item of personal property.

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2
Q

Traditional Bases of PJx

A
  1. Consent
  2. Domicile (individuals: reside with an intent to remain; corporations: state of incorporation, as well as PPB)
  3. Personally served while physically present
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3
Q

Long Arm Statutes

A

Allow the court to exercise PJx over non-resident defendants, who have performed certain acts within the state, or who have performed OOS acts that have caused injuries within the state.

CA: “court of this state may exercise Jx on any basis not inconsistent with the Constitution of this state or the United States.”

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4
Q

Constitutional Limitations on PJx

A

Minimum contacts: specific (purposeful availament/reasonably foreseeable to be haled into court) or general (systematic and continuous, such that essentially at home). If specific, cause of action needs to arise out of minimum contacts; if general does not need to.

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5
Q

Traditional Notions of Fair Play and Substantial Justice

A

A court may only exercise PJx if doing so does not offend TNFPSJ. Factors to consider include:

  1. Convenience of conducting trial within the forum state (constitutionally acceptable unless so gravely difficult and inconvenient that other party put at severe disadvantage)
  2. Location of parties, witnesses, and transactions giving rise to the cause of action
  3. Forum state’s interests in hearing the case
  4. Plaintiff’s interest in obtaining effective and convenient relief
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6
Q

Federal Question SMJx

A

Federal courts have federal question Jx over causes of action arising under the laws, treaties, or Constitution of the United States; must be pled on the face of the complaint, pursuant to the well-pleaded complaint rule.

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7
Q

Diversity Jx

A

Federal courts have diversity SMJx when there is complete diversity among parties, and the amount in controversy exceeds $75,000.

Individuals: citizen of the state in which they are domiciled, with a permanent intent to remain.

Corporations: citizens of the state in which they are incorporated, and the state where they have their PPB.

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8
Q

Aggregation of Claims

A

A plaintiff may aggregate all claims against a single defendant, or against multiple defendants who would be jointly and severally liable, in order to reach the $75,000 amount in controversy.

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9
Q

Limited Civil Case (CA)

A

A case in which the amount in controversy cannot exceed $25,000, exclusive of attorney’s fees, costs, and interests.

Other limitations include: court cannot provide equitable or declaratory relief, cannot file a special demurrer, limited discovery, and no claimant can recover more than $25,000.

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10
Q

Unlimited Civil Case (CA)

A

One in which the AIC exceeds $25,000, or in which the plaintiff seeks general or equitable relief.

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11
Q

Supplemental Jx

A

A federal court may exercise supplemental Jx over a claim for which it does not have SMJx, if the claim arises from the same common nucleus of operative fact as the case that invoked federal SMJx, unless doing so would destroy complete diversity.

-Can use supplemental Jx to override amount in controversy.

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12
Q

Venue (Federal court)

A

Venue is proper in any judicial district where:

  1. Any D resides, if all reside in the same state (here, individuals: domicile with intent to remain; corporation: anywhere that its contacts would subject it to PJx)
  2. Where a substantial part of the events or omissions giving rise to the cause of action occurred, or where a substantial part of the property that is the subject of the action is situated;

ONLY IF 1-2 fail, then:
3-Diversity: where any D is subject to PJx
3-Fed Q: where any D can be found

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13
Q

Venue (California)

A

Local actions: those involving title to property; venue proper in the county in which the property is located.

Transitory actions: all other actions; venue is proper in any county where any D resides at commencement of the action, in a personal injury or wrongful death action where the injury occurred, or in a contract action in a county where the obligation is to be performed or K was entered into.

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14
Q

Transfer of Venue - Original is Improper

A

Where the original venue is improper and a case would otherwise be dismissed, an action may be transferred to a district in which the action may have been brought if the court finds that doing so is in the interests of justice.

(CA: can move for transfer of venue, with or before defendant’s answer)

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15
Q

Transfer of Venue - Original is Proper

A

When the original venue is proper, an action may be transferred to another district where it could have originally been brought, or to which all parties consent, if:

  • Doing so is for the convenience of the parties, and
  • Is in the interests of justice

-Transferee court must have SMJx and PJx over the defendant.

Consider:

  1. Original venue proper?
  2. New venue proper?
  3. Can we transfer?
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16
Q

Transfer (California)

A

In California, even if venue is proper, transfer is permitted when:

  1. There is reason to believe an impartial trial cannot be had in the original county,
  2. Convenience of parties/interests of justice, or
  3. No judge qualified to hear the case
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17
Q

Forum Non Conveniens

A

Even though venue is proper, a defendant may file a motion to dismiss based on FNC if:

  1. Another forum is suitable
  2. Transfer to that forum is impossible
  3. Balancing of public and private factors (availability of alternative forum, convenience of conducting trial in the forum state, plaintiff’s interest in obtaining convenient and effective relief, and forum’s legitimate interest in providing redress for its residents)
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18
Q

Removal

A

A defendant may file a notice of removal for an action that could have originally been brought by the plaintiff in federal court, so long as the federal court has SMJx and PJx over the cause of action.

A defendant cannot seek to remove to federal court in the state in which he resides (pursuant to the Homegrown Defendant Rule).

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19
Q

Remand

A

If the federal court does not have Jx over a cause of action, the case must be remanded to state court.

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20
Q

Erie Doctrine

A

A federal court sitting in diversity must apply the substantive law of the state in which it sits. State law always applies to: elements of a claim/defense, statute of limitations, and choice of law provisions.

  1. Is there a federal rule on point?
  2. Does the federal rule conflict with state law?
  3. Is application of the federal rule outcome determinative?
  4. Does application of the federal rule violate significant federalism or state sovereignty concerns?
  5. Will application of the federal rule encourage forum shopping?
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21
Q

Service of Process (Federal)

A

A non-party, 18+, must serve D by service personally to D, anywhere in the forum state, at his usual place of abode, if left with a person of suitable age and discretion, or to an authorized agent of the defendant.

-A D who is physically present to appear in court is immune from service of process in person (different from CA)

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22
Q

Substituted Service (Federal)

A

Plaintiff can request that defendant waive service of process by mailing a formal request to waive, along with a copy of the summons and complaint; if D does not agree, he will be liable for the costs of service (if no good faith reason for not agreeing).

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23
Q

Service (California)

A

Service of process is authorized by a non-party, 18+, by personal service to D anywhere within the state, at D’s usual place of abode, to a competent member of the household who is 18+, informed of contents of service, and there is a follow up mailing, to a registered agent, or by mail.

Key differences: substituted service requires a follow-up mailing; no immunity from in-person service if you are physically present within the forum state

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24
Q

Joinder of Claims

A

A party properly asserting a claim may join as many claims as it has against an opposing party; compulsory if arising out of the same transaction or occurrence, and failure to join will likely result in preclusion.

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25
Q

Pleadings (Federal)

A

A federal complaint must contain:

  1. A short and plain statement of the grounds for the court’s Jx
  2. A short and plain statement of the claim, showing that the claimant is entitled to relief,
  3. Demand for relief sought

-Factual allegations must render plaintiff’s relief plausible

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26
Q

Pleadings (California)

A

A complaint must contain:

  1. In ordinary and concise language, a specific statement of the ultimate facts of each element to the cause of action, and
  2. The demand for relief sought.

Doe Amendments are permitted, if the original complaint contains charging allegations against all defendants, including “Does,” and P is genuinely ignorant of the identity of a fictitiously named defendant, facts giving rise to the cause of action, or that a cause of action exists (ignorance must be pled)

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27
Q

Federal Pre-Answer Motions

A

12(b)(1): lack of PJx
12(b)(2): improper venue
12(b)(3): insufficient process
12(b)(4): insufficient service of process
12(b)(5): lack of subject matter jurisdiction (CA: general demurrer)
12(b)(6): failure to state a claim upon which relief can be granted (CA: general demurrer)
12(b)(7): failure to join a required party (CA: motion to quash)

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28
Q

Anti-SLAPP (CA)

A

Strategic lawsuit against public participation.

Can be filed if defendant makes a showing that the cause of action arises from activity protected under the First Amendment, and a probability of success on the merits. Then, consider filing malicious prosecution suit.

(May not bring an anti-SLAPP if against sellers of goods arising from defendant’s statements, cause is solely in the public interest, or is about enforcing a public right).

29
Q

Demurrer (CA)

A

General demurrer: alleges either failure to state facts sufficient to constitute a cause of action, or lack of SMJx

Special demurrer: only permitted in unlimited civil cases; can allege: lack of legal capacity, existence of another pending action, defect or misjoinder of parties, etc.

30
Q

Motion for Judgment on the Pleadings (CA)

A

Within 30 days from the date of service, D may make a motion for judgment on the pleadings upon a showing that, on the face of the pleadings, he is entitled to judgment.

31
Q

Answer

A

Must contain a short and plain statement of the party’s affirmative defenses, and either a general denial (denying every allegation), or an admission, admitting certain facts.

32
Q

Compulsory Counterclaim

A

A defendant must file a counter-claim against the plaintiff for any claim or cause of action that arises from the same transaction or occurrence; failure to raise constitutes waiver.

There will always be supplemental Jx over counterclaims.

33
Q

Permissive Counterclaim

A

A defendant may assert a counterclaim that does not arise from the same T/O, so long as the claim has an independent jurisdictional basis.

34
Q

Amendments

A

Federal: a party may amend a pleading once within 21 days of serving it; thereafter, may only be amended by written consent of the parties or leave of court (which is construed very broadly)

California: a party may amend once as of right, before an answer or demurrer is filed.

35
Q

Amendments - Relation Back

A

Amendments related back to the date that the original pleading was filed, if:

  1. The conduct or T/O was set forth in the original pleading, and
  2. Amended pleading adds a new cause of action based on same general set of facts
36
Q

Amending After SOL Has Run (Federal)

A

An amendment changing the name of the party or the party relates back to the date the original complaint was filed if:

  1. Amendment concerns the same T/O, and
  2. Within 120 days of filing, the party to be brought in recieved notice of the action such that they will not be prejudiced in maintaining a defense, and
  3. Knew or should have known that, but-for mistaken identity, the action would have been brought against them originally
37
Q

Compulsory Joinder of Parties

A

Asks three things: whether joinder is proper, whether joinder is possible, and whether the absent party is indispensable.

  1. Proper: an absentee party should be joined when complete relief cannot be accorded without their presence, absence will impede ability to protect interest, or raises a risk of incurring multiple judgments
  2. Possible: does the court have PJx? Will adding the party destroy SMJx?
  3. Indispensable: if the absentee party cannot be joined, the action can continue before the court, considering: extent of prejudice to absentee, adequacy of judgment rendered in absentee’s absence, and whether plaintiff will have an adequate remedy if the case is dismissed.
38
Q

Permissive Joinder of Parties

A

Parties may join plaintiffs if: some claim is made by each plaintiff against each defendant, relating to or arising from the same T/O, and there are common questions of law or fact to all parties.

39
Q

Impleader (CA: Cross-Complaint)

A

Essentially occurs in an action for indemnity, to bring in another party who is also or may also be liable for any part of the judgment.

A third party defendant may sue a third party plaintiff (original defendant becomes third party plaintiff), even if there is not diversity

40
Q

Interpleader

A

Interpleader is instituted by a stakeholder in property that is the subject of the action, in order to require adverse claimants to determine who has the valid claim, to avoid double liability.

41
Q

Intervention

A
  • Intervention as of right: available whenever the applicant claims an interest in the property or transaction that is the subject of the dispute, and disposition of the action would impair his ability to protect his interest.
  • Permissive intervention: available when the applicant’s claim or defense and the main action have a common question of law or fact (CA requires a direct and immediate interest).
42
Q

Class Actions

A

A named representative will be permitted to sue on behalf of his class if there is:

  1. Commonality: common questions of law or fact
  2. Numerosity: class is so numerous that joinder of all parties is impracticable
  3. Typicality: named representative’s claims are typical of that of the class, and
  4. Adequacy of representation

ALSO NEED ONE OF THE FOLLOWING THREE:

  1. Common questions of law or fact predominate
  2. Inconsistent results would likely occur if suits brought by individual class members, or
  3. Injunctive or declaratory relief is appropriate
43
Q

Factors to Consider Regarding Class Certification

A

The court should consider the following:

  • Interest of individual control
  • Extent and nature of litigation elsewhere on the same subject
  • Desirability of a joint trial, and
  • Difficulties in maintaining a class action
44
Q

Notice in a Class Action

A

If the case is based on a common question theory, the court must provide notice, at the expense of the class representative, to all reasonably identifiable class members; members then have the option to opt out, and judgment will not bind those who opt out.

45
Q

SMJx and the Class Action

A

Federal question SMJx is present when the class alleges a claim arising under federal law

Diversity exists if all named representatives are diverse from the defendant, and one class representative’s claim exceeds $75,000

46
Q

Class Action Fairness Act

A

Unless the primary defendants are state or government entities, the claim is based on securities law, or the claim relates to the internal affairs of a corporation, SMJx exists if:

  1. Any class members is diverse from any D
  2. Aggregate amount in controversy exceeds $5,000,000, and
  3. At least 100 members are in the proposed class
47
Q

Discovery

A

Federal: discovery may be had of any nonprivileged matter that is relevant to any claim or defense

CA: discovery may be had of any nonprivileged information that is relevant to the subject matter of the pending litigation

48
Q

Work Product

A

Any material prepared in anticipation of litigation, by a party or representative of a party, is only discoverable upon a showing of substantial need, and to avoid undue hardship.

In CA: writings reflecting impressions of an attorney are NEVER discoverable.

49
Q

Required Disclosures (Federal)

A

Within 14 days of the pretrial conference, each party must identify persons and give copies of documents, that the disclosing party may use to support its claims or defenses or computations of damages.

CA has no comparable provision.

50
Q

Disclosure of Expert Testimony

A

Federal: a party must disclose experts who are expected to be called at trial; opinions of experts retained in anticipation of litigation but are not expected to testify may be discovered only upon a showing of exceptional circumstances.

CA: provides for simultaneous exchange of an expert witness list, including qualifications and nature and substance of testimony.

51
Q

Discovery Mechanisms

A
  • Depositions of parties or witnesses; give sworn oral answers to questions.
  • Subpoena deuces tecum: to obtain documents from a non-party witness
  • Physical and mental examination: when the party’s physical or mental state is at issue. In CA personal injury cases, a D has a right to demand a physical examination
  • Interrogatories to parties; form and special
  • Requests for admission: by a party
  • Requests for production: may be used against a non-party in federal, but not in CA
52
Q

Motion to Compel

A

A motion to compel is a way of enforcing discovery, if a party fails to provide discovery or provides incomplete discovery, including required disclosures (Federal), and answers to interrogatories or deposition questions.

-Must first show that you made a good faith effort to meet and confer with the party

53
Q

Default

A

Entered when there has been no answer or general appearance within the time permitted

54
Q

Voluntary Dismissal

A

Before a defendant files his answer or an MSJ, by notice to the defendant, a plaintiff may dismiss without prejudice, if they have not previously filed to dismiss without prejudice

-After defendant has already filed an answer, a plaintiff may only dismiss with prejudice, unless the parties otherwise agree or by leave of court

55
Q

Involuntary Dismissal

A

The court has the authority to dismiss for: failure to prosecute, to abide by court orders, based on a demurrer, etc.

56
Q

Motion for Summary Judgment

A

Summary judgment may be granted if there is no genuine issue of material fact as to any element or claim, such that, as a matter of law, the movant should prevail

57
Q

Right to a Jury Trial (Federal)

A

Extends to all actions that had a right to a jury trial at common law, and in which the amount in controversy exceeded $20. Failure to file a demand for a jury trial waives the right to a jury

58
Q

Right to a Jury Trial (California)

A

Exists in actions to recover real and personal property, money due on a contract, for injuries, and for actions existing at the time the California Constitution was passed for which a jury was required (legal, not equitable).

-Assert the right or waive it

59
Q

Peremptory Challenges

A

May not be exercised to exclude jurors on the basis of race, national origin, or gender (in CA, includes sexual orientation).

60
Q

Judgment as a Matter of Law

A

(in CA: directed verdict)

-May be moved for at the close of the plaintiff’s evidence or at the close of all of the evidence; will be granted if, after viewing evidence in the light most favorable to the non-moving party, a reasonable jury would not have a legally sufficient basis to find for the non-moving party.

Must make a JMOL to preserve the right to make a renewed JMOL/JNOV

61
Q

Renewed JMOL (CA: JNOV)

A

Made after entry of judgment, so long as party previously made a JMOL.

May be granted if a reasonable jury could not have found for the non-moving party.

62
Q

Motion for a New Trial

A

A party may file a motion for a new trial based on: misconduct, newly discovered evidence that could not have been discovered earlier, excessive damages, judgment is against the weight of the evidence, or prejudicial error.

63
Q

Remittitur

A

(in Federal/CA): if the court finds that the damages figure was excessively high or shocks the conscience, plaintiff can choose to take a lesser amount or begin a new trial

64
Q

Additur

A

(CA ONLY, unconstitutional in Federal)

If the court finds that the damages figure was so low that it shocked the conscience, defendant party can pay a greater amount as set by the court, or begin a new trial.

65
Q

Final Judgment Rule

A

The right to appeal is only from final judgments, which are ultimate decisions by trial courts on the merits of the case.

CA: judgment is final on appeal or when the time for appeal has run out.

66
Q

Res Judicata (Claim Preclusion)

A
  1. The case ended in a valid, final judgment on the merits
  2. The same claim or cause of action is involved (CA follow the PRIMARY RIGHTS DOCTRINE, which holds that a cause of action is an invasion of a singular primary right; ex: property and personal injury are different),
  3. The claim or cause of action was actually litigated and determined, or could have been, and
  4. Both cases are brought by the same claimant against the same defendant
67
Q

Collateral Estoppel (Issue Preclusion)

A
  1. Case ended in a valid, final judgment on the merits
  2. Same issues involved
  3. Issue was actually litigated and determined
  4. Issue was essential to the judgment
  5. Preclusion asserted against someone who was a party in the first case, or one in privity with the party.
68
Q

Offensive Collateral Estoppel

A

(elements 1-5, and)

A plaintiff who was not previously a party can bar defendant from relitigating an issue, if they had a full and fair opportunity to be heard on the issue, and it would not be unfair to apply collateral estoppel (D could have reasonably foreseen multiple suits, no inconsistent judgments on the record, etc.)

69
Q

Defensive Collateral Estopel

A

(same elements, and)

A defendant who was not a party in the previous action may bar plaintiff from relitigating an issue, if plaintiff had a full and fair opportunity to be heard in the previous action.

Bar Prep Summer 2014 (11 decks)

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