Civil Procedure Flashcards
Topics? (4)
(Personal Jurisdiction)
- Types of Personal Jurisdiction
- Traditional Tests
- Modern Test = Constitutional Limitations on Personal Jurisdiction
- Personal jurisdiction & the Internet
Structure?
- _
- _
- _
- _
(Personal Jurisdiction: Types of Personal Jurisdiction)
- In Personam
- In Rem
- Quasi-In-Rem
- International Shoe Test Required
Structure?
- _
- _
- _
- _
- _
(Personal Jurisdiction: Traditional Tests)
- Physical Presence at Time of Personal Service
- Transient Presence
- Domicile
- Express Consent, OR
- Long Arm Statutes (aka Implied Consent)
Structure?
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
(Personal Jurisdiction: Modern Test = Constitutional Limitations on Personal Jurisdiction)
- Statutory Authority (Long Arm Statutes)
- Minimum Contacts
- Test - “Defendant must have certain minimum contacts with the forum state such that maintenance of the suit does not offend traditional notions of fair play and substantial justice.”
- Minimum Contacts
- Purposeful Availment
- Foreseeability
- Fair Play & Substantial justice
- Relatedness of Contact & Claim
- Related = Specific Personal Jurisdiction
- Unrelated = General Personal Jurisdiction
- Systematic & Continuous Contacts Required
- Domicile
- Incorporation, OR
- Principal Place of Business
- Systematic & Continuous Contacts Required
- Reasonableness of Jurisdiction
- Burden on Defendant
- Plaintiff’s Interest in Obtaining Relief
- Interest of the Forum State
- Relatedness of Contact & Claim
- Notice = Reasonable Method & Opportunity to Appear & Be Heard
Structure?
- _
- _
- _
- _
(Personal Jurisdiction: Personal Jurisdiction & the Internet)
- Active = General Jurisdiction
- Interactive = Purposeful Availment
- Interactive
- Passive = Not Sufficient Contacts
First two levels?
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
(Subject Matter Jurisdiction)
- Federal Courts = Article Ill Limitations
- Federal Question Jurisdiction
- Diversity of Citizeship Jurisdiction
- Supplemental Jurisdiction
- Removal
- The Erie Doctrine
- CA Subject Matter Jurisdiction
- Superior Court
- Classification
- Aggregation
- Reclassification
- Multiple Claims
Structure?
- _
- _
- _
- _
(Subject Matter Jurisdiction: Federal Question Jurisdiction)
- Well-Pleaded Complaint Rule
- Not Sufficient
- Anticipatory Defense
- Artful Pleadings
First level?
- _
- _
- _
(Subject Matter Jurisdiction: Diversity of Citizenship Jurisdiction)
- Diversity
- Amount in Controversy (AIC) > $75,000
- Exclusions
Structure?
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
(Subject Matter Jurisdiction: Diversity of Citizenship Jurisdiction: Diversity)
- Complete Diversity
- Diversity Determined = At Commencement of the Action
- Domicile
- Individuals
- Presence
- Intent to Remain = Subjective Intent
- Corporations
- State of Incorporation
- Principal Place of Business = Nerve Center
- Unincorporated Associations
- Limited Liability Companies
- Decedents, Minors & Incompetents
- Class Actions = Citizenship of Named Members of the Class
- Non-Resident US Citizens = Neither a Citizen of Any State Nor an Alien
- Permanent Resident Alien = Citizen of State Where Domiciled
- Individuals
- Alien Diversity
- Between Citizen of State & Alien = Yes
- Between Two Aliens = No
Structure?
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
(Subject Matter Jurisdiction: Diversity of Citizenship Jurisdiction: Amount in Controversy > $75,000)
- Good Faith Requirement
- Court Costs & Interest Not Included
- Dismissed if Legal Certainty < $75,000
- Aggregation
- Single Defendant = Yes
- Multiple Defendants = No
- Exception: Jointly & Severally Liable
- Equitable Relief
- Plaintiff’s Viewpoint = Harm to Plaintiff, OR
- Defendant’s Viewpoint = Cost of Compliance
Structure?
- _
- _
- _
- _
(Subject Matter Jurisdiction: Diversity of Citizenship Jurisdiction: Exclusions)
- Divorce
- Alimony
- Child Custody, OR
- Probate of Estate
Structure?
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
(Subject Matter Jurisdiction: Supplemental Jurisdiction)
- Effect
- Test = “Common Nucleus of Operative Fact”
- Same Transaction or Occurrence = YES
- Types of Supplemental Jurisdiction
- Pendant Jurisdiction
- One Limitation = Complete Diversity in Diversity Cases
- Complete Diversity in Diversity Cases = No
- Amount in Controversy in Diversity Cases = Yes
- Complete Diversity in Federal Question Cases = Yes
- Amount in Controversy in Federal Question Cases = Yes
- One Limitation = Complete Diversity in Diversity Cases
- Ancillary Jurisdiction
- No Limitations
- Pendant Jurisdiction
- Court Discretion
- Complex Claim of State Law
- State Law Claim Predominates
- Original Claim Dismissed, OR
- Other Compelling Reasons or Exceptional Circumstances
Structure?
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
(Subject Matter Jurisdiction: Removal)
- General Test
- Federal Question, OR
- Diversity
- Who = Defendant Only
- Multiple Defendants = Unanimous Consent
- Waiver of Removal Right
- Permissive Counterclaims = Yes
- Compulsory Counterclaims = No
- Where = Vertical Removal Only
- Diversity Exception: Defendant Citizen of Forum = No Removal
- When = 30 Days After Notice Case Removable
- Notice = Service of Document
- Diversity Exception: One Year Limitation
- How = Procedure for Removal
- Notice of Removal Stating Grounds
- Signed Under Rule 11
- Attached All Documents
- Copy All Adverse Parties
- File Copy of Notice in State Court
- Remand
- Procedural Defect = Within 30 Days
- Lack of Subject Matter jurisdiction = Anytime
- No Appeal
Structure?
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
(Subject Matter Jurisdiction: The Erie Doctrine)
- Substantive Law = State Law
- Matters of Clearly Substantive Law
- Elements of Claim or Defense
- Statute of Limitations & Tolling of Statute of Limitations
- Conflict or Choice of Law Rules
- Matters of Clearly Substantive Law
- Federal Law On Point In Direct Conflict = Federal Law
- Procedural Law = Federal Law
- FRCP = Arguably Procedural
- Procedural v. Substantive
- State Law Outcome Determinative
- Balance State Interest v. Federal Interest in Application of Particular Rule
- Avoid Forum Shopping
Structure?
- _
- _
- _
- _
- _
- _
- _
(Subject Matter Jurisdiction: CA Subject Matter Jurisdiction: Classification)
- Limited Civil Cases = AIC Less Than or Equal to $25,000
- Limited Pleadings
- Limited Discovery
- Unlimited Civil Cases = AIC Exceeds $25,000
- Small Claims
- Individuals = AIC Less Than or Equal to $10,000
- Corporations & Other Entities = AIC Less Than or Equal to $5,000
Rule?
(Subject Matter Jurisdiction: CA Subject Matter Jurisdiction: Aggregation)
Multiple Claims Against Single Defendant = YES
Structure?
- _
- _
- _
- _
- _
(Subject Matter Jurisdiction: CA Subject Matter Jurisdiction: Reclassification)
- Means
- Amended Complaint, OR
- Motion By Court or Party = Notice & Hearing Required
- Unlimited to Limited = Virtually Unobtainable
- Limited to Unlimited = Possibility
Structure?
- _
- _
(Subject Matter Jurisdiction: CA Subject Matter Jurisdiction: Multiple Claims)
- Cross Complaint in Limited Case
- Cross Complaint in Unlimited Case
Topics? (5)
(Venue & Choice of Law)
- Proper Venue
- Transfer of Venue
- Choice of Law = Transferor Court
- Forum Non Conveniens
- CA Venue
Structure?
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
(Venue & Choice of Law: Proper Venue)
- Local Action Rule
- Transitory Actions
- All Defendants Reside
- Residence
- Natural Persons = Domicile
- Corporations = Personal Jurisdiction
- Exception: All Defendants Reside in Different Districts within Same State = Any District Where Any Defendant Resides
- Residence
- All Defendants Reside
- Substantial Part of Claim Arose
- If No District
- Diversity = Defendant Subject to Personal Jurisdiction
- Federal Question = Where Defendant Can Be Found
Structure?
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
(Venue & Choice of Law: Transfer of Venue)
- Requirements for Transfer
- Subject Matter Jurisdiction
- Personal Jurisdiction
- Proper Venue
- Original Venue Proper
- Convenience of the Parties
- Interests of Justice
- Public Factors
- Court Congestion
- Local Interest
- Forum Familiarity with Substantive Law
- Unfairness to Forum
- Private Factors
- Access to Evidence
- Availability of Witness Subpoenas
- Cost of Getting Witnesses to Forum
- Possibility of Viewing Premises
- Public Factors
- Original Venue Improper
- Dismissal, OR
- Transfer if in Interests of Justice
Structure?
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
(Venue & Choice of Law: Forum Non Conveniens)
- Requirements
- Alternative Forum
- Transfer Impossible
- Plaintiff’s Recovery = Irrelevant
- Plaintiff - Resident of Current Forum
- Convenience of the Parties
- Interests of Justice
- Public Factors
- Court Congestion
- Local Interest
- Forum Familiarity with Substantive Law
- Unfairness to Forum
- Private Factors
- Access to Evidence
- Availability of Witness Subpoenas
- Cost of Getting Witnesses to Forum
- Possibility of Viewing Premises
- Public Factors
Structure?
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
(Venue & Choice of Law: CA Venue)
- Local Actions (Real Property) = County Where Land is Located
- Transitory Actions (i.e., Not Local Actions)
- General Rule = Any Defendant Resides When Case Filed
- All Defendants Non-CA Residents = Any County
- Contract Cases = Contract Entered Into or Performed
- Personal Injury or Wrongful Death = Where Injury Arose
- Defendant = Corporation or Other Business Association
- Principal Place of Business
- Contract Entered Into or Performed, OR
- Breach of Contract Occurred or Liability Arose
- General Rule = Any Defendant Resides When Case Filed
- Transfer
- Original Venue Improper
- Original Venue Proper
- Reason to Believe Impartial Trial Not Possible in Original Venue
- Convenience of Witnesses & Ends of Justice Promoted, OR
- No Qualified Judge Available
- Inconvenient Forum
Topics? (8)
(Joinder of Claims & Parties)
- Counterclaim
- Crossclaim
- Permissive Joinder
- Compulsory Joinder of Necessary & Indispensable Parties
- Impleader (Third Party Practice)
- Intervention
- Interpleader
- Class Actions
Structure?
- _
- _
- _
- _
- _
- _
(Joinder of Claims & Parties: Counterclaim)
- Compulsory = Same Transaction or Occurrence
- Waived If Not Filed
- Supplemental jurisdiction = YES
- Permissive = Not Same Transaction or Occurrence
- Supplemental jurisdiction = NO
- CA Counterclaim = Cross-Complaint Against Plaintiff
Structure?
- _
- _
- _
- _
- _
- _
- _
- _
(Joinder of Claims & Parties: Crossclaim)
- Must Arise Out of Same Transaction or Occurrence
- Never Compulsory
- Supplemental jurisdiction = YES
- Limitation Applies
- CA Crossclaims Against Co-Party = Cross Complaints Against Co-Party
- May Be Filed Anytime Before Court Has Set Trial Date
- Must Arise from Same Transaction or Occurrence
- Never Compulsory
Requirements? (3)
(Joinder of Claims & Parties: Permissive Joinder)
- Arise from Same Transaction or Occurrence
- Commonality of Law or Fact
- Subject Matter jurisdiction
Structure?
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
(Joinder of Claims & Parties: Compulsory Joinder of Necessary & Indispensable Parties)
- Necessary Parties
- Complete Relief Not Possible
- Missing Party’s Interests Would Be Harmed, OR
- Missing Party’s Claims Would Subject Party to Multiple Liability
- Jurisdictional Requirements
- Personal Jurisdiction
- joinder Will Not Destroy Diversity
- Effect of Failure
- Factors Considered
- Is There an Alternative Forum Available
- What is the Actual Likelihood of Harm
- Can Court Shape Relief to Avoid Harm
- Dismissal = Indispensable Party
- Factors Considered
Structure?
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
(Joinder of Claims & Parties: Impleader (Third Party Practice))
- Timing = Within 14 Days of Answering Complaint
- Requirements
- File Third Party Complaint
- Serve Process on Third Party Defendant = Personal Jurisdiction
- Subject Matter jurisdiction
- Diversity
- Federal Question, OR
- Supplemental jurisdiction
- CA Impleader = Cross Complaint Against Third Party Defendant
- May Be Filed Anytime Before Court Has Set Trial Date
- Never Compulsory
- Broader Right than the Federal Standard
- Indemnity
- Contribution, OR
- Any Claim if the Claim Arises from the Same Transaction or Occurrence
- Third Party Defendant Must Respond Within 30 Days
Structure?
- _
- _
- _
- _
- _
- _
- _
(Joinder of Claims & Parties: Intervention)
- Intervention of Right
- Permissive Intervention
- Common Question of Law or Fact
- No Undue Delay or Prejudice
- CA Intervention
- Intervention of Right
- Permissive Intervention = Direct & Immediate Interest
Structure?
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
(Joinder of Claims & Parties: Interpleader)
- Statutory Interpleader
- Jurisdiction
- Diversity = Only One Claimant
- AIC = $500 or More
- Venue = Any District Where Any Claimant Resides
- Service of Process = Nationwide
- Jurisdiction
- Rule 22 Interpleader = Regular Diversity Requirements
- Jurisdiction
- Diversity = Complete Diversity
- AIC = More Than $75,000
- Venue = Normal Rules Apply
- Service of Process = Normal Rules Apply
- Jurisdiction
Topics? (7)
(Joinder of Claims & Parties: Class Actions)
- Requirements
- Categories for Class Actions
- Certification of Class
- Notice to Class
- Jurisdiction
- Settlements & Dismissals
- CA Class Actions
Requirements? (4)
(Joinder of Claims & Parties: Class Actions: Requirements)
- Numerosity
- Commonality
- Typicality
- Adequacy
Structure?
- _
- _
- _
- _
- _
- _
- _
- _
(Joinder of Claims & Parties: Class Actions: Categories for Class Actions)
- Prejudice Class Actions
- Inconsistent Adjudications
- Necessary to Avoid Harm to Class Members or Opposing Party
- Injunctive & Declaratory Relief
- Defendant’s Conduct Generally Applicable to Class
- Damage Class Actions
- Questions of Common Fact or Law Predominate
- Class Action Superior Method
Structure?
- _
- _
- _
- _
(Joinder of Claims & Parties: Class Actions: Certification of Class)
- Must Certify At Earliest Practical Time
- Must Define Class & Claims, Issues or Defenses
- Must Appoint Class Counsel
- Certification May Be Withdrawn or Altered
Structure?
- _
- _
- _
- _
(Joinder of Claims & Parties: Class Actions: Notice to Class)
- Prejudice = May
- Injunctive & Declaratory = May
- Damage = Must
- Notice
Structure?
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
(Joinder of Claims & Parties: Class Actions: Jurisdiction)
- Personal Jurisdiction
- Subject Matter Jurisdiction
- Federal Question, OR
- Diversity
- Complete Diversity = Only Representative
- AIC = Only Representative
- Class Action Fairness Act (CAFA)
- Jurisdictional Requirements
- Minimal Diversity
- AIC > $5 Million
- Mandatory Decline of Jurisdiction
- More Than Two-Thirds of Proposed Class Members Are Citizens of State Where Action Filed
- Defendant from Whom Significant Relief Sought is Citizen of State Where Action Filed
- Principal Injuries Occurred in the State Where Action Filed
- Discretionary Decline of Jurisdiction
- More Than One-Third But Less Than Two-Thirds of Proposed Members Are Citizens of State Where Action Filed
- Primary Defendants Are Also Citizens of State Where Action Filed
- Jurisdictional Requirements
Structure?
- _
- _
- _
- _
(Joinder of Claims & Parties: Class Actions: Settlements & Dismissals)
- Court Approval Required
- Fairness Hearing Required
- Notice Required
- Damage Class Action = 2nd Opportunity to Opt Out Required
Structure?
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
(Joinder of Claims & Parties: Class Actions: CA Class Actions)
- Requirements
- Ascertainable Class
- Well-defined Community Interest
- Common Questions Predominate
- Adequate Representation
- Substantial Benefit to Parties & the Court
- Court Not Required to Appoint Class Counsel
- No Right to Opt Out
- Classification of Class Action as Limited or Unlimited = Aggregate Class Claims
- Settlements or Dismissals = Court Approval Required
- Individual Notice Not Required
- Notice By Publication = OK
- Costs
Topics? (3)
(Pleadings & Discovery)
- Service of Process
- Federal Pleadings = Notice Pleadings
- Discovery
Topics? (3)
(Pleadings & Discovery: Service of Process)
- Requirements
- Procedures
- CA Service of Process
Structure?
- _
- _
- _
- _
(Pleadings & Discovery: Service of Process: Requirements)
- Summons
- Copy of the Complaint
- Within 120 Days of Filing Case
- Exception: Good Cause for Delay
Structure?
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
(Pleadings & Discovery: Service of Process: Procedures)
- Who? = Any Non-Party At Least 18 Years Old
- How?
- Personal Service
- Substitute Service
- Defendant’s Usual Place of Abode
- Person Served = Suitable Age & Discretion Who Resides There
- Service Upon Authorized Agent
- Waiver By Mail
- Incentives for Defendant
- More Time to Answer
- Penalty = Costs of Formal Service-
- Only Waives Formal Service of Process
- Incentives for Defendant
- State Law Methods
- State Where Federal Court Sits, OR
- State Where Service Effected
- Service Outside of State
- Immunity from Service of Process
- In State to Appear in Other Civil Action, OR
- No Immunity in CA if Defendant in State to Appear in Other Civil Action
- Fraud or Deceit
- In State to Appear in Other Civil Action, OR
Structure?
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
(Pleadings & Discovery: Service of Process: CA Service of Process)
- Within 60 Days
- Who = Any Nonparty At Least 18 Years Old
- How
- Personal Service
- Substitute Service
- Requirements
- Usual Abode or Mailing Address
- Competent Member of Household > 18 Years Old
- Informed of Contents
- Process Also Must Be Mailed 1st Class with Prepaid Postage
- Deemed Effective = 10 Days after Mailing
- Requirements
- Agent for Service of Process = Corporations & Other Business Entities
- Waiver By Mail = 20 Days
- By Publication
- Service Outside of CA
Topics? (6)
(Pleadings & Discovery: Federal Pleadings = Notice Pleadings)
- CA Pleadings = Fact Pleadings
- Rule 11
- Complaints
- Defendant’s Responses = Within 21 Days
- Counterclaim
- Amended Pleadings
Structure?
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
(Pleadings & Discovery: Federal Pleadings = Notice Pleadings: Rule 11)
- Effect of Signature
- No Improper Purpose
- Legal Contentions Warranted
- Factual Contentions Have or Will Have Evidentiary Support
- Denials of Factual Contentions Warranted By Evidence
- Sanctions
- Purpose = Deterrence
- Form of Sanctions
- Procedure
- Motion for Sanctions
- 21-Day Safe Harbor Provision
- On Court’s Initiative (Sua Sponte)
- CA Rules = 21-Day Safe Harbor Provision
- Motion for Sanctions
- CA Statute RE: Bad Faith & Frivolous Tactics in Litigation
- Frivolous
- Requirements = Motion & Opportunity to be Heard
- No 21-Day Safe Harbor Provision
Structure?
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
(Pleadings & Discovery: Federal Pleadings = Notice Pleadings: Complaints)
- Requirements
- Statement of Subject Matter jurisdiction
- Short & Plain Statement of Claim Showing Entitlement to Relief
- Demand for Relief Sought
- Special Matters
- Fraud
- Mistake
- Special Damages
- CA Complaints
- Statement of Facts
- Special Matters
- Fraud
- Civil Conspiracy
- Tortious Breach of Contract
- Unfair Business Practices
- Product Liability Claims Among Multiple Defendants Arising from Exposure to Toxins
- Special Matters
- Demand for Judgment for Relief
- Damages
- Exceptions
- Punitive Damages
- Default
- Personal Injury & Wrongful Death
- Default
- Punitive Damages
- Exceptions
- Fictitious Defendant = Relation Back
- Statement of Facts
Federal Structure?
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
(Pleadings & Discovery: Federal Pleadings = Notice Pleadings: Defendant’s Responses = Within 21 Days)
- Motions (Rule 12)
- 12(e) Motion for More Definite Statement
- 12(f) Motion to Strike
- 12(b) Motions to Dismiss
- (1) Lack of Subject Matter jurisdiction = Anytime
- (2) Lack of Personal jurisdiction = Waivable
- (3) Improper Venue = Waivable
- (4) Insufficiency of Process = Waivable
- (5) Insufficiency of Service of Process = Waivable
- (6) Failure to State a Claim = Anytime During Trial
- (7) Failure to Join Indispensable Party = Anytime During Trial
- Answers
- Timing
- Within 21 Days of Service of Process
- Exception: Waiver of Formal Service of Process = 60 Days, OR
- Within 14 Days of Denial of Rule 12 Motion
- Within 21 Days of Service of Process
- Requirements
- Respond to Allegations of Complaint
- Admit
- Deny
- State Lack of Sufficient Information to Admit or Deny
- Raise Affirmative Defenses
- Statute of Limitations
- Statute of Frauds
- Res judicata
- Assumption of Risk
- Fraud
- Self-Defense
- Failure to Plea Affirmative Defense = Waiver
- Respond to Allegations of Complaint
- Timing
CA Structure?
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
(Pleadings & Discovery: Federal Pleadings = Notice Pleadings: Defendant’s Responses = Within 30 Days)
- General Demurrer
- Subject Matter jurisdiction, OR
- Failure to State Facts Sufficient to Constitute a Cause of Action
- Special Demurrer
- Complaint Uncertain, Ambiguous, or Unintelligible
- Theories of Liability Unclear
- Lack of Legal Capacity
- Existence of Duplicate Proceedings
- Defect/Misjoinder of Parties
- Failure to Plead Whether Contract Was Oral or Written, OR
- Failure to File Certificate of Merit
- Motion to Quash Service of Summons = Special Appearance
- Lack of Personal Jurisdiction
- Improper Process, OR
- Improper Service of Process
- Motion to Dismiss or Stay for Inconvenient Forum
- Motion to Strike
- Strategic Lawsuit Against Public Participation (SLAPP)
- SLAPP
- Anti-SLAPP Motion to Strike
- Defendant’s Conduct is Constitutionally Protected Conduct
- Burden Shifts to Plaintiff to Show Reasonable Probability of Prevailing
- Not Permitted if Plaintiff Enforcing Right Other than Her Own
- Answer = General Appearance
- Contents
- Responds to Allegations in Complaint
- Raise Affirmative Defenses
- Timing
- 30 Days After Complaint, OR
- 10 Days After Motion Denied
- Contents
Sructure?
- _
- _
- _
- _
(Pleadings & Discovery: Federal Pleadings = Notice Pleadings: Counterclaim)
- Compulsory = Same Transaction or Occurrence
- Waived If Not Filed
- Supplemental jurisdiction = YES
- Permissive = Does Not Arise from Same Transaction or Occurrence
Federal Structure?
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
(Pleadings & Discovery: Federal Pleadings = Notice Pleadings: Amended Pleadings)
- Right to Amend
- General Rule = Once Within 21 Days of Serving the Pleading
- Responsive Pleading Required = 21 Days after Service of a Responsive Pleading or a Pre-Answer Motion
- With Consent at Trial
- Express Consent
- Implied Consent
- Variance With Objection
- Over Objection at Trial
- Relation Back
- Adding New Claim
- Changing Defendant
- Concerns the Conduct, Transaction or Occurrence as Original Complaint
- New Party Knew of the Suit Within 120 Days of Original Claim
- New Party Knew That But For Mistake, New Party Would Have Been Named Originally
CA Structure?
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
(Pleadings & Discovery: Federal Pleadings = Notice Pleadings: Amended Pleadings)
- Matter of Course
- Before Answer or Demurrer to Complaint
- After Demurrer Before Trial on Issue Raised by Demurrer
- With Consent at Trial
- Amendment to Conform With Evidence
- Relation Back
- New Claims = Must Be Related to Original Claim
- Fictitious Defendants
- Original Complaint Filed Before SOL Had Run & Contained Allegations Against the Fictitious Defendant
- Plaintiff Genuinely Ignorant of Doe Defendant’s Identity
- Doe Defendant Substituted with True Defendant Within 3 Years of Filing
Topics? (7)
(Pleadings & Discovery: Discovery)
- Required Discovery
- Discovery Tools
- Procedure (aka Separate Certification)
- Duty to Supplement
- Scope of Discovery
- Enforcement
- CA Discovery in Limited Cases
Structure?
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
(Pleadings & Discovery: Discovery: Required Discovery)
- Initial Disclosures
- List of Relevant Witnesses
- Documents Supporting Claims or Defenses
- Computation of Damages
- Relevant Insurance Policy
- Experts
- Identify
- Written Opinions
- Compensation
- Trial Evidence
- No Required Disclosures in CA
Tools? (5)
(Pleadings & Discovery: Discovery: Discovery Tools)
- Depositions
- Interrogatories
- Requests to Produce
- Physical or Mental Examination
- Request for Admission
Structure?
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
(Pleadings & Discovery: Discovery: Discovery Tools: Depositions)
- Nonparty Not Required to Attend Without Subpoena
- Party = No Subpoena Required
- Notice
- Proper Service
- Limit of 10
- CA Depositions = No Limit in Number in Unlimited Cases
- No Duplicate Depositions
- Cannot Exceed 1 Day of 7 Hours
- CA Depositions = No Time Restrictions
- Maximum 100 Miles for Nonparty
- Use at Trial
- Impeach Deponent
- Any Purpose
- Deponent Adverse Party, OR
- Deponent Unavailable at Trial
Structure?
- _
- _
- _
- _
- _
- _
(Pleadings & Discovery: Discovery: Discovery Tools: Interrogatories)
- Must Respond or Object Within 30 Days
- Limit of 25
- Duty to Reasonably Investigate
- CA Interrogatories
- Form Interrogatories = No Limit on Number
- Custom Interrogatories = Maximum of 35
Structure?
- _
- _
- _
- _
- _
(Pleadings & Discovery: Discovery: Discovery Tools: Requests to Produce)
- Nonparty = Subpoena Required
- Must Respond Within 30 Days of Service
- Must Be Described With Reasonable Particularity
- CA Requests to Produce
- Non-Parties = Deposition with Subpoena Duces Tecum
Structure?
- _
- _
- _
- _
- _
- _
- _
- _
(Pleadings & Discovery: Discovery: Discovery Tools: Physical or Mental Examination)
- Court Order Required
- Health In Actual Controversy
- Good Cause Exists
- CA Physical or Mental Examination
- Can Lawyer Attend Examination?
- Physical = Yes
- Mental = No Unless Court Order
- Can Lawyer Attend Examination?
Structure?
- _
- _
- _
- _
- _
- _
- _
- _
(Pleadings & Discovery: Discovery: Discovery Tools: Requests for Admission)
- Must Respond Within 30 Days
- Admit
- Deny, OR
- State Lack of Information
- CA Requests for Admission
- Maximum of 35
- Exception: Verification of Document Authenticity
- Maximum of 35
Structure?
- _
- _
- _
- _
- _
(Pleadings & Discovery: Discovery: Procedure (aka Separate Certification))
- Substantive Answers Signed Under Oath
- Every Request Signed by Attorney
- Warranted
- No Improper Purpose
- Not Unduly Burdensome
Structure?
- _
- _
- _
- _
(Pleadings & Discovery: Discovery: Duty to Supplement)
- Duty to Supplement: a party has an affirmative duty to correct material mistakes or omissions in required disclosures, interrogatories, request to produce and request for admission
- CA Supplemental Discovery = No Duty to Supplement
- Supplemental Interrogatories
- Supplemental Demand for Inspection
Structure?
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
(Pleadings & Discovery: Discovery: Scope of Discovery)
- Standard = Anything Relevant to Claim or Defense
- Relevance
- CA Scope
- Privileged Material = Not Discoverable
- CA Right to Privacy
- Work Product
- CA Work Product = Only Material Prepared by Attorneys or Their Agents
- Absolute Protection
- Mental Impressions
- Opinions
- Conclusions
- Legal Theories
- Witness Statements May Be Discovered
- Substantial Need
- Not Otherwise Available
- Experts
- Trial Experts = May Be Deposed
- Consulting Experts = May Not Be Deposed
- Exception: Exceptional Need
- CA Experts
- List of Names
- Declaration of Nature & Substance of Testimony
- Expert’s Qualifications
Structure?
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
(Pleadings & Discovery: Discovery: Enforcement)
- Protective Order
- Sanctions = Good Faith Attempt Required
- Partial Violation = Minimal Sanctions
- Motion to Compel
- Sanctions for Total Violation & Recovery of Costs Available
- Total Violation = Severe Sanctions
- Recovery of Costs
- Other Sanctions
- Contempt
- Establishment Order
- Strike Pleadings
- Disallow Evidence
- Dismiss Plaintiff’s Case = Bad Faith Required
- Enter Default Judgment = Bad Faith Required
- Partial Violation = Minimal Sanctions
- CA Enforcement
- Exception: Total Failure to Respond to Discovery Request
- Protective Orders
- Sanctions = Notice & Hearing Required
- Monetary Sanctions
- Contempt of Court
- Establishment Order
- Terminating Sanctions
- Strike Pleadings
- Stay Proceedings Until Discovery Obeyed
- Dismiss Plaintiff’s Case
- Default judgment
Structure?
- _
- _
- _
(Pleadings & Discovery: CA Discovery in Limited Cases)
- Depositions = Limited to 1
- Interrogatories, Inspection Demands & Requests for Admission = 35 Total
- Court Order Required for Any Additional Discovery
Topics? (7)
(Trial)
- Disposition Without Trial
- Conferences
- Right to Jury
- Jury Selection
- Removing Case from a Jury
- Motion for New Trial
- Motion to Set Aside Judgment
Topics? (5)
(Trial: Disposition Without Trial)
- Dismissal
- Default Judgment
- Failure to State a Claim = Before Answer
- Motion for Judgment on the Pleadings = After Answer
- Summary Judgment = No Triable Issue of Material Fact
Structure?
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
(Trial: Disposition Without Trial: Dismissal)
- Voluntary Dismissal
- Without Prejudice
- With Prejudice
- Procedure
- Court Order, OR
- Written Notice
- CA Voluntary Dismissal
- After Trial Commences
- Involuntary Dismissal
- CA Involuntary Dismissal
- Discretionary Dismissal = Case Not Brought to Trial within 2 Years of Filing
- Mandatory Dismissal
- Not Brought to Trial Within 5 Years of Filing
- Process Not Served Within 3 Years of Filing
Structure?
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
(Trial: Disposition Without Trial: Default Judgment)
- Default = Notation by Court Clerk
- Default Judgment
- By Clerk, OR
- No Response by Defendant
- Monetary Damages
- Affidavit by Plaintiff
- Affidavit = Sworn Statements
- Defendant - Minor or Incompetent
- By Court
- By Clerk, OR
- Relief from Default
- After Default Before Default judgment = Good Cause & Viable Defense
- After Default Judgment = Motion to Set Aside Judgment
- CA Default & Default Judgment
- Defendant Must Be Given Notice of Application for Entry of Default
- Default Judgment by Clerk
- No Response by Defendant
- Claim = Contract or Judgment
- Claim is for Sum Certain in Money
- Defendant Not Served by Publication
- Affidavit by Plaintiff Stating the Relevant Facts
- Default Judgment by Court
- Default Judgment Cannot Exceed or Differ from that Demanded in Complaint
- Relief from Default = Process Did Not Give Notice to Defendant within the Time to Respond
- Must Be Filed within Reasonable Time
- 6 Months After Service of Written Notice of Default (or Default Judgment), OR
- 2 Years after Entry of Default Judgment
- Must Be Filed within Reasonable Time
Structure?
- _
(Trial: Disposition Without Trial: Failure to State a Claim = Before Answer)
Face of the Complaint Only
Structure?
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
(Trial: Disposition Without Trial: Summary Judgment = No Triable Issue of Material Fact)
- Pierce the Pleadings
- Admissible Evidence Only
- Unverified Pleadings - Evidence
- Evidence Viewed in Light Most Favorable to Non-Moving Party
- No Reasonable Trier of Fact Standard
- Deadlines
- Motion May Be Brought Anytime Up Until 30 Days After the Close of Discovery
- Opposing Party Must File Response Within 21 Days of Being Served with Motion
- Moving Party May File Response Within 14 Days
- CA Motion for Summary Judgment
- Moving Party Must File Statement of Undisputed, Material Facts
- Burden Shifts of Non-Moving Party
- Deadlines
- Motion May Be Brought 60 Days After General Appearance of Non-Moving Party
- Moving Party Must File & Serve Motion 75 Days Before Hearing on Motion
- Opposing Party’s Papers Must be Filed at Least 14 Days Before Hearing
- Reply Papers by Moving Party Must be Filed No More than 5 Days Before Hearing
Structure?
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
(Trial: Conferences)
- Rule 26(f) Conference
- Timing
- Discovery Plan
- CA Distinction = No Rule 26(f) Conference
- Pretrial Conferences
- Reasons for Pretrial Conferences
- Determine Course of Trial
- Pretrial Order May Be Amended
- To Prevent Manifest Injustice
- Variance without Objection (Implied Consent)
- Pretrial Order May Be Amended
Structure?
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
(Trial: Right to Jury)
- Federal Court = Civil Actions at Law
- Civil Actions Involving Law & Equity
- Right to Jury = Questions of Law Only
- Demand Requirement = No Later Than 14 Days After Being Served with Last Pleading Raising a Question of Law
- Civil Actions Involving Law & Equity
- CA Right to Jury
- CA Civil Actions Involving Law & Equity
- Equity Clean Up Doctrine = No Jury Required
- CA Demand Requirement = At Time Case is Set for Trial or Within 5 Days of Scheduling Trial Date
- CA Civil Actions Involving Law & Equity
Structure?
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
(Trial: Jury Selection)
- Due Process Requirements = Fair & Impartial
- Equal Protection Requirements = Representative Cross-Section of the Community
- Voir Dire
- Exclusion of Prospective Jurors
- For Cause = Unlimited
- Any Reason Other Than Race or Gender = Three Preemptory Challenges
- Exclusion Based on Race or Gender Unconstitutional
- CA Six Preemptory Challenges
- Exclusion of Prospective Jurors
- Number of Jurors
- CA Number of Jurors = 12 unless parties agree in open court to lesser number
- Verdict = Unanimous
- CA Verdict = 75% OK
Structure?
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
(Trial: Removing Case from a Jury)
- Motion for Judgment as a Matter of Law (aka Directed Verdict)
- When = After Non-Moving Side Has Presented Its Case
- Defendant
- Close of Plaintiff’s Evidence, OR
- Close of All Trial Evidence
- Plaintiff = Only After Close of All Trial Evidence
- Defendant
- Standard = No Reasonable Person Could Differ
- Evidence Viewed in Light Most Favorable to Non-Moving Party
- When = After Non-Moving Side Has Presented Its Case
- Renewed Motion for Judgment as a Matter of Law (formerly Judgment Notwithstanding the Verdict)
- When = After Verdict
- Must Have Filed Motion for Judgment as a Matter of Law
- Standard = No Reasonable Person Could Have Reached the Verdict
- CA Removing Case from a Jury
- Motion for judgment as a Matter of Law = Motion for Directed Verdict
- Only Available at the Close of All Evidence
- After Plaintiff’s Case = Motion for Non Suit
- Renewed Motion for judgment as a Matter of Law = Judgment Notwithstanding the Verdict
- Not Required to Make Motion for Directed Verdict (Motion for Judgment as Matter of Law) at Trial
- When = Must File Notice of Intention to Move before Judgment or Earlier of:
- 15 Days of Mailing or Service of Notice of Entry of Judgment, OR
- 180 Days after Entry of Judgment
- Motion for judgment as a Matter of Law = Motion for Directed Verdict
Structure?
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
(Trial: Motion for New Trial)
- When = Within 28 Days After Judgment Entered
- CA = Same as JNOV
- Grounds
- Prejudicial Error
- Misconduct by Judge, Adverse Party or Juror
- Newly Discovered Evidence
- Erroneous Jury Instructions
- Verdict Goes Against the Weight of the Evidence
- Excessive or Inadequate Damages
- Remittitur = Plaintiff Has Choice of Accepting Less or New Trial
- CA Additur = Defendant Has Choice of Paying More or New Trial
Structure?
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
(Trial: Motion to Set Aside Judgment)
- Anytime
- Clerical Error
- Within One Year
- Mistake or Excusable Neglect
- Fraud, Misrepresentation, or Other Misconduct by Adverse Party
- Newly Discovered Evidence = Reasonable Time
- Within a Reasonable Time
- Judgment Void
- CA Motion to Set Aside Judgment = Mistake, Inadvertence, Surprise or Excusable Neglect
- Motion Must Include Affidavit of Fault by Party or Lawyer
- Timing = Reasonable Time Not to Exceed 6 Months After Entry of Judgment
Topics? (3)
(Final judgment, Appellate Review & Effect on Future Cases)
- Appellate Review
- CA Appellate Review
- Res Judicata & Collateral Estoppel (CA = FRCP)
Structure?
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
(Final judgment, Appellate Review & Effect on Future Cases: Appellate Review)
- Final Judgment Rule
- Procedure
- Where? = In Trial Court
- When? = Notice of Appeal Filed Within 30 Days of Entry of Final Judgment
- No Appeals on Motions to Remand
- Procedure
- Interlocutory Appeals
- Preliminary Injunctions & Temporary Restraining Orders
- Appointments of Receivers
- Interlocutory Appeals Act
- Collateral Order Doctrine
- Double jeopardy Defense
- State Sovereign Immunity Under 11th Amendment
- Government Official Qualified Immunity
- Foreign Sovereign Immunity
- Absolute Presidential Immunity
- Class Action Certification = Within 14 Days
Structure?
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
(Final judgment, Appellate Review & Effect on Future Cases: CA Appellate Review)
- The Basics
- Final Judgment Rule
- Jugment for One of Several Parties
- When?
- 60 Days After Service of “Notice of Entry” of Judgment, OR
- 180 Days after Entry of Judgment if No Notice Served
- Where?
- Limited & Small Claims = Appellate Division of Superior Court
- Final Judgment Rule
- Interlocutory Appeal
- Permitted by Statute
- Order Granting Motion to Quash Service of Summons
- Order Granting Dismissal/Stay for Inconvenient Forum (Forum Non Conveniens)
- Order Granting New Trial
- Order Denying Judgment Notwithstanding the Verdict (JNOV)
- Order Denying Class Action Certification
- Order Granting, Dissolving, or Refusing to Grant/Dissolve an Injunction
- Order Directing Payment of Monetary Sanctions > $5,000, OR
- Collateral Order Rule
- Trial Court Renders Dispositive Interlocutory Order
- On Matter That is Collateral to Merits of the Action
- Order Directs Payment of Money or Performance of an Act
- Permitted by Statute
- Extraordinary Writ
- Types of Extraordinary Writs
- Writ of Mandate, OR
- Writ of Prohibition
- Requirements
- Irreparable Harm if Writ Not Issued
- Standard Route of Appeal Inadequate
- Beneficial Interest in the Outcome of Writ Proceeding
- Extraordinary Writ Only Method of Appeal = Denial of Motion to Quash Service of Summons
- Types of Extraordinary Writs
Structure?
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
- _
(Final Judgment, Appellate Review & Effect on Future Cases: Res Judicata & Collateral Estoppel (CA = FRCP)
- Preliminary Matters
- Governing Law = Law of System that Presided over Original Action
- Earlier Case on Appeal
- Federal = Yes
- CA = No
- Preclusion = Affirmative Defense
- Res Judicata = Claim Preclusion
- Elements
- Same Claimant Against Same Defendant
- Related to Same Transaction or Occurrence of Previously Litigated Claim (Cause of Action)
- Federal Law = Claim
- CA Law = Cause of Action (aka, “Primary Rights”)
- Claim Actually Litigated or Could Have Been Litigated
- Previous Claim Resulted in Valid, Final Judgment on the Merits
- Exceptions
- Jurisdiction
- Venue
- Indispensable Parties
- Statute of Limitations
- Exceptions
- Merger & Bar
- Merger = Plaintiff Won 1st Case
- Bar = Defendant Won 1st Case
- Elements
- Collateral Estoppel = Issue Preclusion
- Elements
- Previously Litigated Issue of Law or Fact
- Actually Litigated
- Final Judgment on the Merits
- Issue Essential (Non-Collateral) to Judgment in First Case
- At Least One Party from Previous Litigation is Present
- Elements
- Non-Mutual Collateral Estoppel = Use By Non-Party
- Non-Mutual Defensive Collateral Estoppel = Use by Non-Party Defendant
- Full & Fair Opportunity to Litigate
- Non-Mutual Offensive Collateral Estoppel = Use By Non-Party Plaintiff
- Permitted if Fair
- Full & Fair Opportunity to Litigate
- Multiple Suits Foreseeable
- Plaintiff Could Have Joined Original Action
- No Inconsistent Judgments on the Record
- Permitted if Fair
- Non-Mutual Defensive Collateral Estoppel = Use by Non-Party Defendant