Civil Procedure

Question 1

Personal Jurisdiction

Answer 1

This grants the courts the power to exercise judgment over a particular defendant or item of property.
Traditionally, courts may find PJ through:
-Domicile (if home presence and intent is in state)
-Presence (if willingly present in state, no fraud or force)
-Consent (if D willingly appears, or must by K or thru agency).

If traditional PJ doesnt exist, courts may still by granted power through Constitutionally valid PJ.

Question 2

Long Arm Statute

Answer 2

In CA, long arm statute grants courts the full power of the Constitution.

Therefore, the court must find that 1) there is SUFFICIENT CONTACTS between the Defendant and the forum state, 2) the assumption of jurisdiction is FAIR and REASONABLE, and 3) the parties received fair and adequate NOTICE of the action.

Question 3

Minimum Contacts

Answer 3

A defendant has minimum contact with the forum state if they PURPOSEFULLY AVAILED themselves to the state, and it was FORESEEABLE that she may be hailed into court there.

Purposeful Availment = invoked benefits from state and protection under it’s laws.

Foreseeability = knew or reasonably should have known.

Question 4

Fair Play and Substantial Justice

Answer 4

A court finds contact with the forum state fair and substantial if:

1) the CLAIM IS RELATED to the contact (SPECIFIC) or
2) the contact was SYSTEMATIC AND CONTINUOUS (GENERAL).

-Must also be FAIR (discuss convenience balancing factors - for the court, the plaintiff, and the defendant).

Question 5

Notice

Answer 5

A Plaintiff MUST deliver summons and complaint within 120 days of filing. It may be delivered via personal or substituted delivery (SUBSTITUTED = leaving at domicile with permanent resident of age).

CA - Substituted service can only be used if personal delivery cannot be reasonably done.

Question 6

Quasi In Rem Jurisdiction

Answer 6

If a dispute over property in the forum state arises, courts have jurisdiction over the owner via the property.

Question 7

Subject Matter Jurisdiction

Answer 7

State courts generally have unlimited subject matter jurisdiction; Federal courts may only hear claims that involve a FEDERAL QUESTION or invoke DIVERSITY OF CITIZENSHIP.

Question 8

Federal Question

Answer 8

Federal question jurisdiction exists over cases involving the Constitution or other laws of the United States.

Question 9

Diversity

Answer 9

Diversity of citizenship jurisdiction exists when the matter in controversy exceeds the sum of $75,000 and the parties involved are of different states (all plaintiffs diverse from all defendants).

Question 10

Amount in Controversy

Answer 10

Determined by looking at the GOOD FAITH plea in the complaint brought by plaintiff. AGGREGRATION of claim amounts is allowed if a SINGLE DEFENDANT.

-If injunction is sought, courts will look to the value of the harm suffered and the cost of compliance.

Question 11

Citizenship

Answer 11

Domicile is determined by PHYSICAL PRESENCE int he state and INTENT TO PERMANENTLY RESIDE there.

Corporations = are citizens of 1) place of incorporation, and 2) place of principle place of business.

Question 12

Supplemental Jurisdiction

Answer 12

The court has authority to hear a claim lacking an independent basis for SMJ, but is joined in a suit that does; can be ancillary or pendant.

Ancillary = granted if the DEFENDANT joins claims ARISING OUT OF THE SAME TRANSACTION AND OCCURRENCE.

Pendant = granted if the PLAINTIFF joins claims TO A FEDERAL QUESTION claim that arise from the same T/O.

Question 13

Removal

Answer 13

A DEFENDANT may remove a state claim to FEDERAL COURT IN THE SAME DISTRICT (unless a diversity jurisdiction in which a Defendant is citizen of the forum).

• All Ds must agree to remove.
• ONE-WAY STREET!!!

Question 14

Venue

Answer 14

Courts must be the proper district and location to bring the action.

Proper where all Ds reside OR where substantial part of the claim arose. If not available, where any D can be found.

-Diversity - if not available, where ALL Ds are subject to PJ.

Question 15

Transfer

Answer 15

Either party MAY transfer from one Fed Court to another where claim could have been filed; reasoning includes convenience of parties or witnesses, or interests of justice.

• If TRANSFEROR court was proper , apply law of that state.
• Forum Non-Conveniens - court may dismiss to let P file elsewhere if other court is by far a more convenient and appropriate forum.

Question 16

Erie Doctrine

Answer 16

IN DIVERSITY CASES ONLY, a federal court MUST APPLY STATE SUBSTANTIVE LAW (i.e., elements of a claim or defense) but applies federal procedural laws (i.e. pleadings and civpro qs).

Question 17

Complaint

Answer 17

A valid Federal Complaint puts the opposing party on notice.

A valid Complaint in CA must also include a statement of fact alleging the prima facie case.

-Fraud, Mistake, and Special Damages must be pled with specificity.

Question 18

Rule 12(b) Defenses

Answer 18

a Defendant must respond to a Complaint within 20 days of notice. Ds may raise 12(b) defenses before or with answer. *waived if not raised with initial 12(b) motion.

1. Lack of PJ*
2. Improper Venue*
3. Insufficiency of Process*
4. Insufficient Service of Process*
5. Lack of SMJ (can also be raised on appeal)
6. Failure to state a claim upon which relief can be granted
7. Failure to join an in indispensable party

Question 19

Counterclaims

Answer 19

A claim BY THE DEFENDANT that is brought AGAINST THE PLAINTIFF.

Compulsory - ARISES OUT OF SAME T/O; must be asserted or it is waived.

Permissive - Doesn’t arise out of same T/O; may be asserted or can be brought in another action.

Question 20

Cross-claims

Answer 20

A claim brought BY DEFENDANT against a 3RD PARTY/CO-PARTY. Must arise out of the same T/O, but is never compulsory.

Question 21

Amendments and Supplemental Pleadings

Answer 21

• P has right to amend ONCE before D answers.
• D has right to amend once within 20 days of it’s own answer.
• An admendment changing D AFTER SoL RUNS will relate back (thus defeating SoL) if same T/O, no undue prejudice, and new D would have been named originally BUT-FOR a MISTAKE

Question 22

Rule 11

Answer 22

Attorneys MUST CERTIFY all pleadings, motions, etc. stating not for improper purpose, warranted by law, and has evidentiary support.

-Safe Harbor if motion for violation filed, attorney has 21 days to fix or withdraw to AVOID SANCTIONS.

Question 23

Compulsory Joinder

Answer 23

A joinder may be REQUIRED if a NECESSARY party to the case. Necessity occurs if:

• complete relief cannot be granted,
• Absentee’s interests would be harmed otherwise, or
• Absence would expose partys to substantial risk of double or inconsistent obligations.

Court can dismiss due to “indispensable party” after weighing alternate forums, prejudice and alternate relief.

Question 24

Permissive Joinder

Answer 24

Parties may be joined as either Ps or Ds if:

1) a claim is made by or against them that arises out of same T/O, and
2) a question of fact or law is common to ALL parties.

Question 25

Class Actions

Answer 25

Requirements of a Class Action:

1) class is so NUMEROUS that joinder is impracticable,
2) there is a COMMON QUESTION of fact or law,
3) the representative party has the SAME/TYPICAL CLAIM, and
4) representative party will FAIRLY and ADEQUATELY protect class interests.

If a COMMON QUESTION Class Action joinder, a class member MUST RECEIVE notice of the claim, and MAY OPT OUT to preserve their action for later.

Question 26

Intervention

Answer 26

An ABSENTEE can choose to TIMELY join a pending suit as either P or D.

• Intervention as a Right = interest will be harmed and no current representation.
• Permissive Intervention = Intervenor’s claim shares at least one common question.

Question 27

Impleader

Answer 27

A defendant is allowed to bring in a 3RD PARTY DEFENDANT who is liable to that defendant for all or part of the plaintiff’s original claim. (Look for Vicarious Liability)

Question 28

Interpleader

Answer 28

When one Defendant holds ALL property or money to be had from a T/O, ALL CLAIMANTS can be joined to avoid multiple litigation.

Under Rule 22 - stakeholder must be diverse from ALL claimants, >$75k

Statutory - diversity between two claimants, and >$500 in issue.

Question 29

Discovery

Answer 29

Anything relevant to a claim or defense is discoverable. Privileged matter is NOT discoverable.

Work Product - any material generated in preparation for litigation (mental impressions, opinions, and conclusions are NOT work product). Can be prepared by non-attorneys.

Question 30

Summary Judgment

Answer 30

A party can move by showing that there is no TRIABLE ISSUE OF MATERIAL FACT. Look at evidence offered by both parties.

CA - must also file a statement showing which facts are/are not in dispute.

Question 31

JMOL (Judgment as a Matter of Law - directed verdict)

Answer 31

Allows Judge to disregard the Jury, if: REASONABLE PEOPLE COULD NOT DISAGREE, after viewing evidence IN THE LIGHT MOST FAVORABLE TO THE NON-MOVING PARTY.

Can only be moved for after both sides have been heard.

Question 32

JNOV (Renewed Judgment as a Matter of Law - judgement notwithstanding the verdict)

Answer 32

Must have first moved for JMOL DURING TRIAL, then motion is allowed.

Question 33

Motion for a New Trial

Answer 33

Motion allowed if (any):

1) Error at trial makes judgment unfair,
2) New evidence that wasn’t obtainable w/ due diligence arises,
3) Prejudicial misconduct of party, atty, 3rd party, or juror,
4) Judgment is against the weight of the evidence, or
5) Inadequate or excessive verdict.

Question 34

Final Judgment Rule

Answer 34

A final judgment must be made on the ENTIRE case before an appeal is allowed.

EXCEPTIONS:

• pretrial order involving temporary remedies
• final judgment on collateral matters
• interlocutory orders of great import (determinative)

Question 35

Res Judicata (Claim Preclusion)

Answer 35

Requires:

1) SAME CLAIMANT AGAINST SAME D,
2) final judgment on merits, and
3) must be same claim (any right to relief arising from same T/O)

Question 36

Collateral Estoppel (Issue Preclusion)

Answer 36

Requires:

1) final judgment on the merits,
2) issue was ACTUALLY LITIGATED,
3) issue was ESSENTIAL to original case, and
4) ASSERTED AGAINST a party of case 1 (traditional) …

Modern view allows assertion against non-party of case 1 if:

1) assertion by D in case 2, and
2) P was a party to case 1 and had opportunity to litigate(using it as a shield).