Civil Procedure

Question 1

Civ Pro Issues Checklist

Answer 1

1. Proper Court Preliminary Issues
2. Pretrial Procedures
3. Disposition without Trial
4. Trial
5. Post-Trial
6. Appeal
7. Use of Final Judgment

Question 2

Proper Court Preliminary Issues Checklist

Answer 2

1. Personal Jurisdiction 2. Subject Matter Jurisdiction 3. Supplemental Jurisdiction 4. Removal and Remand 5. Venue 6. Notice 7. Choice of Law

Question 3

Pretrial Procedures Checklist

Answer 3

1. Pleadings 2. Joinder of Parties 3. Joinder of Claims 4. Class Action 5. Discovery

Question 4

Disposition without Trial Checklist

Answer 4

1. Dismissal/Default 2. Motion for Summary Judgment

Question 5

Trial Checklist

Answer 5

1. Right to Jury 2. Judgment as a Matter of Law/Directed Verdict in CA

Question 6

Post-Trial Checklist

Answer 6

1. Renewed JMOL/JNOV in CA 2. New Trial 3. Motion to Set Aside Judgment 4. Remittitur/Additur

Question 7

Appeal Checklist

Answer 7

Final Judgment Rule & Exceptions

Question 8

Use of Final Judgment Checklist

Answer 8

1. Res judicata (claim preclusion) 2. Collateral estoppel (issue preclusion)

Question 9

Personal Jurisdiction (PJ)

Answer 9

1. Tradition bases —Consent —Domiciled in Forum —Present & served 2. Modern: minimum contacts —Long-arm statute AND ——CA: to constitutional limits ——Specific statute: as limited —Nature of contacts ——Purposeful availment ——Foreseeability of being haled into court ——Relatedness ——Essentially at home —Fairness Factors ——Convenience ——State’s interest ——Other interests

Question 10

Subject Matter Jurisdiction (SMJ)

Answer 10

1. Federal Question 2. Diversity of Citizenship —Complete diversity required ——Person: domicile ——Corp: may have 2 - incorp state & PPB state (nerve ctr) ——Uninc Assoc: domicile of members ——Alienage: foreign citizen and US citizen —AND exceeds $75K

Question 11

CA Subject Matter Jurisdiction (SMJ)

Answer 11

1. Unlimited case: exceeds $25K 2. Limited case: $25K or less 3. Small claims: person $10K, business $5K

Question 12

Supplemental Jurisdiction

Answer 12

1. Common nucleus of operative fact 2. Same transaction or occurrence

Question 13

Removal Jurisdiction

Answer 13

1. Defendants only may remove 2. 30 days - 1 year max

Question 14

Remand

Answer 14

To state court if removal improper

Question 15

Venue

Answer 15

1. Claim arose 2. D resides —Fed: any Ds reside, all in same state —CA: any D resides 3. Reside venue definition —Person: domicile —Corp: ——Fed: where subject to PJ ——CA: PPB, or K entered into, performed, or breached 4. Alternative - any D subject to PJ

Question 16

Transfer of Venue

Answer 16

1. Original venue proper —Fed: could’ve been filed or all consent —CA: interest of justice 2. Original venue improper —Fed: dismiss or transfer —CA: may transfer proper county —Forum Non Conveniens ——CA: interests of justice, public factors, private factors

Question 17

Notice

Answer 17

1. Service of Process 2. Method of Service —Personal Service —Substituted Service: ——CA: must mail too only if personal service can’t be made —Constructive service 3. Service in Foreign Country

Question 18

Choice of Law

Answer 18

1. Erie —State substantive law —Fed. procedural law —If unclear: ——outcome determinative test ——balancing test 2. CA conflict of law —Tort: comparative impairment test —K: depends on choice of law clause ——No clause: comparative impairment test ——Yes clause: OK if reasonable basis & no CA conflict

Question 19

Federal v. CA Pleading

Answer 19

Fed: notice pleading CA: fact pleading

Question 20

Complaint Checklist

Answer 20

1. Identify parties 2. Statement of claim & SMJ 3. Demand for judgment 4. Signature

Question 21

What is a motion for a more definite statement in CA?

Answer 21

Demurrer

Question 22

What is a motion to strike pleadings in CA?

Answer 22

Anti-SLAPP

Question 23

Federal 12(b)6 motions

Answer 23

1. Lack of SMJ 2. Lack of PJ - 1st response or else waived 3. Improper venue - 1st response or else waived 4. Insufficient process - 1st response or else waived 5. Insufficient service of process - 1st response or else waived 6. Failure to state a claim 7. Failure to join an indispensable party

Question 24

CA 1General Demurrer (unlimited cases)

Answer 24

1. fail to state COA 2. lack of SMJ

Question 25

CA Special Demurrer (unlimited cases)

Answer 25

1. uncertain pleading 2. liability theory unclear 3. lack of legal capacity 4. another case exists 5. misjoinder of parties 6. contract pleadings not okay 7. certificate if required

Question 26

CA Motion to Quash

Answer 26

1. lack of PJ 2. insufficient process 3. insufficient service of process

Question 27

Answer

Answer 27

1. Respond 2. Assert affirmative defenses

Question 28

Fed Relation Back Doctrine

Answer 28

1. Claims: Same conduct, transaction, or occurrence 2. Defendants — same conduct, transaction, or occurrence — new party knew of action — would have been named

Question 29

CA: “Doe” Amendments

Answer 29

1. Timely filed 2. Genuine ignorance of: — Identity of party — Facts giving rise to action — Law allows cause of action 3. Ignorance pled 4. 3 years to substitute

Question 30

Joinder of parties - necessary party

Answer 30

1. No complete relief 2. interest harmed 3. Multiple inconsistent obligations

Question 31

When do you join a necessary party?

Answer 31

PJ and diversity not destroyed. If can’t join, court may dismiss because indispensible, or proceed without.

Question 32

Impleader

Answer 32

D can add a 3d party D

Question 33

Intervention

Answer 33

nonparty wants to join

Question 34

Interpleader

Answer 34

property holder wants single lawsuit

Question 35

Compulsory v. Permissive Counterclaim

Answer 35

Compulsory: 1. same tx or occurrence 2. supplemental jx will extend Permissive: 1. not same tx or occurrence 2. supplemental jx will not extend

Question 36

Cross claim (cross complaint in CA): against co-party

Answer 36

1. Not compulsory 2. Same tx or occurrence 3. Supplemental jx will extend

Question 37

Fed requirements for class actions

Answer 37

1. Numerosity 2. Commonality 3. Typicality 4. Adequacy

Question 38

Fed Class Actions: Type of Class

Answer 38

1. Prejudice 2. Injunctive relief sought 3. Questions of law/fact common to class predominate

Question 39

Fed Class Actions: Citizenship Issues

Answer 39

1. Diversity - named rep 2. Class Action Fairness Act — Any class member diverse — Aggregate exceeds $5M — 100+ class members

Question 40

CA Class Action

Answer 40

• no types 1. Ascertainable class 2. Member community interest — Common questions of law or fact — Adequate representative — Class substanital benefit

Question 41

Rule 26 Mandatory Disclosures

Answer 41

1. Initial disclosures 2. Expert information 3. Pretrial witnesses & documents

Question 42

Discovery Tools

Answer 42

1. Depositions 2. Interrogatories 3. Request for admissions 4. Request to inspect and produce 5. Electronically stored data 6. Physical or mental exams Note: CA limited cases have less discovery

Question 43

Scope of Discovery

Answer 43

1. Need not be admissible 2. No attorney work product

Question 44

Types of dismissal

Answer 44

1. Voluntary 2. Involuntary 3. Failure to state a claim

Question 45

Motion for summary judgment (MSJ)

Answer 45

No genuine issue of material fact & entitled to judgment as matter of law

Question 46

Federal v. CA right to jury trial

Answer 46

Fed: legal, then equity CA: equity, then legal

Question 47

Judgment as a Matter of Law (CA Directed Verdict)

Answer 47

Reasonable people could not disagree

Question 48

Fed Renewed JMOL v. CA JNOV

Answer 48

Fed: only allowed if JMOL first CA: not required to file DV first

Question 49

Conditional New Trial on Damages

Answer 49

Remittitur: damages too high Additur: damages too low (not allowed in Fed)

Question 50

Final Judgment Rule (FJR) Exceptions

Answer 50

1. injunctions 2. collateral issues 3. multiple claims/parties 4. extraordinary writ 5. certification of class action

Question 51

Res Judicata (claim)

Answer 51

1. Valid final judgment on the merits — Fed: final when rendered — CA: final when appeals done 2. Same P & same D 3. Same claim — Fed: same tx or occurrence — CA: primary rights theory

Question 52

Collateral Estoppel (issue)

Answer 52

1. Valid final judgment on the merits — Fed: final when rendered — CA: final when appeals done 2. Same issue actually litigated 3. Issue was necessarily determed (essential to judgment) 4. Use against party/privity only 5: Use by: — Fed: party or privy only — CA: stranger allowed if fair —— Defensive use - fair opportunity to be heard —— Offensive use - if fair and equitable