Civil Procedure Flashcards
Civ Pro Issues Checklist
- Proper Court Preliminary Issues
- Pretrial Procedures
- Disposition without Trial
- Trial
- Post-Trial
- Appeal
- Use of Final Judgment
Proper Court Preliminary Issues Checklist
- Personal Jurisdiction 2. Subject Matter Jurisdiction 3. Supplemental Jurisdiction 4. Removal and Remand 5. Venue 6. Notice 7. Choice of Law
Pretrial Procedures Checklist
- Pleadings 2. Joinder of Parties 3. Joinder of Claims 4. Class Action 5. Discovery
Disposition without Trial Checklist
- Dismissal/Default 2. Motion for Summary Judgment
Trial Checklist
- Right to Jury 2. Judgment as a Matter of Law/Directed Verdict in CA
Post-Trial Checklist
- Renewed JMOL/JNOV in CA 2. New Trial 3. Motion to Set Aside Judgment 4. Remittitur/Additur
Appeal Checklist
Final Judgment Rule & Exceptions
Use of Final Judgment Checklist
- Res judicata (claim preclusion) 2. Collateral estoppel (issue preclusion)
Personal Jurisdiction (PJ)
- 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
Subject Matter Jurisdiction (SMJ)
- 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
CA Subject Matter Jurisdiction (SMJ)
- Unlimited case: exceeds $25K 2. Limited case: $25K or less 3. Small claims: person $10K, business $5K
Supplemental Jurisdiction
- Common nucleus of operative fact 2. Same transaction or occurrence
Removal Jurisdiction
- Defendants only may remove 2. 30 days - 1 year max
Remand
To state court if removal improper
Venue
- 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
Transfer of Venue
- 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
Notice
- 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
Choice of Law
- 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
Federal v. CA Pleading
Fed: notice pleading CA: fact pleading
Complaint Checklist
- Identify parties 2. Statement of claim & SMJ 3. Demand for judgment 4. Signature
What is a motion for a more definite statement in CA?
Demurrer
What is a motion to strike pleadings in CA?
Anti-SLAPP
Federal 12(b)6 motions
- 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
CA 1General Demurrer (unlimited cases)
- fail to state COA 2. lack of SMJ
CA Special Demurrer (unlimited cases)
- 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
CA Motion to Quash
- lack of PJ 2. insufficient process 3. insufficient service of process
Answer
- Respond 2. Assert affirmative defenses
Fed Relation Back Doctrine
- Claims: Same conduct, transaction, or occurrence 2. Defendants — same conduct, transaction, or occurrence — new party knew of action — would have been named
CA: “Doe” Amendments
- 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
Joinder of parties - necessary party
- No complete relief 2. interest harmed 3. Multiple inconsistent obligations
When do you join a necessary party?
PJ and diversity not destroyed. If can’t join, court may dismiss because indispensible, or proceed without.
Impleader
D can add a 3d party D
Intervention
nonparty wants to join
Interpleader
property holder wants single lawsuit
Compulsory v. Permissive Counterclaim
Compulsory: 1. same tx or occurrence 2. supplemental jx will extend Permissive: 1. not same tx or occurrence 2. supplemental jx will not extend
Cross claim (cross complaint in CA): against co-party
- Not compulsory 2. Same tx or occurrence 3. Supplemental jx will extend
Fed requirements for class actions
- Numerosity 2. Commonality 3. Typicality 4. Adequacy
Fed Class Actions: Type of Class
- Prejudice 2. Injunctive relief sought 3. Questions of law/fact common to class predominate
Fed Class Actions: Citizenship Issues
- Diversity - named rep 2. Class Action Fairness Act — Any class member diverse — Aggregate exceeds $5M — 100+ class members
CA Class Action
- no types 1. Ascertainable class 2. Member community interest — Common questions of law or fact — Adequate representative — Class substanital benefit
Rule 26 Mandatory Disclosures
- Initial disclosures 2. Expert information 3. Pretrial witnesses & documents
Discovery Tools
- 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
Scope of Discovery
- Need not be admissible 2. No attorney work product
Types of dismissal
- Voluntary 2. Involuntary 3. Failure to state a claim
Motion for summary judgment (MSJ)
No genuine issue of material fact & entitled to judgment as matter of law
Federal v. CA right to jury trial
Fed: legal, then equity CA: equity, then legal
Judgment as a Matter of Law (CA Directed Verdict)
Reasonable people could not disagree
Fed Renewed JMOL v. CA JNOV
Fed: only allowed if JMOL first CA: not required to file DV first
Conditional New Trial on Damages
Remittitur: damages too high Additur: damages too low (not allowed in Fed)
Final Judgment Rule (FJR) Exceptions
- injunctions 2. collateral issues 3. multiple claims/parties 4. extraordinary writ 5. certification of class action
Res Judicata (claim)
- 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
Collateral Estoppel (issue)
- 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
