Civil Procedure - CA and Federal (Main Deck)* Flashcards

Question 1

Q

FEDERAL:

SUBJECT MATTER JURISDICTION

(State the Rule)

Answer

A

Rule: Subject matter jurisdiction can be established in two ways:

1) Federal Question
2) Diversity

Question 2

Q

FEDERAL:

SUPPLEMENTAL JURISDICTION:

ORIGINAL CLAIM BASED ON DIVERSITY (ANCILLARY JURISDICTION)

(Define & State the Rule)

Answer

A

Definition: Ancillary jurisdiction allows a party other than the Plaintiff to join additional parties or claims that would otherwise defeat subject matter jurisdiction.

Rule: A federal court may, at its discretion, exercise jurisdiction over a joined party or claim that would otherwise destroy subject matter jurisdiction due to lack of diversity or insufficiency of damages if the claim arises from a common nucleus of operative fact as the original claim.

Question 3

Q

WHAT 4 AREAS MUST YOU CONSIDER WHEN APPROACHING A CIVIL PROCEDURE QUESTION?

Answer

A

STEP 1: PRELIMINARY ISSUES

A: Should this case be in federal or state court?

B: Should this case involving these parties be before this particular court?

C: Should additional parties or claims be before the court?

D: What law will the court apply to resolve the dispute?

STEP 2: PRE-TRIAL PROCEDURAL ISSUES

A: Are the pleadings proper?

B: Have all pre-trial motions been filed?

C: Has discovery been conducted?

D: Have all pre-trial conferences been conducted?

STEP 3: TRIAL ISSUES

A: If the case goes to trial, will it be a bench trial or jury trial?

B: Have all motions been filed during and at the conclusion of trial?

C: Is there an issue for interlocutory review?

STEP 4: POST-TRIAL ISSUES

A: Can the judgment be appealed?

B: How will this case affect future litigation?

Question 4

Q

WHAT IS THE DIFFERENCE BETWEEN THE JURISDICTION OF FEDERAL & CALIFORNIA COURTS?

Answer

A

Federal Courts: Federal district courts are courts of limited jurisdiction and have jurisdiction only over claims authorized under Article III of the US Constitution (i.e., federal question, diversity and supplemental jurisdiction).

California Courts: California superior courts are courts of general jurisdiction and have original subject matter jurisdiction over all causes of action arising in California except those specifically excluded by federal or state law.

Question 5

Q

FEDERAL:

SUBJECT MATTER JURISDICTION:

FEDERAL QUESTION

(State the Rule)

Answer

A

Rule: Federal question jurisdiction exists when a claim arises under federal law. A claim arises under federal law if:

1) Theclaim is substantially based on a federal question,
2) The federal question is of critical importance to the matter before the court, AND
3) The federal question is apparent from the face of a well-pleaded complaint.

Note:

1) A complaint does not raise a federal question if it does so only in anticipation of a defense.
2) A defense based upon federal law will not provide the court with federal question jurisdiction.

Question 6

Q

STEP 1 -

PRELIMINARY ISSUES:

WHAT 3 REQUIREMENTS MUST BE MET FOR A CASE TO BE HEARD IN A FEDERAL OR CALIFORNIA STATE COURT?

Answer

A

1) The court must have subject matter jurisdiction over the claim,
2) The court must have personal, in rem or quasi in rem jurisdiction over the parties, AND
3) The court must be the proper location (venue) for the case to be heard.

Question 7

Q

FEDERAL:

SUBJECT MATTER JURISDICTION:

DIVERSITY

(State the Rule)

Answer

A

Rule: To establish jurisdiction based upon diversity of citizenship, two requirements must be met:

1) Theamount in controversy must exceed $75,000, AND
2) Complete diversity of citizenship must exist between the parties.

Note: The court may rely on the Plaintiffs claim as to the measure of harm (i.e., a Plaintiff’s statement in the complaint that damages exceed $75,000) if the claim is made in good faith.

Question 8

Q

FEDERAL:

DIVERSITY JURISDICTION:

AGGREGATION

(Define & State the Rule)

Answer

A

Definition: Aggregation is the totaling of two or more claims for the purposes of meeting the amount in controversy requirement to give rise to diversity jurisdiction.

Rule: Whether claims may be aggregated depends upon the parties:

1) If one Plaintiff against one Defendant: The Plaintiff may aggregate claims.
2) If one Plaintiff against multiple Defendants: The Plaintiff can aggregate claims if the Defendants are jointly liable.
3) If multiple Plaintiffs against one Defendant: The Plaintiffs can aggregate claims if they are seeking to enforce a single title or right in which they have a common or undivided interest.

Question 9

Q

FEDERAL:

DIVERSITY JURISDICTION:

HOW DO YOU DETERMINE THE VALUE OF AN EQUITABLE CLAIM?

Answer

A

Rule: When a Plaintiff brings an action in equity and a dollar value is not easily determinable, courts will look to:

1) The cost to the Defendant of complying with the Plaintiff’s demands, OR
2) The cost to the Plaintiff of the damage caused (or threatened) by the Defendant’s actions.

Question 10

Q

FEDERAL:

DIVERSITY JURISDICTION:

DIVERSITY OF CITIZENSHIP

(State the Rule)

Answer

A

Rule: Diversity will be destroyed if any Plaintiff is a citizen ofthe same state as any Defendant.

Note: Diversity of citizenship is measured at the time the action is filed.

Question 11

Q

FEDERAL:

HOW IS AN INDIVIDUAL’S CITIZENSHIP DETERMINED FOR PURPOSES OF DIVERSITY JURISDICTION?

Answer

A

Rule: An individual’s citizenship is determined by her state of domicile. An individual’s state of domicile is determined by the state in which a person subjectively intends to make a residence her home.

Note: An individual can have only one state of citizenship.

Question 12

Q

SUBJECT MATTER JURISDICTION

(Define)

Answer

A

Definition: Subject matter jurisdiction is the court’s authority over the claim itself.

Question 13

Q

FEDERAL:

HOW IS A CORPORATION’S CITIZENSHIP DETERMINED FOR PURPOSES OF DIVERSITY JURISDICTION?

Answer

A

Rule: A corporation is deemed a citizen of:

1) All states where it is incorporated, AND
2) The state where it has its principal place of business (PPB).

Note: Corporations can have multiple states of citizenship.

Question 14

Q

FEDERAL:

SUBJECT MATTER JURISDICTION:

SUPPLEMENTAL JURISDICTION

(Define)

Answer

A

Definition: Supplemental jurisdiction allows a federal court to hear claims that would not independently satisfy the requirements of subject matter jurisdiction if the claims are substantially related to a claim properly before the court.

Note: Supplemental jurisdiction is the modern term used in Congress’ codification of the court-created doctrines of pendent and ancillary jurisdiction.

Question 15

Q

FEDERAL:

SUPPLEMENTAL JURISDICTION:

ORIGINAL CLAIM BASED ON FEDERAL QUESTION (PENDENT JURISDICTION)

(Define & State the Rule)

Answer

A

Definition: Pendent jurisdiction allows a Plaintiff who has brought a claim based on federal question jurisdiction to join related claims that would otherwise be heard in state court. Rule: A federal court may hear a state claim if the claim arises out of a common nucleus of operative fact as an existing claim over which the court has federal question jurisdiction.

Note: To determine whether supplemental (pendent) jurisdiction is proper, courts will consider:

1) Judicial economy,
2) Convenience and fairness to the litigants,
3) Whether state issues substantially predominate the claim, AND
4) Whether the claim raises a novel or complex issue of state law.

Question 16

Q

FEDERAL:

SUPPLEMENTAL JURISDICTION:

ORIGINAL CLAIM BASED ON DIVERSITY (ANCILLARY JURISDICTION)

(Define & State the Rule)

Answer

A

Definition: Ancillary jurisdiction allows a party other than the Plaintiff to join additional parties or claims that would otherwise defeat subject matter jurisdiction.

Rule: A federal court may, at its discretion, exercise jurisdiction over a joined party or claim that would otherwise destroy subject matter jurisdiction due to lack of diversity or insufficiency of damages if the claim arises from a common nucleus of operative fact as the original claim.

Question 17

Q

CALIFORNIA:

SUBJECT MATTER JURISDICTION

(State the Rule)

Answer

A

Rule: California superior courts have original subject matter jurisdiction over all causes of action arising in California except those specifically excluded by federal or state law.

Question 18

Q

FEDERAL:

HOW DO YOU DETERMINE A CORPORATION’S PRINCIPAL PLACE OF BUSINESS?

Answer

A

Rule: A corporation’s principal place of business is the state in which:

1) The corporation’s books and records are kept and/or management is located, OR
2) The corporation carries out the majority of its production or sales activity.

Question 19

Q

CONCURRENT JURISDICTION

(State the Rule)

Answer

A

Rule: California courts have concurrent jurisdiction with federal courts in civil actions arising under a federal statute unless the federal statute provides that federal courts have exclusive jurisdiction.

Note: Federal statutes that provide for exclusive federal jurisdiction include patent, trademark, copyright, and admiralty laws.

Question 20

Q

HOW ARE CIVIL CASES CLASSIFIED IN CALIFORNIA?

Answer

A

Rule: Civil cases in California are classified as either limited or unlimited jurisdiction cases:

1) Unlimited Civil Jurisdiction Case: An action in which the amount in controversy exceeds $25,000.
2) Limited Civil Jurisdiction Case: An action in which the amount in controversy is $25,000 or less.

Note:

1) The Plaintiff (through his complaint) determines whether the case is a limited or unlimited civil jurisdiction case.
2) The primary difference between limited and unlimited civil jurisdiction cases is the procedural limitations placed upon limited civil cases.

Question 21

Q

CALIFORNIA:

HOW IS THE AMOUNT IN CONTROVERSY MEASURED?

Answer

A

Rule: The amount in controversy is measured by the amount of the Plaintiffs damages not including interest, attorney fees, or legal costs.

Question 22

Q

CALIFORNIA:

AMOUNT IN CONTROVERSY:

AGGREGATION OF CLAIMS

(State the Rule)

Answer

A

Rule 1: Aggregation of multiple claims is allowed if:

1) One Plaintiff brings multiple claims against one Defendant, OR
2) Multiple Plaintiffs bring claims against one Defendant and all Plaintiffs are seeking to enforce a single title or right in which they have a common or undivided interest.

Rule 2: Aggregation of multiple claims is not allowed if:

1) One Plaintiff brings separate claims against multiple Defendants, OR
2) Multiple Plaintiffs join separate claims using permissive joinder against a single Defendant.

Question 23

Q

WHEN DO CALIFORNIA COURTS NOT HAVE SUBJECT MATTER JURISDICTION OVER A CLAIM THAT ARISES IN CALIFORNIA?

Answer

A

Rule: California courts do not have subject matter jurisdiction over:

1) Actions based on federal law that specifically provides for exclusive federal court jurisdiction,
2) Tort actions in which governmental entities can claim immunity. AND
3) Requests for review of administrative decisions if administrative remedies have not been exhausted

Question 24

Q

PERSONAL JURISDICTION

(Define)

Answer

A

Definition: Personal jurisdiction is the authority of a court to adjudicate the legal rights of and make binding decisions upon parties properly before it.

Question 25

Q

FEDERAL:

PERSONAL JURISDICTION

(State the Rule)

Answer

A

Rule: Generally, federal courts have personal jurisdiction over persons who:

1) Could be subjected to the jurisdiction of a court of general jurisdiction in the state in which the district court is located,
2) Are served within 100 miles ofthe place where the summons is issued , OR
3) Are subject to federal statutory interpleader jurisdiction.

Note: Courts of general jurisdiction in California are California Superior Courts.

Question 26

Q

HOW CAN TERRITORIAL AUTHORITY OVER A DEFENDANT BE ESTABLISHED?

Answer

A

Rule: Territorial authority over a Defendant will be established if the Defendant:

1) Is domiciled or incorporated in the forum state,
2) Is present in the forum state when served,
3) Consents to jurisdiction,
4) Conducts business in the state,
5) Commits an act in the state, OR
6) Commits an out-of-state act that causes in-state consequences.

Note: Non-resident Defendants must also have sufficient contacts with the forum state to bring them within the reach ofthe state’s long-arm statute.

Question 27

Q

DEFENDANT’S DOMICILE

(State the Rule)

Answer

A

Rule: A Defendant’s domicile is the place of her permanent residence, even if she is absent.

Note: The Defendant must have the subjective intent to make the residence her home.

Question 28

Q

DEFENDANT’S INCORPORATION IN THE STATE

(State the Rule)

Answer

A

Rule: Territorial jurisdiction will be satisfied if a corporate Defendant:

1) Incorporates in the state. OR
2) Appoints an agent for service of process in the state.

Note:

1) Incorporation allows for general jurisdiction.
2) Appointing an agent for service of process allows for specific jurisdiction.

Question 29

Q

PERSONAL JURISDICTION

(State the Rule)

Answer

A

Rule: To establish personal jurisdiction over a Defendant:

1) The court must have territorial authority over the Defendant, AND
2) Exercising jurisdiction over the Defendant must comport with due process.

Question 30

Q

DEFENDANT’S CONSENT

(State the Rule)

Answer

A

Rule: A Defendant may consent to the exercise over her of personal jurisdiction by acting in a manner that demonstrates a willingness to make use of the judicial system in the state.

Note: Examples of a Defendant consenting through conduct include:

1) Filing an answer to the complaint,
2) Signing a contract that states all disputes will be settled in the forum state.

Question 31

Q

DEFENDANT’S PRESENCE

(State the Rule)

Answer

A

Rule: The physical presence of a Defendant in a forum state is sufficient to establish personal jurisdiction over him, no matter how brief his stay, if Defendant was served while present.

Question 32

Q

CONDUCTING BUSINESS IN THE STATE

(State the Rule)

Answer

A

Rule: A Defendant’s act of doing business in a state allows the exercise of personal jurisdiction over him in that state for any causes of action stemming from his business.

Question 33

Q

STATE LONG-ARM STATUTES

(Define & State the Rule)

Answer

A

Definition: Long-arm statutes grant federal courts the authority to exercise personal jurisdiction over non-resident Defendants who have sufficient dealings or affiliations with the forum jurisdiction.

Rule: Long-arm statutes cannot provide for personal jurisdiction if exercising jurisdiction over an individual would violate the requirements of due process.

Question 34

Q

DEFENDANT’S OUT-OF-STATE ACTIVITIES

(State the Rule)

Answer

A

Rule: A Defendant’s out-of-state activities that cause in-state consequences are sufficient to establish personal jurisdiction if:

1) The act was intentional,
2) The act was aimed at the state, AND
3) The harm caused was foreseeable.

Question 35

Q

CALIFORNIA’S LONG-ARM STATUTE

(State the Rule)

Answer

A

Rule: California’s long-arm statute allows California courts to exercise personal jurisdiction on any basis not inconsistent with the U.S. or California Constitutions.

Question 36

Q

STATE LONG-ARM STATUTES:

CONSTITUTIONAL LIMITS

(State the Rule)

Answer

A

Rule: Due process considerations require that the Defendant:

1) Have sufficient minimum contacts with the forum state such that allowing the suit does not offend traditional notions of fair play and substantial justice, AND
2) Be given notice of a pending lawsuit so that he may have the opportunity to appear and be heard (i.e., proper service of process).

Question 37

Q

HOW DO COURTS DETERMINE IF EXERCISING PERSONAL JURISDICTION WILL OFFEND TRADITIONAL NOTIONS OF FAIR PLAY & SUBSTANTIAL JUSTICE?

Answer

A

Rule: To determine if holding a Defendant to answer based on his contacts with the state comports with traditional notions of fair play and substantial justice, courts look to:

1) The burden on the Defendant,
2) The interests of the forum state,
3) The Plaintiffs interest in obtaining relief,
4) The judicial system’s interest in efficient resolution of interstate conflicts, AND
5) The state’s interest in furthering fundamental substantive social policies.

Note: These are guidelines for the courts to look to when determining the fairness of exercising jurisdiction. None are individually required.

Question 38

Q

WHAT CONSTITUTES MINIMUM CONTACTS WITH A FORUM STATE?

Answer

A

Rule: Three elements are necessary to satisfy the minimum contacts requirement:

1) Purposeful Availment,
a) Rule: The Defendant must have purposefully availed herself of the privilege of acting within the forum state.
2) Relatedness, AND
a) Rule: A sufficient nexus must exist between the Defendant’s contacts with the state and the cause of action (i.e.. the claim must arise out of or relate to the Defendant’s activities with the forum).
3) Foreseeability.
a) Rule: The Defendant’s conduct and connection with the forum state are sufficient to create a reasonable expectation that suit would be brought in that state.

Question 39

Q

WHICH PARTY HOLDS THE BURDEN WHEN DETERMINING THE CONSTITUTIONALITY OF EXERCISING PERSONAL JURISDICTION?

Answer

A

Rule 1: The burden of proof is first on the Plaintiff to establish minimum contacts sufficient to hold the Defendant to answer in the forum.

Rule 2: The burden of proof is then shifted to the Defendant to demonstrate the existence of other factors or considerations that render the exercise of jurisdiction unreasonable

Question 40

Q

PERSONAL JURISDICTION:

GENERAL & SPECIFIC JURISDICTION

(Define)

Answer

A

General Jurisdiction: General jurisdiction arises when the Defendant’s contacts with the forum state are of such a continuous, systematic and substantial nature that the forum state’s assertion of jurisdiction is deemed reasonable, regardless of whether the cause of action is related to Defendant’s contacts with the forum state.

Specific Jurisdiction: Specific jurisdiction is available when:

1) The Defendant has purposely availed himself of the forum’s benefits,
2) The controversy is related to or arises from the Defendant’s contact with the forum, AND
3) The exercise of jurisdiction would comport with fair play and substantial justice.

Question 41

Q

FEDERAL:

PERSONAL JURISDICTION:

THE BULGE RULE

(State the Rule)

Answer

A

Rule: Under the Bulge Rule, impleaded and necessary parties outside the forum state where the district court sits may be subpoenaed if the impleaded and necessary party is within 100 miles of the place where the subpoena is issued.

Note: A federal court will have personal jurisdiction over impleaded and necessary parties properly served under the Bulge Rule.

Question 42

Q

FEDERAL:

PERSONAL JURISDICTION:

STATUTORY INTERPLEADER

(State the Rule)

Answer

A

Rule: Parties properly subject to federal statutory interpleader actions may be served anywhere in the United States.

Note: A federal court will have personal jurisdiction over any party properly subject to federal statutory interpleader actions.

Question 43

Q

IN REM JURISDICTION

(Define & State the Rule)

Answer

A

Definition: In rem jurisdiction is the authority of a court to adjudicate the interests associated with real or personal property.

Rule: To properly exercise in rem jurisdiction:

1) The property must be lawfully present in the state in which the court sits, AND
2) The exercising of jurisdiction must comport with due process.

Question 44

Q

QUASI IN REM JURISDICTION

(Define & State the Rule)

Answer

A

Definition: Quasi in rem is the authority of a court to adjudicate the interests associated with real or personal property owned by a Defendant when the court:

1) Doesnot have authority to exercise personal jurisdiction, OR
2) Has authority, but is unable to enforce a judgment against an individual.

Rule: To properly exercise quasi in rem jurisdiction:

1) The property must be lawfully present
2) Recovery must be limited to the value of the in-state property, AND
3) The exercising of jurisdiction must comport with due process.

Question 45

Q

REMOVAL

(Define & State the Rule)

Answer

A

Definition: Removal is the process by which a claim that could properly be before a federal court is transferred from state to federal court.

Rule: A Defendant may remove a claim from state to federal court if:

1) The federal court would have original subject matter jurisdiction,
2) The federal court is located in the state in which the claim was filed, AND
3) The motion to remove was filed within 30 days of service of the document that makes the case removable.

Note:

1) If original subject matter jurisdiction is based on diversity:
a) All Defendants must join in the motion to remove, AND
b) No Defendant can be a citizen of the forum in which the federal court sits.
2) If original subject matter jurisdiction is based on federal question, neither the Defendants’ citizenship nor the amount in controversy is relevant.

Question 46

Q

FEDERAL:

VENUE

(Define & State the Rule)

Answer

A

Definition: Venue is the determination of which district court will hear the case.

Rule: A Plaintiff may seek venue in any federal district where:

1) A substantial part of the claim arose,
2) All Defendants reside, OR
a) Human beings reside in the district of their domicile.
b) Corporations reside in all districts in which the corporation would be subject to personal jurisdiction when the case is filed.
3) If all Defendants reside in different districts, where any of the Defendants reside.

Note: If these requirements cannot be net, two additional options exist:

1) In a federal question case: A Plaintiff may seek venue in any district where a Defendant is found.
2) In a diversity case: A Plaintiff may seek venue in any district where any of the Defendants are subject to personal jurisdiction.

Question 47

Q

FEDERAL:

CAN A PARTY REQUEST A CHANGE OF VENUE IF ORIGINAL VENUE IS PROPER?

Answer

A

Rule: If venue in the original court was proper, the claim may nevertheless be transferred to another district court if:

1) The district court to which the case is transferred has personal jurisdiction and is a proper venue,
2) The transfer is convenient to the parties and witnesses, AND
3) The transfer is in the interests of justice.

Question 48

Q

FEDERAL:

WHAT OPTIONS EXIST IF ORIGINAL VENUE IS IMPROPER?

Answer

A

Rule: If venue in the original court was improper, the court may:

1) Dismiss the claim, OR
2) Transfer to a proper venue, if the court finds it is in the interests of justice to do so.

Question 49

Q

CALIFORNIA:

VENUE

(Define)

Answer

A

Definition: Venue is the determination of which superior court will hear the case. The basic purpose is to give the Defendant the right to have actions tried in the county of her residence.

Question 50

Q

CALIFORNIA:

VENUE FOR INDIVIDUALS

(State the Rule)

Answer

A

Rule: In cases involving a Defendant who is an individual, proper venue depends upon whether the action is:

1) Transitory,
2) Local, OR
3) Mixed.

Question 51

Q

CALIFORNIA:

VENUE FOR INDIVIDUALS:

TRANSITORY ACTIONS

(Define & State the Rule)

Answer

A

Definition: Actions are transitory when transactions on which the claim is based could have taken place anywhere.

Rule: In civil actions of a transitory nature, proper venue is the county of the residence of the Defendant at the time the claim is filed.

Note: A Plaintiff has greater flexibility in choosing the venue if:

1) The Defendant’s residence is out of state (the Plaintiff may bring the action anywhere in California),
2) The Defendant’s residence is unknown despite a diligent search (the Plaintiff may bring the action anywhere in California), OR
3) The Defendant is about to depart from the jurisdiction (the Plaintiff may bring the action anywhere a party lives or where the Defendant can be served).

Question 52

Q

CALIFORNIA:

VENUE FOR INDIVIDUALS:

WHAT SPECIFIC TYPES OF TRANSITORY ACTIONS ALLOW FOR GREATER FLEXIBILITY IN THE PLAINTIFF’S CHOICE OF VENUE?

Answer

A

1) Personal injury and wrongful death claims: Proper venue is anywhere the Defendant resides or wherever the injury occurred.
2) Physical injuries to personal property: Proper venue is anywhere the Defendant resides or wherever the injury occurred.
3) Consumer contracts for the sale of goods, services or loans: Proper venue is where the buyer signed the contract, or where the buyer resided when the contract was entered into or at the time the action commenced.
4) Non-consumer contracts: Proper venue is where performance is due, where the contract was entered into, or where the Defendant resides at the time the action commenced.

Question 53

Q

CALIFORNIA:

VENUE FOR INDIVIDUALS:

LOCAL ACTIONS

(Define & State the Rule)

Answer

A

Definition: Actions are local when the transactions the claim is founded upon must have taken place in a particular locality.

Rule: In civil actions of a local nature, the proper venue for the claim is the county in which the action took place, regardless of the Defendant’s county of residence.

Question 54

Q

CALIFORNIA:

VENUE FOR INDIVIDUALS:

MIXED ACTIONS

(Define & State the Rule)

Answer

A

Definition: Actions are mixed when the transactions the claim is founded upon contain elements of both a local and transitory nature.

Rule: In mixed actions, the court will determine at the outset whether the action will be treated as transitory or local. To determine whether a mixed action will be treated as transitory or local, courts look to:

1) The principal objective of the action, AND
2) Whether that objective is local or transitory in nature.

Question 55

Q

CALIFORNIA:

VENUE FOR CORPORATIONS

(State the Rule)

Answer

A

Rule: Corporations may be sued in any county where:

1) A contract was made or was to be performed.
2) A tort obligation or liability arises. OR
3) The principal place of business of the corporation is located.

Note: A corporation’s principal place of business is considered its residence for venue purposes.

Question 56

Q

FEDERAL:

FORUM NON CONVENIENS

(Define & State the Rule)

Answer

A

Definition: Forum non conveniens is a doctrine that allows a court to dismiss a claim to allow a Plaintiff to sue a Defendant in a forum deemed more suitable.

Rule: To determine whether a suit should be dismissed based on forum non conveniens, courts balance private and public factors:

1) Private Factors:
a) Ease of access to evidence,
b) Location and availability of witnesses,
c) Cost of obtaining witnesses,
d) Fact-finder’s need to visit the physical scene.
2) Public Factors:
a) Forum’s familiarity with the applicable substantive law,
b) Local interest in having local controversies decided locally,
c) Whether an outside community should be burdened with jury service,
d) Court congestion.

Question 57

Q

WHAT SHOULD YOU CONSIDER WHEN DETERMINING IF THE PROPER PARTIES & CLAIMS ARE BEFORE THE COURT?

Answer

A

1) Additional Parties
a) Joinder of Parties
i) Permissive Joinder (Cal & Fed)
ii) Compulsory Joinder (Cal & Fed)
b) lmpleader (Fed only)
c) Intervention (Cal & Fed)
d) Cross-Complaints (Cal only)
2) Additional Claims
a) Counterclaims (Fed only)
b) Cross-Claims (Fed only)
c) Cross-Complaints (Cal only)
d) Joinder of Claims
i) Class Action (Cal & Fed)
ii) Interpleader (Cal & Fed)

Question 58

Q

FEDERAL:

PERMISSIVE JOINDER

(State the Rule)

Answer

A

Rule: Generally, a Plaintiff may join additional parties provided the requirements of subject matter jurisdiction are met:

1) Multiple Plaintiffs may voluntarily join together in one action if:
a) They assert a joint or several right to relief or their claim arises out of the same transaction or occurrence, AND
b) The claims raise at least one common question of fact or law.
2) A Plaintiff or Plaintiffs may join multiple Defendants in one action if:
a) The Defendants can be held jointly or severally liable or the claim against them arises out of the same transaction or occurrence, AND
b) The claims raise at least one common question of fact or law.

Question 59

Q

FEDERAL:

PERMISSIVE JOINDER OF PARTIES:

JURISDICTIONAL REQUIREMENTS

(State the Rule)

Answer

A

Personal Jurisdiction: All joined Defendants must individually meet the requirements of personal jurisdiction.

Subject Matter Jurisdiction:

1) If the original claim is based on federal question: Look to supplemental jurisdiction if joining the parties introduces state claims.
2) If the original claim is based on diversity:
a) Complete diversity must be maintained, AND
b) The amount in controversy requirement must be satisfied for each joined party.

Question 60

Q

CALIFORNIA:

PERMISSIVE JOINDER

(State the Rule)

Answer

A

Rule: A Plaintiff may join additional Defendants if:

1) A joint and several right to relief is asserted,
2) The claims arise out of the same transaction or occurrence,
3) The claims raise at least one common question of fact or law, OR
4) The Defendants have an adverse interest in the property or controversy that underlies the action.

Note: Courts may refuse to allow joinder if joinder will cause undue hardship or expense to the parties or create unnecessary confusion or complexity at trial.

Question 61

Q

FEDERAL:

COMPULSORY JOINDER

(State the Rule)

Answer

A

Rule: A party must be joined if:

1) Theparty is necessary and joinder is feasible, OR
2) The party is indispensable.

Note: Compulsory joinder analysis requires four steps:

STEP 1: Determine if the party is necessary.

STEP 2: If the party is necessary, determine if it is feasible to join him.

STEP 3: If it is not feasible to join the party, determine if the party is indispensable.

STEP 4: If the party is indispensable and it is not feasible to join, the suit must be dismissed (without prejudice).

Question 62

Q

FEDERAL:

COMPULSORY JOINDER:

NECESSARY PARTIES

(State the Rule)

Answer

A

Rule: If it is feasible to do so, a necessary party must be joined.

1) To determine whether a party is necessary, courts look to:
a) Whether complete relief can be obtained in the party’s absence,
b) Whether the party claims an interest relating to the subject of the action, AND:
i) Whether deciding the case in her absence will impair the party’s ability to protect that interest, OR
ii) Whether deciding the case in the party’s absence may expose existing parties to a risk of multiple or inconsistent obligations.
2) The feasibility of joining a party is determined by:
a) Whether personal jurisdiction can be exercised over the party,
b) Whether the party’s presence would destroy diversity (in federal court), AND
c) Whether the party has a valid objection to venue.

Question 63

Q

FEDERAL:

COMPULSORY JOINDER:

INDISPENSABLE PARTIES

(State the Rule)

Answer

A

Rule: To determine if a party is indispensable, courts look to:

1) The extent to which a judgment rendered in the party’s absence will prejudice the party.
2) The court’s ability to mitigate potential prejudice through its judgment,
3) Whether a judgment rendered without the party will be adequate, AND
4) The ability of the Plaintiff to obtain a remedy if the suit is dismissed.

Question 64

Q

CALIFORNIA:

COMPULSORY JOINDER

(State the Rule)

Answer

A

Rule: A person who is subject to service of process and whose presence will not destroy subject matter jurisdiction must be joined if:

1) Complete relief is not possible without the party’s presence, OR
2) The party has an interest in the subject matter of the action and failure to join the party would:
a) Impair the party’s ability to protect his interest, OR
b) Leave other parties open to substantial risk of incurring multiple or inconsistent obligations.

Answer 65

A

Definition: Impleader is the joining of a third-party Defendant that can also be held liable for a Plaintiff’s claim.

Rule: A Defendant may join a third-party Defendant as potentially liable for all or part of the Plaintiffs claim against the original Defendant.

Note:

1) The original Defendant has a right to implead within 10 days of serving his answer.
2) After 10 days, the Defendant must seek the court’s permission.
3) After impleader, the original Defendant becomes a third-party Plaintiff against the impleaded Defendant (for the indemnity or contribution claim).

Answer 66

A

Rule: Once impleaded, a third-party Defendant may file any of the following if the claim arises from the same transaction or occurrence as the original claim:

1) Counterclaims against the third-party Plaintiff.
2) Cross-claims against other third- party Defendants (if based on the same transaction or occurrence),
3) Claims against the original Plaintiff (if based on same transaction or occurrence),
4) Counterclaims against the original Plaintiff.
5) Impleader claims to join outside parties for potential liability to the third- party Defendant.

Note: The original Plaintiff may also assert claims against the third-party Defendant. However, because supplemental jurisdiction will not be granted for the Plaintiffs claim against the third-party Defendant, the claim must independently meet federal question or diversity requirements.

Answer 67

A

Rule 1: If the Defendant’s activity in the forum state is continuous and systematic and the cause of action is related to the continuous and systematic activity, it is reasonable to exercise personal jurisdiction over the Defendant.

Rule 2: If the Defendant’s activity in the forum state is continuous and the cause of action is not related to that activity, it is reasonable to exercise personal jurisdiction over the Defendant if Defendant’s contacts are sufficiently substantial and of such a nature as to make the state’s assertion of jurisdiction reasonable (i.e., general jurisdiction).

Rule 3: If the Defendant’s activity is sporadic or consists of only a single act and the cause of action arises out of that activity or act, it is reasonable to exercise personal jurisdiction over the Defendant (i.e., specific jurisdiction).

Rule 4: If the Defendant’s activity is sporadic or casual and the cause of action is not related to that activity, it is not reasonable to exercise jurisdiction over the Defendant.

Answer 68

A

Rule: A party may voluntarily join a pending suit as a Plaintiff or Defendant if her interest would be harmed if she were not joined and her interest is not currently adequately represented.

Answer 69

A

Rule: The court has discretion to allow a party to join a pending suit as a Plaintiff or Defendant if the person’s claim or defense shares at least one common question with the pending claim.

Answer 70

A

Rule: The court must allow a party to join a pending suit as a Plaintiff or Defendant if:

1) The application to intervene is timely.
2) The intervening party has an interest in the matter.
3) The interest would be harmed if the party were not joined. AND
4) The interest of the intervening party is not adequately represented

Answer 71

A

Rule: The court has discretion to allow a party to join a pending suit as a Plaintiff or Defendant if the application to intervene is timely and the intervening party:

1) Has an interest in the matter, OR
2) Has an interest in the success of either party.

Note: Courts generally will not allow parties to use discretionary intervention unless the party seeking to intervene has a direct interest in the matter.

Answer 72

A

Definition: Intervention is the process through which a person becomes a party to an action between other parties.

Answer 73

A

Counterclaim (Federal): A counterclaim is a claim against parties on the other side of the litigation (i.e., Plaintiff v. Defendant).

Cross-Claim (Federal): A cross-claim is a claim against parties on the same side of the litigation (i.e., Defendant v. co-Defendant).

Cross-Complaint (California): A cross-complaint is a complaint brought by one party in a case against any other party in the case, regardless of which side the party is on.

Answer 74

A

Definition: A compulsory counterclaim is a claim that arises out of the same transaction or occurrence underlying the Plaintiff’s claim.

Rule: Compulsory counterclaims will be waived if they are not asserted by the Defendant in the pending case.

Exception: If a party necessary to the compulsory counterclaim cannot be joined, the counterclaim will not be waived.

Note:

1) Supplemental jurisdiction will always be extended to compulsory counterclaims.
2) Failure to allege a counterclaim does not bar the Defendant from later seeking indemnity in a separate action.

Answer 75

A

Definition: A permissive counterclaim is a claim that does not arise from the same transaction or occurrence underlying the Plaintiffs claim.

Rule: Permissive counterclaims may be asserted in the pending suit or brought in a separate suit.

Note:

1) Supplemental jurisdiction will never be granted for permissive counterclaims.
2) If a permissive counterclaim does not independently satisfy federal question or diversity jurisdiction, the Defendant must bring action in a separate suit.

Answer 76

A

Definition: Cross-claims are claims brought by a Plaintiff against a co-Plaintiff or by a Defendant against a co-Defendant.

Rule: Cross-claims must be closely related to the transaction or occurrence underlying the original claim.

Note:

1) Supplemental jurisdiction will always be granted for cross-claims.
2) The Federal Rules of Civil Procedure do not provide for compulsory cross- claims. Thus, claims against co-parties can be filed at a later date.

Answer 77

A

Definition: A compulsory cross-complaint is a claim that arises out of the same transaction or occurrence underlying the Plaintiffs claim.

Rule: Compulsory cross-complaints will be waived unless they are asserted at the time a party files an answer to a complaint or cross-complaint.

Exception: A party:

1) Does not have to file a compulsory cross-complaint against a non- appearing party,
2) Does not have to file a compulsory cross-complaint against a party over which the court does not have personal jurisdiction,
3) May seek leave of the court to file a compulsory cross-complaint after filing an answer but before the beginning of trial in the underlying action.

Answer 78

A

Definition: A permissive cross-complaint is a claim that does not arise from the same transaction or occurrence underlying the Plaintiffs claim and instead arises out of any cause of action that the party has against the party that filed a complaint or cross-complaint against him.

Rule: Permissive cross-complaints may be asserted in the pending suit, or brought in a separate suit.

Note: Unlimited cross-complaints may be filed against an opposing party regardless of the lack of relationship between the claims.

Answer 79

A

Rule: A representative may bring suit on behalf of a group of people if:

1) Prerequisite conditions are satisfied, AND:
a) The class is so numerous that joinder is impracticable,
b) There are questions of law or fact common to the class,
c) Therepresentative’s claims are typical of the claims of the class, AND
d) The representative will fairly and adequately protect the class’ interests.
2) Any of the following three requirements are satisfied:
a) Class treatment is necessary to avoid harm to the class members or to the opposing party,
b) The class was treated in the same general manner by the Defendant, OR
c) Common questions of law or fact predominate over individual issues and a class action is the best method to adjudicate the matter.

Answer 80

A

Rule: To receive class certification, a party must establish the existence of an ascertainable class too numerous to bring before the court and a well-defined community of interest among the class members. A community of interest requires:

1) Predominant common questions of law or fact,
2) Class representatives with claims or defenses typical of the class, AND
3) Class representatives who can adequately represent the class.

Note: California provides specific procedures for consumer class actions. A consumer action may be certified as a class action if:

1) It is impracticable to bring all members of the class before the court,
2) The questions of law or fact common to the class are substantially similar and predominate over the questions affecting the individual members,
3) The claims or defenses of the representative Plaintiffs are typical of the claims or defenses of the class, AND
4) The class representatives will fairly and adequately protect the class’ interests.

Answer 81

A

After determining a party has been properly joined, assess subject matter jurisdiction to ensure federal question, diversity, or supplemental jurisdiction still exists.

Answer 82

A

Rule: If the court chooses to certify the action, the court must:

1) Define the class,
2) Define the claims, issues, or defenses,
3) Appoint class counsel, AND
4) Provide reasonable notice to class members of:
a) The nature of the action,
b) The class claims, issues, or defenses,
c) The class members’ option to enter an appearance through separate counsel,
d) The class members’ option to be excluded from the class action suit, AND
e) The binding effect of a class judgment on class members.

Note: In California, the court may direct either of the parties to provide notice to class members.

Answer 83

A

Federal Question Rule: If the claim is based on federal question, subject matter jurisdiction is satisfied.

Diversity Rule: If the claim is based on diversity jurisdiction:

1) Citizenship Requirement: Citizenship for diversity purposes is determined by the citizenship of the class representative.
2) Amount in Controversy:
a) Traditional Rule: Each individual member of the class must claim more than $75,000.
b) Modern Rule: Only the class representative’s claim must exceed $75,000. The amount of the individual members’ claims is irrelevant.

Note: The Ninth Circuit follows the modern rule.

Answer 84

A

Rule: To determine if a class action is the best method to adjudicate a matter, courts look to:

1) Class members’ interest in having individual control.
2) The extent and nature of existing litigation on the same matter elsewhere,
3) The desirability of concentrating the litigation in the present court, AND
4) The difficulties likely to be encountered in managing a class action.

Answer 85

A

Rule: The Class Action Fairness Act provides for federal subject matter jurisdiction over class actions if:

1) The aggregate amount in controversy exceeds $5 million,
a) Note: The Defendant carries the burden of proving the amount in controversy exceeds $5 million.
2) Any class member is a citizen of a different state than any Defendant, AND
3) The class is made up of at least 100 members.

Exception: If the class action involves a local controversy and more than two-thirds of the class members are citizens of the state in which the claim was filed, the claim must remain in state court if:

1) At least one Defendant whose conduct forms a significant basis of the action is a citizen of that state,
2) The principal harm occurred in the state where the suit was brought, AND
3) No class action has been filed alleging the same claims against any of the Defendants in the previous three years.

Answer 86

A

Definition: Interpleader allows a person (a stakeholder) to invoke a court’s equitable power to dispose of property in the stakeholder’s possession by joining all potential claimants in a single lawsuit to avoid a multiplicity of claims.

Note: Three types of interpleader exist:

1) Federal Statutory,
2) Federal Rule 22,
3) California Interpleader.

Answer 87

A

Rule: In a federal statutory interpleader action:

1) Personal jurisdiction is established for claimants anywhere in the nation,
2) Only two claimants must be diverse from each other for purposes of diversity jurisdiction,
3) The amount in controversy must be $500 or more, AND
4) Venue is proper in any district where any claimant resides.

Note: People subject to federal statutory interpleader may be served nationwide.

Answer 88

A

Rule: In a Rule 22 interpleader action:

1) The stakeholder must be diverse from every claimant for purposes of diversity jurisdiction,
2) The amount in controversy must be $75,000 or more, AND
3) Personal jurisdiction and venue are treated as in other federal lawsuits.

Answer 89

A

Rule: A stakeholder may join (interplead) numerous potential claimants in a single lawsuit if:

1) Multiple parties claim an interest in property within the possession of the stakeholder to which the stakeholder claims no interest, OR
2) The stakeholder can demonstrate a reasonable probability of a multiplicity of claims.

Note: Once the parties have been interpleaded and the disputed money or property has been deposited with the court, the stakeholder can request to be dismissed from the action and released of all liability.

Answer 90

A

Rule: Once a claim has been certified as a class action, the parties must receive court permission before settling or dismissing the claim.

Answer 91

A

Rule: When federal and state laws conflict in a diversity jurisdiction case, federal courts may apply federal procedural rules, but must apply the substantive law of the state where the federal court sits.

Note:

1) If the conflicting federal rule can be classified as procedural and is directly on point, federal courts will apply the federal law.
2) If it is unclear whether the conflicting rules are substantive or procedural, courts balance the following interests: promotion of uniformity in federal court decisions (apply federal law), prevention of forum shopping (apply state law), and the extent to which substantive rights are affected (if more than incidentally, apply state law).
3) Courts treat state statutes of limitations, personal jurisdiction statutes, and choice-of-law rules as substantive law.
4) The Erie Doctrine does not apply in federal question jurisdiction cases.

Answer 92

A

Apply the Erie Doctrine.

Answer 93

A

The Federal Rules of Civil Procedure govern pleading requirements for suits brought in federal court (even for claims arising under state substantive law).

Answer 94

A

Definition: The statute of limitations determines the period during which a Plaintiff can bring a claim in a civil action.

Rule: Once the statute of limitations has run (i.e., expired), the Plaintiff is barred from bringing a claim.

Answer 95

A

Federal courts use notice pleadings.

Note:

1) Notice pleadings historically required only that the Plaintiff provide a short and plain statement of the cause of action sufficient to put the opposing party on notice ofthe action.
2) The Supreme Court recently expanded the requirements of notice pleading and stated that federal judges must use common sense to determine whether the complaint states a plausible claim for relief. Under this new rule, it is easier to dismiss lawsuits at the outset of litigation.

Answer 96

A

1) Plaintiffs Pleading (Complaint)
2) Service of Process
3) Defendant’s Response
4) Amendments
5) Attorneys’ Responsibilities

Answer 97

A

California courts use fact pleadings. Fact pleadings require that the Plaintiff provide a statement of the facts sufficient to establish a cause of action.

Answer 98

A

Rule: A Plaintiff may name Doe Defendants if:

1) The Plaintiff believes that there are parties who are liable to the Plaintiff, but their identities are not known, OR
2) The facts reveal that there may be as yet unknown parties who may be liable to the Plaintiff.

Note: The statute of limitations for service of the summons and complaint on Doe Defendants is 3 years.

Answer 99

A

Rule: A Plaintiff may use a Doe Defendant to avoid losing a cause of action against Defendants unknown to the Plaintiff at the time of filing.

Note: Because of the 3 years allowed to identify and serve Doe Defendants, a Plaintiff can obtain an extension of time for a cause of action by filing against a Doe Defendant before the statute of limitations on the underlying claim has run.

Answer 100

A

Rule: Whether Plaintiffs may use Doe Defendants depends upon the subject matter jurisdiction of the case:

1) Diversity: A split of authority exists regarding the use of Doe Defendants:
a) Some courts (including the 9th Circuit) argue that the use of Doe Defendants destroys diversity and is therefore not allowed.
b) Other courts have held that state laws allowing the use of Doe Defendants are substantive laws of the forum and therefore allow Doe Defendants.
2) Federal Question: The use of Doe Defendants in federal question cases is allowed, but the Plaintiff must amend the complaint upon learning of the Doe Defendant’s identity.

Note: The citizenship of Doe parties is not considered for diversity purposes in cases that enter federal court through removal.

Answer 101

A

A Doe Defendant is a fictitious name used for a Defendant whose identity is unknown to the Plaintiff.

Answer 102

A

Rule: In personal injury or wrongful death proceedings, the initial pleadings must not contain a statement of the damages sought.

Note:

1) California’s rule stems from the fact that pleadings are in the public record.
2) The Defendant determines the damages sought by the Plaintiff by serving the Plaintiff with a request for a statement of damages.
3) The Plaintiff cannot obtain a default judgment unless a statement of damages is filed.

Answer 103

A

Definition: A verified complaint is a complaint accompanied by a declaration submitted by the Plaintiff or Plaintiffs counsel stating that the information contained in the complaint is true.

Rule: If the complaint is verified, the answer must also be verified.

Note: Verified complaints are not required in federal court, and the answer need not be verified even if the Plaintiffs complaint was verified.

Answer 104

A

Rule: A non-party over the age of 18 must serve the Defendant, or the Defendant’s agent, with:

1) A summons, AND
2) A copy of the complaint.

Note:

1) In federal court, the Defendant must be served within 120 days of filing of the complaint,
a) If not served within 120 days, the claim will be dismissed without prejudice.
2) In California, the Defendant must be served within 60 days of filing of the complaint.
3) In both federal and California courts, the Plaintiff must file a proof of service (i.e., an affidavit of having served the Defendant) with the court.

Answer 105

A

Rule: After being served, a Defendant must:

1) File a motion, OR
2) File an answer.

Note:

1) In federal court, the Defendant must file a motion or an answer within 20 days of service of process to avoid risking default.
2) In California court, the Defendant must file a motion or an answer within 30 days of service of process to avoid risking default.

Answer 106

A

Rule: If a Defendant fails to timely respond, the Plaintiff may request a default judgment from the court if:

1) The Defendant has provided no response,
2) The claim is for a fixed amount,
3) The Plaintiff provides an affidavit as to the amount owed, AND
4) The Defendant is not a minor or incompetent.

Note:

1) If the Plaintiff cannot demonstrate all of these elements, she must request a hearing before a judge.
2) The Defendant can move to set aside a default judgment by showing:
a) Good cause for failing to respond, AND
b) A viable defense to the claims made in the pleading.

Answer 107

A

Rule: If a Defendant fails to timely respond, the Plaintiff may request a default judgment from the court.

Note: A request for default must be made within 10 days after time for service of the answer has expired.

Answer 108

A

Rule: In California, the time allowed for a Defendant to timely respond may be extended:

1) By 5 days, if the Defendant was served by mail within California.
2) By 10 days, if the Defendant was served by mail outside of California, but within the United States.
3) By 20 days, if the Defendant was served by mail outside of United States.

Answer 109

A

Rule: In her answer to the complaint, the Defendant must:

1) Respond to the allegations made in the complaint, AND
a) For each allegation, the Defendant must admit, deny, or state that the Defendant has insufficient information to respond.
b) Failure to deny an allegation in the answer will generally constitute an admission.
2) Raise affirmative defenses.

Note: In California courts, a Defendant need not respond to each allegation, but may instead issue a general denial of all of the Plaintiffs claims.

Answer 110

A

Federal: The Plaintiff has the right to amend the pleadings once before a responsive pleading is served.

California: The Plaintiff has the right to amend the pleadings once:

1) Before the answer or demurrer is filed, OR
2) After the demurrer is filed and before the hearing on the demurrer.

Note: If the Defendant has responded or the Plaintiff has already amended the pleadings, the Plaintiff must request leave of the court to amend.

Answer 111

A

1) Rule 12(b)(1): Lack of subject matter jurisdiction,
2) Rule 12(b)(2): Lack of personal jurisdiction,
3) Rule 12(b)(3): Improper venue
4) Rule 12(b)(4): Insufficiency of process
5) Rule 12(b)(5): Insufficient service of process
6) Rule 12(b)(6): Failure to state a claim
7) Rule 12(b)(7): Failure to join indespensable party
8) Rule 12(e): Motion for more definite statement,
9) Rule 12(f): Motion to strike,
10) Rule 56: Motion for summary judgment.

Note:

1) 12(e) motions must be brought before the Defendant files an answer.
2) 12(b) defenses may be asserted in the answer or in a separate motion.

Answer 112

A

Rule: The following motions are waived if they are not included in the first filing in which the Defendant includes a Rule 12 response:

1) 12(b)(2) - Lack of personal jurisdiction
2) 12(b)(3) - Improper venue
3) 12(b)(4) - Insufficiency of process
4) 12(b)(5) - Insufficient sen/ice of process

Note:

1) Motions for failure to state a claim (12(b)(6)) and for failure to join an indispensable party (12(b)(7)) may be made at any time through trial, regardless of the Defendant’s failure to bring the motion in her first Rule 12 response.
2) A claim may be dismissed for lack of subject matter jurisdiction at any time, regardless of the timing of the Defendant’s motion.

Answer 113

A

Rule: A motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) may be granted only if, accepting all allegations in the complaint as true and viewing them in the light most favorable to the Plaintiff, the Plaintiff is not entitled to relief.

Answer 114

A

1) Demurrer,
2) Motion to strike,
3) Motion for judgment on the pleadings,
4) Motion for summary judgment.

Note: The use of a demurrer or a motion to strike can take the place of an answer and extend the time to file an answer.

Answer 115

A

Definition: A demurrer is a pleading that is used to challenge the legal sufficiency of the allegations in an opponent’s complaint, cross-complaint or answer. Demurrers may be:

1) General, OR
2) Special.

Answer 116

A

Rule: A general demurrer may be filed to challenge an opponent’s pleading for failing to state facts sufficient to constitute:

1) A cause of action, OR
2) A defense.

Answer 117

A

Rule: The initial pleading must contain:

1) The grounds of the court’s jurisdiction,
2) A short statement of the cause of action, AND
3) A demand for judgment for relief.

Answer 118

A

Definition: A motion to strike is used to challenge a pleading in any manner that is not available through the use of demurrer.

Answer 119

A

Rule: A motion to strike may be made against an opponent’s pleading and is used to strike words from an opponent’s pleading. A motion to strike may be used to:

1) Strike inflammatory, redundant or irrelevant material from the pleading.
2) Strike causes of action that are lacking in merit. AND/OR
3) Strike statements that are conclusions of law.

Answer 120

A

Rule: A special demurrer may be based upon the contention that:

1) The court lacks jurisdiction,
2) The party filing the complaint lacks the capacity to sue.
3) A party is attempting to wrongfully join a party.
4) A pleading is uncertain. OR
5) In contract actions, it is unclear from the pleading if the contract is oral, written or implied.

Answer 121

A

Rule: If from the pleadings, affidavits and discovery materials, it appears that no genuine issue of material fact exists, the moving party is entitled to judgment as a matter of law.

Note:

1) The nonmoving party must submit affidavits or discovery to demonstrate that a fact is in dispute (or that, in fact, he is entitled to summary judgment).
2) The court will view the evidence in the light most favorable to the nonmoving party and will consider only admissible evidence in making its decision.
3) In California, the moving party must include a separate statement of facts with reference to admissible evidence to support the allegation that there is no genuine issue of material fact.
4) In federal court, the moving party must submit an affidavit made on personal knowledge that sets forth admissible evidence in support of the allegation.

Answer 122

A

Rule 1: For statute of limitations purposes, amended pleadings relate backto the time of filing the initial pleading if the amended pleadings concern the same conduct, transaction, or occurrence as the original pleading.

Rule 2: If the amended pleadings change the Defendants against whom the action is brought, the pleadings will relate back only if:

1) The claim concerns the same conduct or transaction as the original complaint,
2) The new Defendant knew of the action within 120 days of the original filing, AND
3) The new Defendant was aware that it would have been named in the original pleading but for the Plaintiffs mistake.

Answer 123

A

Rule: A Plaintiff may file a written notice of dismissal before the Defendant has served her answer or moved for summary judgment once without prejudice.

Note: If the Plaintiff moves for voluntary dismissal a second time, the case will be dismissed with prejudice.

Answer 124

A

Rule: The court must dismiss the case if a party:

1) Fails to serve a summons and complaint on a Defendant within 3 years of filing the action,
2) Fails to file a proof of service of summons within 60 days of the date required for service, OR
3) Fails to bring the action to trial within 5 years.

Note: Any interested party, or the court on its own motion, may request a mandatory dismissal.

Answer 125

A

Rule: The court has discretion to dismiss the case if a party:

1) Fails to bring the action to trial within 3 years. OR
2) Fails to serve a summons and complaint within 2 years of filing the action.

Note: The Defendant, or the court on its own motion, may request an involuntary dismissal.

Answer 126

A

Rule: A case may be voluntarily dismissed:

1) With or without prejudice by any party with the consent of all the other parties,
2) With or without prejudice by the Plaintiff upon written request to the court if the request is made before trial and upon payment of costs, OR
3) Without prejudice by the court if only one of the parties appears at trial.

Answer 127

A

Rule: FRCP 11 and CCP 128.7 require attorneys to sign all documents submitted to the court certifying that to the best of the attorney’s knowledge, information, and belief formed after an inquiry reasonable under the circumstances:

1) Thedocument is not presented for an improper purpose,
2) The legal arguments are not frivolous,
3) The allegations and factual contentions have or are likely to have evidentiary support after further investigation or discovery, AND
4) Denials of factual contentions are warranted based on the evidence or are reasonably based on a lack of information and belief.

Note: Legal arguments will not be frivolous where they are warranted by existing law or reflect a nonfrivolous attempt to modify or create new law.

Answer 128

A

Rule: A court may impose sanctions against parties, attorneys, or law firms in response to Rule 11 or CCP 128.7 violations:

1) Sanctions are limited to the amount necessary to deter future recurrent conduct,
2) Sanctions may consist of directives or fines, including payment of expenses and attorney fees incurred due to improper filings,
3) Sanctions may be raised by the court or requested by opposing counsel.

Answer 129

A

1) Required Disclosures (Federal)
2) Scope of Discovery
3) Methods of Discovery
4) Enforcement of Discovery Rules

Answer 130

A

Rule: A party must, without waiting for a discovery request, provide to the other parties:

1) The name, address and phone number of everyone likely to have discoverable information that the disclosing party may use to support its claims or defenses,
a) Exception: Individuals who have information the disclosing party intends to use solely for impeachment purposes do not have to be disclosed.
2) A copy of every piece of evidence in the disclosing party’s possession or control that the disclosing party may use to support its claims or defenses,
a) Exception: Evidence the disclosing party intends to use solely for impeachment purposes does not have to be disclosed.
3) A computation of damages claimed by the disclosing party and evidentiary material on which the claim is based, AND
4) Documentation of insurance policies carried by the disclosing party that are relevant to the claim.

Answer 131

A

Rule: A party must disclose to all other parties the identity of experts who may be used at the trial to present evidence and provide a written report prepared and signed by the expert witness. The expert witness’ report must contain:

1) A statement of all opinions to be expressed and the basis of those opinions,
2) The information considered in forming the opinions,
3) Any exhibits to be used by the expert witness,
4) The qualifications of the witness,
a) Federal: Must also include all publications by the witness within the previous 10 years.
5) The compensation the witness will receive for the study and testimony, AND
6) A list of all other cases in which the witness has appeared as an expert within the previous 4 years.

Answer 132

A

Rule: Parties may obtain discovery regarding any unprivileged matter that is relevant to the claim or defense of any party. The information need not be admissible at trial if a discovery request appears reasonably calculated to lead to the discovery of admissible evidence.

Answer 133

A

Rule: A party may obtain discovery of documents prepared in anticipation of litigation only upon a showing that:

1) The party seeking discovery has a substantial need to obtain the materials, AND
2) The party cannot obtain an equivalent of the materials without undue hardship.

Exception: The mental impressions, conclusions, opinions, or legal theories of a party’s attorney concerning the litigation are absolutely privileged.

Answer 134

A

1) Depositions,
2) Interrogatories,
3) Requests for production,
4) Requests for admissions.

Answer 135

A

Definition: Depositions are oral statements given under oath by a deponent in response to questions by counsel.

Rule: A party may generally depose a party or non-party without leave of the court or stipulation of the other party.

Note: Leave of the court or stipulation of the parties is generally required if a party wishes to depose the same witness more than once.

Answer 136

A

Rule: A party may without leave of court or written stipulation serve upon another party written interrogatories which must be answered in writing and under oath.

Federal: No more than 25 interrogatories can be submitted without leave of the court or stipulation.

California: No more than 35 special interrogatories may be submitted without leave of the court. An unlimited number of form interrogatories are permitted.

Answer 137

A

Rule: Any party may serve on any other party a request to produce documents for review, or permit entry to inspect property.

Note:

1) The receiving party must respond within 30 days of sen/ice, stating that the material will be produced or stating an objection.
2) If the receiving party fails to produce and the requesting party brings a motion to compel discovery, the party from whom discovery is sought must show that the information is not discoverable or is not reasonably accessible because of undue burden or cost.
3) Even upon a showing of undue burden, the court may order production if the requesting party can demonstrate good cause.

Answer 138

A

Federal: A party has a duty to supplement if he later learns that his production of required disclosures, or his responses to interrogatories, requests for production, or requests for admissions, were incomplete or incorrect.

California: Though no duty to supplement is specifically set forth in the California rules, the attorney s duty to supplement incomplete or untruthful responses stems from the discovery sanctions set forth in the California Code.

Answer 139

A

Rule: A party may request another party to admit the truth of any discoverable matter.

Note:

1) The receiving party must respond within 30 days of service.
2) A failure to deny or state insufficient knowledge is accepted as an admission.

Answer 140

A

Rule: If a party fails to provide discovery, the opposing party may move to compel discovery and for appropriate sanctions. Possible sanctions include:

1) Treating matters as admitted,
2) Refusing to allow evidence on a particular issue,
3) Striking the pleadings of the refusing party,
4) Dismissing a claim,
5) Dismissing the entire cause of action,
6) Entering a default judgment against the refusing party, AND/OR
7) Holding the refusing party in contempt.

Answer 141

A

Rule: California law places the following limits upon the use of pleadings and discovery in limited civil jurisdiction cases:

1) The only pleadings allowed in limited civil jurisdiction cases are:
a) Complaints and answers to complaints,
b) Cross-complaints and answers to cross-complaints, AND
c) General demurrers.
2) Discovery in limited civil jurisdiction cases is limited to 1 deposition and 35 of any combination of the following:
a) Special interrogatories,
b) Requests for production, AND
c) Requests for admission.

Answer 142

A

1) Rule 26(f) conference,
2) Rule 16(b) conference.

Answer 143

A

Rule: At least 21 days before a scheduling conference, the parties must hold a Rule 26(f) conference, after which they must submit a discovery plan to the court. At the Rule 26(f) conference, the parties will discuss:

1) Claims and defenses,
2) Possibility of settlement,
3) Initial disclosures, AND
4) Creation of a discovery plan.

Note: The 26(f) conference is a meeting between the parties, not an appearance before the court.

Answer 144

A

Rule: The judge will hold a Rule 16(b) scheduling conference with the parties after receiving their Rule 26(f) discovery plan. After the Rule 16(b) conference, the judge will enter a scheduling order that sets the date for trial as well as cut-off dates for discovery and pre-trial motions.

Note: The Rule 16(b) scheduling conference is commonly referred to as a case management conference in federal practice.

Answer 145

A

1) Case management conference,
2) Mandatory settlement conference.

Answer 146

A

Definition: A case management conference is the initial pre-trial meeting between both parties and a judge where the parties discuss procedural aspects of the case (e.g., discovery issues, time and length of trial, the existence of related claims, and whether to send the case to alternative dispute resolution).

Answer 147

A

Definition: A case management statement is a document that provides the procedural plan for the parties in the case, including:

1) Depositions to be taken,
2) Motions to be filed,
3) Length and date of trial,
4) Status of discovery.

Rule: A case management statement must be filed by each party at least 15 days before a case management conference.

Note: FRCP 26(f) requires that the parties submit to the court a joint proposed discovery plan within 14 days of the Rule 26(f) conference. Many federal courts, through local rules and standing orders, also require that a case management conference statement be submitted 7 to 14 days before the Rule 16(b) conference.

Answer 148

A

Rule: A Defendant may bring a motion for judgment on the pleadings arguing that:

1) Thecourt lacks jurisdiction over the cause of action alleged in the complaint OR
2) The complaint does not state facts sufficient to constitute a cause of action against that Defendant.

Note:

1) The Plaintiff may also bring a motion for judgment on the pleadings, in which she argues that the complaint states facts sufficient to constitute a cause of action against the Defendant and the answer does not state facts sufficient to constitute a defense to the complaint.
2) When ruling on a motion for judgment on the pleadings, the court will look to the information provided on the face of the challenged pleadings.
3) Under Rule 12(c) in federal court, the parties must wait until the close of the pleadings before bringing a motion for judgment on the pleadings.

Answer 149

A

Definition: To meet and confer is to communicate regarding the matters that will be presented at the case management conference.

Rule: The parties must meet and confer no later than 30 days before the date of the case management conference.

Answer 150

A

Rule: A mandatory settlement conference statement must be submitted at least 5 days before the mandatory settlement conference and contain:

1) A settlement demand or offer made in good faith,
2) An itemization of all damages. AND
3) A discussion of the law and facts relevant to the issue of liability and damages.

Note: Failure to make a settlement demand or offer in good faith is grounds for sanctions by the court.

Answer 151

A

Definition: Alternative dispute resolution is a quasi-judicial proceeding that is used in an attempt to resolve cases without trial.

Rule: California law provides for mandatory judicial arbitration of cases where the amount in controversy is less than $50,000 dollars.

Note:

1) The arbitration is conducted by a judicially appointed arbitrator.
2) A party unhappy with an arbitrator’s decision may request a trial within 30 days of the arbitrator’s decision.

Answer 152

A

Definition: An offer to allow judgment under CCP 998 is a settlement offer that allows a party to shift some of the cost of litigation to the other party.

Rule: Under CCP 998, a party may make a written settlement offer that allows judgment under the terms of the offer. If the other party refuses the offer and fails to obtain a more favorable award at trial, the costs of trial are shifted to the declining party, even if the party prevailed at trial.

Answer 153

A

Rule: The Seventh Amendment and the California Constitution ensure the right to a jury trial in civil actions at law, but not for civil actions at equity. If both legal and equitable issues are present:

1) In Federal Court: The legal claim may be heard before a jury, but the equitable claim will be heard separately by a judge.
2) In California Court: Both claims will be heard by a jury unless a decision on the equitable claims would render the legal claims moot.

Note: The right to a jury must be demanded before a jury trial will be granted.

Answer 154

A

1) Motion for judgment as a matter of law,
2) Renewed motion for judgment as a matter of law,
3) Motion for a new trial.

Note:

1) In California, a motion for judgment as a matter of law is called a motion for a directed verdict.
2) In California, a renewed motion for judgment as a matter of law is called a motion for judgment notwithstanding the verdict.

Answer 155

A

Rule: A motion for judgment as a matter of law (or a motion for directed verdict in California) may be granted if, viewing the evidence in a light most favorable to the nonmoving party and giving that party the benefit of all reasonable inferences from the evidence, the evidence is such that a reasonable person could reach only one conclusion.

Note:

1) The motion may be made at any time before the case is submitted to the jury and after the nonmoving party has submitted its case:
a) At the conclusion of nonmoving party’s case, AND/OR
b) At the conclusion of both parties’ cases before the case is submitted to the jury.
2) The motion must specify the judgment sought and the law and facts that entitle the moving party to the judgment.

Answer 156

A

Definition: A renewed motion for judgment as a matter of law (or a motion for judgment notwithstanding the verdict in California) is filed after the court has entered judgment and argues that the verdict is erroneous.

Rule: To move for a renewed motion for judgment as a matter of law/motion for judgment notwithstanding the verdict, a motion for judgment as a matter of law/motion for directed verdict must have been filed at the close of evidence and before the jury returned the verdict.

Note:

1) The moving party must file within 10 days of entry of judgment.
2) In response to the motion, the court may:
a) Allow the judgment to stand,
b) Order a new trial, OR
c) Direct entry of judgment as a matter of law.

Answer 157

A

Definition: A final judgment is an ultimate decision by the trial court on the merits of the entire case.

Rule: A party can appeal only from final judgments.

Note:

1) Notice of appeal must be filed in the trial court within 30 days of entry of judgment in federal court; within 60 days of entry of judgment in California.
2) Interlocutory review provides an exception to the Final Judgment Rule.

Answer 158

A

Rule: A new trial may be granted for any reason previously relied on by a U.S. court as justification for granting a new trial (e.g., irregularity in proceedings, jury misconduct).

Note:

1) A motion for a new trial must be filed within 10 days of entry of judgment in federal court; within 15 days of entry of judgment in California.
2) The court may order a new trial on its own initiative within 10 days of entry of judgment in federal court; within 15 days of entry of judgment in California.

Answer 159

A

Definition: To meet and confer is to communicate regarding the matters that will be presented at the case management conference.

Rule: The parties must meet and confer no later than 30 days before the date of the case management conference.

Answer 160

A

Rule: A party may appeal to a higher court before final judgment if:

1) A pre-trial order involving an injunction is at issue,
2) A class action certification decision is disputed, OR
3) The trial judge certifies that an important question of law is in doubt and that it will substantially affect the final decision of the case.

Note: California rules mirror the federal rules, though in practice California courts allow for broader flexibility on issues deemed eligible for interlocutory review.

Answer 161

A

Definition: Res judicata precludes re- litigating a claim that has been or should have been decided in litigation in which a final judgment has been rendered.

Rule: A party can bring suit on a cause of action only once and must vindicate all rights to relief for that claim in that action. Res judicata applies if:

1) The parties are identical,
2) The same claim was litigated, or should have been litigated, in the prior suit, AND
3) The prior suit ended in a final judgment on the merits.

Note: In California, the Primary Rights Doctrine mandates a single cause of action for the violation of a single primary right, thus preventing a Plaintiff from enforcing one right in multiple actions.

Answer 162

A

Definition: Collateral estoppel is the doctrine by which a final judgment in one suit prevents a party from litigating the issue in a subsequent lawsuit.

Rule: An issue cannot be re-litigated if that issue was decided in a prior lawsuit and the party against whom collateral estoppel is being asserted was a party in the earlier action. Collateral estoppel may be applied against a party to a prior suit if:

1) The prior suit ended in a final judgment on the merits,
2) The same issue of law or fact was integral to the prior suit,
3) The same issue of law or fact was actually litigated in the prior suit, AND
4) The same issue of law or fact was specifically ruled upon in the prior suit.

Note: Collateral estoppel bars the re- litigating of issues between parties and the parties’ successors in interest.

Answer 163

A

Rule: Under the Collateral Order Doctrine, an appeals court may rule on an interlocutory issue if:

1) The order will conclusively determine the disputed question.
2) The order will resolve an important issue completely separate from the merits of the action. AND
3) The order will be effectively unreviewable on appeal from a final judgment.

Answer 164

A

Rule: Res judicata and collateral estoppel attach when the judgment is final.

California: State court judgments are not final until:

1) The time for appeal has expired, OR
2) The judgment has been affirmed on appeal.

Federal: Federal court judgments are final as soon as the decision is handed down by the trial court (regardless of whether an appeal is or could be pending).

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Civil Procedure - CA and Federal (Main Deck)* Flashcards

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