Civil Procedure - Essay Rules

Question 1

Subject Matter Jurisdiction: Federal Courts

[Federal Question]

[Diversity of Citizenship]

Answer 1

A FC hears claims based on (a) FQ’s; or (b) DofC. SMJ never waived; may be raised at any time, even on appeal.

• FQ: A FC is a ct of lim jx, only hearing claims bsed on FQ’s arising under Cx, US Treat, or fed statutes.
• DofC: DoCJx exists whn (1) complete div. of c/ship b/w all Ps n Ds; (2) AIC exceeds $75k (excl. of interest & costs), and (3) it is plead in GF by pty bringing the action. Div jx is determined at time action is commenced.
  
  • C/ship: A pty’s c/ship is determined by their domicile.
    
    • US citizen: domiciliary of state in whch s/he is (1) phys pres, & (2) intnds to remain for indef period.
    • Corp: domicil. of: (1) state of its PPB (“NC”), & (2) any state whre incorp’d.
    • Foreign Corp: citizen of (1) country whre incorp, & (2) 1 state whre it has its PPB, if tht is in US (“NC”).
    • Executor or prsnl rep: c/ship of decedent or prsn being rep’d.
    • P/ship/Sole-proprietorship/Unincorp Assoc: domicil. of state of every partner / member / owner.
  • In concl, [was/was not] DoC between the parties.
• AIC: bsed on dgs alleged in GF in the complaint, unless it is legally certain P cannot recover specified amount. [A P may aggregate his claims against one D, or against multiple Ds if all are joint tortfeasors.] [A claim for injunctive relief is valued by either benefit to P or cost of compliance for D.]
• Pled in GF: If P recovers less than required AIC, a verdict will not be subject to appeal for lack of jx sla original claim was in GF.

[IF MULTIPLE Ps - Can Supplemental jx save the other party?]

Question 2

Supplemental Jurisdiction

Answer 2

Claims not meeting FQ or DoC jx may invoke supplemental jx if they arise from a common nucleus of operative fact as a claim that invokes jx.

Precluded Claims in Diversity Cases: For cases in FC based on diversity, supp jx may not be used for claims by

(1) Ps against prsns made pties under FRCP 14 (impleader), 19 (compulsory joinder), 20 (permissive joinder), or 24 (intervention),
(2) (a) persons proposed to be joined as Ps under FRCP 19, and (b) persons seeking to intervene as Ps under FRCP 24, when the exercise of supp jx would be inconsistent with the requirements for diversity jx. _H,T

In conclusion,

Question 3

Personal Jurisdiction

Traditional

Statutory

Constitutional

Answer 3

PJx refers to ct’s auth to exer jx over a partic D. 3 bases for ct auth: (1) Trad, (2) Stat, (3) Cx.

• Trad bases incl. whn D (1) is PWS, (2) C, or (3) is D in forum.
• Statutory States enact L-AS to auth a ct jx over non-residents to the extent the DPC of the Cx permits. CA’s long-arm statute allows pj to the same extent as Cx.
• Cx All exer of jx mst comply w/ Cx req’s u/ the DPC of USCx: (1) min contacts b/w D & forum, and (2) jx does not offend tradl notions of fp and sj.
  
  • MC mst be (1) purpseful (D purposefully avails itself of the bens & prtctions of forum state’s laws) such tht D (2) reas foresees being haled into forum ct.
    
    • [Stream of Comm law is unsettled as to whether placing a product in the SoC w/ expectation that consumers in forum buy the product is sufficient purposeful availment, w/outintntional** contacts to serve the forum].
  • The trad not of FPandSJ are not offended whn thre is (1) systc & continuous contact b/w D & forum, or (2) whre suit is related to D’s contact w/ forum. Other factors cts consider incl. (3) convenience to pts & (4) intrst of the forum state.

In conclusion (conclude on PJx)

Question 4

General Venue Rule

Answer 4

In FC, venue is gnrly proper in the judicial district in which (1) any D resdies, if all Ds reside in the same state, (2) a substantial part of the claim arose, or (3) if 1&2 don’t apply, judicial district in which any D is subject to the court’s PJx with respect to such action.

(1) Any D resides

• Natural Prsn - resides in district where he domiciles.
• Corporation - in any judicial district in which corp is subject to PJx at time an action commences.
• Unincorp Ass - is the entity’s residence, rather than its individual partners or members. A lawsuit may be brought wherever the u.a. does business.

(2) Substantial Part of Claim Arose - Venue may be proper in the judicial district in which a substantial part of the events or omissions on which the claim is based occured.
(3) Any D Subject to Personal Jx

Question 5

Venue Change When Original Venue is Proper

Answer 5

A district ct may tfr a civil action for the (1) convenience of pties and W’s, or (2) in the interest of justice, (3) to any other district where it might have been brought (SMJ, PJ).

To detrmine convenience of the ps & ws, ct frequently focus on the location of ps & w availability. For i_ntrst of Justice_, Cts gnrly defer to th venue P originally chooses.

Question 6

Erie Doctrine

Answer 6

A FC in a Div case applies the SUB law of state in which ct is located.

For PROC issues, ct applies fed law whn (1) there is a valid fed law, (2) failure to apply state law does nt lead to diff outcomes in state & fed ct, or (3) fed interests warrant app. of fed law.

State SoL are substantive in nature, & applic to a FC exercising diversity jx.

Question 7

Motion to Compel Discovery

Answer 7

Discov may be had of any matter (1) rel to claim or defense of any pty, (2) not privileged, & (3) reas calc to lead to discov of admissible ev. If a pty fails to provide or provides incomplete discov, the other pay may move crt to compel discov.

• Relevant: Test for rel is nt admis of ev at trial, bt whthr infor is relevant to any pty’s claim or defense.
• Not privileged: Whn a pty w/holds info bsed on privilege or AWP, pty mst (1) expressly state the claim of priv and (2) describe the materials/comm’s nt produced in a manner to enable other pties to assess the applic. of priv. or protection. _{<em>Add Work-Product as a subheading here if applicable</em>}
• Reas Calculated to lead to Discovery of Admiss Ev

In Conclusion…

Question 8

Discovery Plan

Initial Disclosures

Answer 8

The pties mst confer b4 scheduling conferences to discuss initial disclosures, a discovery plan, & issues abt preserving discoverable info. _{<em>H, P accompanied her complaint w/ 26 interrogatories. Whn G received interrogatories, G did not yet appear or answer complaint. Before serving interog, P did nt confer w/ G to discuss initial disclosures, a discovery plan, or issues about preserving discoverable informaiton. T, P failed to frame a discov plan b4 serv interog.</em>}

Initial Disclosures: W/ ltd exceptions, a pty mst, w/out awaiting discovery request, disclose: (1) name, address & phone# of individals likly to have discoverable info, along w/ the subjects of that info, (2) a copy or a description of all docs, electronically stored info, & tangible things tht disclosing pty hs in its possession, custody, or control & may use to support its claims or defenses.

Question 9

Interrogatories

For previous questions order was:

• Discovery Plan
• Interrogatories
• Motion to compel
• Discovery
• Initial Disclosures

Answer 9

A pty may serve no more than 25 interog incl. subparts on any other pty. Interog may not be used on non-party Ws. Responding pty mst serve their objection w/in 30 days & each objection mst be stated w/ specificity. _{H, P served 26 w/out ct order, stipulation, or leave to serve more than 25. 25th had subparts: “”. 25^th req’d info on every SC employee, non-party Ws. G objected to interog as “flawed” but did not specify grounds for objecting. T, P exceed 25 limit and req’d info on n-nparty Ws, but G did not specify the grounds for objection.}

Question 10

Privilege Claim

Work Product Doctrine

Attorney-Client

Answer 10

Privilege Claim: Whn a pty w/hlds info based on priv, pty mst expressly state priv claim & describe existence, bt nt contents of info nt produced, in a manner tht enables other pties to assess applic of priv.

W-P Doc: Mat L preps for lit is immne frm discov. or cmplld disclosure, unless opp shws substantial need and an inability to gather mat w/out undue hardship. A L’s mental impressions or opinons are immune from discov. or comp dsclsrs regardless of opp’s need, unless immunity is waived.

A-C Priv: prhbts a ct or govt tribunal frm cmplling revelation of conf comms b/w a L and a C if sbjct of comm cncrns legal adivce.

Question 11

COLLATERAL ESTOPPEL (SAVE + M)

RES JUDICATA (SIV)

Answer 11

CE (issue preclusion) precludes lit of issues of fact or law tht:

(1) are the same as issues in a prior action,
(2) hve been actually litigated in a prior action,
(3) hve been detrmined by a valid & binding final j/ment on the merits, &
(4) hve been detrmined as essential to a prior j/ment.

CE does nt req. mutuality of pties, but th pty (or privy) agnst whm issue is to be precluded (5) mst hve been a pty to the prior action.

RJ (claim preclusion):

(1) precludes the same pties (or privies) from a prior action
(2) to subseq litigate suff identical claims (arose out of STO)
(3) that reached a valid final j/ment on the merits.
* _{H, D lost a neg action brought by X with a back condition like P’s. The claims by X were sufficiently identical to Ps in that X alleged D neg inserted B’s rod into Xs spine. Assuming the j/ment in Xs case was final and based on the merits, rj did not apply b/c P was not a pty to X’s lawsuit. For rj, the pties in X’s litigation and P’s lawsuit needed to be the same. Thus rj did not apply.}*

Question 12

Motions

• Motion to Dismiss
• Motion to Strike
• Motion for J/ment on the pleadings
• Motion for Summary Judgment
• Motion for JMOL and Renewed JMOL

(different answer based on whther the essay question is a civil procedure or Tort question)

Answer 12

Civil: Prior to filing an answer, a D may file a motion raising [1. lack of pjx, 2. lack of smj, 3. failure to state a claim upon which relief can be granted, 4. improper venue, 5. insuff process, 6. insuff service of process, or 7. failure to join a nec or indespensible pty] to seek dismissal of the claim.

Tort: A failure to state a claim defense allows a D to respond to procedural flaws in a complaint w/out responding to case merits. A ct dismisses civil claims w/out legal merit by determining if sufficient facts are pled to sustain a prima facie case for the alleged cause of action. The ct does not evaluate the merits or go beyond the complaint.

_H,T

Question 13

Amending Complaints

• Leave of Court
  
  • ​Relation Back

Answer 13

In FC, a pleading may be amended (1) once w/in 21 d of serving it, (2) 21 d after service of a responsive pleading or pre-answer motion, if the pleading req a response, or (3) after seeking leave of ct or writ consent of adverse pty.

• Leave of Court: A ct gives leave to amend a pleading when (1) justice requires, (2) no undue pj to D results, and (3) a/ment is not subject to dismissal.
  
  • Relation Back: An amndmnt relates back to date of the orig pleading whn (1) amndmnt asserts a claim arising out of same trans or occ and (2) the law that provides the applicable SoL allows relation back.

Question 14

Motions

• Motion to Dismiss
• Motion to Strike
• Motion for J/ment on the pleadings
• Motion for Summary Judgment
• Motion for JMOL and Renewed JMOL

Answer 14

If a pleading contains any

• insufficient defense, or
• redundant, immaterial, impertinent, or scandelous matter, the ct, upon motion or its own initiative, may order such matter striken.

Question 15

Motion for Summary Judgment

Answer 15

A MforSJ is applicable to all civil actions & should be granted if the pleadings, discovery & disclosure materials on file, and affidavits show there is no genuine issue as to any material fact and the movant is entitled to j/ment as a matter of law. _H,T

Affidavits (FC) / Declarations (Ca): must (1) be made on PK, (2) set forth facts admissible in ev, & (3) show the affiant is competent to testify.

Question 16

Motion for JMOL (FC) / Directed Verdict / Nonsuit (Ca)

Renewed JMOL

Answer 16

A motion for JMOL may be brought after the close of Ps ev or at the close of all trial ev. A JMOL is granted if no reas person could differ as to the trial outcome.

Renewed JMOL: If the ct does not grant JMOL, the ct submits the action to the jury subject to the ct deciding the legal qs raised by the JMOL. In ruling on the renewed JMOL, the ct may (1) allow j/ment on the verdict if the jury returned a verdict, (2) order a new trial, or (3) direct the entry of j/ment as a matter of law. If the renewed JMOL is granted & the party had alternatively moved for a new trial, the ct must determine whether to grant the motion for a new trial if the j/ment is reversed or vacated on appeal.

Time for Renewed JMOL: Movant may file a renewed JMOL no later than 28 days after the entry of j/ment. If the motion addresses a jury issue not decided by a verdict, the renewed motion must be filed no later than 28 days after the jury was discharged.

In conclusion…

Question 17

Motions

• Motion to Dismiss
• Motion to Strike
• Motion for J/ment on the pleadings
• Motion for Summary Judgment
• Motion for JMOL and Renewed JMOL

Answer 17

After the answer is filed, a party may move for j/ment on the pleadings to allow a ct to dispose a case when the material facts are not in dispute, and a j/ment on the merits can be achieved based on the content of the pleadings.

Question 18

Motion for a New Trial

Answer 18

The Ct may grant a MforNT at its discretion on all or certain issues or parties. Grounds for a new trial incl.: _{(<em>insert only those that apply) </em>}

• verdict against clear weight of ev
• verdict bsd on false ev sch tht new trial is nec to prevent injustice
• verdict is excessive or inadequate
• error at trial that renders j/ment unfair
• newly discovered ev tht existed at the time of trial excusably overlooked and likely have altered trial outcome
• prejudicial misconduct of counsel, party, judge, juror.

The trial court must disregard harmless error. _H,T

Question 19

Joinder of Parties

• Compulsory Joinder
• Permissive Joinder
• Intervention

Answer 19

Compulsory: A prsn sbjct to (1) service of process whose joinder will (2) not deprive the ct of smj or (3) destroy venue (4) must be joined as a nec party (5) if ct has pjx.

(1) SofP: In US, summons & complaint may be (1) personally served on D (2) left at D’s usual place of abode with a person of suitable age & discretion who reside there, OR (3) delivered to an agent the D appointed or auth by law to receive service.

[Outside US, service may be effected in any internationly agreed upon manner, reas calc to give notice. If no intl a/ment exists, or if an intl a/gment permits service by other means, service on any competent individual outside the US may be effected by any method th law of th foreign country permits.]

(2) SMJ
(3) Venue: If a joined pty objects to venue & joinder makes venue improper, ct must dismiss that pty.
(4) Nec. Pty: A pty is nec if in person’s absence (1) complete relief cannot be provided to existing parties, (2) disposition may impair the person’s ability to protect his interest, or (3) existing parties are exposed to a substantial risk of multiple or inconsistent obligations. The SC hs held tht joint & severally liable tortfeasors are not parties who must be joined.
(5) PJx

Question 20

Joinder of Parties

• Compulsory Joinder
• Permissive Joinder
• Intervention

Answer 20

Pties may join as Ps or be joined as Ds when

(1) (a) any right to relief is asserted, or asserted against, jointly, severally, or
(b) some claim is made by each P and against each D relating to, or arising out of the same occurence or transaction, and
(2) there is a q of fact or law common to all the parties.

Question 21

Joinder of Parties

• Compulsory Joinder
• Permissive Joinder (not often tested on essays)
• Intervention (not often tested on essays)

Answer 21

Intervention of Right: Upon a timely motion, a non-pty hs the right to intervene in an action in which a fed statute confers the right whn (1) non-pty has an intrst in prop or trans tht is sm of the action, (2) disposition of action may impair non-pty’s intrst, & (3) non-pty’s intrst is not adequately rep’d by existing parties.

Permissive Intervention: Ct may allow intervention, upon timely motion, & after considering whther th intervention will unduly delay or pj the adjudication of rights of the original pties, whn the movant either (1) has a conditional right to intervene u/ a fed statute, or (2) claim or defense & original action share a common Q of law or fact.

Question 22

Malicious Prosecution (MP)

Answer 22

MP requires:

(1) institution of crim. proceedings against a party for a purpose other than seeking justice,
(2) the claim being dismissed in favor of the D in the underlying case,
(3) insufficient PC to bring the claim, and
(4) damages.

Most jx’s have extended MP to cover civil claims.

Question 23

Answer

Admit or Deny

Affirmative Defenses

Answer 23

An Answer is a pleading by a (1) D that responds to a P’s complaint, or (2) P that responds to a D’s countercliam. _H,T

An A must admit or deny the complaint or counterclaim allegations. If a required responsive pleading does not deny an allegation, the allegation (unless relating to dgs amount) will be deemed admitted. _H,T

An A must state affirmative defenses the responding pty has, or the defenses are deemd waived. ADs incl: (only incl those that apply)accord and satisfaction, arbitration and award, assump of risk, contrib neg, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, SoF, SoL, waiver, novation, qualified immunity. (20 of them!) _H,T

Question 24

COMPLAINT

• Notice Pleading
  
  • ​Fraud and Mistake

Answer 24

Complaint: Ech claim for relief shld contain a (1) s/ment of grds for crt’s SMJ, (2) s/ment of th claim est.’ing enttlmnt to relief, and (3) j/ment demand for relief, whch may be in th altrnatve. _{<em>H, B filed suit against S in FC, bt no fcts indicatd B’s pleading grnds for cts SMJ. B prvdd s/ment of fraud claim and brch of K claim to est relief. B demanded $1 in dgs as j/ment for faud claim and sp as j/ment for brch of K claim. Thus, if B pled grnds for SMJ, B met pleading reqs.</em>}

• Notice Pleading: Fed pleadng rules gnrly req a pleader put other side on notice of a plausible (nt jst possible) claim; detailed assertions of facts underlying the claim are gnrly nt req. H, B’s pleading put S on notice of plaus claims for fraud re painting, and brch of K for rp. B cld prove facts whch entitled B to relief. T, B met notice pleading reqs.
• Fraud: Circs tht est fraud or mistke mst be alleged with partic (specific fcts mst be alleged). Malice, intnt, knwldge, and othr cndtions of prsn’s mind may be alleged gnry. _{H, no facts on wht complaint did/did not contain, h/e B req to plead circs of fraud with partic. B’s fraud claim alleged S commttd “fraud in supposed value” as to painting, bt did nt plead facts to est intentional misrep. While B plead $1m in dgs, B did nt plead facts on S <u>misreprenenting the painting was an original</u> Rothko, B’s <u>justifiable reliance</u> on S’s misrep, or <u>causation</u>. B did not plead generally S’s intent or scienter. Thus, insuff to state a claim for fraud.}

Question 25

Counterclaims

Compulsory

Permissive

Answer 25

A counterclaim may be compulsory or permissive.

Compulsory: A comp claim arises from the same transaction or occurence as a Ps claim, and must be pleaded as a counterclaim or be barred. _H,T

Permissive: Any claim a D has against a P that is not compulsory may be asserted as a permissive counterclaim. _H,T

Question 26

Cross-Claims

Answer 26

A cross-claim may be brought by a party against a co-party that arises out of the same transaction or occurence as the original complaint or counterclaim, or if the claim relates to property that is the sm of the original complaint. The cross-claim may incl a claim that the co-pty is liable to the cross-claimant for all or part of a claim asserted in the action against a cross-claimant. _H,T

Question 27

Motion to Dismiss - Amendment to Add a Defendant

Relation Back Doctrine

Answer 27

Motion to Dismiss – Amendment to Add a D: When a P fails to name a D in the original complaint, and the SoL has run, the RBD applies to whether the P can add a D by amendment.

_{H, P amended his fed complaint to join a new party, B, and a new claim, _. Since the SoL ran, the ct should dismiss P’s claim against B if it did not relate back to the original complaint. T, the ct should rule for B if P’s claim did not relate back.}

Relation Back Doctrine: If the a/ment changes the pty or the naming of the pty against whom a claim is asserted, it relates back to the date of the oriinal pleading if (1) it asserts a claim or def that concerns the same cond, trans, or occ as the orig pleading, (2) within 120 days after the filing of the original complaint, the pty to be brought in by a/ment receives notice of the action such that the pty will not be pj’d in defending on the merits, and (3) the pty to be brought in by a/ment knew or shk the action would have been brought against the pty, but for the mistake concerning the proper pty’s identity.

Element _H,T

In conclusion…

Question 28

Joinder of Claims

Answer 28

A P cn bring as many claims as it has against an opposing party, even if they are unrelated or do not have a common nucleus of operative fact. If the claims are brought in FC, at least 1 of the claims must satisfy SMJ.

Question 29

Jury Trial

• 7th Amendment
• Law/Equity

Jury Demand

Answer 29

Jury-Trial: Pties hve a right to a jury trial as declared by 7A, or as prvdd by a Fed statute.

• 7A: In suits at CL, whre th value in cntrvrsy shall exceed $20, th right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any ct of th US, thn according to th rules of th CL. The 7A rght to a jury in civil trials hs been hld nt app to th states.
• Law/Equity: Where a ct is presented w/ both legal and eq claims, legal claims will be tried 1st to jury, thn th eq claims will be tried b4 the judge. The jury’s fact finding binds the ct in the equity claim.

Jury Demand: A pty waives a jt, unless a pty demands a jt in writ and served th demand w/in 14 days after service of th last pleading directed to th issues sought to be tried by a jury.

Question 30

California

Service

• General
• Corporation
• Foreign Country

Answer 30

Service

• CA, any prsn who is at least 18 years old and nt a pty to the action may serve a copy of the summons and complaint.
• Service can be by [personal delivery, substitutued service, acknwldgmnt and receipt, mail (only for out of state Ds), or publication).
• Corporations: In CA, a summons may be served on a corp by delivering a copy of the summons and complaint to (1) a designated agent for service of process, (2) a corp head (Pres/CEO), or a person auth by a corp to receive service of process (Vice Pres,Sec,GM)
• Foreign Country: In CA state ct, in + to any manner auth for in-state service, service outside the US may be made (1) as the ct directs, or (2) if the ct finds the service is reas calc to give actual notice, as directed by te law of the place where the person is served or by the foregin authority in response to a letter of requrest. An international agreement may govern service in signatory countries.

Question 31

Expert Testimony Disclosure

Trial Preparation Experts

Answer 31

Expert Test Discl.: A pty mst disclose the id’s of expert Ws expected to testify at trial, and prdce an expert report for each W.

Trial Prepation Experts: A pty may not, by interrogatories or deposition, obtian facts knwn or opinions held by an expert retained in anticipation of litigation or to prepare for trial, bt nt expected to testify at trial, unless the pty shws it is impracticable to obtain facts or opinions by other means.

Question 32

Class Actions (has not been tested since 1983!)

One of Three Situations

Superiod to Alternative Adjudication Methods

SMJ

Venue

Answer 32

A C.A. is proper if

(1) the class is so numerous that joinder of all members is impracticable,
(2) qs of law or fact are common to the class,
(3) named pties’ intrsts (claims or defenses) are typical of the class, and
(4) named pties will adeq rep the intrsts of absent class members.

Question 33

Class Actions

One of Three Situations

Superiod to Alternative Adjudication Methods

SMJ

Venue

Answer 33

B4 a C.A can be certified, it miust fit 1 of 3 situations: (1) sep actions will create inconsistent results or impair unnamed pts’ interests, (2) equitable relief is the primary relief sought, or (3) common law or fact qs predominate over individual issues and a C.A. is superior (fair and efficient) to alternative adjudication methods. _H,T

StoAAM: Factors a ct considers when determining whether to certify a class: (1) class members’ interests in individually controlling the prosecution or defense or separate actions, (2) extent and nature of litigation concerning the controversy begun by or against class members, (3) desirability of concentrating litigation of claims in the particular forum, and (4) difficulties in managing a class. _H,T

… then deal with SMJ and Venue