Civil Procedure (Fed + CA)

Question 1

[CIV PRO] • 1 • Jurisdiction • Subject Matter Jurisdiction • California State Courts •

Answer 1

The California Superior Court (a trial court) has general subject matter jurisdiction over all civil matters as long as another court does not have exclusive jurisdiction.

Question 2

[CIV PRO] • 7 • Jurisdiction • Subject Matter Jurisdiction • Federal Courts •

Answer 2

A federal court is a court of limited jurisdiction , and may only hear cases where it has subject matter jurisdiction over the claims. A court has subject matter jurisdiction over claims involving (a) diversity of citizenship OR (b) federal questions. Subject matter jurisdiction is not waived if a party fails to raise it at trial. It may be raised at any time, even on appeal.

Question 3

[CIV PRO] • 7 • Jurisdiction • Subject Matter Jurisdiction • Federal Courts • Diversity of Citizenship

Answer 3

Diversity of citizenship exists when there is (1) complete diversity of citizenship between ALL plaintiffs and defendants AND (2) when the amount in controversy exceeds $75,000.

Complete diversity : No plaintiff can be a citizen of the same state as any defendant. A partys citizenship is determined by its domicile :

• Natural Persons* : Domicile is determined by the party’s residence (physical presence in the state) AND the partys subjective intent to make the state their permanent home. An executor or personal representative is deemed to have the citizenship of the decedent.
• Partnerships* : A partnership is deemed to be a domiciliary of the state of its partners.
• Corporations* : A corporation is deemed to be a domiciliary of the state of its principal place of business AND any state where it is incorporated.
• Unincorporated associations* : Domicile is the citizenship of all members.

Amount in controversy : The amount is based on the damages alleged in good faith in the Complaint , not the actual award. If the plaintiff is awarded less than $75,000, he may be liable for the defendants litigation costs. A plaintiff may aggregate his claims against one defendant, OR against multiple defendants IF they are joint tortfeasors (where the defendants are jointly and severally liable). A claim for injunctive relief may be valued by the value of the benefit to plaintiff in OR the cost of compliance for defendant.

Question 4

[CIV PRO] • 7 • Jurisdiction • Subject Matter Jurisdiction • Federal Courts • Federal Question

Answer 4

Exists where the Complaint alleges a claim or claims that arise under federal law, the Constitution, or treaties of the United States. Plaintiff must be enforcing a federal right.

Question 5

[CIV PRO] • 6 • Jurisdiction • Personal Jurisdiction • •

Answer 5

A court must have personal jurisdiction over a defendant for its judgment to be binding. The traditional bases for asserting personal jurisdiction include: (a) domicile; (b) presence in state when served; OR (c) consent. Otherwise, jurisdiction may be obtained using a State’s long arm statute . The U.S. Constitution requires that in order obtain jurisdiction over a defendant under a long arm statute, the defendant must have sufficient minimum contacts with the forum state so as not to offend traditional notions of fair play and substantial justice.

Question 6

[CIV PRO] • 4 • Jurisdiction • Long Arm Statute and Constitutional Minimum Contacts Analysis • •

Answer 6

A long arm statute allows the state to assert jurisdiction . To have personal jurisdiction over a defendant who is not a resident of the forum , the forum state must have a long arm statute AND meet the Constitutional requirements of the minimum contacts test, in which the defendant must have sufficient minimum contacts with the forum state so as not to offend traditional notions of fair play and substantial justice .

+ Minimum Contacts : To determine minimum contacts, the court will consider: (1) whether the defendant purposefully availed himself of the privilege of doing business in the forum state; and/or (2) whether the defendant could reasonably have foreseen being sued in and being subjected to personal jurisdiction in the forum state.

+ Fair Play and Substantial Justice : Traditional notions of fair play and substantial justice are NOT offended when: (1) general jurisdiction or specific jurisdiction exists; (2) the forum is convenient ; AND (3) the forum state has some interest in the litigation.

• General Jurisdiction : The defendant’s contact is so systematic and continuous that he is essentially at home in the forum.
• Specific Jurisdiction : The contact is less than systematic and continuous, but the claim arises out of the defendant’s contact with the forum. The more related the claim is to the contact with the forum state, the more likely a court will exercise jurisdiction.
• Inconvenience : The forum is convenient UNLESS it puts the defendant at a severe disadvantage in the litigation. Courts will consider (a) where the parties are; (b) where the witnesses are; and (c) where the evidence is.

Question 7

[CIV PRO] • 1 • Jurisdiction • Notice and Opportunity Due Process Requirements • Service •

Answer 7

To establish personal jurisdiction, due process requires that a defendant must be served with the summons and complaint within 120 days of filing of the complaint or the case is dismissed without prejudice.

Question 8

[CIV PRO] • 2 • Jurisdiction • Supplemental Jurisdiction • •

Answer 8

Supplemental jurisdiction may be used to bring a claim in federal court that would not otherwise meet the requirements of subject matter jurisdiction (either diversity or federal question). A court may exercise supplemental jurisdiction over new claims that arise from a common nucleus of operative fact , which generally includes claims that arose out of the same transaction or occurrence. Supplemental jurisdiction is limited in that it MAY NOT be used to overcome a lack of diversity ; a plaintiff in a diversity case may not assert supplemental jurisdiction if it would violate complete diversity. The Court has discretion to refuse supplemental claims if: (1) the federal question is dismissed early in the proceedings; (2) the state law claim is complex; or (3) state law issues would predominate.

Question 9

[CIV PRO] • 1 • Jurisdiction • Erie Doctrine • Choice of Law •

Answer 9

When deciding whether state or federal law governs a specific issue, the Erie Doctrine mandates that federal law governs procedural issues and the states law (in which the court sits) governs substantive issues.

Question 10

[CIV PRO] • 2 • Venue • Proper Venue and Change of Venue • •

Answer 10

Venue is proper in any district where (1) any defendant resides ; (2) where a substantial portion of the claim arose; (3) where there is subject matter jurisdiction over the claim; (4) where there is personal jurisdiction over the parties; AND (5) if the action involves real property located within the district.

In California courts : Venue may be changed to another forum, on motion, if (1) there is reason to believe there will not be an impartial trial ; (2) for the convenience of witnesses and ends of justice; or (3) no judge is qualified to act.

In Federal courts : Venue may be changed to another forum, on motion, if (a) the receiving court has subject matter and personal jurisdiction AND the convenience of witnesses requires it; OR (b) the interests of justice require it.

Question 11

[CIV PRO] • 2 • Venue • Residence of Corporation for Venue Purposes • •

Answer 11

Proper venue for an action against a corporation depends on the corporations residence. A corporations residence differs from its citizenship in that it includes all districts in which it is subject to personal jurisdiction.

Question 12

[CIV PRO] • 3 • Removal and Remand • Removal to Federal Court • •

Answer 12

A defendant may remove a case to the federal court in the state where the claim was filed if (1) the federal court has subject matter jurisdiction ; (2) all defendants agree; (3) the defendant is not a resident of the forum state ; AND (4) removal is sought within 30 days of learning of the grounds for removal. A plaintiff CANNOT remove a case to federal court.

Question 13

[CIV PRO] • 2 • Removal and Remand • Remand from Federal Court to State Court • •

Answer 13

A party may remand a case to State court based on a defect OR lack of subject matter jurisdiction. A federal district court must remand a case if there is no federal subject matter jurisdiction. Cases that initially had federal subject matter jurisdiction will be remanded once the federal claims are resolved.

Question 14

[CIV PRO] • 1 • Pleadings • Counterclaims • •

Answer 14

A counterclaim is a claim a defendant asserts against a plaintiff who is suing him. A compulsory counterclaim is a claim that arises out of the same conduct, transaction, or occurrence as plaintiffs claims. A compulsory counterclaim MUST be pled or the claim is lost. A permissive counterclaim is one that does not arise from the same conduct, transaction, or occurrence. A permissive counterclaim may be filed with the answer or asserted in a separate case. All counterclaims must meet subject matter jurisdiction requirements. Supplemental jurisdiction is ONLY available for compulsory counterclaims.

Question 15

[CIV PRO] • 2 • Pleadings • Amending a Complaint • Relation Back Doctrine •

Answer 15

When a complaint is amended to include a new claim , it relates back to the date of the original filing as long as the new claim arises out of the same transaction or occurrence as the original complaint. When a complaint is amended to include a new defendant , it relates back as long as (1) it involves the same transaction or occurrence ; (2) the new party knew of the original action within 120 days of filing; (3) the new party knew that they should have been named as the original party; AND (4) the original claim was timely filed.

Question 16

[CIV PRO] • 1 • Joinder of Parties • Compulsory Joinder • •

Answer 16

Compulsory joinder allows a current party to force a necessary and indispensable party to join the case. A party is necessary and indispensable when (1) the court cannot afford complete relief without the party; (2) there is a danger that the party will be harmed; OR (3) there is a possibility of double liability.

Even if a party is necessary and indispensable, it MAY ONLY join the case if joinder is feasible. Joinder is feasible if (1) there is personal jurisdiction over the party AND (2) joining will not destroy diversity in the case. Where the party is indispensable, but joinder is not feasible, the court may dismiss the case or proceed without the party.

Question 17

[CIV PRO] • 1 • Discovery • Compelled Physical and Mental Exams • California Courts •

Answer 17

In California courts : In any personal injury case, any defendant may demand one physical examination of the plaintiff as a matter of right , IF (1) the examination does not include any diagnostic test or procedure that is painful, protracted, or intrusive AND (2) the examination is conducted at a location within 75 miles of the residence of the examinee. For non-personal injury cases, a party must make a motion to compel an examination. The motion must be made in good faith AND show that the partys health is in controversy.

Question 18

[CIV PRO] • 1 • Discovery • Compelled Physical and Mental Exams • Federal Courts •

Answer 18

In Federal courts : A party must make a motion to compel a physical examination under the same requirements as California law (good faith and health in controversy). The court will then hold a hearing to determine whether it will issue an order to compel a physical examination. It must occur during the discovery period, but the court may exercise discretion to permit it if it does not prejudice the parties.

Question 19

[CIV PRO] • 3 • Discovery • Scope of Discoverable Information • Federal Courts •

Answer 19

Information is discoverable if it is (1) relevant ; (2) reasonably calculated to lead to the discovery of relevant information ; (3) and not privileged . The scope is broad and includes information that may not be admissible at trial.

Question 20

[CIV PRO] • 1 • Discovery • Subpoena Duces Tecum (Document Subpoena) to a Non-Party • •

Answer 20

Where a party serves a subpoena duces tecum (document subpoena) upon a non-party, the non-party may respond with a motion to quash or a written objection refusing to produce the documents requested. If such a motion or objection is filed/served, the burden then shifts to the subpoenaing party to establish the need for the discovery.

Question 21

[CIV PRO] • 1 • Motions • Judgment as a Matter of Law • •

Answer 21

A motion for judgment as a matter of law may be brought after the close of the opposing party’s evidence OR at the close of all evidence. The motion will be granted if the court determines that reasonable people would not disagree on the results of the case when considering the evidence in the light most favorable to the non-moving party.

Question 22

[CIV PRO] • 1 • Motions • Dismiss in Federal Court • •

Answer 22

A federal 12(b)(6) motion to dismiss alleges that the Complaint has failed to state a cause of action upon which relief can be granted. When making its decision, the court must: (1) consider the facts in the light most favorable to the non-moving party ; AND (2) only consider the facts alleged on the face of the Complaint. The Court DOES NOT evaluate the merits of the case. This motion can be raised at any time, but if made after the defendant has answered, it is referred to as a motion for judgment on the pleadings.

Question 23

[CIV PRO] • 2 • Motions • Summary Judgment • •

Answer 23

A court will grant a motion for summary judgment when: (1) it considered the evidence in the light most favorable to the non-moving party; (2) it determined that there is no triable issue of material fact ; AND (3) it determined that the party is entitled to a judgment as a matter of law. In California , a party must include a statement of undisputed facts in the motion for summary judgment.

Question 24

[CIV PRO] • 1 • Trial • Right to Jury Trial in Federal Court • •

Answer 24

The 7th Amendment guarantees a right to a jury trial for actions at law (legal claims), BUTNOT for actions inequity (equitable claims). If a case involves both legal and equitable claims, the legal claims will be tried first to the jury, then the equitable claims will be tried to the judge.

Question 25

[CIV PRO] • 3 • Appeals • Final Judgment Rule • •

Answer 25

Generally, the Federal U.S. Court of Appeals may only hear an appeal from a final judgment on the merits by a lower court. Appeals MUST be filed within 30 days after entry of judgment.

In California courts , a motion of judgment against one of several parties is still considered a final judgment, and appeals must be filed (1) within 60 days after the court clerk serves a Notice of Entry of judgment on the party filing an appeal; (2) within 60 days after the party filing an appeal serves or is served with a Notice of Entry of judgment; OR (3) within 180 days after entry of judgment.

Question 26

[CIV PRO] • 2 • Appeals • Interlocutory Appeals • •

Answer 26

An interlocutory appeal is an appeal of a ruling by a trial court that is made before all claims are resolved in the action. An appellate court may consider interlocutory appeals on matters where the parties or court would be severely prejudiced, or would lose their rights if they waited to act (such as temporary restraining orders, preliminary injunctions, collateral issues, etc.).

Question 27

[CIV PRO] • 3 • Res Judicata and Collateral Estoppel • Res Judicata • •

Answer 27

Res Judicata (claim preclusion bars a party from re-litigating any issue in a case where there has already been a final judgment on the merits by a court of competent jurisdiction. To assert res judicata, the claim MUST: (1) be related to the same transaction or occurrence of a previously litigated claim; (2) involve the same parties as the previously litigated claim; AND (3) the previously litigated claim must have resulted in a final judgment on the merits. In California courts : Res Judicata may only be used when the case is not on appeal and the time for appeal has passed.

Question 28

[CIV PRO] • 2 • Res Judicata and Collateral Estoppel • Collateral Estoppel • •

Answer 28

Collateral Estoppel (issue preclusion) precludes a party from attempting to retry an issue if there has been a final judgment on the merits by a court of competent jurisdiction. Issue preclusion may be invoked if: (1) the issue is identical with the issue decided in the prior action; (2) the issue was actually and conclusively decided in the prior action; AND (3) the party against whom enforcement is sought had a similar motive and opportunity to defend the claim in the first action. A non-party to a prior action may assert issue preclusion if the three part test above is satisfied.