CivPro

Question 1

PJ rule

Answer 1

Personal jx refers to the court’s power to have jx over an individual or entity. PJ can be met through traditional or modern means.

Question 2

Traditional bases

Answer 2

A traditional basis for PJ exists if:
- D consented to suit in forum
- D domiciled in forum
- D served with process while in forum

Question 3

Long-arm statute rule

Answer 3

If there is no traditional basis for PJ, the state’s long arm statute determines if the court has the power to exercise jx over the out-of-state defendant. The long-arm statute must comport with DP requirements.
- Ask: is there statute? if yes, do analysis under that AND minimum contacts analysis.

Question 4

Constitutional analysis rule

Answer 4

Personal jx is only proper if
- D has such minimum contacts w/ forum state
- that the exercise of jx comports with
- traditional notion of fair play and substantial justice.

Question 5

Minimum contacts rule

Answer 5

Minimum contacts requires a showing of
- purposeful availment,
- foreseeability and
- relatedness.

Question 6

Purposeful availment rule

Answer 6

D’s contacts w/ the forum state must be assessed to determine if D purposefully availed himself of the benefits and protections of the forum state.

Question 7

Foreseeability rule

Answer 7

D must know or reasonably anticipate that its activities in the forum state render it foreseeable that it may be taken to court there.
*Ask: what are D’s contacts? Look at outline for more

Question 8

Relatedness rule

Answer 8

Relatedness can be met through specific jx or general jx.

Question 9

Specific jx rule

Answer 9

Specific jurisdiction is established if the cause of action arises out of or is closely related to the defendant’s contacts with the forum state.

Question 10

General jx rule

Answer 10

General jx is established when the defendant’s contacts with the forum state are so systematic and continuous, the defendant is essentially “at home” there.

Question 11

Fairness factors

Answer 11

The exercise of jurisdiction must be fair and reasonable. The fairness factors include the convenience of the parties and witnesses (burden on either party to travel) as well as the forum state’s interest. The court will also look at the interstate judicial system’s interests.

Question 12

Subject matter jx rule

Answer 12

Federal courts are courts of limited jurisdiction and must have jurisdiction arising under federal question jurisdiction or diversity jurisdiction. In some cases, the court may be able to exercise supplemental jurisdiction.

Here… “X court” must have had jurisdiction over each and every claim in the matter (DO NOT FORGET TO ANALYZE EACH CLAIM SEPARATELY, e.g., different plaintiffs)

Question 13

Federal q

Answer 13

involves question of fed law

Question 14

Diversity

Answer 14

requires complete diversity between the parties and an amount in controversy in excess of $75,000.
*for diversity of parties, look at domicile of each party (person has one,

Question 15

*for diversity of parties, look at domicile of each party

Answer 15

Domicile = physical presence plus intent to remain indefinitely
Person: 1 domicile
Corp: 2 domiciles (PPB aka nerve center and incorporation)

Question 16

AIC rule

Answer 16

Must exceed $75,000, exclusive of interests and costs. P’s good faith claim will control, unless it is clear to a legal certainty that plaintiff cannot recover the required amount.

*If P recovers less than AIC, will not defeat diversity jx bc good faith claim controls.

Question 17

Aggregation of claims to meet AIC

Answer 17

• By single P against single D: P can aggregate all claims to satisfy AIC
• By multiple P’s: not allowed except under limited circumstances (undivided common interest like JT)
• By 1 P against multiple D’s: not allowed if P’s claims are separate and distinct. If D’s jointly liable, then P can aggregate

Question 18

Supplemental jx

Answer 18

Court can exercise supp jx over an additional claim that shares a common nucleus of operative act (arises from same transaction or occurence) as preexisting claim that has fed or div jx.

Question 19

Supp jx and single P

Answer 19

Applies when P brings state law claim that relates to P’s preexisting fed question or div jx claim

Question 20

Supp jx and multiple P’s

Answer 20

• Fed q: additional P can join if claim relates to existing fed q claim
• Div jx: additional P can join only if (1) claim relates to existing claim and (2) additional P does not destroy diversity

Question 21

Supp jx and discretion

Answer 21

Courts have discretion not to exercise supp jx in certain cases (e.g., if case is complex)

Question 22

Removal

Answer 22

• Only D’s can remove. Case can be removed from state to fed if:
• (1) case could have been brought in fed court (subject matter jx analysis only, NOT PJ)
• (2) all D’s agree to removal,
• (3) notice of removal is filed between 30 days or 1 year of initial filing.

**If D is citizen of forum state and subject matter based on diversity, action is NOT removable.

Question 23

Remand

Answer 23

If removal improper, P can move to remand back to state court within 30 days of removal

Question 24

Was original venue proper? analysis

Answer 24

Venue is proper where:
- the claim arose or
- where D resides, if all D’s reside in same state (domicile analysis).
- If neither applies, venue proper where any D subject to PJ (e.g., for corp, could be their PPB state)

**Walk through each basis and conclude if venue was proper in original jx.

Question 25

Transfer of venue “can/should case be transferred to new venue?”

Answer 25

Depends on whether original venue was proper or improper.
- If original venue proper, venue can be transferred to where case could have been filed OR all parties consent and there is proper PJ, SMJ, and venue (Fed). Venue can be changed at judge’s discretion, interests of justice (CA)
- If original venue improper, court must dismiss or transfer where case could have been brought (Fed). May transfer to proper county (CA).

Question 26

Notice

Answer 26

Rule: To have proper service of process, summons and complaint must be served on D within 90 days after complaint is filed by anyone at least 18 years old and not a party to the suit.

Question 27

Different ways to effectuate service

Answer 27

• Personal service to D (always adequate)
• Substituted service at D’s abode with someone suitable permissible or other methods permitted by state law (FED). Sub. serv. only allowed if D personal service cannot be accomplished with reasonable diligence (CA)

Question 28

Erie analysis

Answer 28

Rule: Fed courts sitting in diversity must apply state substantive law and federal procedural law (use below to see which applies)
1. Is there a fed law on point that conflicts with state law? If yes, use fed law.
2. If no fed law is on point, would applying state law affect outcome of case? If yes, apply state law.

**Always be governed by state law: SOL, elements of claim or defense, choice of law rules, privileges

Question 29

Types of pleadings

Answer 29

• Complaint (filed by P, starts suit)
• Response (filed by D after service of process)
• Pre-answer motions
• Answer (D’s response to complaint)
• Amended pleadings

Question 30

Complaint rule

Answer 30

A complaint (Initial pleading in a lawsuit filed by P) begins an action and gives notice to opposing parties. Complaint must contain:
- statement of jx
- statement of the plausible claim, showing entitlement to relief;
- demand for relief.

Question 31

FRCP 9 Complaint (fraud)

Answer 31

A claim for fraud or mistake requires the complaint to set forth with particularity the facts that give rise to the fraud or mistake and the damages in question.

*Then ask: whether P stated specific facts that showed fraud by going through elements. *Note a potential 12(b)(6) issue

Question 32

Pleading requirements Rule 11

Answer 32

Rule 11 requires attorney or pro se party to (1) sign all documents filed with the court, (2) certifying the filing is not for an improper purpose.

Question 33

Rule 11 sanctions

Answer 33

Court may issue sanctions for violations (on its own or by request of opp. party).

*Safe harbor: Rule 11 motion is served but may not be filed with the court for 21 days, creating a safe harbor for L to remedy mistake.
*Hearing must be held on sanctions, court may punish noncompliant party or attorney

Question 34

Response

Answer 34

D must respond by either a motion or by an answer within 21 days after service of process (or 60 days if service waived).
**CA allows 30 days to respond

Question 35

Pre-answer motions: Motion for a more definite statement

Answer 35

Used where complaint is too vague.
**CA: this would be done by special demurrer on grounds that pleading is uncertain

Question 36

Pre-answer motions: Motion to strike

Answer 36

• Aimed at pleadings containing unimportant or redundant issues (e.g., demand for a jury trial when there is no right to one)

Question 37

FRCP 12(b) defenses (can be raised by a pre-answer motion or in the answer)

Answer 37

• Lack of SMJ (can be raised any time before appeals)
• Lack of PJ (must be raised in first response or is waived)
• Improper venue (must be raised in first response or is waived)
• Insufficient service of process OR process e.g., something wrong w papers (must be raised in first response or waived)
• Failure to state a claim (can be raised anytime until trial concludes)
• Failure to join necessary party (can be raised any time until trial concludes)

Question 38

FRCP 12(b)(6) rule (usually comes up with fraud)

Answer 38

Under FRCP 12(b)(6), a claim can be dismissed if it fails to assert a legal theory of recovery that is cognizable at law or fails to allege facts sufficient to support a cognizable claim. In deciding a motion under Rule 12(b)(6), courts:
- treat all well-pleaded facts of the complaint as true,
- resolve all doubts and inferences in the plaintiff’s favor, and
- view the pleading in the light most favorable to the plaintiff. (then assess elements of P’s claim in light most favorable to her)

Question 39

CA demurrer (general or special)

Answer 39

Typically used to respond to the complaint

Question 40

CA general demurrer

Answer 40

File if:
- Pleadings failed to state facts sufficient to constitute a cause of action
- Court lacks SMJ

Question 41

CA special demurrer

Answer 41

Only allowed in unlimited cases and can be raised in answer
- Uncertain pleading (like Fed. def. statement)
- Complaint unclear re: theories of liability
- Lack of legal capacity to sue
- Existence of another case between P and D on same case
- Defect or misjoinder of parties

Question 42

Answer

Answer 42

D’s response to complaint.
- D must respond 21 days after service of process (or 60 if waived service) but CA allows 30 days
- D must also assert any affirmative defenses in answer or they’re waived (SOL, SOF, self-defense, res judicata)
- D must respond to allegations in complaint (failure to deny operates as admission).

Question 43

Amended pleadings: Right to amend

Answer 43

• P has right to amend once within 21 days of service or 21 days after service of a responsive pleading or pre-answer motion
• D has a right to amend once within 21 days of serving his answer.
• Otherwise, a party must seek leave of court to amend, which the court will grant freely if justice so requires.

Question 44

Amended pleadings: Relation back for claims

Answer 44

Amends the pleading back to the date of the original filing for SOL purposes.
- Claims: relate back if amendment concerns same conduct, transaction or occurrence

Question 45

Amended pleadings: relation back for D’s

Answer 45

Amended D’s relate back if:
- Amendment concerns same conduct, transaction or occurrence
- within 90 days of filing original pleading, new D: (i) knew or received notice of action AND (ii) knew but for P’s mistake she would have been named.

Question 46

Joinder of parties: permissive joinder

Answer 46

P’s and/or D’s may be joined to an existing case if (1) the claims arise from the same transaction or occurrence and (2) raise at least one common question of fact or law. Must have SMJ.

Question 47

Joinder of parties: necessary (indispensable) party

Answer 47

Party is necessary if:
- Court can’t provide complete relief to existing parties in absence of that person, (ask: can P still get complete relief w/o person? If joint tortfeasor, yes. And joint tortfeasor can later implead and sue for contribution from other party if he bears some responsibility for P’s harm) or
- Person’s interest will be harmed if there’s a disposition in their absence (can party defend himself in later suit?), or
- Person’s absence would leave existing parties subject to sub. risk of mult. or inconsistent obligations

Join NP if (1) PJ and (2) diversity not destroyed.
*If court can’t join NP, may dismiss or proceed without

Question 48

Joinder of parties: Impleader

Answer 48

D can add a third party D for all or part of D’s liability on OG claim. Must have SMJ.
*D’s claim will always have supp jx.
*P’s claim (if P adds one) needs to be based on diversity or fed q.

Question 49

Joinder of parties: Intervention

Answer 49

Nonparty seeks to join (CA requires direct and immediate interest)

Question 50

Joinder of parties: Interpleader

Answer 50

Property holder (stakeholder) wants single lawsuit with people who have claims to property (claimants). Two types:
- Statutory (1 claimaint must be diverse from other claimant and AIC can be $500 or more)
- Rule 22 interpleader: stakeholder must be diverse from every claimant and AIC exceed $75K.

Question 51

Joinder of claims: Permissive joinder of claim

Answer 51

1 P may join all claims against 1 D regardless of whether the claims arise out of the same transaction or occurrence, if court has SMJ over each claim.

E.g. P has 60K breach of K claim and 30K negligence claim against 1 D. She can aggregate both to meet AIC requirement for diversity, even though they arise out of different facts.

Question 52

Joinder of claims: compulsory joinder of claims

Answer 52

P has multiple claims against 1 D or multiple D’s arising from the same transaction or occurrence.

Question 53

Joinder of claims: Compulsory counterclaims

Answer 53

• Claim by D against P that arises from the same transaction or occurrence as one of P’s claims
• Must be filed in D’s answer or it will be waived.
  ***Compulsory counterclaims will always have supp jx

Question 54

Joinder of claims: permissive counterclaim

Answer 54

• Claim by D against P that’s Not same transaction or occurrence
• Not required in answer but NO supp jx and must have independent basis for SMJ

Question 55

Joinder of claims: crossclaim

Answer 55

Offensive claim by a co-party against other co-party.
- Must arise from same transaction or occurrence as the underlying action
***Need SMJ, but crossclaims will almost always satisfy supp jx

Question 56

Class Action

Answer 56

Requirements:
- Numerosity
- Commonality
- Typicality
- Adequacy

Question 57

Class action has to fit in one of 3 types

Answer 57

• Prejudice
• Injunctive or declaratory relief is sought
• Questions of law/fact common to class predominate

Question 58

Fed class action citizenship issues: diversity action

Answer 58

• Only citizenship of named rep. matters and 75K AIC can be satisfied by any named rep.

Question 59

Fed class action citizenship issues: Class Action Fairness Act (relaxes fed requirements)

Answer 59

Applies where there isn’t complete diversity. Fed court can hear class action if:
- Any class member diverse from any D
- Class claims aggregate to exceed $5 mil
- There are at least 100 members

Question 60

CA class action

Answer 60

CA class action allowed if:
- Ascertainable class,
- Well defined community of interest among class members. For this, look at whether:
- Common questions of law or fact predominate,
- Rep will adequately represent the class interests,
- class will result in sub. benefit to parties and court.

Question 61

Discovery triggering facts/questions

Answer 61

“did the court err in denying or granting motions to compel, physical and mental exam, copy of records, etc.”

Question 62

Discovery analysis

Answer 62

(1) Broad scope of discovery rule statement
(2) analyze whether doc or thing @ issue is discoverable by asking if above elements satisfied
(3) If discovery is being challenged, weigh party’s privacy interest against interests of party seeking discovery
(4) Then answer call of question (e.g., did court err in granting motion to compel?). Don’t forget to include specific rules and analysis for diff. discovery tools (mental exam, request to produce, etc.)

*Also, did the parties have an initial discovery conference?

Question 63

Broad scope of discovery rule statement

Answer 63

The scope of discovery is broad. Material is generally discoverable if it is
(1) non-privileged,
(2) relevant to a claim, and
(3) proportional to the needs of the case. (timing)

*In general, a party may not seek discovery until after a Rule 26(f) discovery conference, unless ordered by the court, stipulated by the parties, or authorized by a specific rule.

Question 64

Initial disclosures approach

*NOTE: CA does NOT require this but Fed does

Answer 64

*Triggering q: if party served initial disclosures but withheld something.

• Rule: When a party fails to produce mandatory initial disclosures, then the party seeking the information may move to compel such disclosures. Therefore, the issue is whether Pam was required to include Wynne’s written statement in her initial disclosures.

Initial disclosures must provide other party with following:
- name, address phone # of those likely to have discoverable info that disclosing party may use to support its claim or defense (e.g., expert who will testify info info, list of non expert witnesses, list of docs/exhibits)
- copy or description of all docs, ESI, tangible things in disclosing party’s possession that they plan to use in support of their claim or defense
- relevant insurance documents
- computation of damages

*WATCH OUT for potential work product issues (e.g., one party seeking report of other that was made at direction of legal counsel)

Question 65

Rule 26 initial discovery conference

Answer 65

Parties must have an initial conference that includes a proposed discovery plan before parties seek discovery of documents or things.

Question 66

Motions to compel

Answer 66

If party fails to respond or objects to a document request, then the requesting party may move to compel. However, parties must have (1) completed an initial discovery conference at least 30 days before trial and (2) made a good faith attempt to meet and confer to try to resolve the issue before filing the motion.

Question 67

Discovery tools: Deposition

Answer 67

Parties can be deposed and nonparties can be deposed through means of subpoena (giving notice to other parties NOT sufficient) if testimony is relevant and not privileged.
- Fed allows 1 deposition per person (unless court allows otherwise), with 10 depositions total, not to exceed 7 hours in a day unless court says otherwise
- CA has no limits to the number of depositions

Question 68

Discovery tools: Interrogatories (parties only)

Answer 68

Questions in writing to another party.
- Must be answered in writing under oath within 30 days
- FED: no more than 25 q’s unless court says otherwise (if party gives more than that then they have to either withdraw one or seek court permission)
- CA: unlimited # of form interrogatories, max. of 35 specific

*basis of objection: Each interrogatory must be answered fully and separately under oath unless the responding party objects to the interrogatory. The grounds for objecting to an interrogatory must be stated with specificity.

Question 69

Discovery tools: Requests for admission (parties only)

Answer 69

Request another party to admit the truth of any discoverable matter. (to identify areas not in controversy)
- CA allows max. of 35

Question 70

Discovery tools: Requests to inspect and produce

Answer 70

• FED: any party can request another party or nonparty with subpoena to produce a doc or copies or allow entry onto prop.
• CA: allows for a party to make requests to inspect and produce on another party, but not nonparty.
• Timing: Party who received request must respond in writing (1) within 30 days after being served or (2) within 30 days after the parties’ first Rule 26(f) conference—unless court says differently

Question 71

Discovery tools: electronically stored data

Answer 71

Parties have to meet to discuss discovery and preservation of electronic data and report back to court. Even if not reasonably accessible, court can order production and split costs between parties if good cause
*Parties must take care to preserve electronic info

Question 72

Discovery tools: Request for physical or mental exam

Answer 72

May be sought by the opposing party. Requesting party must obtain a court order upon a showing that the physical or mental condition of the party is:
- at issue, and
- there is good cause for the examination.

Question 73

Procedure for mental or physical exam

Answer 73

After above requirements met (court order, at issue, good cause), all parties must be given notice specifying
- the time,
- place,
- conditions, and
- scope of the examination and - the identity of the examiner.

Question 74

Physician-patient privilege / Atty client privilege

Answer 74

State the rule for the privilege (confidential communications that were made for purpose of obtaining legal advice/medical treatment are protected. HOWEVER, the privilege is waived if patient’s physical condition is at issue OR if L’s services used for crime/fraud. Then assess whether privilege blocks evidence or is waived.

Question 75

Attorney work product

Answer 75

Material prepared in anticipation of litigation and is generally not discoverable unless
- there is substantial need and - inability to obtain info by other means.
***NOTE: L’s mental impressions, opinions, theories, conclusions absolutely protected and NEVER discoverable.

Question 76

Motion for summary judgment

Answer 76

MSJ proper if moving party can establish there is no genuine issue of material fact and he is entitled to judgment as a matter of law. Evidence must be viewed in light most favorable to the nonmoving party and credibility is not weighed here.

***Triggering q’s will be whether a party is entitled to a MSJ or dismissal. This is used to ask about the underlying procedural issues present in the question like jx or res judicata.

Question 77

JMOL (or directed verdict in CA)

Answer 77

Occurs when 1 party files a motion after the other side has been heard at trial (so a D can move twice), contending that reasonable people could not disagree on the result and asks for a judgment as a matter of law.

Question 78

JMOL attack

Answer 78

1. State rule.
2. Ask was JMOL acceptable from timing perspective? I.e., did party bring their JMOL after close of all evidence?
3. Analyze evidence and use facts to determine whether a reasonable jury could believe either P or D (JMOL improper and should be denied) or could not disagree on result (JMOL should be granted.

Question 79

Renewed JMOL (CA calls it JNOV)

Answer 79

After the jury reaches its verdict, the losing party can file a renewed JMOL only if it filed a JMOL during trial, contending that reasonable people could not disagree on the result and asks for a judgment as a matter of law
- CA does NOT require to make a previous directed verdict motion.

Question 80

Timing of renewed JMOL

Answer 80

FED: must be made within 28 days after entry of judgment
CA: must be made within 15 days after mailing or service
of judgment or 180 days after entry of judgment

Question 81

Renewed JMOL analysis

Answer 81

• Ask, was the renewed JMOL timely? I.e., did the party file a JMOL during the trial after the close of P or D’s case?
• If not, it should be denied but still say it whether it should or shouldn’t be denied based on whether a reasonable person could disagree on the result.
• Note CA difference

Question 82

Motion for jury trial

Answer 82

In fed court, the right to jury trial is governed by the 7A for all “suits of common law” where AIC exceeds $20.
- Extends to legal, but not equitable, issues.
- If the case involves both, then the jury determines the legal claims first, and the court determines the equitable claims second.
- Timing: P must demand in writing, no later than 14 days after the last pleading directed to the issue is served or it is waived.

Question 83

Motion for new trial grounds include

Answer 83

• Prejudicial error that makes judgment unfair
• New evidence
• Prejudicial misconduct of party, L or judge
• Judgment against weight of evidence
• Excessive or inadequate damages

Question 84

Motion to set aside judgment based on

Answer 84

• Clerical errors
• Neglectful mistakes
• Newly discovered evidence
• Fraud, misrepresentation, etc.
• Judgment is void for lack of DP

Question 85

Final Judgment Rule

Answer 85

Only final judgments may be appealed. Final judgment is an ultimate decision by trial court on merits of an entire case.

*Note, appeals must be filed within 30 days of judgment or order filed (FRCP), 60 for CA

Question 86

FJR exceptions

Answer 86

• Injunctions and some interlocutory order
• Collateral orders regarding procedural issues
• Collateral order doctrine: A court of appeals has discretion to hear and rule on a district court order if (1) the order conclusively determines the disputed question, (2) resolves an important issue that is completely separate from merits of the action and (3) is effectively unreviewable on appeal from a final judgment.

Question 87

Time limits for appeal

Answer 87

FED: must file notice of appeal within 30 days after final judgment
CA: 60 days after service of notice, or 180 days after entry of judgment if no notice served

Question 88

Collateral estoppel (issue preclusion) more narrow, just an issue, more likely to be granted

Answer 88

Collateral estoppel precludes relitigation of a particular issue that has already been decided where there is:
- valid final judgment on the merits,
- same issue was actually litigated (i.e., underlying court heard extensive evidence) and
- necessarily determined (essential to the judgment - e.g., issue of defective design would have been necessarily determined and essential to the judgment bc P needed to prove each element to prevail).

*Traditionally, the mutuality principle required privity between the parties. Modernly, some states, including CA, allow a nonparty to assert collateral estoppel where it would not be unfair to do so and the party against whom the issue is to be precluded was a party to the original action.

Question 89

Res judicata (claim preclusion)

Answer 89

Res judicata precludes a claim from being relitigated where:
- valid final judgment on the merits,
- same P & D,
- same claim
FED same claim = claims derive from same transaction or occurrence
CA same claim = primary rights doctrine, permits separate claims for each primary right invaded (one car accident causing prop and personal injury damage)

Question 90

objections rule (e.g., withholding info basis of privilege or denying interrogatory)

Answer 90

grounds for objection must be specific, not general

Question 91

remittitur

Answer 91

if the court determines that a verdict was excessive, then it may offer a reduction of the verdict, known as a remittitur, and grant a new trial on the condition that the remittitur is not accepted

Question 92

Adittur

Answer 92

If a judge in California believes that a jury’s verdict on compensatory damages is inadequate, the court may offer the party the option of a new trial or an enhanced judgment as determined by the court.

NOT ALLOWED IN FED