CivPro Flashcards
Removal approach
Procedure: within one year, do all Ds consent, do any Ds reside in forum state
SMJ: Would be able to be originally brought in fed court?
Applicable Law: Erie/choice of law?
Venue: venue is proper in federal district where state court sits
PJ approach
Traditional basis: domicile, consent, voluntary
Long-arm statute: minimum contacts, offend notions of fair play and substantial justice
Minimum contacts: purposeful availment, foreseeability, relatedness
Fair play and substantial justice: Interest of forum state, burden on D to appear, interest in judicial efficiency, shared interest of states in promoting common policy
Service of process
Must be made within 90 days of complaint being filed
Made by nonparty at least 18 years old
Must be in person (CA allows for first class mail)
Waiver by mail allows for extension to 60 days
Object to insufficient service by filing 12b MTD
Venue
-where any D resides if all Ds in same state
-where substantial events took place
-anywhere we PJ works
(residence for business is where subject to PJ)
In CA: Venue proper in county in which any D resides. If none, then where contract or tort occured, or where property is located
Transfer: Ok if original venue was proper but parties need convenience/witness/interest of justice
Forum selection clause in CA: followed unless unreasonable and unjust
Choice of law
Substantive: SOLs, claim/defense elements burdens of proof
Procedural: FRE, FRCP, attorneys fees, legal vs. equitable
If unclear: apply state law if outcome determinative, if prevents forum shopping, if state interest strong
In CA: for tort actions, government interest approach between both states. in contract actions, respect choice of law clause unless contrary to public policy. if contrary, then do gov interest approach
Pleadings requirements and timings
Notice pleading (CA requires fact pleading)
D must respond with answer or motion within 21 days
Motions to Dismiss
Anytime
-lack of SMJ
-failure to state claim
-failure to join necessary party
Waive if not first response
-lack of PJ
-impromper venue
-insufficient process
Motion for judgment on pleadings
-when no dispute to facts, CA requires meeting and confer prior
Motion for more definite statement/motion to strike
If need more info, or if material is embarassing, unhelpful, redundant
Amendment
as of right within 21 days if no responsive pleading required
or within 21 days when responsive pleading or 12b motion received
by leave of court whenever justice requires and no prejudice
relation back: new claim, will relate back if CNOF, new party CNOF, 90 days, and have reason to know action should have been brought
Class Actions CANT
-Commonality (common question of law or fact)
-Adequacy (representatives fairly and adequately protect class)
-numerosity (class size large so joinder is impracticable, generally > 40)
-Typicality (claims or defenses of representative is typical of class)
Discovery- mandatory disclosures
Mandatory disclosures
-IDs of people with discoverable info
-copies or descriptions of documents
-computation of damages
-expert qualificaitons, publications, list of cases
-list of all witnesses and exhibits to be used at trial
-CA no mandatory disclosures
Discovery scope
any non-priveleged matter relevant to claim or defense. CA has broader standard, any matter relevant to subject matter
-Conference required within 180 days of filing complaint
Devices
-Depositions (any one)
-interrogatories
-request to produce and permit inspection
-physical and mental examination
-requests for admission
Enforcement
motion to compel (prerequisite to seeking sanctions), must try to meet and obtain discovery first
sanctions- disallowing evidence, directing matter as established, dismissing action, staying proceedings until order obeyed
TRO
elements:
-immediate irreparable harm
-certification of any efforts made to give notice and why should not be required
-limited to 15 days
Prelim Injunction
Elements: (notice required)
-likelihood P will succeed on merits
-irrerarable harm
-balance hardships
-best interests of public
-after success on merits, can seek permanent injunction
JMOL
standard- evidence could not support contrary verdict
-same as SJ but made after P’s case and again close of evidence
Renewed JMOL
made after jury returns verdict, must have filed JMOL, within 28 days
Motion for new trial
Must be made within 28 days
grounds
-trial error resulting in unfair judgment
-newly discovered evidence
-prejudicial misconduct
-verdict excessive or inadequate
harmeless error- court will disregard errors that do not affect party rights
Relief from judgment
Must made up to one year following judgment
grounds
-mistake, inadvertance, surprise, new evidence, fraud, appealed judgment
Appeals
Notice of appeal must be made within 30 days
standard of review
-facts: clearly erroneous
-law: de novo
-discretion: abuse of discretion
-jury: substantial evidence
final judgment rule:
-only final judgment may be appealed (if multiple claims, if says no reason for delay, can appeal individual claim)
collateral order rule
-appealable dist court orders that are completely separate from merits of case and unreveiwable upon final judgment
interlocutory orders generally not appealable EXCEPT injunctions, or dist court says substnatial question of law that needs help, COA has discretion to take,
-in CA also motions for new trial, or denying JMOLs
Claim and Issue Preclusion
Claim
-valid judgment (PJ and SMJ)
-final judgment (nothing further but to enter)
-on merits (not made on technical grounds)
-same cause of action (CNOF)
-CA follows primary rights (can sue later on property if first was personal injury)
-Same parties
Issue
-same issue
-atually litigated
-essential to judgment
Due process
-defensive use only allowed when offensive party had opportunity to litigate
-offensive allowed unless P could have joined in earlier action
