Civpro

Question 1

Valid service generally

Answer 1

made by any non party 18 and older.

Question 2

substituted service; mailing notice; serving foreign party

Answer 2

substituted service only OK if personal service cannot be accomplished with reasonable due diligence.

Substituted service: At Δ’s usual place of abode with person of suitable age and discretion, or to Δ’s agent

Mailed process must be mailed by first class mail.

Service on parties in foreign countries OK as court directs, or in accordance with the law of the foreign jurisdiction, or in accordance with the rules of an international treaty.

Question 3

traditional basis for personal jurisdiction

Answer 3

consent; domiciled in forum state, or present when served in forum state

Question 4

long arm jurisdiction

Answer 4

minimum contacts test: purposeful availment, foreseeability

constitutional analysis: does not offend traditional notions of fair play and substantial justice. factors: convenience to parties (where witnesses are located), state’s interest, other factors.

relatedness: specific jurisdiction relatedness or general jx “essentially at home”

Question 5

proper venue

Answer 5

in any county where the claim arose or D’s reside (fed: if all D from same state; CA: any D resides)

Question 6

When is removal proper and what is the time limit

Answer 6

the case could have been brought in federal court originally (PJ and SMJ satisfied);

all D’s must agree to removal

D must remove within 30 days after service

D cannot remove if sued in home court

Question 7

Diversity jurisdiction

Answer 7

complete diversity (can include an alien) required, and more than 75000 amount in controversy.

Question 8

claim preclusion / res judicata and what counts as the same claim 

Answer 8

prior judgment valid, final, on the merits

same P same D

same claim:
Fed: same transaction or occurrence
CA: primary rights theory

Question 9

issue preclusion

Answer 9

same issues actually litigated
final J on merits
issue essential to J
being used against same party or privity
[CA] non party OK not unfair to apply

Question 10

What is the first thing you should state when a court is sitting in federal diversity jx? (Choice of law)

Answer 10

Erie applicable law analysis: fed court sitting in diversity jx should apply federal procedural law and state substantive law. When it is unclear if a law is substantive or procedural, use the outcome determinative test and balancing factors

Question 11

scope of discovery

Answer 11

all relevant info that is reasonably calculated to lead to the discovery of admissible evidence

Question 12

request for physical and mental examinations requirements

Answer 12

Court may issue order for exam if physical/mental condition is at issue AND there is good cause (relevant and overly intrusive) for examination

Question 13

who can be deposed?

Answer 13

non parties can be deposed by means of a subpoena. Non party must be notified via subpoena, cannot go through opposing party’s lawyer

Question 14

physician patient privilege

Answer 14

federal law: no physician-patient privilege

CA: confidential communication made for the purpose of receiving medical diagnosis or treatment is privileged UNLESS the patient puts his physical condition at issue

Question 15

when is demand for jury trial timely?

Answer 15

Party must demand in writing no later than 14 days after service of the last pleading. Otherwise it is waived.

Question 16

When should court grant a JMOL/JNOV? a renewed JMOL?

Answer 16

After close of evidence, the moving party must show that based o the evidence, no reasonable jury could find for the opposing party

After the jury delivers the verdict, the losing party can file a renewed JMOL only if it filed a JMOL during the trial. BUT in CA prior DV filing is not required.

Question 17

class action federal rules

Answer 17

CANT + P/ER/CQ

commonality: common Q of fact or law

adequacy of representation: class reps adequately represent the class in that their interests align

numerosity: too many class members to effect a joinder

typicality: reps claims is typical of that class

And one of the following:
Prejudice: separate actions would impose risk of prejudice and differential outcomes

equitable relief: Injunctive or declaratory relief is appropriate for the class as a whole

Common Q predominates

Question 18

California class action

Answer 18

(1) ascertainable class and
(2) well-defined commonality of interest among class members

(factors: predominate common Q of law or fact, substantial benefit to pts and ct, adequate rep of interest).

Question 19

CAFA Class Action Fairness Act

Answer 19

SMJ is established if minimum diversity (any class member diverse from any
Δ) + aggregate AIC > $5M + 100+ members in proposed class. Any Δ may remove case from state to fed ct

Question 20

when is a claim moot? and what is the exception?

Answer 20

when it is no longer an issue, BUT except when it is capable of repetition yet evading review

Question 21

Compulsory joinder of party

Answer 21

same T or O but CANT destroy diversity

A party is necessary if:

complete relief impossible,
Harm to absent party’s interest
Absence exposes risk of inconsistent obligations

Question 22

motion for summary judgement should be granted when

Answer 22

there is no genuine issue of material fact, and the moving party is entitled to judgment as matter of law

Question 23

who can be deposed and how?

Answer 23

Can depose parties. non parties can be deposed through means of subpoena. FRCP permits one depo per person, no longer than 7 hours

Question 24

7A right to jury trial

Answer 24

in federal court, right to jury trial in all civil actions when legal damages are $20 or more

Question 25

compulsory coutnerclaim

Answer 25

requires common nucleus of operative fact STO; must be raised or is waived