Civpro Flashcards
Valid service generally
made by any non party 18 and older.
substituted service; mailing notice; serving foreign party
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.
traditional basis for personal jurisdiction
consent; domiciled in forum state, or present when served in forum state
long arm jurisdiction
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”
proper venue
in any county where the claim arose or D’s reside (fed: if all D from same state; CA: any D resides)
When is removal proper and what is the time limit
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
Diversity jurisdiction
complete diversity (can include an alien) required, and more than 75000 amount in controversy.
claim preclusion / res judicata and what counts as the same claim 
prior judgment valid, final, on the merits
same P same D
same claim:
Fed: same transaction or occurrence
CA: primary rights theory
issue preclusion
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
What is the first thing you should state when a court is sitting in federal diversity jx? (Choice of law)
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
scope of discovery
all relevant info that is reasonably calculated to lead to the discovery of admissible evidence
request for physical and mental examinations requirements
Court may issue order for exam if physical/mental condition is at issue AND there is good cause (relevant and overly intrusive) for examination
who can be deposed?
non parties can be deposed by means of a subpoena. Non party must be notified via subpoena, cannot go through opposing party’s lawyer
physician patient privilege
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
when is demand for jury trial timely?
Party must demand in writing no later than 14 days after service of the last pleading. Otherwise it is waived.
When should court grant a JMOL/JNOV? a renewed JMOL?
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.
class action federal rules
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
California class action
(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).
CAFA Class Action Fairness Act
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
when is a claim moot? and what is the exception?
when it is no longer an issue, BUT except when it is capable of repetition yet evading review
Compulsory joinder of party
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
motion for summary judgement should be granted when
there is no genuine issue of material fact, and the moving party is entitled to judgment as matter of law
who can be deposed and how?
Can depose parties. non parties can be deposed through means of subpoena. FRCP permits one depo per person, no longer than 7 hours
7A right to jury trial
in federal court, right to jury trial in all civil actions when legal damages are $20 or more
compulsory coutnerclaim
requires common nucleus of operative fact STO; must be raised or is waived
