Essay Definitions - Civ Pro

Question 1

Motion to dismiss for Personal jursidiction
1. when is it proper
2. what is the standard
3. When is it waived

Answer 1

A motion to dismiss on jurisdictional issues is proper when, viewing the facts in the most favorable light to the defendant, the plaintiff has failed to satisfy the elements of personal jurisdiction. Failure to object to personal jurisdiction before answering or in a party’s first 12(b)(6) motion waives the issue.

Question 2

Traditional basis for Jursidiction and definition

Answer 2

Personal jurisdiction refers to the power of a court to adjudicate claims involving a particular party. Traditionally, personal jurisdiction is based on three concepts: consent, presence, and domicile.

Question 3

Long Arm statue

Answer 3

Many states have adopted long-arm statutes to obtain personal jurisdiction over non-residents. While long-arm statutes can differ by state, jurisdiction under a long-arm statute must satisfy the constitutional requirements for the exercise of jurisdiction.

Question 4

Many states, like California, have adopted long-arm statutes which extend personal jurisdiction to the constitutional limits. In order to satisfy the constitutional requirements for personal jurisdiction, the

Answer 4

defendant must have such minimum contacts with the forum state as to not offend traditional notions of fair play and substantial justice.

Question 5

Contacts- To determine whether a defendant has minimum contacts with the forum state to justify an exercise of personal jurisdiction, the court requires a showing of

Answer 5

purposeful avilment and foreseeability

Question 6

Purposeful availment

Answer 6

A party purposefully avails itself (ie a voluntary act ) within the forum state if it has taken advantage of the benefits and protections of that state’s laws.

Question 7

Foreseeability

Answer 7

The minimum contacts must be sufficient enough to make it foreseeable that defendant would be “haled into court” in the forum state.

Question 8

Relatedness of the claim to the contract

Answer 8

relatedness of the claim relates to the plaintiffs contacts with the forum state. This can occur either through general or specific jurisdiction

Question 9

Specific jurisdiction

Answer 9

The more related the claim is to the contact with the forum state, the more likely the court will be to allow for jurisdiction over the defendant. If the claim arises directly out of the contact with the forum state, this gives rise to specific personal jurisdiction.

Question 10

General Jurisdiction

Answer 10

The court looks to see whether defendant’s contacts with the forum state are so extensive, as to find that the defendant is essentially at home in the forum state. If so, the court has general jurisdiction over the defendant and the defendant is amenable to a wider range of lawsuits in the state.

Question 11

Balencing factors for fairness

Answer 11

1) the level of contacts with the forum state,
2) the relatedness of those contacts to the cause of action
3) whether the exercise of jurisdiction would be fair, taking into account private and public considerations.

Question 12

If general jurisdiction does not exist, the court looks to see whether Specific Jurisdiction will giver personal jurisdiction over the D. Specific jurisdiction is when the

Answer 12

defendant’s particular contacts with the state relate to or give rise to the particular cause of action.

Question 13

Fairness

Answer 13

To determine whether jurisdiction is fair, courts look to a variety of public and private factors. Courts look to several factors, including the Plaintiff’s interest in the chosen forum, a state’s interest in providing redress for its citizens or for harms that occur in its state, and whether the exercise of jurisdiction would be so unfair as to offend traditional notions of fair play and substantial justice.

Question 14

Domicile

Answer 14

determined by someone’s physical location combined with an intent to stay.

Question 15

A corporation is domiciled in the

Answer 15

state of incorporation and principal place of busines

Question 16

Principal place of business

Answer 16

is based on its nerve center

Nerve center: the high-level officers direct, control, and coordinate the activities of the corporation. Typically, the nerve center is the corporate headquarters.

Question 17

1. Removal refers to the defendants
2. In order to remove a case, the case must have been

Answer 17

ability to remove a case brought initially in state court to federal court for adjudication.

one that could have originally been brought in federal court.

Question 18

Removal is proper to which venue

Answer 18

federal district encompassing the location where the original action was filed in state court.

Question 19

Removal has to be timely and that is within

Answer 19

30 days of the last pleading giving rise to a removal action and cannot in any cases be more than a year since the filing of the lawsuit.

Question 20

Removal is not proper when

Answer 20

a defendant is a resident of the state in which the action is brought and not all defendants failed to join in the removal

Question 21

If Removal is not proper then the P can

Answer 21

file a motion to remand the case back to state court

Question 22

A motion to remand must be filled within

Answer 22

30 days of the notice removal

Question 23

Federal question jursidiction

Answer 23

Federal question jurisdiction refers to claims that are brought to enforce or decide a federal right or law

Question 24

Diversity jursidiction

Answer 24

there must be diversity between plaintiffs and defendants and the amount in controversy must exceed $75,000

Question 25

Diversity of citizenship

Answer 25

Complete diversity between all parties is not required for diversity jurisdiction. However, there must be completed diversity between all Plaintiffs and all Defendants. Citizenship is determined at the time of filing of the action.

Question 26

Indiviual citizenship for diversity of citizenship is determined by domicile. How do you determine domicile

Answer 26

Domicile is where a person is physically present with intent to permanently remain.

Question 27

Corporations are considered domiciled where they have their principal place of business and where they are incorporated. WHere is there PPB

Answer 27

his headquarters are or where his officers are located.

Question 28

AIC

Answer 28

The amount in controversy for diversity jurisdiction requirements looks at the amount from Plaintiff’s well-pleaded complaint, irrespective of costs and fees.

Question 29

Summary judgement is granted when

Answer 29

when there is no issue of material fact and a party is entitled to judgment as a matter of law.

Question 30

Claim preclusion occurs when

Answer 30

identical claim was already fully litigated on the merits to a final judgment, by a court with jurisdiction, between the same parties.

Question 31

issue preclusion

Answer 31

The requirements for issue preclusion are 1) the same issue, 2) actually litigated and decided, 3) a final judgment on the merits, 4) the issue was essential to the judgment and 5) in the cases of non-mutual issue preclusion, fairness.

Question 32

Fairness/Nonmutual issue prevlusion

Answer 32

Traditionally, issue preclusion required the same parties to the prior lawsuit assert issue preclusion or at least parties in privity with each other. If that was the case, then issue preclusion could not be used here for the reasons explained above with claim preclusion.
However, many courts now allow non-mutual issue preclusion to be used if it is fair.

Question 33

Summary judgement motion may be made any time until

Answer 33

30 days after the end of discovery

Question 34

How many days does a party have to appeal from a district courts judgement or appealable order

Answer 34

30 days

Question 35

What are exceptions to the final judgement rule

Answer 35

Injunction,
class action cert,
cert by district ct,
admiralty,
appointment of receiver
collateral order
bankruptcy
mandamus
patent infringement

Question 36

Prohibitory injunction

Answer 36

an injunction based upon a directive to a party to cease doing something

Question 37

Arguments you can make for no mandatory injunction

Answer 37

not feasiable to enforce the order

inserts the court into the business

adequate money damages here

Question 38

Final Judgement RUle

Answer 38

The federal courts of appeals have jurisdiction over appeals from the final judgments of the district courts. A final judgment is a decision by the court on the merits that leaves nothing for the court to do but execute the judgment. The notice of appeal must be filed within 30 days after the judgment or order appealed from is entered.

Question 39

Although most interlocutory orders are not immediately appealable, there are some that have an immediate right of appeal such as

Answer 39

with the granting or denial of an injunction, appointments of receivership; and certain admiralty cases.

Question 40

Collateral Order doctrine

Answer 40

Court of Appeals may choose to hear an appeal based on the “collateral order doctrine” where a decision of the district court is collateral to the merits of the case, involves an important issue of law that has been finally decided, and the party appealing would be effectively precluded from achieving review of the decision absent an immediate appeal.

Question 41

How long do you have to appeal a judgement

Answer 41

within 30 days of an appealable order

Question 42

Scope of discovery under the federal rules

Answer 42

all materials that are

relevant

Not privileged

Question 43

Attorney Client privileged(most common asserted in discovery)

Answer 43

protects confidential communications between an attorney, her agents, and her client from disclosure in discovery

Question 44

Work Product Privilege (most common asserted in discovery)

Answer 44

protects materials prepared by a party in anticipation of litigation. Materials protected by the attorney client privilege are absolutely privileged from disclosure in discovery.

Question 45

when will work product need to be disclosed? WHat is still protected ?

Answer 45

party must show that

1) the claimed work product materials contain information which is not reasonably available to him by any other means,

and

2) his interests would be substantially prejudiced if he were not allowed access to those materials, the court may order disclosure.

Court must protect against disclosure of mental impressions, conclusons, oppinions, or legal theories of a party’s attorney or representative.

Question 46

When you have an amendement to your comliant, the court will amend if

Answer 46

justice so requires

Question 47

Generally, a court will first determine if the proposed amendment to the pleading would be futile because it would immediately be subject to dismissal under Rule 12(b)(6). If it would not, the amendment will generally be permitted unless

Answer 47

the amendment would result in undue prejudice to the opposing party.

Question 48

Relation back standard for amended compliants filed after the SOL has run relates back to the orginal compliant and is not time barred if

Answer 48

1) the original complaint was timely filed; and 2) the new claims in the amended complaint arise out of the “same transaction or occurrence” as the claims in the original complaint.

Question 49

Waiver and Personal jurisidiction

Answer 49

Personal Jurisdiction is waive if it not challenged

Question 50

Supplemental Jursidiction + Diversity

Answer 50

When a district court has diversity jurisdiction over a claim, the common-nucleus-of-operative-facts rule also applies to determine whether the court can exercise supplemental jurisdiction over an additional claim.

Question 51

purposeful availment is when a party

Answer 51

avails itself of the forum state if it is has taken advantage of the benefis and protections of the state laws such that the defendant should reasonably anticipate being taken to court there. Foreseeability depends on whether a defendant recognizes or anticipates that by running his business, he runs the risk of being party to a suit in a particular state.

Question 52

Aggregation

Answer 52

A signle P may aggregate all claims against a single D. Plaintiffs may not aggregate their claims against a single D.

Question 53

Supplemental JDX

Answer 53

where the court has jursidiction over one claim in a mattter, it may exercise supplemental jursidiction over the other claims that arise out of a common nucleus of fact. The court cannot exercise supplemental jursidiction if it would defeat complete diversity.

Question 54

Why would a court choose not to deploy supplemental jursidiction

Answer 54

when there is a novel or complex issue of state law or state claims predominate or all federal questions have been dismissed,

Question 55

Relevance + Discovery

Answer 55

an item is relevant if it has a tendancy to make existence or nonexistance of a fact of consequence to the action more or less probable than it would be without the item

Question 56

Service of process in CA can be achieved

Answer 56

D may be personally served with a summons and a copy of a compliant

when in person service does not work –> leaving the summons and a copy of the compliant with D’s registered agent or another person who resides at the d’s domcile + certified mail of the summons and compliant

must leave with someone over the age of 18; not a party to the case

Question 57

when in person service does not work –> leaving the summons and a copy of the compliant with D’s registered agent or another person who resides at the d’s domcile. However what must you also do

Answer 57

summons and compliant must be sent via certified mail to the d’s address of record and make sure you are serving someone over the age of 18 and the server must not be someone in the case

Question 58

Venue proper in CA is affected by

Answer 58

whether the action is local or transitory

Question 59

Local action

Answer 59

one involving real property in the county where property lies

Question 60

transitory action

Answer 60

any country where the D lies

Question 61

Contract actions will dictate where venue is proper in CA where

Answer 61

contract was entered into and county where the contract was expected to preform

Question 62

Tort Actions, venue is proper in

Answer 62

county where the act or omission is giving rise to the tort occured

Question 63

If no venue is proper in CA

Answer 63

PJ over the D

Question 64

where is a permanent resident alien considered to be a citizen of

Answer 64

the country of is citizenship

Question 65

Joinder of claims

Answer 65

A P may bring any number of claims against the same D even if they are unrelated or do not have a common nucleus of operative fact in the same action

Question 66

Absentation

How high is the threshold for absentation

Answer 66

if a state law claim is joined to another claim, the federal court asked to hear those claims may abstain from hearing the state law claim, sver it, and remand it to a state claim if the interst of the state in resolving the question of law at issue are particular high

such as in Pullman abstention, where a federal court will decline to address a constitutional question whose
adjudication depends on the resolution of an unresolved issue of state law.

Question 67

To survive a Rule 12(b)(6) motion to dismiss for failure to state a claim on which relief can be granted, the pleading in a complaint must allege enough facts to give the defendant notice of the cause of action and the facts on which the claim is based. The two tests to determine whether a compliant is sufficently pleaded is

Answer 67

courts will strike all conclusory legal allegations

Taking all the remaining allegations as true, court determines whether the facts alleged would make it plausible for the P to suceed in obtaining the relief it sought

Question 68

For the claims of fraud, the federal rules require

Answer 68

fact pleading than notice pleading. P must allege the speific facts that made the D’s conduct fraudlent

Question 69

Erie doctrine applies in

Answer 69

diversity cases where the federal court will apply the state substantive law and federal procedure law only if a federal rule or statute addresses the issue

Question 70

Under Erie, if there is A federal rule of procedure court must ask whether the Rule expands, abridges, or modifies a substantive
right. If so, then the court may only apply the Rule i

Answer 70

if its effect on the right is incidental

Question 71

If there is no federal statute or rule on point, the court must ask whether

Answer 71

the failure to apply the state law would change the outcome of the case

Question 72

if it would change the outcome of the case, then the court

Answer 72

must apply state law

Question 73

Right to a jury trial for federal cases

Answer 73

P is entitled to a jury trial under 7A nless it is a equity action

Question 74

Party responding to interogatoies has to

Answer 74

provide written reponse under oath within 30 days

Provide information w/n possesion, custody or control after a reasonable diligent search or inquiry

Question 75

Timing of written discovery

Answer 75

Under federal rules, a party cannot serve written discovery except requests for production before the 26f conference

Question 76

Under federal rules, unless you recieve leave of court, how many interogatories can you serve

Answer 76

25

Question 77

If a party fails to respond to discovery that has been properly served, the party seeking the information may move to compel such disclosure or discovery. A motion to compel must be

Answer 77

served on all parties and be accompanied by a certificate that the movant has in good faith conferred or attempted to confer with the opposing party in an effort to obtain the disclosure or secure the information or material without court action.

Question 78

Adequacy of objections

Answer 78

must state
his objections specifically. If an answer is only in part objectionable, a responding party
must specify the part objectionable and answer the remainder.

Question 79

Discovery of expert witness

Answer 79

a party has an affirmative obligation to disclose basic information about
its testifying experts, including the identity of the expert, the opinions to be offered, the
factual basis for those opinions, and the expert’s qualifications.

Question 80

Consulting expert (one who will not testify at trial) and discovery

Answer 80

not discoverable unless in limited circumstances

Question 81

Venue is proper in

Answer 81

any district where the D resides if all D reside in the same district

in the district where the events give rise to the cause of action occured

or

where the Subject matter of the action is located.

If neither of these are proper, then any district in which A defendant is subject to PJ

Question 82

Discovery is proper for any

Answer 82

non-privilleged matter that may lead to the discovery of any relevant evidence to any party’s claim or defense.

Question 83

A party may properly request that another party produce document through a

Answer 83

subpoena duces tecum

Question 84

Same claim for claim preclusion (res judicata)

Answer 84

a “transactional” test, which requires determining whether the incident was
a part of the same transaction or occurrence, or series of transactions or occurrences.

Question 85

Same claim for claim preclusion (res judicata) - CA version

Answer 85

whether the claim arises out of the same “injury,” which is broader than the
federal test.

Question 86

valid final judgement federal rule

Answer 86

s one that is the result of either a motion for
summary judgment or a verdict. The judgment is final after the verdict has been
rendered and there is nothing additional to perform other than entry of judgment.

Question 87

Same parties for claim preclusion (res judicata)

Answer 87

A claim is between the same “parties” if the actual same parties are involved, or if it
involves the parties’ successors in interest.

Question 88

Valid Final Judgement - CA rule

Answer 88

a judgment is generally not treated as final until the
subsequent appeals have been exhausted. Because federal courts generally apply the
preclusion law of the states in which they sit, the finality of the judgment will likely be
determined by California law

Question 89

Judgement on the merits

Answer 89

court or a jury ruled on the case’s substantive
grounds, as opposed to dismissing the case on a procedural issue (though some procedural issues, too, may be treated as substantive, depending on the issue).

Question 90

Same issue

Answer 90

refers to the same factual or legal dispute as to a certain occurrence
or transaction.

Question 91

Actually litigated - Issue preclusion

Answer 91

necessary to determine if the
parties were able to present evidence on the issue, call witnesses, and litigate the
matter.

Question 92

Necessarily decidd

Answer 92

An issue must have been necessarily decided, which means that the jury (or judge, in a
bench trial) could not have ruled on some other grounds in its verdict for a party.

Question 93

Foreign Corporation domcile

Answer 93

A foreign corporation will be deemed a citizen of the country in which it is incorporated

Question 94

Aggregation with multiple P’s

Answer 94

then the value of their claims may be aggregated only if the multiple plaintiffs are enforcing a single title or right in which they have a common or undivided interest

Question 95

. If multiple plaintiffs, each having separate and distinct claims, unite for convenience or economy in a single suit, then each plaintiff’s aggregate claims are judged________. The other P could however get?

Answer 95

determining whether the amount-in-controversy requirement has been met. The court may also have supplemental jurisdiction over the claims of any other plaintiff, even though that plaintiff’s claims do not meet the amount-in-controversy requirement

Question 96

Due process requirements

Answer 96

Due process requirements are satisfied if the nonresident defendant has certain minimum contacts with the forum state such that the maintenance of the action does not offend traditional notions of fair play and substantial justice.

Question 97

law of situs

Answer 97

The default choice-of-law for determining disputes over real property is to apply the
choice-of-law (or the substantive law, if the choice-of-law is silent) of the state in which
the property is located.

Question 98

To survive a Rule 12(b)(6) motion to dismiss for failure to state a claim on which relief
can be granted, the pleading in a complaint must allege

Answer 98

enough facts to give the
defendant notice of the cause of action and the facts on which the claim is based.

Question 99

Unlike other discovery requests, obtaining a mental or physical examination of a party
under the Federal Rules requires a court order

Answer 99

based on a showing of good cause unless the party consents

Question 100

In response to a discovery request, a party may produce a “privilege log” that describes
the privileged nature of information sought. The privilege log must identify

Answer 100

specificity the basis for asserting the privilege, so that the other side can properly
assess whether the privilege was properly invoked

Question 101

Before parties begin discovery they must

Answer 101

make the initial disclosures of certain information including names of who has the information and other necessary info to disclose

Question 102

An objection to subject matter jurisdiction can be presented by any party at when and who else can raise it

Answer 102

any time including appeal and the court can raise it as well

Question 103

Reduction of claim after filing what happens to the jursdicition

Can then the defendants raise that on appeal

Answer 103

If events after the action has been filed reduce the amount in controversy below the statutory minimum, then jurisdiction will not be lost, as long as the original claim was made in good faith.

Additionally, if the plaintiff eventually recovers an amount that is less than the statutory jurisdictional amount, then that fact will not render the verdict subject to challenge on appeal for lack of jurisdiction.

Question 104

Privileged information is

Answer 104

not discoverable