Essay Definitions - Civ Pro Flashcards
Motion to dismiss for Personal jursidiction
1. when is it proper
2. what is the standard
3. When is it waived
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.
Traditional basis for Jursidiction and definition
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.
Long Arm statue
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.
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
defendant must have such minimum contacts with the forum state as to not offend traditional notions of fair play and substantial justice.
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
purposeful avilment and foreseeability
Purposeful availment
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.
Foreseeability
The minimum contacts must be sufficient enough to make it foreseeable that defendant would be “haled into court” in the forum state.
Relatedness of the claim to the contract
relatedness of the claim relates to the plaintiffs contacts with the forum state. This can occur either through general or specific jurisdiction
Specific jurisdiction
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.
General Jurisdiction
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.
Balencing factors for fairness
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.
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
defendant’s particular contacts with the state relate to or give rise to the particular cause of action.
Fairness
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.
Domicile
determined by someone’s physical location combined with an intent to stay.
A corporation is domiciled in the
state of incorporation and principal place of busines
Principal place of business
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.
- Removal refers to the defendants
- In order to remove a case, the case must have been
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.
Removal is proper to which venue
federal district encompassing the location where the original action was filed in state court.
Removal has to be timely and that is within
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.
Removal is not proper when
a defendant is a resident of the state in which the action is brought and not all defendants failed to join in the removal
If Removal is not proper then the P can
file a motion to remand the case back to state court
A motion to remand must be filled within
30 days of the notice removal
Federal question jursidiction
Federal question jurisdiction refers to claims that are brought to enforce or decide a federal right or law
Diversity jursidiction
there must be diversity between plaintiffs and defendants and the amount in controversy must exceed $75,000
Diversity of citizenship
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.
Indiviual citizenship for diversity of citizenship is determined by domicile. How do you determine domicile
Domicile is where a person is physically present with intent to permanently remain.
Corporations are considered domiciled where they have their principal place of business and where they are incorporated. WHere is there PPB
his headquarters are or where his officers are located.
AIC
The amount in controversy for diversity jurisdiction requirements looks at the amount from Plaintiff’s well-pleaded complaint, irrespective of costs and fees.
Summary judgement is granted when
when there is no issue of material fact and a party is entitled to judgment as a matter of law.
Claim preclusion occurs when
identical claim was already fully litigated on the merits to a final judgment, by a court with jurisdiction, between the same parties.
issue preclusion
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.
Fairness/Nonmutual issue prevlusion
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.
Summary judgement motion may be made any time until
30 days after the end of discovery
How many days does a party have to appeal from a district courts judgement or appealable order
30 days
What are exceptions to the final judgement rule
Injunction,
class action cert,
cert by district ct,
admiralty,
appointment of receiver
collateral order
bankruptcy
mandamus
patent infringement
Prohibitory injunction
an injunction based upon a directive to a party to cease doing something
Arguments you can make for no mandatory injunction
not feasiable to enforce the order
inserts the court into the business
adequate money damages here
Final Judgement RUle
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.
Although most interlocutory orders are not immediately appealable, there are some that have an immediate right of appeal such as
with the granting or denial of an injunction, appointments of receivership; and certain admiralty cases.
Collateral Order doctrine
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.
How long do you have to appeal a judgement
within 30 days of an appealable order
Scope of discovery under the federal rules
all materials that are
relevant
Not privileged
Attorney Client privileged(most common asserted in discovery)
protects confidential communications between an attorney, her agents, and her client from disclosure in discovery
Work Product Privilege (most common asserted in discovery)
protects materials prepared by a party in anticipation of litigation. Materials protected by the attorney client privilege are absolutely privileged from disclosure in discovery.
when will work product need to be disclosed? WHat is still protected ?
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.
When you have an amendement to your comliant, the court will amend if
justice so requires
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
the amendment would result in undue prejudice to the opposing party.
Relation back standard for amended compliants filed after the SOL has run relates back to the orginal compliant and is not time barred if
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.
Waiver and Personal jurisidiction
Personal Jurisdiction is waive if it not challenged
Supplemental Jursidiction + Diversity
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.
purposeful availment is when a party
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.
Aggregation
A signle P may aggregate all claims against a single D. Plaintiffs may not aggregate their claims against a single D.
Supplemental JDX
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.
Why would a court choose not to deploy supplemental jursidiction
when there is a novel or complex issue of state law or state claims predominate or all federal questions have been dismissed,
Relevance + Discovery
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
Service of process in CA can be achieved
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
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
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
Venue proper in CA is affected by
whether the action is local or transitory
Local action
one involving real property in the county where property lies
transitory action
any country where the D lies
Contract actions will dictate where venue is proper in CA where
contract was entered into and county where the contract was expected to preform
Tort Actions, venue is proper in
county where the act or omission is giving rise to the tort occured
If no venue is proper in CA
PJ over the D
where is a permanent resident alien considered to be a citizen of
the country of is citizenship
Joinder of claims
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
Absentation
How high is the threshold for absentation
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.
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
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
For the claims of fraud, the federal rules require
fact pleading than notice pleading. P must allege the speific facts that made the D’s conduct fraudlent
Erie doctrine applies in
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
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
if its effect on the right is incidental
If there is no federal statute or rule on point, the court must ask whether
the failure to apply the state law would change the outcome of the case
if it would change the outcome of the case, then the court
must apply state law
Right to a jury trial for federal cases
P is entitled to a jury trial under 7A nless it is a equity action
Party responding to interogatoies has to
provide written reponse under oath within 30 days
Provide information w/n possesion, custody or control after a reasonable diligent search or inquiry
Timing of written discovery
Under federal rules, a party cannot serve written discovery except requests for production before the 26f conference
Under federal rules, unless you recieve leave of court, how many interogatories can you serve
25
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
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.
Adequacy of objections
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.
Discovery of expert witness
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.
Consulting expert (one who will not testify at trial) and discovery
not discoverable unless in limited circumstances
Venue is proper in
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
Discovery is proper for any
non-privilleged matter that may lead to the discovery of any relevant evidence to any party’s claim or defense.
A party may properly request that another party produce document through a
subpoena duces tecum
Same claim for claim preclusion (res judicata)
a “transactional” test, which requires determining whether the incident was
a part of the same transaction or occurrence, or series of transactions or occurrences.
Same claim for claim preclusion (res judicata) - CA version
whether the claim arises out of the same “injury,” which is broader than the
federal test.
valid final judgement federal rule
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.
Same parties for claim preclusion (res judicata)
A claim is between the same “parties” if the actual same parties are involved, or if it
involves the parties’ successors in interest.
Valid Final Judgement - CA rule
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
Judgement on the merits
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).
Same issue
refers to the same factual or legal dispute as to a certain occurrence
or transaction.
Actually litigated - Issue preclusion
necessary to determine if the
parties were able to present evidence on the issue, call witnesses, and litigate the
matter.
Necessarily decidd
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.
Foreign Corporation domcile
A foreign corporation will be deemed a citizen of the country in which it is incorporated
Aggregation with multiple P’s
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
. 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?
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
Due process requirements
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.
law of situs
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.
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.
Unlike other discovery requests, obtaining a mental or physical examination of a party
under the Federal Rules requires a court order
based on a showing of good cause unless the party consents
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
specificity the basis for asserting the privilege, so that the other side can properly
assess whether the privilege was properly invoked
Before parties begin discovery they must
make the initial disclosures of certain information including names of who has the information and other necessary info to disclose
An objection to subject matter jurisdiction can be presented by any party at when and who else can raise it
any time including appeal and the court can raise it as well
Reduction of claim after filing what happens to the jursdicition
Can then the defendants raise that on appeal
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.
Privileged information is
not discoverable
