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Select Topics Part 1 > Federal Civil Procedure > Flashcards

Federal Civil Procedure Flashcards

1
Q

CP Major Issues

A
  1. Personal Jurisdiction
  2. Service of Process
  3. Subject Matter jurisdiction
  4. Erie Doctrine
  5. Removal and Remand
  6. Joinder
  7. Pleadings
  8. Scope of Discovery
  9. Res Judicata and Collateral Estoppel
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2
Q

Personal Jurisdiction

A

Ability of a court to exercise power over a particular D or item of property

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3
Q

General Jurisdiction

A

Contacts are systematic and continues so as to render D essentially at home (limited to company’s PPOB).

Cause of action need not arise from contacts

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4
Q

Specific Jurisdiction

A
  1. Purposeful Availment of privileges and benefits of the forum state
  2. Foreseeable to D they might be haled into forum court
  3. Relatedness - cause of action arises from contacts
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5
Q

Fairness

A
  1. Trial in forum is not gravely difficult or inconvenient;
  2. Forum state has an interest in providing redress;
  3. Ps interest in convenient relief;
  4. intestable judicial system interest in efficient resolution;
  5. share interest of state furthering fundamental social polices
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6
Q

Service of Process Federal Rules:

A

Any person over 18 who is not a party may serve summons and complaint.

Service effected by personal service, service left at Ds usual abode with someone of suitable age and directions; or according to state rule providing service.

Foreign Service
International Agreement, foreign law, or unless otherwise prohibited by foreign law, by personal service or mail return receipt requested (except personal service is not permitted on a corporation in a foreign country)

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7
Q

Personal Jurisdiction Traditional Bases

A
  1. Domicile
  2. Consent
  3. Present in state
  4. In rem (if property is involved)
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8
Q

Long Arm Statute

A

Grants court in personam jurisdiction over nonresidents who perform or cause to be performed certain acts within the state or who cause results within the state by acts performed out of state.

Always needed to exercise jurisdiction over a non-resident

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9
Q

Due Process / Minimum Contacts

A

D must have such minimum contacts with the forum so that the exercise of personal jurisdiction does not offend traditional notions of fair play and substantial justice

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10
Q

Domicile

A

Place where a person maintains her permanent home

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11
Q

Service of Process California

A

Any person over the age of 18 who is not a party may serve a summons and complaint

a. personal service;
b. substituted service (leaving copy at authorized locations with specific individuals plus mailing a copy);
c. service by mail (if D returns a notice and acknowledgement of service);
d. service by publication (4 weeks in a newspaper of general circulation)

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12
Q

Federal Question

A

Where P pleads in his complaint a claim or cause of action arising under the US CN, Federal Law, or a treaty

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13
Q

Subject Matter Jurisdiction

A

Federal courts are courts of limited jurisdiction. SMJ includes both federal question and diversity jurisdiction.

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14
Q

Diversity Jurisdiction

A

No P is a citizen of the same state as any D.

Elements:

  1. Complete diversity
  2. Amount in Controversy exceed $75K set forth in a good faith plea
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15
Q

Aggregation

A

P can aggregate all claims against one D and all claims against jointly and severally liable multiple Ds BUT NOT separate claims against multiple Ds

Multiple Ps cannot aggregate their claims against a single D unless they are enforcing a single title or right in a common and undivided interest

cannot aggregate claim and counterclaim

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16
Q

Citizen of a Corporation

A
  1. State of incorporation; and

2. PPOB (nerve center test)

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17
Q

Citizen of a person

A

Domicile

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18
Q

Supplemental Jurisdiction

A

Federal court’s jurisdiction to hear a state claim arising out of the same transaction or occurrence as the Federal claim under Federal jurisdiction.

Two claims derive from a common nucleus of operative fact that P would ordinarily be expected to try them all in one judicial proceeding.

Pendent and ancillary jurisdiction

Generally allows for jurisdiction over added parties (so long as diversity is not destroyed), and counterclaims

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19
Q

Pendent Jurisdiction

A

state claim arising from same facts as federal claim under federal question jurisdiction.

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20
Q

Venue Analysis

A
  1. Determine whether original venue AND proposed venue are EACH proper venue
  2. Then, discuss rules for changing venue
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21
Q

Venue - Federal

A

Relates to proper federal DISTRICT in which to bring an action

Venue will be proper in any district where:

  1. One D resides IF all Ds reside in same state; OR
  2. a substantial part of the events or omissions giving rise to the claim occurred; BUT
  3. IF NEITHER 1 nor 2; then District where ANY D would be subject to PJ - treating the district as a state
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22
Q

Transfer of Venue Federal Analysis

A
  1. Was original proper?
  2. Is proposed new venue proper?
  3. Does balance of factors favor new venue?
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23
Q

Venue - CA

A

Relates to proper COUNTY in which to bring an action

Local Actions (title/harm to property)

Transitory actions

  • Any county in which any D resides AND
  • Contract actions (county in which obligation is to be performed or the contract was entered into); AND
  • Personal Injury (county in which injury occurred)
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24
Q

Transfer of Venue - CA

A

Even if venue is proper, court may transfer when:

  • no judge is qualified;
  • convenience of witnesses;
  • ends of justice promoted by change

Balance convenience

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25
Q

Forum Non Conveniens

A

Even if court is proper, it is so inconvenient that the court should dismiss the case.

Applies in Federal and CA courts.

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26
Q

Forum Non Conveniens Analysis

A
  1. Discuss Venue;
  2. Public Factors
    - availability of forum
    - Ps choice
    - Forum’s interest
  3. Private Factors
    - convenience
    - location of evidence
27
Q

Erie Doctrine Analysis

A

Whether court should apply state or federal law in a Diversity Case.

  1. Is there a Federal rule on point? (if no, use state rule)
  2. if FRCP/Federal statute enacted under Rules Enabling Act, it applies
  3. If conflict between a federal rule not enacted under Rules Enabling Act, and a state rule, is the use of one or the other outcome determinative? (if yes, rule is substantive and you often use state rule)
  4. would use of the Federal rule so likely affect the outcome that it would violate significant federalism or state sovereignty concerns? (if yes, use state law)
  5. would failing to follow state law encourage forum shopping in federal court? (if yes, use state law unless choice is not so significant that it would influence a litigant’s choice of forum)
  6. Elements of claims and defenses (statute of limitations, presumptions, and burdens) are substantive (use state law)
28
Q

Removal

A

When original jurisdiction of district court would have been based on a federal question, Ds can remove without regard to the citizenship of the parties

Only D can remove a case to federal court

Requires Federal jurisdiction, therefore, raises SMJ issues

All Ds must join in removal

Must be timely (within 30 days after service of the complaint)

29
Q

Remand

A

Reverse removal

Only granted if federal court lacked jurisdiction in the first place

30
Q

Abstention

A

Federal Court retains jurisdiction over constitutional challenge to state law, but refrains from deciding the question until the state courts interpret the state law

Exception: Where there is potential for:

  1. great and immediate irreparable injury;
  2. bad faith in the prosecution of the state action; or
  3. harassment
31
Q

Notice Pleading (Federal)

A

Pleading which sets forth a claim for relief, whether an original claim, counterclaim, cross-claim, or third party claim, shall contain:

  1. short and plain statement on the grounds upon which the court’s jurisdiction depends;
  2. short and plain statement of the claim showing that the pleader is entitled to relief; and
  3. demand for judgment for relief the pleader seeks.

court imposed requirement - pleading must be “plausible”

32
Q

Fact Pleading (CA)

A

Statement of facts constitutes the cause of action, in ordinary and concise language.

must plead ultimate facts (facts that raise the issues upon which the right to recover depends)

Legal conclusions or evidentiary facts may be stricken

exception - common counts (common law contracts type of proceedings)

Negative pregnant

33
Q

Doe Amendments

A

CA permits Complaint to name fictitious defendants (does), if P genuinely ignorant of identity of Ds at time he files Complaint.

Complaint ‘relates back” for SOL if:

  1. original complaint is timely filed and contains charging allegations against all Ds, including Doe Ds;
  2. P is genuinely ignorant of the identity of a fictitious D, facts giving rise to a cause of action, or of the fact that the law provides a cause of action; and
  3. Ps ignorance must be pleaded in the complaint

P must amend complaint promptly once identity is learned and must serve them with a summons and complaint.

Federal courts do not allow Doe pleadings.

34
Q

Amendments Relating Back (Federal)

A

When SOL has run against a particular D, D may be added by amendment and amended complaint will relate back to the date of the original filing IF:

  1. Amendment arises out of same conduct, transaction, or occurrence as original complaint; and
  2. Within 90 days after filing complaint, new D:
    - —-(a) received notice of action such that no prejudice; and
    - —-(b) knew or should have known that, but for a mistake concerning identity, they would have been named originally
35
Q

Demurrers - CA

A

Type of pleading addressing the entire complaint or individual causes of actions contained in it

36
Q

General Demurrers

A
  1. Court lacks SMJ;
  2. Pleading fails to state facts sufficient to constitute a cause of action (complaint does not plead ultimate facts, leaves out an element,
  3. On its face, barred by SOL,
  4. No such cause of action
37
Q

Special Demurrers

A
  1. Lack of legal capacity to sue;
  2. Existence of another pending action between the same parties on the same cause of action;
  3. Defect or misjoinder of parties;
  4. Uncertain pleading (similar to a motion for a more definite statement in federal practice);
  5. Failure to plead whether a contract was written or oral; and
  6. Failure to file certain required certificates (for attorney malpractice cases and enforcement of CC&Rs)
38
Q

Motion to Strike

A

Strike irrelevant, false, or improper matter

Usually incoherent or extraneous allegations

Strike evidentiary or legal conclusions but not ultimate facts.

39
Q

Anti-SLAPP (CA motion to strike)

A

ELEMENTS:

  1. D must initially show challenged conduct arises from exercise of Ds First Amendment rigths
  2. If so, P must then prove probability of prevailing;
  3. if P does not do so, motion to strike complaint is granted
40
Q

Compulsory Joinder Analysis

A
  1. Is joinder proper? (Is the party a necessary party?)
  2. is joinder possible without destroying (diversity) jurisdiction?
  3. if joinder is not possible, is the absent party indispensable?
41
Q

Permissive Joinder

A
  1. Claims relate to same transaction or occurrence; and
  2. common question of law or fact

P can join all claims it has against a D

42
Q

Discovery Scope

A

Fed Courts:
discovery limited to any non-privileged matter that is relevant to a claim or defense

CA courts;
discovery is broader - info relevant to the subject matter involved in the pending action

43
Q

Discovery Methods

A

Document discovery from a non-party must be by supoena duces tecum (writ ordering a person to come to court and bring relevant documents)

  • interrogatories
  • request for production (of documents/inspection)
  • request for admissions
  • depositions
  • physical and mental examinations
44
Q

Work Product

A

FRCP
- discoverable on showing of substantial need/avoid undue hardship; avoid disclosure of an attorney’s mental impressions, opinions and conclusions

CA:
- Absolute privilege for attorney’s impressions, conclusions, opinions or legal research

Qualified Privilege
- work product not discoverable unless denial of discovery will:

  1. unfairly prejudice a party in preparing their claim or defense, or
  2. will result in an injustice
45
Q

Summary Judgment

A

Ends a case, cause of action or an issue.

Movant must show:

  1. There is no genuine issue of material fact; and
  2. as a matter of law, movant prevails
46
Q

Trial Motions (FRCP)

A
  1. Motion for Judgment
  2. Renewed Motions for Judgment
  3. Motion for new trial
47
Q

Motion for Judgment (FRCP)

A

May be made after the close of P’s evidence or at the close of all the evidence (by either party)

May only be granted if no reasonable person could differ as to the outcome - no real conflict in evidence

48
Q

Renewed Motions for Judgment (FRCP)

A

Only permitted if party properly and timely moved for judgment in the first place

Motion may only be granted if no reasonable person could differ as to the outcome

49
Q

Motion for New Trial (FRCP)

A

Judge finds that the verdict is:

  1. Against the great weight of the evidence.
  2. Due to an error in the admission of evidence
  3. Due to juror misconduct; or
  4. inadequate or excessive
50
Q

Trial Motions - CA CCP

A
  1. Nonsuit; Directed Verdict
  2. Motion for JNOV
  3. Motion for New Trial
51
Q

Nonsuit; Directed Verdict (CA CCP)

A

Nonsuit brought after P’s opening statement or after close of P’s evidence

Directed Verdict motion brought after close of all evidence

Nonmoving party has failed to present sufficient evidence to establish a prima facie case

52
Q

Motion for JNOV (CA CCP)

A

Same standard as motion for nonsuit or for directed verdict

Brought after verdict rendered but no requirement for previous motion

53
Q

Motion for New Trial (CA CCP)

A

Similar grounds to FRCP plus:

  1. Unfair accident or surprise;
  2. Judicial misconduct; and
  3. Newly discovered evidence that moving party could not have, by reasonable diligence, presented earlier
54
Q

Order of Trial

A

Federal:
Try legal issues before a jury first, then try equitable issues in a bench trial

CA: (reverse)
Try equitable issues in a bench trial first, then try legal issues before a judge

but judges let juries give advisory opinions

55
Q

Waiver of Jury Trial Right

A

7th Amendment right to a jury trial can be waived

in Fed court, complaint must contain a demand for a jury trial - failure to demand is a waiver.

in CA court - must post a jury fee shortly before trial - failure to do so is a waiver

56
Q

Class Action - Certification of a Class

A
  1. Numerosity (large number of claimants);
  2. Commonality (common questions of law, fact);
  3. Typicality (lead P’s claim is typical of the members of the class);
  4. adequacy of representation (competency of P’s counsel)

PLUS:
1. Risk of inconsistent results; or

  1. Injunctive or declaratory relief are appropriate; or
  2. common questions among the class predominate over other claims
57
Q

Claim Preclusion - Res Judicata (Federal)

A

Bars entire case when:

  1. Earlier judgment is a valid, final judgment on the merits, Final - when rendered in lower court;
  2. Cases are brought by same claimant against same D;
  3. Same cause of action is involved in the later lawsuit; and
  4. The cause of action was litigated or could have been litigated in the prior action
58
Q

Claim Preclusion - Res Judicata (CA)

A

Bars entire case when:

  1. Earlier judgment is a valid, final judgment on the merits, Final in CA when final on appeal
  2. Cases are brought by same claimant against same D;
  3. Same cause of action is involved in the later lawsuit; and
  4. primary right at issue (right to be free from a particular harm)
59
Q

Issue Preclusion (collateral estoppel)

A

First case ended in a valid, final judgment on the merits;

issue is actually litigated and determined in the first case;

issue was essential to the judgment (was it part of the cause of action?) if there are two grounds for a decision, the issue is NOT essential to the judgment

60
Q

Offensive Collateral Estoppel

A

Arises where P seeks to use results against a D who has lost similar cases

  1. First case ended in a valid, final judgment on the merits;
  2. Issue is actually litigated and determined in the first case;
  3. issue was essential to the judgment (was it part of the cause of action?) if there are two grounds for a decision, issue is NOT essential to the judgment
  4. D had fair opportunity to be heard in first case
  5. Posture of case - not unfair to apply offensive collateral estoppel
61
Q

Is Joinder Proper

A

Party is necessary if:

  1. in the person’s absence, complete relief cannot be accorded; or
  2. person claims an interest relating to subject matter/disposition that without the party, may:
    i. impair or impede person’s ability to protect the interest or
    ii. leave any remaining party subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations
62
Q

Is party indispensible?

A

Court must determine whether in equity and good conscience, action should proceed or be dismissed because absent party is indispensable.

Factors:

  1. extent to which a judgment rendered without the party might prejudice the person or other parties;
  2. whether prejudice can be avoided by properly shaping the relief;
  3. whether adequate relief can be granted without the person;
  4. whether P has adequate remedy if action is dismissed
63
Q

Ancillary Jurisdiction

A

Supplemental Jurisdiction in diversity cases where third-party P sues a third-party D, so long as claim arises out of a common nucleus of operative facts and original P does not become a party to the third-party claim in a way that would destroy diversity.

Select Topics Part 1 (5 decks)

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