Federal Civil Procedure and California Civil Procedure

Question 1

General Personal Jurisdiction - Rule

Answer 1

A court may exercise general personal jurisdiction over a person who has continuous and systematic contacts within the forum state. For a corporation, general jurisdiction applies in the state in which the corporation is “at home”.

Question 2

Specific Personal Jurisdiction - Rule

Answer 2

A court may exercise specific personal jurisdiction when the defendant has sufficient minimum contacts within the forum state, such that subjecting the defendant to jurisdiction does not offend traditional notions of fair play and substantial justice. The cause of action must arise out of the defendant’s contacts within the forum state.

Question 3

Sufficient Minimum Contacts

Answer 3

A defendant will be seen to have sufficient minimum contacts within the forum state when they have purposely availed themselves of the benefits and privileges of the forum state, or directed their activities within the forum state. Unilateral conduct on the part of a third party would not be enough to establish sufficient minimum contacts.

Question 4

Transient Jurisdiction

Answer 4

When a defendant is served with process while voluntarily and physically present within the forum state. A defendant can then be sued for anything, being a subset of general personal jurisdiction.

Question 5

Fairness Requirement - Burger King Factors

Answer 5

1. Trial in the forum is not gravely difficult and inconvenient;
2. The forum state has an interest in providing redress;
3. Plaintiff’s interest in convenient relief;
4. Interstate judicial system’s interest in obtaining the most efficient resolution; and
5. Shared interest of states in furthering fundamental substantive social policies.

Question 6

Summons and Service - Federal Rule

Answer 6

A summons must be served with a copy of the complaint by any person who is at least 18 years old and not a party to the suit. A party may be properly served by:

1. following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made; or
2. delivering a copy of the summons and of the complaint to the individual personally;
3. leaving a copy of the summons and of the complaint at the individual’s dwelling with someone of suitable age and discretion who resides there; or
4. delivering a copy to an authorized agent of the individual

Question 7

Summons and Service - CA Rule

Answer 7

California authorizes service as follows:

1. personal service;
2. substituted service (leaving copy at authorized locations with specific individuals, plus mailing a copy);
3. service by mail (if the defendant returns a Notice and Acknowledgment of Service); and
4. service by publication (4 weeks in a newspaper of general circulation).

If service is on an out of state defendant, service may also be accomplished by certified mail, return receipt requested. Service in a foreign country may be by any method calculated to give notice, or pursuant to international law or the law of the country in which service is effected.

Question 8

Subject Matter Jurisdiction - Rule

Answer 8

A Federal Court may exercise subject matter jurisdiction for causes of action that:

1. concern a federal question; or
2. when there is complete diversity between and among all the parties, and the amount in controversy exceeds $75,000, exclusive of interests and costs.

Question 9

Personal Jurisdiction - Consent

Answer 9

Plaintiff has consented by invoking the courts authority.

Defendant has consented if an objection to personal jurisdiction is not brought up in the first responsive pleading.

Question 10

Supplemental Jurisdiction - Rule

Answer 10

A federal court may exercise supplemental jurisdiction over state based claims that arise out of the same case or controversy. The federal court may decline to hear the supplemental claims if:

1. The claim raises a novel or complex issue of state law
2. The claim substantially predominates all claims over
   which the court has original jurisdiction
3. The district court has dismissed all claims over which it
   has original jurisdiction
4. In exceptional circumstances, there are other compelling reasons for declining jurisdiction.

Question 11

Venue - Federal Rule

Answer 11

1. Venue is proper in a district in which any defendant resides, if all defendants reside in the same state.
2. If defendants are citizens of different states, then venue is proper in the district in which the acts or omissions giving rise to the cause of action occurred.
3. If there is no available district where the acts or omissions occurred (international waters), then venue is proper in any district where any defendant is subject to personal jurisdiction. (Only use this as a last option - prongs one and two are equally preferable)

Question 12

Venue - CA Rule

Answer 12

Property: Venue is appropriate in the county in which the property is located.

Contracts: Venue in appropriate in the county in which the obligation is to be performed or the contract was entered into.

Personal Injury: Venue is proper in the county in which the injury occurred.

All other actions are transitory, and venue is proper in any county in which any defendant resides at the commencement of the action.

In mixed actions, venue is proper where any defendant resides.

Question 13

Forum Non Conveniens - Generally

Answer 13

Common-law doctrine that an appropriate forum may divest itself of jurisdiction for the convenience of the litigants and the witnesses.

Dismissal under forum non conveniens requires the existence of an appropriate alternative forum in which the case may be heard.

Question 14

Long Arm Statute - Generally

Answer 14

A statute providing for jurisdiction over a nonresident defendant who has had contacts with the territory where the statute is in effect. Most state long-arm statutes extend this jurisdiction to its constitutional limits.

Question 15

Erie Doctrine - Rule/Flowchart

Answer 15

1. If there a Federal rule on point, do the state and federal rules/laws on the issue conflict? If not, use the Federal rule.
2. If the rule is either in the FRCP or a Federal statute, was it properly enacted under the Rules Enabling Act? If so, the federal rule or statute applies.
3. If the rule is not in the FRCP or a Federal statute enacted under the Rules Enabling Act, and the federal law and state law conflict, is the use of one or the other outcome determinative? If yes, the rule is substantive and, in most cases, you use the state rule or law. (York)
4. However, on balance, will use of the Federal rule so likely affect the outcome that it would violate significant federalism or state sovereignty concerns? If so, use the state law. (Byrd)
5. Finally, would failing to follow state law encourage forum shopping in federal court? (Hanna) Ultimately, even if the difference is outcome-determinative, if the choice is not so significant it would influence a litigant’s choice of forum, the rule is procedural, and the federal rule is applied.
6. In any case, elements of a claim or defense, statutes of limitations, and choice of law rules are substantive—use State law.

Question 16

Removal - Generally

Answer 16

If the plaintiff originally files in state court, but there is a basis for federal subject matter jurisdiction (federal question or diversity), the defendant may petition to remove the case from state court to federal court.

If there is a basis for federal subject matter jurisdiction, and the defendant has timely petitioned for removal, then the federal court must take jurisdiction (it is not discretionary).

In the case of multiple defendants, all defendants must
agree to remove the case.

Question 17

Remand - Generally

Answer 17

If the federal court mistakenly takes subject matter jurisdiction, and there is no valid basis for federal subject matter jurisdiction, then the federal court must remand the case back to state court.

Question 18

Abstention - Generally

Answer 18

Abstention is a doctrine by which the Federal Court will retain jurisdiction over a constitutional challenge to a state law but will refrain from deciding the question until the state courts have interpreted the state law.

Question 19

Pleading Requirements - Fed Rule

Answer 19

A pleading that states a claim for relief must contain:

1. a short and plain statement of the grounds for the court’s jurisdiction;
2. a short and plain statement of the claim showing that the pleader is entitled to relief; and
3. a demand for the relief sought.

Question 20

Pleading Requirements - CA Rule

Answer 20

A complaint or cross-complaint contain a “statement of the facts constituting the cause of action, in ordinary and concise language.”

Complaints and affirmative defenses must contain “ultimate facts,”—the facts that raise the issues upon which the right to recover depends—not the evidentiary facts, and not the legal conclusions.

Question 21

CA Doe Amendments - Generally

Answer 21

California permits a Complaint to name “fictitious defendants,” called Does, if the plaintiff is genuinely ignorant of the identity of the defendant(s) at the time they file the Complaint. The Doe amendment is permitted if:

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

Once the plaintiff learns the true identity of the Doe defendant, they must amend the Complaint to name the Doe defendant and must serve them with a Summons and Complaint. The timing of the filing of the Doe amendments will relate back to the timing of the filing of the original Complaint, eliminating any Statute of Limitations issues.

Question 22

Relation Back Doctrine

Answer 22

A plaintiff can usually amend their complaint after the statute of limitations period otherwise would have run on the claim as long as the claim asserted in the amended pleading arose out of the same conduct, transaction, or occurrence set forth in the original pleadings.

Question 23

General Demurrer

Answer 23

A general demurrer is equivalent to a federal 12(b)(6) motion—that the complaint fails to state facts sufficient to state a cause of action, either because:

1. the complaint doesn’t plead ultimate facts,
2. leaves out an element,
3. on its face is barred by the Statute of Limitations,
4. there is no such cause of action, or
5. the court lacks subject matter jurisdiction

Question 24

Special Demurrer

Answer 24

A special demurrer is available where:

1. plaintiff lacks capacity to sue;
2. there is another action pending between the same parties on the same cause of action;
3. on the face of the complaint, it appears a party should have been joined or was misjoined;
4. the pleading is uncertain—which really means unintelligible; and
5. the complaint fails to allege whether the contract is oral or written.

Question 25

Motions to Strike

Answer 25

Generally, both the FRCP and the California Code permit motions to strike irrelevant, false or improper matter.

Usually, this involves incoherent or totally extraneous allegations or claims that have nothing to do with a legitimate claim, or evidentiary but not ultimate facts.

If a motion to strike is granted, the prevailing party can sue the original plaintiff for malicious prosecution.

Question 26

Anti-SLAPP - California, Generally

Answer 26

A special procedure that applies in defamation cases if those cases arise from speech or other activity protected by the First Amendment.

SLAPP stands for “Strategic Lawsuit Against Public Participation.” The anti-SLAPP statute requires the court to engage in a two-step process when deciding the special motion to strike:

1. the court must determine whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity within the meaning of the anti-SLAPP statute; and
2. if the court finds that the defendant has made such a showing, it must then determine whether the plaintiff has demonstrated a probability of prevailing on the claim. If not, the motion to strike will be granted.

Question 27

Anti-SLAPP - California, Exceptions

Answer 27

Certain suits are excluded from an anti-SLAPP motion:

1. any action brought solely in the public interest or on behalf of the general public if the action would enforce an important right affecting the public interest, and would confer a significant benefit, whether pecuniary or nonpecuniary, on the general public or a large class of persons; or
2. the statement or conduct consists of representations of fact about that person’s or a business competitor’s business operations, goods, or services, made to customers, to engage in business.

Question 28

Permissive Joinder of Parties

Answer 28

Parties may join as plaintiffs or be joined as defendants whenever:

1. Some claim is made by each plaintiff and against each defendant relating to or arising out of the same series of occurrences or transactions; and
2. There is a question of fact or law common to all the parties.

Question 29

Compulsory Joinder

Answer 29

Analysis of a compulsory joinder issue follows a three step process:

1. Should the absentee be joined?
2. Can the absentee be joined?
3. If not, can the action proceed in his absence?

Question 30

Compulsory Joinder - Should the Absentee be Joined?

Answer 30

The absentee should be joined as a party when:

1. Complete relief cannot be accorded among the other parties to the lawsuit without the absentee being made a party; or
2. the absentee has such an interest in the subject matter of the lawsuit that a decision in his absence will impair or impede his ability to protect the interest; or leave any of the other parties subject to a substantial risk of incurring multiple or inconsistent obligations.

Question 31

Compulsory Joinder - Can the Absentee be Joined?

Answer 31

Can the court obtain personal jurisdiction over the absentee and will the court still have subject matter jurisdiction over the action after joinder of the absentee?

Question 32

Compulsory Joinder - If Not, Can the Action Proceed in His Absence?

Answer 32

If the absentee cannot be joined, the court must determine whether in equity and good conscience the action should proceed or should be dismissed. This decision requires consideration of:

1. The extent of prejudice to the absentee or available parties of a judgment;
2. The extent to which the prejudice can be reduced or avoided by means of protective processions in the judgment, the shaping of relief, or other measures;
3. The adequacy of a judgment rendered without the absentee; and
4. Whether the plaintiff will have an adequate remedy if the case is dismissed for non-joinder.

Question 33

Discovery - Federal, Generally

Answer 33

Discovery is limited to any non-privileged matter that is relevant to a party’s claim or defense.

Federal work product is discoverable only upon a showing of substantial need and to avoid undue hardship. The court must take steps to avoid the disclosure of an attorney’s mental impressions, opinions and conclusions.

Question 34

Discovery - California, Generally

Answer 34

In California courts, discovery is broader: information that is relevant to the subject matter involved in the pending action.

In California, there is an absolute privilege as to writings reflecting an attorney’s impressions, conclusions, opinions or legal research. Qualified work product is not discoverable unless a denial of discovery will unfairly prejudice a party in preparing their claim or defense, or will result in an injustice.

Question 35

Motion for Summary Judgment - Federal

Answer 35

The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.

An issue of material fact is one “that might affect the outcome of the suit under the governing law.”

Question 36

Motion for Summary Judgment - California

Answer 36

Once the moving party demonstrates that there is no issue of material fact and as a matter of law, movant should prevail, the burden shifts to the opposing party to produce evidence demonstrating an issue of at least one material fact.

Unlike in Federal courts, which allow MSJ’s after 20 days from commencement of an action, California does not permit such motions until 60 days after the defending party has filed an appearance in the case.

Question 37

Judgment as a Matter of Law/Directed Verdict

Answer 37

A party’s motion for judgment as matter of law will be granted if the facts and inferences point so strongly in favor of the party that a rational jury could not arrive at a contrary verdict.

Question 38

Judgment Notwithstanding the Verdict

Answer 38

After the jury has returned the verdict, a motion for JNOV may be granted if the judge determines that no reasonable juror could have found for the non-moving party

Party may only move for JNOV if it also made a directed verdict motion

Question 39

Right to a Jury Trial

Answer 39

The 7th Amendment right to a jury trial can be waived.

In Federal Court, the Complaint must contain a demand for jury trial, so the failure to include the demand is a waiver in federal court.

In California, you must post jury fees shortly before trial. The failure to do so is a waiver.

Question 40

Class Action - Rule

Answer 40

One or more members of a class may sue or be sued as representative parties on behalf of all members only if:

1. Numerosity - the class is so numerous that joinder of all members is impracticable.
2. Commonality - there are questions of law or fact common to the class.
3. Typicality - the claims or defenses of the representative parties are typical of the claims or defenses of the class.
4. Adequacy - The representative parties will fairly and adequately protect the interests of the class.

Question 41

Types of Class Actions - Rule

Answer 41

1. Rule 23(b)(1) - Prejudice from Separate Actions
If the prosecution of separate actions would prejudice the defendant through inconsistent adjudications, or substantially impair the interests of other class members.

2. Rule 23(b)(2) - Equitable Relief
If declaratory or injunctive relief would benefit the class as a whole.

3. Rule 23(b)(3) - Common Predominant Question
When common questions of law or fact predominate over questions affecting individual members, and, on balance, a class action is superior to other available methods for adjudication. Used for mass tort actions

Question 42

Claim Preclusion (res judicata) - Rule

Answer 42

Once a final judgment on the merits has been rendered on a particular cause of action, the claimant is barred by res judicata from asserting the same cause of action in a later lawsuit

Question 43

Claim Preclusion - Elements

Answer 43

1. Valid Final Judgment
2. On the Merits
3. Same Claimant v. Same Defendant - Same configuration of parties, not simply that the claimant and the defendant were also parties in a previous case.
4. Cause of Action - If the cause of action arises out of the same transaction or occurrence or series of transactions, the claim must be brought in the initial suit or the doctrine of former adjudication may apply precluding one from bringing a subsequent suit.

Question 44

Claim Preclusion - CA

Answer 44

California follows the “Primary Right Doctrine,” which states that a primary right is the right to be free from a particular harm. Thus, a cause of action that involves different rights (such as an accident that involves both personal injury and property damage), would be a problem in resolving a res judicata issue. A California court would not hold that a property damage claim “could have been litigated” in a suit for personal injury.

Question 45

Collateral Estoppel (Issue Preclusion) - Rule

Answer 45

A final judgment binds the plaintiff or defendant in subsequent causes of action between them as to issues actually litigated and essential to the judgment in the first action.

The issue is deemed established in the second case

Question 46

Collateral Estoppel - Elements

Answer 46

1. Final Judgment
2. Issue Actually Litigated and Determined - A default or consent judgment generally does not create collateral estoppel as to those issues.
3. Essential to the Judgment - The judgment must depend on the issue of the fact decided.

Question 47

Offensive Collateral Estoppel - Elements

Answer 47

1. The party against whom the judgment is to be used had a fair opportunity to be heard;
2. The posture of the case is such that it would not be unfair to apply collateral estoppel;
3. (CA ONLY): The party against whom the judgment is to be used was a party or in privity with a party in the prior case.