Flash Card - Civil Procedure

Question 1

When does the California Superior Court have
general subject matter jurisdiction?

Answer 1

Over ALL civil matters, as long as another court does not have exclusive jurisdiction.

Question 2

When does a Federal Court have subject matter
jurisdiction?

Answer 2

If:
a) Federal Question jurisdiction exists;
b) Diversity of Citizenship among the parties; OR
c) Supplemental jurisdiction is present.

*Subject matter jurisdiction is NOT waived if a party fails to raise it at trial.

Question 3

When does Federal Question Jurisdiction exist?

Answer 3

When a complaint alleges a claim that arises under:
a) Federal law;
b) The U.S. Constitution; OR
c) United States treaties.

*The plaintiff MUST be enforcing a federal right and the federal question of law must be present on the face of the Complaint.

Question 4

When does Diversity of Citizenship Jurisdiction
exist?

Answer 4

When:
1) There is complete diversity of citizenship between all plaintiffs and defendants; AND
2) The amount in controversy exceeds $75,000.

*Diversity is determined at the time the action is commenced.

Question 5

What is the amount in controversy based on?

Answer 5

It is based on the damages alleged in good faith in the Complaint, unless it is legally certain that the plaintiff cannot recover the specified amount.

*A claim for injunctive relief is valued by either the benefit to the plaintiff OR the cost of compliance for the defendant.

Question 6

When may a federal court exercise Supplemental Jurisdiction over additional state court claims?

Answer 6

When they arise from the same “case or controversy.” Generally, such claims must arise from a common nucleus of operative fact.

Question 7

How is Supplemental Jurisdiction limited?

Answer 7

1) It CANNOT be used to overcome a lack of diversity.
2) For cases based solely on diversity, it CANNOT be used to hear claims by or against new parties if it destroys diversity.
3) The court may decline to exercise it when:
a. The claim raises a novel/complex issue of law;
b. The claim substantially predominates over the claim(s) of which the District Court had original jurisdiction;
c. The Federal District Court has dismissed all claims it had original jurisdiction over; OR
d. In exceptional circumstances.

Question 8

When must a federal court remand a case to a state court?

Answer 8

If there is no federal subject matter jurisdiction. They can also remand a case to a state court after the federal claims have been decided.

*A motion must be made within 30 days after the filing of the notice of removal.

Question 9

Under the Domestic Relations Exception, when
MUST federal courts decline jurisdiction?

Answer 9

When the case primarily involves domestic relations.
A court should NOT decline jurisdiction when domestic relations issues are ancillary to the case.

Question 10

When may a defendant remove a case to federal
court?

Answer 10

When:
1) The federal court has subject matter jurisdiction;
2) All defendants agree;
3) No defendant is a resident of the forum state (for diversity cases only); AND
4) Removal is sought within 30 days (of either service of the Summons or receiving the initial pleading).

*A plaintiff CANNOT remove a case to federal court.

Question 11

What are the four Abstention Doctrines?

Answer 11

1) Pullman Doctrine (cases arise from unsettled area of state law)
2) Younger Doctrine (cases that would interfere with state judicial proceedings).
3) Colorado River Doctrine (when there are parallel state and federal litigations pending).
4) Burford Doctrine (only appropriate if federal
adjudication would interfere with a state’s administration of a complex regulatory scheme).

Question 12

What are the traditional bases of Personal
Jurisdiction?

Answer 12

a) Domicile;
b) Transient jurisdiction (presence in the state when served);
c) Consent;
d) Waiver.

*The above grounds comport with the Constitutional requirements of due process.

Question 13

How is Personal Jurisdiction exerted over a nonresident defendant of the forum state?

Answer 13

1) The forum state must have a long arm statute; AND
2) The Constitutional requirements of due process must be met.

*Long-arm analysis requires: (1) the defendant have sufficient minimum contacts with the forum state; (2) so as not to offend traditional notions of fair play and substantial justice. BOTH prongs must be satisfied.

Question 14

What is the Constitutional Long-Arm Analysis?

Answer 14

Long-arm analysis requires:

1) D has sufficient Minimum Contacts with the forum state –either:
a. General Jurisdiction – contacts so substantial that D is essentially at home in the state; OR
b. Specific Jurisdiction – a connection between the forum state and underlying controversy.

2) Not offend traditional notions of Fair Play and Substantial Justice – it must be fair and reasonable for D to be sued in the forum state.

BOTH prongs must be satisfied

Question 15

In Federal Court, if the Summons and Complaint is NOT served upon the defendant within 90 days of filing, what must a court do?

Answer 15

Either:
a) Dismiss the action without prejudice against the defendant; OR
b) Order that service be made within a specified
time.

*Service may be made by any person who is at least 18 years old and not a party to the action.

Question 16

What are the Due Process Clause requirements for service of process?

Answer 16

It requires that notice:
1) Be reasonably calculated to make the parties aware of the action; AND
2) Give them an opportunity to object.

Question 17

Venue in Federal Court
When is venue proper?

Answer 17

In any district where:
a) Any defendant resides (if all defendants are residents of the forum state);
b) Where a substantial portion of the claim occurred;
c) Where a substantial part of property is located (if property is the subject of the action); OR
d) If none of the above apply, then venue is proper in any district in which any defendant is subject to the court’s personal jurisdiction.

*Proper venue is determined at the time the suit is filed.

Question 18

Venue in Federal Court

If venue was proper when the case was filed, then when MAY the court transfer the case?

Answer 18

If:
1) Needed for the convenience of the parties and witnesses or interests of justice; AND
2) The action could have initially been brought in the receiving court.

*Following a transfer, the new court MUST apply the same substantive law as the original transferor court.

Question 19

Venue in Federal Court

What MUST the court do if venue was improper
when the case was filed?

Answer 19

The court MUST either:
a) Dismiss the case; OR
b) Transfer the case to a proper court if the interests of justice require it.

*Following a transfer, the law applied is that of the new transferee court.

Question 20

California State Courts – Proper Venue

Local Action
vs.
Transitory Action

Answer 20

Local: An action involving real property. Venue is proper in the county where the real property is located.

Transitory: Venue is proper in any county where any defendant resides.

*If no defendant resides in CA, then venue is proper in any county where the court has jurisdiction.

Contracts: Proper in county that contract was executed or performed.

Torts: Proper where act or omission giving rise to tort occurred.

Question 21

California State Courts – Proper Venue
When may venue be changed to another forum?

Answer 21

If:
a) Venue was improper;
b) There is reason to believe there will not be an
impartial trial;
c) For the convenience of witnesses and in the interests of justice; OR
d) No judge is qualified to act.

Question 22

Residence of a Party for Venue Purposes

Corporation
vs.
Individual
vs.
Non-Resident

Answer 22

Corporation: Residence includes ALL districts where it is subject to personal jurisdiction.

Individual: Determined by their domicile (residence and intent to make the place their permanent home).

Non-resident: May be sued in ANY judicial district.

Question 23

What are the California statutory provisions for
service upon a defendant?

Answer 23

Made be made by any person who:
1) Is at least 18 years old; AND
2) Not a party to the action.

*Under CA Court Rules, the Summons & Complaint must be served upon the defendant within 60 days after filing the Complaint with the
court.

Note: The California Code of Civil Procedure states that service must be within 3 years after filing the Complaint.

Question 24

Under the California Code of Civil Procedure, how may service upon a defendant be accomplished?

Answer 24

By:
a) Personal delivery;
b) Substituted service;
c) Acknowledgment and receipt;
d) By Mail (only for an out of state defendant); OR
e) Publication.

*Service to a Defendant in a foreign country may be done by any method above or as directed by the court (so long as it’s not prohibited by an international agreement).

Question 25

What law is applied under the Erie Doctrine in
federal court?

Answer 25

The court will apply its own federal procedural laws, but MUST apply state substantive law.
(A federal court sitting in diversity MUST apply the forum state’s choice of law rules to determine the applicable state substantive law in the action)

Question 26

When may a Preliminary Injunction be issued?

Answer 26

1) Upon notice to the adverse party; AND
2) If the moving party gives security in an amount the court deems proper.

*The Federal Rules of Civil Procedure allow the court to issue both a restraining injunction or a mandatory injunction.

Question 27

What must the moving party show for a Preliminary Injunction to be issued?

Answer 27

1) Likelihood of success on the merits;
2) Likely threat of irreparable harm to the movant;
3) That the harm alleged by the movant outweighs any harm to the non-moving party; AND
4) The injunction is in the public interest.

Question 28

What is a Temporary Restraining Order (TRO), and when is it available?

Answer 28

An emergency remedy used to maintain the status quo pending the outcome of a hearing or application.
It is ONLY available when the moving party will suffer immediate and irreparable harm.

Question 29

For an ex parte TRO, what must a party (or his
attorney) show?

Answer 29

1) Provide specific facts in sworn statement that clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition; AND
2) Certify in writing any efforts made to give notice to the adverse party or why notice should not be required.

*An ex parte TRO expires after 14 days, unless an extension is granted for good cause or if the opposing party consents.

Question 30

When does an amendment to a Pleading relate back to the original pleading?

Answer 30

When:
a) The amendment asserts a claim or defense that arose out of the same conduct, transaction, or occurrence as the original pleading allegations; OR
b) The law that provides the applicable statute of limitations allows the relation back.

Question 31

When does an amendment to change a party name relate back to the original pleading?

Answer 31

a) The amendment concerns the same conduct transaction or occurrence as the original pleading allegations;
b) The new party received notice of the original action within 90 days of filing (so that it will not be prejudiced in defending on the merits); AND
c) The new party knew or should have known that the action would have been brought against it, but for a mistake concerning the proper party’s identity.

Question 32

What is a Compulsory Counterclaim?

Answer 32

A claim that:
1) Arises out of the same transaction or occurrence as the opposing party’s claim; AND
2) Doesn’t require adding another party whom the court cannot acquire jurisdiction.

*It MUST be stated in the party’s pleading; otherwise, it’s barred in future litigation.

Question 33

Under the Same Transaction Occurrence test, what 4 factors do federal courts look at?

Answer 33

1) Whether the issues of fact and law raised by the claims are largely the same;
2) Whether res judicata would bar a subsequent suit on the counterclaim/cross-claim;
3) Whether substantially the same evidence supports or refutes plaintiff’s claim and defendant’s counterclaim/cross-claim; AND
4) Whether there is any logical relation between the claims.

*These factors apply to both counterclaims AND cross-claims.

Question 34

When presenting papers to a Federal Court, what must a party certify under Rule 11?

Answer 34

That:
1) It is not being presented for any improper purpose;
2) The claims, defenses, and other legal contentions were warranted and non-frivolous;
3) The factual contentions have evidentiary support or will likely have it after further discovery; AND
4) The denials of factual contentions are warranted.

*Sanctions may be issued for failure to comply.

Question 35

What is the two-part test (under Twombly and Iqbal) that a Federal Court will apply to determine whether a Complaint is sufficiently well pleaded?

Answer 35

Part 1: The court will disregard any conclusory allegations.
Part 2: Taking all remaining factual allegations as true, they will determine whether the facts as alleged would make it plausible for the party to succeed in obtaining the relief sought.

Question 36

What must be pled for a well-pleaded Complaint
alleging fraud or mistake?

Answer 36

The circumstances constituting fraud or mistake must be alleged with particularity (specific facts must be alleged).

Malice, intent, knowledge, and other conditions of a person’s mind can be alleged generally.

Question 37

Under the Federal Rules of Civil Procedure, when
may multiple plaintiffs join in one action (Permissive Joinder)?

Answer 37

If:
1) Joint and several relief is asserted by them OR the claim arises out of the same transaction or occurrence;
2) A common question of law or fact to all plaintiffs exist;
AND
3) Subject matter jurisdiction exists for each claim.

*The process is similar for multiple defendants.

Question 38

How many claims may a party bring against an
opposing party?

Answer 38

As many claims as it has, EVEN if they are unrelated or do not have a common nucleus of operative fact.
If the claims are brought in Federal Court: ALL of the claims must satisfy Subject Matter Jurisdiction.

Question 39

A party MUST be joined in an action if that party is necessary AND joinder is feasible.
When is a party necessary?

Answer 39

A party is necessary if:
a) The court cannot grant complete relief without the absent party;
b) The absent party has an interest in the action that would be impaired or impeded if that person is not joined; OR
c) The party’s absence would leave an existing party subject to a substantial risk of multiple liability or inconsistent obligations.

Question 40

A party MUST be joined in an action if that party is necessary AND joinder is feasible.
When is joinder feasible?

Answer 40

When:
1) Joinder will not remove subject matter
jurisdiction; AND
2) The court has personal jurisdiction over the
necessary party.

*If joinder isn’t feasible, the court will consider whether to continue or dismiss the action.

Question 41

In California courts, in a personal injury case, when can a defendant demand a physical examination of the plaintiff as a matter of right?

Answer 41

If:
1) The examination doesn’t include any diagnostic test or procedure that is painful, protracted, or intrusive; AND
2) The exam is conducted at a location within 75 miles of the examinee’s residence.

*For non-personal injury cases, a party must make a motion to compel to perform an exam. (Must be made in good faith and show the party’s health is in controversy).

Question 42

In Federal Court, the court MUST permit
Intervention as of Right if the non-party can demonstrate what?

Answer 42

That:
1) The application to intervene is timely;
2) It has an interest in the subject matter of the action;
3) The protection of this interest would be impaired because of the action; AND
4) The non-party’s interest is not adequately represented by existing parties to the litigation.

Question 43

When MAY a court allow Permissive Intervention?

Answer 43

1) Files a timely motion; AND
2) Either:
a. Has a claim or defense that shares a common question of law or fact with the main action; OR
b. Is given a conditional right to intervene by a federal statute.

*Courts will consider if the intervention will unduly delay or prejudice the adjudication of the original party’s rights.

Question 44

Class Actions
When can one or more members sue on behalf of an entire class?

Answer 44

1) The class is so numerous that joinder of all members is impracticable (numerosity);
2) There are questions of law or fact in common to the class (commonality);
3) The claims or defenses of the representative parties are typical of the claims/defenses of the class (typicality);
AND
4) The representative parties will fairly and adequately protect the interests of the class (adequacy of representation).

Question 45

Class Actions
Once the class action requirements are met, the
class will be certified when?

Answer 45

If:
a) Separate actions would create a risk of inconsistent adjudications or harm the interest of other members;
b) The party opposing the class has acted/refused to act on grounds that apply to the class and the grounds of relief would be appropriate to the class as a whole; OR
c) Common questions of law/fact to the class predominate over questions affecting individual members and a class action is superior to other methods of adjudication.

Question 46

A party is permitted to conduct a deposition of any person/party so long as it’s what?

Answer 46

1) Limited to one day of no more than 7 hours; AND
2) Proper notice is given (must give reasonable written notice to every party to the action).

*A subpoena is NOT required to depose an opposing party.

Question 47

During discovery in Federal court, what type of
non-privileged information may a party obtain?

Answer 47

Information that is:
1) Relevant to any party’s claim or defense; AND
2) Proportional to the needs of the case.

*In California courts, a party may obtain any information that is relevant to the subject matter involved in the pending action.

Question 48

How may a non-party respond when served with a Subpoena Duces Tecum?

Answer 48

They may respond with a motion to quash or a written objection refusing to produce the documents requested.
If such motion is filed, the burden shifts to the subpoenaing party to establish the need for discovery.

Question 49

Discovery in Federal Courts

Under Rule 37(e), when may a party be sanctioned for failing to preserve ESI?

Answer 49

When:
1) The ESI should have been preserved in anticipation of litigation;
2) The party failed to take reasonable steps to preserve it;
AND
3) It cannot be restored or replaced through additional discovery.

Question 50

Discovery in Federal Courts

Under Rule 26(g), when signing any discovery
document (besides disclosure) what must a party
certify?

Answer 50

That it is:
1) Consistent with the Federal Rules of Civil Procedure and is non-frivolous;
2) Not being presented for any improper purpose; AND
3) Not unreasonable, unduly burdensome, or expensive considering the case, issues at stake, and prior discovery.

Question 51

Discovery in Federal Courts

What must be disclosed in the Rule 26(a) Initial
Disclosure?

Answer 51

1) contact information of individuals likely to have discoverable information and what the info may be;
2) A copy or description of all documents, ESI, and items a party may use to support its claims or defenses;
3) Computation of each category of damages claimed by the disclosing party; AND
4) Any insurance agreements that may be liable to satisfy a possible judgment in the action.

*The disclosures MUST be made within 14 days of the rule 26(f) conference.

Question 52

What does the Attorney Work Product doctrine
protect?

Answer 52

All materials prepared by an attorney or his agents in anticipation of or during a litigation. They are protected from disclosure unless:
1) A substantial need for the materials exist; AND
2) A substantial equivalent cannot be obtained without undue hardship.

Question 53

Federal Court Conferences

When may a court issue sanctions with respect to Pretrial Conferences?

Answer 53

If a party or attorney:
a) Fails to appear;
b) Is substantially unprepared to participate;
c) Does not participate in good faith; OR
d) Fails to obey a scheduling or other pretrial order.

Question 54

Motion to Dismiss – Federal Courts

Under Rule 12(b), what is the standard on a Motion to Dismiss?

Answer 54

The court must:
1) Consider the facts in the light most favorable to the nonmoving party; AND
2) Determine whether there is any basis upon which relief can be granted for the non-moving party.

*The court DOES NOT evaluate the merits of the case.

Question 55

Motion to Dismiss – Federal Courts
What are the Motion to Dismiss grounds?

Answer 55

1) Lack of subject matter jurisdiction;
2) Lack of personal jurisdiction;
3) Improper venue;
4) Insufficient process;
5) Insufficient service of process;
6) Failure to state a claim upon which relief can be granted;
7) Failure to join a necessary party.

*Grounds 2-5 are deemed waived if not raised in the first responsive
pleading or Motion to Dismiss.

Question 56

When will a court grant a Motion for Summary
Judgment?

Answer 56

When:
1) There is no genuine issue of material fact; AND
2) The movant is entitled to judgment as a matter of law.

When reviewing the motion, the court MUST view the evidence in the light most favorable to the non-moving party.

In California: a party must include a Statement of Undisputed Facts in the motion.

Question 57

When will a motion for Judgment as a Matter of
Law (JMOL) be granted?

*In CA, it’s called a Motion for Judgment of Nonsuit.

Answer 57

It will be granted if:
1) The non-moving party has been fully heard on an issue during a jury trial; AND
2) The court finds that a reasonable jury would not have a legally sufficient basis to rule in favor of the non-moving party on the issue.

*The court MUST draw all reasonable inferences in the light most favorable to the opposing party.

Question 58

In Federal Court, what are the reasons a court may grant a Motion for a New Trial?

Answer 58

a) An error at trial makes the judgment unfair;
b) New evidence surfaced that could not have been obtained (with due diligence) at the original trial;
c) Prejudicial misconduct of a party/attorney/juror/thirdparty;
d) The judgment was against the weight of evidence; OR
e) The verdict was excessive or inadequate.

Question 59

In Federal Court, when will a Default Judgment
have a preclusive effect?

Answer 59

When the rendering court has jurisdiction over:
1) the claims; AND
2) the parties to the action.

*Court needs both subject matter and personal jurisdiction.

Question 60

Claim Preclusion

What are the elements of Claim Preclusion (a.k.a.
res judicata)?

Answer 60

1) The parties are identical or in privity;
2) The judgment in the prior action was rendered by a court of competent jurisdiction;
3) The prior action was concluded by a final judgment on the merits; AND
4) The same claim was involved in both actions.
In California: claim preclusion may ONLY be used when all appeals are exhausted for the case.

Question 61

Issue Preclusion

When may Issue Preclusion (collateral estoppel) be invoked?

Answer 61

When:
1) A valid and final judgment was rendered in the first action;
2) The issue is identical to the issue decided in the prior action;
3) The issue was actually litigated, determined, and essential in the prior action; AND
4) The party against whom enforcement is sought had a full and fair opportunity to litigate the issue in the first action.

Question 62

Right to Jury Trial
How will a case be tried if it involves BOTH legal
and equitable claims?

Answer 62

The legal claims will be tried first to the jury, and then the equitable claims will be tried before the judge.

A demand for jury trial MUST be made within 14 days of service of the last pleading concerning the claims.

Question 63

Appeals – Final Judgment Rule
What is a Final Judgment?

Answer 63

One which ends litigation on the merits (all claims are resolved) and leaves nothing for the rendering court to do but execute the judgment. (For the exceptions to this rule, appeals must be filed within 30 days after entry of the judgment
appealed from.)

In California courts: Appeals must be filed within 60 days after the court clerk/party serves a notice of Entry of Judgment OR within 180 days after entry of judgment.

Question 64

Appeals
What is an Interlocutory Appeal?

Answer 64

An appeal of a ruling by a trial court that is made
before all claims are resolved in the action.
An appellate court may consider it on matters where the parties/court would be severely prejudiced or would lose their rights if they waited to act.

Question 65

Appeals – Federal Court

What are the exceptions to the Final Judgment Rule in Federal court?

Answer 65

1) Rule 54(b) Exception.
2) Statutory Exceptions.
3) Certified Appeal Exception.
4) Collateral Order Doctrine.
5) Writs of Mandamus and Prohibition.
6) Pendent Appellate jurisdiction.
7) Certification of Class Action.

Question 66

Appeals – Federal Court

Under the Rule 54(b) Exception, when is an appeal allowed?

Answer 66

When:
1) The action has multiple parties or multiple claims;
2) The court directs entry of a final judgment for some of the claims or parties; AND
3) The court expressly determines that there is no just reason for delay.

*If the above elements are NOT met, then the appeal must wait until after a final judgment for the entire case.