FRCP + CACP Flashcards
Forum Non Conveniens (FRCP)
Fed: Ct dismiss or stay the case because case should heard in different Judicial system (foreign country)
CA Inconvenient Forum: Ct dismiss or stay the case because case should be heard in different Judicial system (other state)
- On motion party or Ct stays/dismiss case if Ct finds the current venue is NOT convenient for parties, W, AND in the interest of justice
Necessary Party (Compulsory Joinder)
Absentee (A) is necessary if:
1) W/o A Ct cannot accord complete relief among existing parties (Joint tortfeasor is NEVER necessary)
OR
2) A’s interest may be harmed if not joined
OR
3) A claims an interest that subjects a party in the claim to risk of multiple obligations
- MUST meat Pjx and Div (if claim is DivSMJ)
- If A is necessary and Jx then Ct ORDERS A to join
- If A cannot be joined: Ct proceeds w/o A or dismisses ENTIRE case
- If Ct dismisses after A is necessary but cant be joined: A becomes Indispensable (Defense: 12(b)(7))
- Joint tortfeasors are NEVER Necessary
- MUST meet Pjx (TPD not a party yet), SMJ (FQ or Div) if not SuppJx
Domicile (diversity smj)
Citz of a State (human): MUST be domiciled in a State
Establish domicile:
1) Physical presence AND
2) Intent to remain for an indefinite period of time (intent to make forum home)
Citz of Corps: where incorporated OR PPB (managers direct, coordinate, control Corp activity = nerve center)
Citz of unincorp assoc (PS, LLC): citz of ALL its members including Gen or Lim partners
(e.g. LLC w/members from GA, CA, TX = Citz of GA, CA, TX)
Citz of decedents, minors, incompetents: executor/representative’s Citz is irrelevant. Apply Citz of party
Std of Review by Appellate Ct (FRCP)
- Q of law decisions: reviewed de novo (no deference to Dist Judge)
e. g. Judge gives wrong instructions (content is Q of law) - In bench trial decisions of questions of fact: clear error
J is affirmed unless finding are clearly erroneous (deference to Dist Judge) - In Jury trial decision of question of fact: J affirmed unless reasonable people could not have made the same finding (EXTRA deferential to jury)
Erie Doctrine (FRCP)
Apply State vs Fed Law (FRCP, Const, Fed Statute)?
1) If FedLaw on point vs State Law
- Apply FedLaw (based on supremacy clause)
2) If NO FedLaw on point vs State Law
- Ct MUST apply State Law if issue is Substantive
Clearly Substantive: elements of claim/defense, SOL, rule for tolling SOL, choice of law rules = apply State Law)
3) If NO FedLaw on point + no issue noted as clearly Substantive) vs State Law
- Outcome determinative: if apply StateLaw determines outcome, then prob Substantive thus apply StateLaw
- Balance of interest: Fed vs State interest in deciding
- Avoid forum shopping: Not applying FedLaw allows parties to flock to FedCt
Class Action types (FRCP)
- Prejudice: class treatment needed to avoid prejudice to class members OR non-class parties (rare case)
- Class seeks Equitable remedy: class seeks injunction OR declaratory judgment because D treated class members alike
- Class seeks Damages:
1) Common Q PREDOMINATES over individual Q,
AND
2) Class Action better method than handle claims individually
Procedure:
1) Notify class members individually
2) Rep pay for notice to class
3) All member who opt in are bound by judgment
4) Settle or dismiss ONLY w/Ct approval - MUST meet SMJ (FQ or Div between Rep AND D)
Default (FRCP)
- Notation by Clerk that D did not respond w/in 21days
- P MUST move for Default after 21days of SOP
Voluntary Dismissal (pretrial - FRCP)
- P has RIGHT to vol dismissal: file notice of dismissal
- MUST be done before D answers OR before D motions for summJ
- If timely filed: dismissed w/o prej
- If P files Case2 + notice of dismissal2: dismissed w/prej
Amended Pleadings (FRCP)
Right to Amend:
- P has right to amend ONCE w/in 21days after D serves first response
- D has right to amend ONCE w/in 21days of serving answer
CA:
- Right to amend BEFORE D answers or demurs
- May amend AFTER demur but before hearing by ANY party
FRCP+CA: If NO right to Amend: seek leave of court
- Ct looks at time, and futility of amendment
Variance: amend complaint during or after trial to conform evidence to pleadings ONLY if D does not object (e.g. P sues on breach of K, puts evidence on tort, D does not object, P moves to amend complaint to add tort)
Specific Pjx (FRCP)
1) Contact between D and forum state:
- Contact MUST result from purposeful availament: D’s voluntary act reaches into the forum (benefit from contacts in forum), AND
- Foreseeability: foreseeable D could be sued in forum
2) Relatedness (causation): P’s claim arises out of D’s contacts (If NOT then possible Gen Jx)
3) Fairness: Jx is fair to D (when D is not at home in forum)
Balance between:
- Burden on D and W (convenience NOT an issue): MUST show severe disadvantage in litigation (wealth of party is irrelevant)
- State’s interest: forum wants to provide forum for its Citz
- Plaintiff’s interest: injury if not allowed to sue at home
Renewed Motion for JMOL (RJMOL - FRCP)
Same as JMOL but AFTER trial is done
- MUST have raised JMOL otherwise waives RMOL
- Motion based upon evidence presented at trial and viewed in light most favorable to nonmoving party
- Granted ONLY if reasonable jury could not disagree on the result (takes J from one party and gives it to other), or Judge can order a new trial
CA: JNOV
Counterclaim (FRCP)
Claim against OPPOSING party (once X asserts claim against Y) Can be made in answer (CA: different)
P MUST respond w/in 21days of SOCounterclaim
Types:
- Compulsory: claim arises from same TO as P’s claim
MUST be filed in pending case or claim is waived
CA: Compulsory Cross-Complaint
- Permissive: claim does NOT arise from same TO as P’s claim
NOT required to file in pending case
CA: Permissive Cross-Complaint - MUST meet SMJ (FQ or Div) if not SuppJx (Pjx: already a party)
Removal (FRCP)
Remove State claim to Federal Dist Ct (FDC) that “embraces” the State Ct where case was filed (e.g. filed in SoCal must go to SoD of CA, not NoD of CA)
By D ONLY w/in 30 days of SOP + file NOTICE of removal in FedCt + service on adverse parties + file notice in StCt
ALL Ds served (not all in claim) must join in removal
D can remove ANY case that has FQ SMJ
D can remove cases in Div SMJ unless (apply ONLY Div smj)
- Instate D: D is Citz of forum
- One yr: cannot remove more than 1yr case is filed in State Ct
Case becomes REMOVABLE if case against instate D is dismissed
If removal improper, Fed Ct will remand to State:
- P must MOVE to remand w/in 30days of removal notice if reasons are other than SMJ (e.g. instate D)
- P can MOVE to remand ANYTIME if reason is lack of SMJ
- P can NEVER remove, P only MOVES to remove
Class Actions (FRCP)
- You CANT sue alone in class action
MUST meet ALL requirements (CA: different): CANT
1) Commonality: some issue in common to ALL class members so resolution for all in one case
AND
2) Adequate Rep: class Rep fairly and adequately represents the class
AND
3) Numerosity: too many class members for joinder
AND
4) Typicality: Rep’s claims are typical of those claims of the class
- D can appeal class cert w/in 14days of cert and Ct of App has discretion to hear the appeal
- CA -
1) Assertainable class
AND
2) Well defined community of interest - C: Common Q predominates, AND
- A: Rep is adequate, AND
- Class will result in substantial benefit to parties and court
- Amount in controversy: aggregate amount of ALL class members, not focused on Rep’s claim
- NO different types of class actions as in Fed
- Ct decides if cost of notice to Rep, D, or shared (Fed: different)
Jury challenges (FRCP)
For cause (impartial, bias, etc): unlimited
Peremptory: THREE per side, but MUST be: Race AND gender-neutral - CA: Peremptory: SIX per PARTY but MUST be: Neutral on: Race, Color, Religion, Sex, National origin, Sexual orientation, or similar grounds
** Jury selection is State Action thus no discrimination allowed
Service of Process SOP (FRCP)
Process: Summons AND complaint
Service Types:
1) Personal: directly to D
OR
2) SubService:
- D’s usual abode (no need to reside 365days), AND
- Serve TP of suitable age (not necessarily adult) who resides there (e.g. not babysitter, yes butler - no need to be related to D)
- CA (CA: effective 10days after mailing): ONLY if personal service “cannot w/reasonable diligence be had,” must serve TP at least 18yrs, AND TP MUST be informed of contents, AND process mailed first-class to D
3) D’s Agent ONLY if A receives service w/in scope of Agency
- CA: A (officer, or GM) OR left w/someone apparently in charge at office during office hours
4) Mail: if allowed by State Ct
- Waiver of service allowed: effective when P files waiver signed by D in Ct
- CA waiver: effective when D executes the waiver
5) CA: Outside of CA allowed in any manner allowed by CA or by mail (effective 10days after mailing)
Other docs (e.g. interrogs, not summons and complaint) do not need formal service, so ok to use mail but mail gives +3 days to respond - CA: +5 days
TRO (FRCP)
TRO: preserve status quo until hearing
- Proper if:
1) MUST show risk of imminent and irreparable harm if Ct waits until other party is heard
AND
2) Attempt to give oral or written notice to other party not available OR why notice is not required
- Up to 14days (up to two: 28days)
- MUST post bond to cover other party’s damages if TRO was unwarranted
- Once issued TRO MUST be served to other party
Amendment to claim after SOL (FRCP)
Amended pleadings “relate back” to original filing
Elements:
- Original claim w/in SOL, AND
- New claim concerns same conduct, OR TO as original claim
(e. g. C1 filed 7/1, SOL due 7/2, new C2 w/same TO as C1 filed on 8/1 is allowed)
Change D: also relate back ONLY if:
1) Concerns same conduct, TO
2) New D knows of original claim w/in 90days of filing, AND
3) New D knows that but for the mistake, new D would have been named
- CA -
Change D:
1) Original claim is w/in SOL
2) Original claim contains charging allegations against DOEs
3) P is genuinely ignorant of DOE’s ID
4) P pleaded ignorance in original complaint
5) MUST bus true D w/in 3yrs of filing
Supplemental Pleadings (FRCP)
Filed after the original pleadings are filed
e.g. P sues D for breach of K, after case is filed D punches P on the face
Prelim Injunction (FRCP)
Prelim: preserve status quo until Ct adjudicates claim
- NEVER granted ex-parte
- Proper if:
1) MUST show suffer irreparable harm if Injunction not issued
AND
2) Likely to win on merits of underlying case
AND
3) Balance: hardship to applicant -vs- hardship to D if injunction is issued
AND
4) Injunction is in the public’s interest
- MUST post bond to cover other party’s damages if TempInj was unwarranted
- Hearing for Inj and case may be consolidated
- Order is IMMEDIATELY appealable even though it’s NOT a final judgment
Undiscoverable evidence (FRCP)
Privileged communications based on evidentiary privilege (similar concept as atty-client privilege)
Work Product OR trial prep materials: items prepared (by party or party’s A/rep) in ANTICIPATION of litigation is protected from discovery
- CA: different
Qualified Work Product: opposing party may discover PART of Work Product if opp party has:
1) Substantial need, AND
2) Not otherwise available
(e. g. statement by W made to PI in anticipation of lit)
Absolute Work Product (CANNOT be discovered)
- Opinion Work Product: mental impressions, opinions, conclusions, legal theories
Pretrial Conference (FRCP)
- Ct may hold pretrial conference to process case and foster settlement
- Final pretrial conference SETS issue to be tried, admissible evidence, etc (roadmap for trial and avoids surprises)
Juror misconduct (FRCP)
- Verdict may be set aside based upon external matters (investigations outside of Ct)
- BUT juror cannot testify about acts or statements made DURING deliberation unless showing of “extaneous prejudicial info or outside influence”
E.g. NOT external matter: juror using drugs during deliberation or lied during jury selection
Issue Preclusion (Collateral Estoppel - FRCP and CA)
An affirmative defense: MUST assert in answer
A judgment binds P or D (or privies) in subsequent actions on DIFFERENT causes of action between P and D (or privies) as to ISSUES actually litigated AND essential to the judgment in the first action
Step analysis:
1) Party in original case is in privity (Agent of P) with party in next case
- Exception: nonparty may use issue preclusion offensively (to establish D’s liable) ONLY if Ct determines it’s fair and equitable to allow the nonparty to do so
2) Final J on merits (MUST have been litigated)
3) Same issue litigated AND determined in original case
4) Issue was essential to J in original case (finding on issue is the basis for Final J:
Intervenor (Intervention of Right)
TP bring ITSELF into case as P (asserting a claim) or D (to defend a claim), Ct may re-align TP if necessary
MUST:
- TP’s interest may be harmed if not joined, AND
- TP’s claim/defense and current case have at lest one common Q, AND
- Application MUST be timely
- MUST meet SMJ (FQ or Div) if not SuppJx (Pjx: submits to Ct)
Claim Preclusion (Res Judicata - FRCP and CA)
An affirmative defense: MUST assert in answer
A matter may not, generally, be relitigated by the same parties once it has been judged on the merits
Step analysis:
1) Same claimant against same D (e.g. Case1: P v D, Case2: P v D, not D v P)
2) Final J on the merits even if NOTHING litigated
3) Same claimant asserts same claim from original claim (both involve same TO)
- CA (minority): Claim for PI vs prop damages from same TO is NOT same claim
Fictitious D’s (DOEs)
P MUST state:
P is genuinely be unaware of D’s true ID
AND
Cause of action against Doe (charging allegations against Doe)
PJX (basics)
Ct’s power over the parties
Steps: satisfy State’s statute AND US Const
Pjx (Const): proved by
1) domiciled in forum OR
2) consents OR
3) voluntarily presents in forum when served w/process
If none look at contacts
Motion to Dismiss 12(b)(6): failure to state a claim (FRCP)
4-corners of complaint: Ct looks ONLY at P’s allegations of fact (plausible to support claim) in complaint (If facts were true, would P will judgment)
- Ct ignores P’s legal conclusion
- Ct does NOT look at evidence
- If D answered then P motions to 12b6, now called “Motion for J on pleadings”
D’s defenses - 12(b) (FRCP)
12(b) defenses can be included in answer or motion:
1) Lack of SMJ (NEVER waived: may raise on appeal)
2) Lack of Pjx (waivable)
3) Improper venue (waivable)
4) Improper process (waivable)
5) Improper SOP (waivable)
6) Failure to state a claim
7) Failure to join indispensible party
Waivable defenses MUST be in FIRST response (motion or answer) or waive (Ct’s discretion may still allow transfer for 12b3)
Affirmative defenses (e.g. SOL, SoF, res judicata, self-defense) MUST be plead in ANSWER or waive
- CA -
Failure to State facts sufficient to constitute a cause of action
Lack of SMJ
May be asserted in Gen demurrer
May be asserted in answer as affirmative defenses
May be asserted in motion for judgment on pleadings AFTER D pleaded and time for demurrer has expired
