r/s Flashcards
removal
-SMJ
-D is not a citizen of the state if in diversity
-all defendants consent
-30 days of receipt by or service
-at time of removal diversity must still exist
Personal Jurisdiction
Traditional bases: service while in state, domiciled, consent
Attachment of property—if claim is not related to ownership of attached property, there must be minimum contacts between D and forum state to establish JX
Long Arm Statute
Due process
-minimum contacts:
–> purposeful availment
–> foreseeability
–> relatedness (specific jurisdiction: particular contacts; general jurisdiction: at home)
-fairness: fair play and substantial justice. DIES
–>D’s burden
–>interest of forum state
–>efficiency
–>shared social policies
venue
-where any D resides IF all D’s reside in same state (domicile for individuals, PJ for business)
-substantial part of events or omissions or property location
-fallback if the above don’t work: any D subject to PJ
transfer analysis
Original district:
-SMJ original district
-PJ original district
-venue original district
New District:
-SMJ new district
-PJ new district
-venue new district
-then, interest of justice
venue, California
real property: where located
K: where K entered into or expected to be performed
tort: act/omission
multiple places: where any D resides and if none in CA, any county
business: executed the K or breach, liability occurred, principal place of business
Erie analysis
diversity
procedural or substantive? –> substantive apply state law.
if unclear, ask if there is conflict between federal and substantive law. If there is a conflict, ask does federal law directly address the issue?
–> yes: is fed law arguably procedural, or does it modify a substantial right or the manner/means of it? if procedural, apply fed law.
–> no fed law on point: apply state law if outcome determinative and no countervailing fed interest
CA conflict of interest
real property: where property is
contracts/torts: governmental interest. what is the comparative impairment of each state’s interests?
choice of law in contract: is law substantially relating to parties? if yes, does it conflict with the govt interest test and public policy?
if no, unenforceable
service methods
personal service
substituted service (CA: follow up mailing)
at home: defendant’s dwelling and left with a resident of suitable age and discretion
if foreign: any method permitted by law of foreign country or certified mail and return receipt
complaints (fed)
short and plain statement of claim; facts to show substantive plausibility
SMJ statement, statement of claim, statement for relief
if fraud/mistake: particularity needed
complaints (CA)
fact pleading. operative facts for each cause of action, demand for relief, amount of damages
relation back (fed)
new claim: original complaint timely and new claim is out of same transaction/occurrence
new party:
-same conduct/transaction
-new party received notice within 90 days of original complaint
-new party knewo r should have known it would be brought against them
relation back (CA)
-new claim: same accident/injuries and refer to same offending instrumentality
-new party: even if SOL runs, P can correct
CA permissive joinder of claims
one question of law or fact common to all Ds and court can sever
compulsory joinder of parties - elements
party is necessary
PJ
SMJ
when is party necessary
-cannot complete relief without them
-danger of harm if excluded
-risk of inconsistent judgments or double liability
when is party indispensable
-judgment would prejudice parties in person’s absence
-prejudice reduced/avoided by other means
-judgment rendered would be adequate
-P would have adequate remedy if action was dismissed
must dismiss
scope of discovery
relevant to claim/defense
proportional to case/burdens on other party
not privileged
need not be admissible.
information may be discoverable if it appears reasonably calculated to lead to the discovery of admissible evidence
CA scope of discovery
relevant to claim/defense
proportional to case/burdens on other party
PLUS all material relevant to subject matter
weigh the party’s interests in seeking discovery against the privacy interests of the party resisting discovery.
atty client privilege
confidential comm
licensed attorney and client
purpose of seeking legal advice
work product doctrine exception
info not reasonably available by other means
party wold be substantially prejudiced
experts and discovery
-party can depose any expert witness of opponent who may testify
-protected: report drafts, communications between attorney and expert; report in anticipation of litigation from expert that is not W
experts (CA)
must disclose expert witness list, details of prospective testimony, all writings/reports
starting discovery
fed: confer at least 21 days before scheduling conference
CA: initial case management within 180 days of complaint
depositions limitations
fed: 10/party unless good cause
CA: as many as you want, 20 day limit upon notice of deposition
interrogatories and objections
-only for parties
-25 for fed
-35 for CA
-objections with specificity and timely otherwise waived, unless good cause
requests for admission lmitation in CA
35
sanctions process: what steps do you need to take
-good faith meeting to settle the issue
-then file motion to compel
–> fed: no automatic disclosures
–> CA: make reasonable/good faith to resolve issues
then sanctions
CA: movant exercised due diligence, 21 days to correct conduct prior to motion
jury trial demand
$20 and for actions at law
demand in writing within 14 days of service of last pleading
serve and file
claim preclusion (fed and CA)
-same parties or successors in interest
-valid final judgments on merit
-same claim
(CA: same claim must be primary rights not trasnaction and judgment not considered final until conclusion of appeal or until time for appeal has expired )
issue preclusion (fed and CA)
-same issue actually litigated: facts and law similar
-final judgment on merits and actually litigated
-issue essential to judgment
-party against whom issue preclusion is asserted is party in prior lawsuit OR successor in interest
CA Distinction—unlike in federal practice, default and consent judgments in CA are given issue preclusive effect as to material issues actually raised in pleadings that were necessary to judgment
motion to dismiss
claim can be dismissed if fails to assert legal theory cognizable at law or fails to allege facts sufficient to support cognizable claim.
two steps:
1) identify and reject legal conclusions unsupported by factual allegations. including conclusory statements.
2) assume truth of well-pled factual allegations with context specific analysis, using judicial experience and common sense; resolve all doubts and inferences in the plaintiff’s favor; and view the pleading in the light most favorable to the plaintiff.
analyze what should be in MTD to survive
class action requirements
numerosity, commonality, typicality, adequacy
summary judgment
no genuine dispute as to any material fact and movant is entitled to judgment as matter of law. no reasonable jury could find for nonmoving party.
judged on materials in record and sworn statements (not pleadings but affidavits connected to pleadings).
judgment as matter of law
No reasonable person could decide otherwise (substantial evidence). viewing evidence in light most favorable to nonmoving party. not credibility of witnesses.
motion for new trial
-legal error
-newly discovered evidence
-prejudicial misconduct
-verdict is against weight of evidence
no later than 28 days after entry of judgment
collateral order for appeals
The collateral-order doctrine allows an immediate appeal from an interlocutory order that
(1) conclusively resolves an important issue that
(2) is separate from the merits of the claim and
(3) cannot be effectively reviewed on appeal from a final judgment
motion to compel and expenses
If a court denies a motion to compel, it must award the nonmovant the reasonable expenses incurred in opposing the motion unless the motion was substantially justified or the award would be unjust.
If the motion is granted, the court must award the movant’s expenses.
If it is granted in part and denied in part, expenses may be apportioned.
federal inadvertent waiver of atty client/work product
A waiver does not extend to undisclosed communications or information unless
(1) the waiver was intentional,
(2) the disclosed and undisclosed communications or information concern the same subject matter, and
(3) the communications or information should be considered together.
bulge provision
Under the “100-mile bulge rule,” a federal court acquires personal jurisdiction over parties (1) added to the suit through impleader or required joinder and (2) served with process within 100 miles of that court.
voluntary dismissal
A voluntary dismissal is permitted when (1) all the parties who have appeared sign a stipulation of dismissal or (2) the plaintiff files a notice of dismissal before the defendant serves an answer or a summary-judgment motion. Otherwise, the plaintiff must obtain a court order by moving to dismiss the case without prejudice.
failure to respond to request for admission effect
A party’s failure to adequately respond to a request for admission within 30 days after the request is served results in the matter being admitted and conclusively established in the pending action.
14 day deadlines
Any objections to the use at trial of deposition testimony, documents, or exhibits must be made within 14 days after the disclosures.* An objection not made within this time is waived unless (1) excused by the court for good cause or (2) the objection is based on relevance.
IT RAT = initial disclosures; third party complaint; respond amended pleadings; answer after pre answer motion denied; trial
21 day deadlines
SASH
28 day deadlines
AJAN
30 day deadlines
sapirr
90 day deadlines
SIE
60 day deadlines
younger abstention doctrine
applies when declaratory or injunctive relief is sought in federal court. This doctrine requires abstention when such relief would interfere with a pending state proceeding on any criminal matter or a particular civil matter* that:
involves an important state interest and
provides an adequate opportunity to litigate the federal issue(s).
exceptions:
-prosecution in bad faith
-patently unconstitutional state law
-state consents
-immediate/irreparable harm
posttrial motions for relief that can be considered at any time
At any time, a federal court may (1) entertain an independent action to relieve a party from a judgment, order, or proceeding, (2) grant relief pursuant to a federal statute, or (3) set aside a judgment for fraud on the court.
physical/mental exam
An order for a physical/mental exam may be made only upon:
-motion,
-for good cause shown,
-and the person to be examined and all parties must be given prior notice specifying the time, place, conditions, scope of the examination, and the identity of the examiner.
depositions
party or nonparty (subpoena or SDT) any time after discovery conference
physician patient privilege
comms between dr and patient for purpose of treatment/diagnosis
waived if:
-physical condition at issue
-fed court and fed law applies
class action types
Class treatment is necessary to avoid harm either to class members or to party opposing class. Usually limited fund. (Can ask money damages). Notice is at the discretion of the court.
Final injunctive relief would be appropriate for the whole class. Notice is at the discretion of the court.
Common questions of law or fact predominate. money damages
a. Must provide notice to the class (best notice under the circumstances)
b. Class members have right to opt out
c. Must show common issues predominate and are superior.
diversity jx large accident
Under the Multiparty, Multiforum Trial Jurisdiction Act of 2002, when a civil action “arises from a single accident, where at least 75 natural persons have died in the accident at a discrete location,” only one plaintiff need be of diverse citizenship from one defendant for a federal court to have diversity jurisdiction, provided a defendant resides in a state and a substantial part of the accident took place in another state or other location.
pretrial disclosures
A party’s pretrial disclosures must include (1) the name, address, and phone number of each witness, (2) deposition testimony that will be used at trial, and (3) all documents and exhibits. But these requirements do not apply to witnesses and evidence that will be used solely for impeachment.
motion to compel
served on all parties and accompanied by a certificate that the movant has in good faith conferred or attempted to confer with the opposing party
final judgment rule and interlocutory order exception
A final judgment is a decision by the court made on the merits (rather than a technicality) that leaves nothing for the court to do but execute the judgment. The notice of appeal must generally be filed within 30 days after the judgment or order being appealed was entered.
most interlocutory orders are not immediately appealable, there are some that have an immediate right of appeal, such an order granting, modifying, refusing, or dissolving an injunction, an order appointing or refusing to appoint a receiver, and certain admiralty cases
2 dismissal rule
Under the two-dismissal rule, a voluntary dismissal operates as an adjudication on the merits when the plaintiff (1) voluntarily dismissed an action in federal or state court without a court order and (2) filed a notice of voluntary dismissal in a second action on the same claim in federal court.
required disclosures
-calculation of damages
-people w/ discoverable info
-docs/exhibits relevant to your claim
-insurance that may pay for claims
expert w disclosures
The expert’s qualifications,
The data or other information the expert considered in order to form an opinion,
A complete list of the expert’s publications in the past ten years,
A complete list of cases in which the expert testified (at deposition or trial) in the previous four years,
The compensation paid to the expert,
Any necessary supporting exhibits.
poll jury
After the jury returns a verdict and before the jury is dismissed, the court must poll the jurors individually if a party requests
motion to strike
If a pleading contains any insufficient defense, or redundant, immaterial, impertinent, or scandalous material, then the court, upon motion or upon its own initiative, may order that such defense or material be stricken
disco challenge considerations esp in CA
weigh the party’s interests in seeking discovery against the privacy interests of the party resisting discovery.
amt in controversy
Damages or injunctive relief: value of benefit to P or compliance to D
can aggregate claims even unrelated against one D from one P
Multiple Ds – can aggregate ONLY if jointly liable. otherwise cannot aggregate
Multiple plaintiffs may aggregate (i.e., combine) their claims to satisfy the amount-in-controversy requirement when they seek to enforce a single title or right to a common or undivided interest.
supp jx and number of P’s
Single plaintiff – common nucleus of operative facts for state in addition to the fed/diversity claim
Multiple plaintiffs – additional plaintiff must have fed q or diversity on their own
cannot destroy diversity
standards of review for appeals of jury verdicts and sufficiency of evid
Some appellate courts refuse to set aside a jury verdict if there is substantial evidence supporting the verdict. Other courts require only sufficient evidence to sustain a jury verdict.
judgment on pleadings
A court should enter judgment on the pleadings when the movant shows that (1) there is no genuine issue of material fact and (2) the movant is entitled to judgment as a matter of law.
written depos and timing for objections and q’s
For a written deposition, (1) cross-questions must be served within 14 days after service of direct questions, (2) redirect questions must be served within 7 days after service of cross-questions, and (3) recross-questions must be served within 7 days after service of redirect questions. Objections are due at the same times.
CAFA
Minimal diversity: At least one plaintiff must be from a different state than at least one defendant
Amount in controversy: The total amount in controversy must be greater than $5 million
Number of plaintiffs: The class must have at least 100 plaintiffs
impleader
also called third party plaintiffs
A defendant may add a nonparty to a suit by filing a third-party complaint alleging that the nonparty is liable to the defendant for all or part of the plaintiff’s claim. The defendant need only obtain the court’s leave if more than 14 days have passed since the defendant served his/her original answer.
cross claim
A crossclaim is a claim for relief asserted against a coparty (eg, a defendant against a codefendant) that arises from the same transaction or occurrence as another claim in the lawsuit. A crossclaim that does not assert a claim for relief against a coparty (eg, contribution) but merely asserts a defense against the opposing party’s claim (eg, contributory negligence) is improper
motion for extraordinary relief from judgment
A party can file a motion for extraordinary relief within one year from the entry of a final judgment that is based on (1) mistake, inadvertence, surprise, or excusable neglect, (2) newly discovered evidence, or (3) the opposing party’s fraud, misrepresentation, or misconduct.
motion to compel at deposition: where should it be filed
The questioning party may adjourn or complete the deposition before filing a motion to compel a response. If the deponent is a nonparty, the motion must be filed where the deposition occurred. But if the deponent is a party (as seen here), it must be filed where the lawsuit is pending
district ct certify interlocutory appeal
One exception to this final-judgment rule arises when the district court certifies an interlocutory appeal by stating in a written order that:
there is a substantial difference of opinion on the controlling question of lawand
an appeal may materially advance the ultimate termination of the litigation.
The party seeking an appeal must then apply to the appellate court within 10 days after the district court enters the order, and the appellate court will decide whether to hear the appeal
imputed minimum contacts
Partnerships—each partner is generally an agent of partnership
Corporations—out-of-state corporation’s contacts with forum state doesn’t automatically establish JX over wholly-owned subsidiary unless it is parent’s alter ego or acting as agent
Employees/agents—contacts by nonresident employer’s agents/employees imputed to employer if acting within the scope of agency/employment (not usually applicable to independent contractors)
TRO
May be issued without notice to adverse party if immediate and irreparable injury will result and movant’s attorney certifies efforts made to give notice and the reason why notice should not be required
general demurrer (CA)
CA Distinction—general/special demurrer can also be filed, and motion to quash service of summons to object to PJ should do so prior to filing answer (otherwise deemed to have made general appearance)
anti slapp
within 60 days after service of complaint when P has filed a “strategic lawsuit against public participation” (used only in response to certain public interest lawsuits, class actions and actions arising from commercial statements/conduct)
answer (CA)
- Timing—30 days after being served, and if D files motion to strike or demurrer, within 10 days of service of notice of denial
- Service by electronic means—court may order electronic service on a person represented by counsel who as appeared in an action or proceeding, regardless of consent
Cross-complaint o D must seek affirmative relief in cross-complaint, not in answer
Term includes counterclaims, cross-claims, and third-party complaints in federal system
Compulsory cross-complaint—when D has related c/a against P or else barred
rule 11 sanctions
Court may impose sanctions limited to what suffices to deter repetition of conduct by others similarly situated; does not apply to mandatory disclosures and discovery requests, responses, and objections,
intervention as of right
- Nonparty has interest in property or transaction that is subject matter or action
- Disposition of action may impair nonparty’s interest
Nonparty’s interest not adequately represented by existing parties
