Themis Essay - Civ Pro

Question 1

Diversity Jx.

Answer 1

a. Diversity
▪
Requires complete diversity between opposing parties
▪
Includes suits between a citizen of a state and citizens or subjects of a foreign state
▪
Place of citizenship:
*
Individuals—state of domicile (i.e., where the individual is present and intends to reside for an indefinite period)
*
Corporations—every state where it is incorporated or has its principal place of business
Partnerships - every state where a partner resides.
▪
At least one party must be a citizen of a state

b. Amount in controversy
More than $75,000, but watch out for:
▪
Statutes that change the damages calculation
▪
Injunctive relief—can give monetary value to relief sought
▪
Multiple defendants—aggregate dollar amounts if jointly liable

Question 2

Supplemental Jurisdiction

Answer 2

o
Single plaintiff
▪
Applies when plaintiff brings state law claim that relates to plaintiff’s preexisting federal question or diversity jurisdiction claim

o
Multiple plaintiffs
▪
Federal question jurisdiction—additional plaintiff can join if claim relates to existing federal question claim
▪
Diversity jurisdiction—additional plaintiff can join if (i) claim relates to existing claim and (ii) additional plaintiff does not destroy diversity

Question 3

Removal and Remand

Answer 3

o
Defendant(s) can unilaterally remove an action from state court to federal court.
o
Plaintiff may respond by filing a motion to remand back to state court if the claim is not within federal jurisdiction.
o
Approach: Was removal appropriate in the first place?
1) Analyze whether the federal court has subject matter jurisdiction
2) Analyze whether the other removal limitations apply:
*
If federal court only has diversity jurisdiction, no defendant can be a citizen of the state from which the claim was removed.
*
The motion for removal must be filed within 30 days of receiving the complaint.
*
All defendants must (i) join in the motion or (ii) consent.
▪
If all requirements are met, there has been a valid removal; there will not be a remand

Question 4

Personal Jurisdiction

Answer 4

Required for court to have power over persons or property involved in cases before it
1. Traditional Bases
oProper service of process while voluntarily present in forum state
oDomicile in forum state
o
Consent

2. Long-Arm Statute
   CA courts may exercise personal jurisdiction on any basis that is in accord with the California or U.S. Constitution

oDue process requires sufficient minimum contacts and fairness

a. Minimum contacts
▪Purposeful availment—requires purposeful and substantial contact with forum state
▪Foreseeability—defendant should reasonably anticipate being sued in forum state
▪Relatedness (conduct in relation to the action)
*Specific jurisdiction (action arises out of contacts with forum state)
*General jurisdiction (defendant “at home” in forum state)

b. Fairness—must not offend traditional notions of fair play and substantial justice
Factors include:
▪Interest of the forum state in adjudicating the matter;
▪Burden on the defendant of appearing in the case;
▪Interest of the judicial system in efficient resolution; and
▪Shared interests of the states in promoting common social policies

Question 5

Venue

Answer 5

1. Is venue appropriate in the original district where the lawsuit was filed?
   ▪Proper in any judicial district where any defendant resides if all defendants reside in same state
   *Individual—residency established where domiciled
   *Business—residency requires a PJ analysis for that particular district
   ▪Proper in judicial district where a substantial part of the events or omissions occurred or the property is located
   ▪If neither of the above apply, proper where any defendant is subject to PJ
2. Should the case be transferred to the new venue?
   ▪Is venue appropriate in the original district?
   ▪Is venue appropriate in the new district?
   ▪Is there personal jurisdiction?
   ▪Is there subject matter jurisdiction?
3. Is transfer to the new venue in the interest of justice?

Question 6

CA Venue Rules

Answer 6

o
Actions involving real property—county where property is located
o
Contract actions—county where contract was entered into or expected to be performed
o
Tort actions—county where act or omission giving rise to the tort occurred

Question 7

Erie Doctrine

Answer 7

Exam Tip 3: If state laws are provided in the fact pattern, think of Erie.

1. Federal Question Jurisdiction
   Federal substantive and procedural law will control.
2. Diversity Jurisdiction
   o
   If the state law would change the outcome of the case, it is substantive and must be used.
   o
   If the state law would not change the outcome of the case, federal law applies.
   Exam Tip 4: Conflict of law rules, laws governing preclusion, laws altering the calculation of damages, laws governing a statute of limitations, and laws governing evidentiary privileges are considered substantive law for the purposes of Erie.
3. California Conflict-of-Law Rules
   o
   Real property disputes—apply law of the jurisdiction in which the property is located
   o
   Contract disputes—apply governmental interest test
   ▪
   But if contract has choice-of-law provision, honor provision unless contrary to public policy
   o
   Torts claims—apply governmental interest test

Question 8

Service of Process

Answer 8

o
Personal service may be made by any non-party aged 18 or older
o
Service on foreign individuals and corporations
▪
Any method permitted by the law of the foreign country allowed
▪
Personal service is not allowed on a foreign corporation
▪
May serve by certified mail

Question 9

Complaints

Answer 9

a. Rule 8
▪
Must include short and plain statement of the claim sufficient to show that pleader is entitled to relief
▪
Must plead facts sufficient to show that the claim has substantive plausibility
▪
Recitation of elements of a claim and broad conclusory statements are insufficient

b. Rule 9
▪
Certain pleadings have heightened standards
▪
Complaint must state with particularity the circumstances constituting fraud or mistake

Editorial Note 1: California state courts require fact pleading. Accordingly, all pleadings in California state courts must contain a statement of facts constituting each cause of action and a demand for relief.

Question 10

Amendments and Relation Back

Answer 10

a. General rule
Courts should allow plaintiff leave to amend complaint unless it would cause undue prejudice against the defendant.

b. Adding a new claim—relates back if:
▪
The original complaint was timely; and
▪
The new claim arises out of the same transaction or occurrence as the claims in the original complaint.

c. Adding a new party—relates back if:
▪
The claim arose out of the same conduct, transaction or occurrence;
▪
The new party received notice of the action within 90 days of the original complaint; and
▪
The new party knew or should have known the action would have been brought against him, but for a mistake concerning the proper party’s identity.

Question 11

Permissive Joinder of Claims

Answer 11

May join as many independent or alternative claims of whatever nature as the party may have against an opposing party

Question 12

Compulsory Counterclaims

Answer 12

Must be asserted if the claim arises out of the same transaction or occurrence that is the subject matter of the opposing party’s claim

Question 13

Compulsory Joinder of Parties

Answer 13

Exam Tip 5: Look for facts about a defendant arguing that the plaintiff’s lawsuit cannot proceed without joining another party.

Three requirements:
1. Party must be necessary
2. Court must have personal jurisdiction over the new party
3. Court must have subject matter jurisdiction (i.e., adding the party cannot destroy diversity)

o If adding the party would ruin diversity, the court must decide whether to proceed without the party or dismiss the case.

Question 14

Necessary Party

Answer 14

Party is necessary if:
▪
Court cannot afford complete relief without the party;
▪
There is a danger that the party would be harmed without joining; or
▪
There is a risk of an inconsistent judgment or double liability

Question 15

Indispensable Party

Answer 15

▪
If party is necessary but cannot be joined, court must determine whether party is indispensable
*
Indispensable—action dismissed
*
Not indispensable—action proceeds among the existing parties

Factors include:
*Extent to which judgment would prejudice the parties in the person’s absence
*Extent to which prejudice could be reduced or avoided by protective provisions
*Whether a judgment rendered would be adequate
*Whether the plaintiff would have an adequate remedy if action were dismissed for nonjoinder

Question 16

Scope of Discovery

Answer 16

o May discover any evidence, information, or facts relevant to a party’s claim or defense and proportional to case’s needs
o Court will consider whether the burden or expense of proposed discovery outweighs its likely benefit
o Cannot discover privileged information

Exam Tip 6: If a party objects to discovery based on relevance, your answer should address (i) an explanation of why the information is relevant, and (ii) any arguments regarding the burden or expense of the requested discovery.

Question 17

Scope of Disco - Privileges

Answer 17

oPrivileged information protected from discovery
oPrivileges include:
▪Attorney-Client
▪Work Product
▪Physician-Patient—does not exist under Federal law, but does under CA law

a. Attorney-client privilege
▪
Protects communications made between a licensed attorney and a client for the purpose of seeking legal advice
▪
Also applies to agents of the lawyer and agent of the client

b. Work product privilege
▪Protects materials prepared by a party in anticipation of litigation
▪Exceptions:
*Work product materials contain information not reasonably available by other means; and
*Party seeking discovery would be substantially prejudiced if not allowed to access the materials
▪A party can never discover the mental thoughts and opinions about the case

Question 18

Scope of Disco - Expert Witnesses

Answer 18

o
Party is entitled to depose any expert witness of an opposing party whose opinions may be presented at trial
o
Expert witness report drafts and communications between a party’s attorney and an expert witness are protected
o
Report of an expert retained in anticipation of litigation but not expected to be called as a witness is discoverable only on a showing of exceptional circumstances

Question 19

Depositions

Answer 19

o
Party can depose another party or nonparty after serving a subpoena
o
Can also request that nonparty produce documents by serving a subpoena duces tecum

Question 20

Interrogatories

Answer 20

oFederal limit: A party may serve no more than 25 interrogatories on any other party

Editorial Note 2: In California, a party may serve an unlimited number of Judicial Council form interrogatories, and up to 35 specially drafted interrogatories.

o
May not serve interrogatories on nonparties
o
May relate to any non-privileged matters relevant to any party’s claim or defense, so long as it is proportional to the needs of the case
o
Each interrogatory must be answered fully and separately under oath unless that party objects
o
Grounds for objection must be stated with specificity.
▪
Any ground not stated in a timely objection is waived unless the court excuses the failure for good cause.

Question 21

Request to Produce Documents and Inspection of Land

Answer 21

o
Party may serve a request to produce and permit inspection, copying, testing, or access the other party’s documents or electronically stored information
o
May object if burden or expense outweighs the likely benefit

Question 22

Physical and Mental Exams

Answer 22

Can compel a physical or mental exam of a party if:
o
That party’s physical or mental condition is at issue; and
o
There is good cause

Question 23

Enforcement and Sanctions

Answer 23

*If party fails to make disclosures or respond to discovery, the other party may compel the party’s responses

*Procedure:
oParties must meet and confer in good-faith to settle discovery dispute
oIf not resolved, party may file motion to compel discovery

*If granted, court may impose sanctions if other party fails to make disclosures or respond

Question 24

Jury Trial

Answer 24

oFederal right arises from Seventh Amendment

Note 1: In California, the right to a jury trial arises from the state constitution instead of the U.S. Constitution.

oDoes not apply to all types of actions
▪Actions at law (e.g., for damages)—generally may be tried on demand to a jury
▪Actions in equity (e.g., for injunction)—no right to jury trial
▪Action involves legal and equitable claims—jury normally determines legal claims first, then court determines equitable claims

o
Must demand federal jury trial in writing within 14 days after service of last pleading
o
Party waives a jury trial unless demand is properly served and filed

Question 25

JMOL

Answer 25

Editorial Note 3: In California, this is called a motion for nonsuit or directed verdict.
o
Motion made by either party at the close of plaintiff’s evidence or the close of all evidence
o
Granted only if no reasonable person could differ as to the outcome

Question 26

Renewed Motion for Judgment as a Matter of Law

Answer 26

o
Motion to override the jury’s verdict after the jury deliberates and delivers a verdict
o
Can only “renew“ this motion under federal law if it was made earlier

Editorial Note 4: Unlike federal procedure, there is no requirement that a party move for a directed verdict before moving for JNOV to override a jury verdict under the California rules.

Question 27

Post-Trial Procedure - Appeals

Answer 27

*
Generally requires a final judgment
*
Interlocutory appeal generally limited to:
o
Denial or grant of injunctive relief; or
o
Failure to certify a class action lawsuit

Question 28

Preclusion

Answer 28

Exam Tip 7: Look for facts where there is lawsuit #1 between Plaintiff 1 and Defendant 1 in which Defendant 1 lost. Then there is lawsuit #2 in which Plaintiff 2 sues Defendant 1. Plaintiff 2 will try to assert the decisions or findings from lawsuit #1 against Defendant 1.

*
Often tested in the context of a motion for summary judgment
*
May be used offensively by the plaintiff or defensively by the defendant

Question 29

Claim Preclusion (Res Judicata)

Answer 29

Three requirements:
1. Plaintiff and defendant sufficiently identical in Lawsuit #1 and #2
2. Lawsuit #1 ended in a valid final judgment on the merits
3. Claimant is asserting the same claim as in Lawsuit #1

Exam Tip 8: California courts do not apply the modern “transactional” approach in analyzing the “same claim” requirement under res judicata (as the federal rule does). Instead, California courts apply the minority “primary rights theory“ to the “same claim“ requirement.

Question 30

Issue Preclusion

Answer 30

Four requirements:
1.Same issue was actually litigated
2.Final valid judgment on the merits
3.Issue was essential to the judgment
4.The party against whom issue preclusion is asserted must have been a party in the prior lawsuit or a successor-in-interest (fair for new plaintiff to assert same issue against the defendant)