Civ Pro

Question 1

SMJ

Answer 1

Courts ability to hear and determine a case. Cannot be waived. Can come in under either Federal question jx or Diversity jx

Question 2

SMJ - Federal Question Jx

Answer 2

Exists when issue is presented on the face of complaint (well-pleaded complaint).

CA – limited $25k or less; unlimited >$25k; Small claims $10k or less for individuals, $5k or less for other litigants

Question 3

SMJ - Diversity Jx

Answer 3

All parties are diverse + Amount in controversy is more than $75k. Citizenship is determined by domicile at time of filing. Can aggregate claims.

Question 4

Supplemental Jx

Answer 4

gives discretion to add claims that arise from common nucleus of operative facts. Must be one claim with original SMJ

Question 5

Removal

Answer 5

Case may be removed from state court to federal court if (1) the case could have been brought in federal court, (2) all of the defendants agree to removal, and (3) a notice of removal is filed within 30 days of service of the document that first makes the case removable.

DJ: only removable if no D is citizen of state where filed. Can’t remove after 1 year
FQ: entire case may be removed. All D must consent

Question 6

Remand

Answer 6

P may send back to state court if removal is improper

Lack of SMJ: P can remand at any time
Other Reasons: P can remand within 30 days

Question 7

In personam Jx

Answer 7

Courts power over an individual person
4 bases: (1) voluntary presence, (2) domicile, (3) consent, (4) long-arm statute

To be subject to PJ, D must have such minimum contacts with forum state such that exercise of jx doesn’t offend traditional notions of fair play and substantial justice

Question 8

Personal Jx: Minimum Contacts

Answer 8

Purposeful availment, foreseeability, and relatedness of P’s claim to D’s contacts

Purposeful availment: D’s contacts with forum must be purposeful and substantial

Foreseeability: D knew of or could anticipate being held accountable for her forum activities

Relatedness: Specific Jx & General Jx

Question 9

Specific Jx

Answer 9

Arises when the cause of action is related to D’s contacts

Question 10

General Jx

Answer 10

can arise even when the cause of action isn’t related to D’s contacts. D must have had “continuous and systematic contacts” with forum such that D is “essentially at home”

Question 11

Fair Play and Substantial Justice

Answer 11

Court must examine factors

(1) interest of forum in adjudicating matter
(2) burden of D appearing in case
(3) interest of judicial system in efficient resolution
(4) shared interest of states protecting social policies

Question 12

In Rem Jx

Answer 12

Court’s authority to determine issues concerning personal/real property. Property is present in forum

Question 13

Quasi in Rem Jx

Answer 13

determines only interest of parties regarding property located in forum

Question 14

Venue In California

Answer 14

Transitory action (Claim arose elsewhere)

County where D resides when action commences

Contract: Where K has executed/performed

Personal Injury/wrongful death: where injury occurred

Question 15

Venue is Proper…

Answer 15

(1) where any D resides
(2) where substantial part of claims arose/property is located OR
(3) where court has personal jx over defendant if no (1) or (2)

Question 16

Original Venue Proper

Answer 16

court may transfer to another district for convenience of parties AND in best interest of justice. Laws of original state apply

Question 17

Original Venue Improper

Answer 17

court must either dismiss case OR if in best interest, may transfer to any place where it could have been originally brought or where parties consent to

Question 18

Forum Non Conveniens

Answer 18

when there’s a more appropriate forum for litigation, but the cannot be transferred there, court may dismiss action pursuant to doctrine of forum non conveniens

Question 19

Erie Doctrine

Answer 19

FQ: Federal substantive + procedural law controls as well as federal common law

DJ: State substantive law + federal procedural law

SJ: State substantive law

Question 20

Service of Process

Answer 20

generally only allowed in limits of state where district court sits OR anywhere else allowed by state law (Long arm statute). Timing: Within 90 days of filing case

Exception: 100 Mile Bulge Provision

Question 21

100 Mile Bulge Provision

Answer 21

Provides that out of state services is allowed even across state lines within 100 mile radius of court district where suit is pending

Question 22

Waiver of Service

Answer 22

waiver must be in writing and addressed to individual D and must give D reasonable time of at least 30 days after request sent to return waiver. Extends time to answer from 21 to 60 days after waiver request is sent. 90 days if foreign.

CA: D’s waiver doesn’t extend time to respond to complaint

Question 23

Temporary Restraining Order

Answer 23

preserves status quo until opportunity for full hearing. No longer than 14 days unless good cause. May be issued without notice if immediate and irreparable harm will result.

CA: TRO issues w/o notice to D generally can’t exceed 15 days

Question 24

Preliminary Injunctions

Answer 24

Require Notice and a Hearing.

(1) irreparable harm w/o injunction, (2) likelihood of success on merits, (3) balance of hardships in favor of P, (4) feasibility of enforcement

Question 25

Permanent Injunction

Answer 25

once issued, it continues until dissolved by court, but affected person may move for modification/dissolution. P must show actual success on merits

Question 26

Complaint

Answer 26

(1) short plain statement of courts SMJ (2) P's claim establishing entitlement to relief and (3) demand for relief sought CA: All pleadings must contain statement of material operative facts constituting each cause of action and demand for relief and amount of damages Timing: Within 90 Days of filing

Question 27

Rule 12(b) Motion to Dismiss

Answer 27

lack of SMJ can be raised any time; lack of PJ, improper venue, insufficient process or service can be raised in pre-answer motion or answer otherwise waived

Question 28

Rule 12(b) Defenses

Answer 28

lack of smj, lack of pj, improper venue, insufficiency of process, insufficiency of service, failure to state a claim, failure to join necessary party

Question 29

Rule 12(b) Failure to State a Claim

Answer 29

- Claim for relief can be dismissed if it either fails to assert a legal theory of recovery that cognizable at law or fail to allege facts sufficient to support a cognizable claim - In deciding a motion, cts will treat all well-pleaded facts of complaint as true, and resolve all doubts in favor of nonmovant and view pleading in light most favorable to nonmovant

Question 30

Motion for Judgment on the Pleadings

Answer 30

after answer is filed, allows it to dispose of case when material facts aren’t in dispute and judgment on merits can be achieved based on contents of pleading CA: Before filing motion, moving P must meet and confer to determine if resolution can be reached

Question 31

Motion for More Definite Statement

Answer 31

responding party can move for motion for more definitive statement if claim for relief is so vague or ambiguous that party can’t reasonably draft responsive pleading

Question 32

Motion to strike

Answer 32

when pleading contains insufficient defense or redundant, immaterial, scandalous material, courts may strike CA: Within 30 days party can move to strike improper, false or irrelevant matter in pleading

Question 33

Answer

Answer 33

must (1) respond to allegations in complaint and (2) raised affirmative defenses (if not, waived) Timing: Within 21 days after being served with complaint. 60 days if D timely waived service. CA: 30 days after being served and if D files motion to strike/demurrer within 10 days of service of denial

Question 34

Reply

Answer 34

by P to Ds answer within 21 days after being served with order to reply CA: P files separate answer to cross-complaint instead of reply

Question 35

amendments - as of right

Answer 35

can be done once within 21 days after service or pleading within 21 days of responsive pleading/pre-answer motion

Question 36

amendments - w/o right

Answer 36

may amend with written consent of adverse party or leave of court

Question 37

Relation Back

Answer 37

Must respond within 14 days after service of amended pleading or time left on original pleading whichever is later

Question 38

Relation Back - New Claim

Answer 38

relates back to date of original pleading if amendment asserts claim/defense that arose from same conduct, transaction or occurrence CA: amended pleading must also involve the same accident/injuries and refer to same offending instrumentalities

Question 39

Relation Back - New Party

Answer 39

relates back to date of original pleading if amendment asserts (1) claims/defenses that arose from same transaction or occurrence (2) New party receives notice within 90 days and (3) D knew or should have known about action but for mistake of identification CA: misnomer allows P to correct even when SOL runs

Question 40

Rule 11 Sanctions

Answer 40

requires attorney/pro se party to sign all pleadings, motions, etc CA: Party seeking sanctions must exercise due diligence. 21 days to correct conduct

Question 41

permissive joinder

Answer 41

P and D may join one action if (1) claims relate to same series of occurences/transactions and (2) question of law/fact common to all parties

Question 42

compulsory joinder

Answer 42

must be joined if unfair to litigate without them. - necessary party - indispensable party

Question 43

compulsory joinder - necessary party

Answer 43

(1) complete relief can’t be granted without them (2) impairment of interest if not included (3) substantial risk of multiple/inconsistent obligations

Question 44

compulsory joinder - indispensable party

Answer 44

if party can’t join because of jx or venue, ct may dismiss considering factors (1) extent to when judgement w/o party would prejudice them or existing parties, (2) extent to which protective measures could prevent injustice (3) whether judgement would be adequate (4) whether P would have adequate remedy if action is dismissed

Question 45

intervention as of right

Answer 45

must be allowed if either (1) absentee’s interest would be harmed if not joined and no existing party can represent that interest OR (2) absentee has unconditional statutory right

Question 46

permissive intervention

Answer 46

allowed in courts discretion if (1) absentee has claim/defense that shares common question of law, (2) absentee has conditional statutory right OR (3) absentee is govt agent and claim relates to govt officer/agency/statute CA: Intervenor’s interest must be “direct and immediate”

Question 47

interpleader

Answer 47

allows person holding property (aka stakeholder) to force all potential claimants into a single lawsuit - rule interpleader - statutory interpleader

Question 48

rule interpleader

Answer 48

Requires that action involves (1) Federal question Or (2) AIC is $75k + Complete diversity between stakeholder and claimants

Question 49

Statutory interpleader

Answer 49

Requires AIC be at least $500 + Minimal diversity between claimants (at least 2 are diverse)

Question 50

Cross-claims - Requirements

Answer 50

(1) claim is based on same t/o and (2) must ask for actual relief from other party (damages. Must be answered within 21 days of service

Question 51

Counterclaims

Answer 51

Must be answered within 21 days. Compulsory -- arise from same transaction or occurrence and doesn't require adding party court doesn't have jx of Permissive -- may bring claim that doesn't arise from same t/o. Needs independent of jx

Question 52

Impleader (third party claims)

Answer 52

Defending party can implead nonparty for liability of original claim. Timing: Can be asserted any time after complaint is filed but 3P must get court's permission if filed more than 14 days after service of original answer

Question 53

Class Action Requirements

Answer 53

Numerosity, Commonality, Typicality, Adequacy

Question 54

3 Situations when Class can be Certified

Answer 54

(1) risk of prejudice, (2) final equitable relief (3) common question of law/fact CA RULE: requires ascertainable class + well defined community of interest Common question of law/fact predominates, class action benefits parties and named reps adequately represent class

Question 55

Class Action Fairness Act (CAFA)

Answer 55

Jx exists if (1) any class member is diverse of any opposing party (2) aggregated claims of class exceed $5million and (3) any D can remove