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Flashcards in Civ Pro Deck (100):
1

Personal Jurisdiction PJ test (same for in rem or in personam)

PJ exists when the the forum has power over a particular defendant. Can D be sued in this state?

1. Traditional Basis?
Easy Traditional bases PJ min contacts if D is:
1) Domiciled in forum state
2) consents
or 3) is present in forum when served process not due to trick (traditional)
4) D has committed acts brining her w/in scope of forum state's long arm statute
FED: if D is in state for unrelated litigation, he is immune from service
CA: no immunity

No Traditional 1-3?
2. MUST satisfy BOTH
a. Long Arm Statute (juris meets Constl limits; or limited D does business there)
CA - statute reaches Const'l limit

AND

b. Constitution (Due process).
TEST: D must have such Minimum Contacts with the forum so that exercise of jurisdiction does not offend traditional notions of fair play and substantial justice. (Contacts, Relatedness, Fairness)

2

traditional bases for minimum contacts

Yes minimum contacts and PJ if:
a) domiciled in forum, b) consents, or is c) present in forum when served with process w/o trick (CA)
(Fed: D is immune if in state for unrelated litigation)

3

PJ factors

1. Contact
(Purposeful availment and forseeability

2. Relatedness,
(do both GJ or SJ)

3. Fairness On balance
1. Convenience of forum to (parties/witness/ev)
and 2. Forum State interest in providing redress for citizens)

4

Contacts - PJ Test (Int'l Shoe)

Relevant Contact with forum must be:
1. Purposeful Availment: when D has reached out to forum state in some way, (voluntary act) thus availing oneself of the Benefits and Protections of its laws; (don't have to be physically present; item in Stream of Commerce alone is not suff)
AND
2. Forseeable: D must know or reasonably anticipate that his activities in the forum state render it foreseeable that she may be haled into court there

5

Relatedness Test

Specific or general? Examine both
Claim should be related in some way to D's contacts with forum. Look to: Quality and nature of the D's contacts with the forum and their connection w/ the c/a.
TEST: Does P's claim arise from D's activity w/in the forum;
if YES -Specific PJ; if NO - General PJ

6

General Personal Jurisdiction

P's claim does NOT arise from D's contact with the forum, but D is suable there bc he has Continuous and Systematic Ties w/ forum such that
D is "ESSENTIALLY at HOME in the forum";
Person is Essentially at Home where he is domiciled

7

Specific Jurisdiction

P's claim arises from D's contacts with the forum, even if he is not essentially at home there

8

Corporation - essentially at Home

where formed AND where it has PPB, maybe more (headquarters, facilites)

9

Limited Civil Case CA

25k or less- case does NOT exceed 25k. Cannot recover more than 25k.

Limited discovery (1 depo, 35 total demands), cannot file special Demurrer, cannot get DJ, Perm Inj or determine title to land

entire case is limited OR unlimited only;

10

UNlimited Case CA

in aggregate, claims exceed 25k. unlimited recovery.
Entire case is limited OR unlimited only

11

Reclassification

to limited - judge convinced will NECESSARILY result in 25k or less; or more than 25k is virtually impossible

to unlimited - POSSIBLE verdict will exceed 25k

12

Local Action Rule

CA, recovery of land, interest in land, injury to land - use county where land lies

13

Forum Non conveniens (FNC)

1. setup venue rules
2. then discuss FNC

FED & CA- In the interest of substantial justice an action should be heard in a different judicial system forum (or outside CA) that is ADEQUATE.
Ct dismisses or stays bc far more convenient and appropriate court in in different judicial system (see factors below); Transfer not possible

FNC (& Transfer) FACTORS -
requires stronger showing than transfer
Public: availability of alternative forum, P's choice of forum, what law applies, what community should be burdened w/ jury service, keeping local controversy in local court
Private: convenience of parties, where are witnesses and evidence located, where c/a arose

-Rarely granted if P is resident of current forum

CA - motion for FNC can be raised after answer, but waived if raised after demurrer or motion to strike, usually stay!! (not dismiss)

14

Process (Fed and CA)

Summons and copy of complaint, served by non party of at least 18

15

Substituted Service

FED
option, at D's usual abode, to person of suitable age and discretion who resides there

CA
can ONLY use if personal service cannot with reasonable diligence be had:
-usual abode or mailing address (not po box)
-left w/ competent member of household at least 18 age
-person must be informed of contents
-process must be mailed first class, postage prepaid

16

frivolous

completely w/o merit or for the sole purpose of harassing an opposing party

17

Scope of Discovery

Anything reasonably calculated to lead to the discovery of admissible evidence; broader than admissibility standard; Can't be privileged

FED - anything relevant to claim or defense;
-standing duty to supplement discovery responses if new; CAN"T be unreasonably cumulative/burdensome

CA - anything relevant to subject matter involved in the pending action
-no duty to supplement, unless asked
-recognizes right to privacy and balances against need for information

18

Charging Allegation CA

P is genuinely unaware of D's identity at time of filing;
1. names Doe as defendant (Fictitious Defendant)
and
2. allege she is unaware of D's true identity and
3. state cause of action against Doe D
(preserves c/a under SoL)

Relation back OK for fictitious Ds IF
1.substitutes D w/in 3 years of filing AND:
2. Orig filing before SOL ran and contained charging allegations
3. P was genuinely ignorant of Doe identity
4. P pleaded that ignorance in orig complaint

19

Fed Complaint

Facts supporting plausible claim

20

Class action CAL req

must show
1. ascertainable class
and
2. well defined community of interest
- common questions predominate
- rep adequate
- class is superior method - results in subtl benefit to parties and court

21

Diversity of Citizenship

citizenship of all Ps must differ from all Ds
case is between
1. citizens of different states
OR 2. citizen of a State & citizen of foreign country
AND
3. Amount in controversy Exceeds 75k! (not including interest or costs)

22

Citizenship of person determined by:

Domicile
1. Presence in the state AND
2. intent to make permanent home (taxes, vote)
(person only has 1 Citizenship bc only 1 Domicile!)

23

Diversity is measured when:

case is FILED. So moving after is not a problem for diversity.

24

Citizenship of Corporation determined by:

1. State where Corp. is incorporated
AND 2. state where corp has Principal Place of Business (corp can have 2 citizenships)

25

Defn PPB

place where managers direct, coordinate, and control corporate activities (nerve center; HDQ)

26

Citizenship of NON corp LLC or Partnership

All citizenship of ALL members (so if 4 members, LLC has 4 citizenships)

27

AIC

whatever P claims in Good Faith is ok unless it is clear to a legal certainty that she cannot recover more than 75k. P who wins less may have to pay opponent's legal fees
-Can aggregate claims of 1P against 1D (even if unrelated) or 1P against Joint Ds;

28

Equitable relief AIC

2 tests, if either is met - ct says ok
1. P's viewpoint - does harm decrease value of P's prop more than 75k?
2. D's viewpoint - would it cost D more than 75k to comply w/ the injunction?

29

Fed Courts will NOT hear (no SMJ by law)

actions involving issuance of divorce, alimony, child custody, or probate for estate

30

Federal Question

P's Claim arises under federal law (right or interest founded substantially on federal law)
Test: Is P enforcing a Federal Right?

31

Venue is proper:

(FED)
in civil actions, any district where:
1. ALL D's reside (domiciled);

**CORP resides
1. in any judicial district where the corp's contacts make it sufficient to subject it to PJ at filing (or if more than 1 dist., where corp's contacts suff to subject corp to PJ if district were a state)
OR

1b. if All D's reside in same state, P can lay venue in district where ANY 1 resides
OR
2. where a substantial part of the events or omissions giving rise to the claim occurred, or where subst'l part of property that is the subject of the action is situated
OR if can't satisfy 1 or 2..go to 3.

3. Where any D is subject to ct's PJ


(CA) - use principal object of case to determine
1. Transitory (regular) action:
where any D resides when case is filed; if all Ds are NON residents of CA any county is ok.

Local Land Action: county where land lies
Contract: where K was entered or to be perf
Personal injury/wrongful death: where injury occurred

Corp venue
1. PPB or
2. entered or to perf K or
3. where K breached

UNincorp venue 1. PPB on file w/ Sos or 2. where any member/partner resides

32

SMJ for Fed Ct.

1. diversity and AIC
OR
2. Fed Q

33

Complaint standard


FED - Notice Pleading; Fact Pleading; facts supporting plausible claim
1. Statement of grounds for SMJ - if Fed Q, must be on face of complaint
2. Short/plain statement of the claim showing entitled to relief; MUST plead facts supporting a PLAUSIBLE claim!
3. Demand for relief sought


CA - Code Pleading "ultimate facts"
1. Statement of facts constituting cause of action, stated in ordinary and concise language (Ultimate facts; Allege facts for EACH element of c/a)
2. Demand for judgment for relief to which pleader claims entitled (damages)
EXCEPTION - do NOT list damages if personal injury, wrongful death, punitive damages desired amt; send/request Statement of Damages

3. If limited case, must say so

34

Test for Supplemental Jurisdiction

Claim must share a common nucleus of operative fact. Shown if the claim arises from the same transaction or occurrence as the underlying claim.

LIMIT -
(in DIVERSITY Case, P can NOT use Supp Juris to overcome lack of diversity in #2 (but D can!)-
Supp given only if #2 has Diversity or Claim #1 is Fed Q;
CAN use Supp J to overcome AIC deficit in #2)

Ct has discretion NOT to hear Supp case, Factors:
1. Fed Q is dismissed early in proceedings
2. state law claim is complex
3. State law issues would predominate

35

Transfer of venue

FED
Ct may transfer to a district where the action might have been brought initially with both:
1. PJ and
2. SMJ over the action.

if PJ and SMJ, Discretion to transfer based on Balance:
1. CONVENIENCE for parties/witnesses
AND
2. Interests of Justice

Factors showing other ct is proper:
Public: what law applies, what community carries burden of jury service, keep local controversy local
Private: Convenience (location of witness/evidence)

(New Ct will apply choice of LAW of ORIG Court and Transfer proper only if Case could've been filed there initially (PJ))

CA
may transfer to mutually agreeable venue if
1. reason to believe impartial trial cannot be had in orig venue
2. convenience of witnesses and ends of justice promoted by motive
or
3. no judge is qualified to act

-can't agree, ct will choose

36

Rule 11 signature

FED
certifying to the best of your knowledge and belief, after reasonable inquiry:
1. paper is not for Improper Purpose
2. Legal contentions are warranted by law
and 3. Factual contentions and denials of facts have evidentiary support (or are likely to after investigation)
Sanctions MAY be levied, to deter bad behavior

FED - opponent violates rule? serve motion but must wait 21 days to file to give time to fix

CA - (CA statute version of R11)
21 day safe harbor applies to Court sanctions too!

Bad faith or frivolous tactics? can order opponent to pay expenses and atty fees immediately, no safe harbor

Frivolous - w/o merit or for sole purpose of harassing opposing party

37

D can respond

Respond after Service of Process
FED
By 1. Motion (12b) or 2. Answer; w/in 21 days of service;

CA
respond w/in 30 days by Demurrer (general or special); motion to strike does extend time to answer, but NOT time to demur

38

Higher pleading standard

Must be pleaded with particularity or specificity (exs. FRAUD, special damages, mistake, civil conspiracy, unfair business practices, product liability re: toxins)

39

Motion for more definite statement

Pleading so vague D can't prepare response

40

D's answer must

A. respond to allegations of complaint by 1. Admit. 2. Deny or 3. State you lack sufficient info to admit or deny - (denial) not avail if public knowledge or w/in d's control.
Failure to deny = admission. Except re damages.
B. raise affirmative defense or waived!
C. Counter claim

CA - deny each/every element of C/A or admission (ultimate facts for affirmative defense)

41

12b defenses by motion or answer

(#2,3,4,5 waivable if not in 1st response)!!
1. Lack of SMJ
2. Lack of PJ
3. Improper venue
4. Insufficiency of process
5. Insufficient Service
6. Failure to state claim
7. Failure to join indispensable party

42

Cross claim

Suit against co-party. Never compulsory. Must arise from same T/O

43

Right to amend if

FED
as Justice so requires : undue delay, prejudice, futility of amendment.
Or must amend for variance with pleadings if objected to

CA
can amend as matter of course before D files answer/demurrer. and After demurrer, but before hearing, can amend ONCE; or w/ ct permission; or for variance

44

Counterclaims (2)

Claim against opposing party (D counters at P)

Compulsory- arises from same T/O. Must put in answer and file or waived.

Permissive- does not arise from same T/O.

Must have SMJ or Supp Juris

45

Relation back for new claim

(FED and CA)
Amended pleadings relate back (date) if they concern the same conduct, transaction, or occurrence set forth in orig pleading. Treat amendment as though filed with orig to avoid SOL.

46

May get access to some privileged matter if:

1. Substantial need
And 2. Not otherwise available
But no access to strict privilege like mental impressions or legal theories
Privilege log- expressly claim and list item
Accidental disclosure? Notice then-Return, sequester, or destroy

47

Relation back for new D

(FED and CA)
Relate back if
1. Concerns same conduct T/O set forth in orig pleading
2. New party received notice of this case w/in 120 days of filing (so as not to be prejudiced) and
3. New party knew that but for mistake she would've been named originally.

48

Failure to produce ESI ok if

Lost in good faith routine operation of ESI or not reasonably accessible bc of undue burden or expense (identifying categories of sources not accessible). Sanctions only if exceptional case

49

Partial violation of discovery Sanctions

Can get order to compel plus costs of brining motion (inc atty fees)
Violation again? Rambo sanctions and contempt.

50

Total violation penalty

Rambo sanctions right away plus costs

51

Rambo sanctions

Establishment order (Fact against you)
Strike pleadings of disobedient party as to discovery
Disallow evidence
Dismiss p's case
Enter default judgment

52

Can be Co Plaintiffs/Ds If

1. claims arise from same t/o
and 2. raise at least 1 common question

53

necessary/indispensable parties test

must join party if 1. necessary and 2. feasible

Absentee A necessary if
1. without A, court cannot accord complete relief among existing parties (would need many suits)
or
*2. A's interest may be (practically) harmed if not joined
or
3. A claims an interest which subjects a party (usually D) to multiple obligations

Feasible if
1. PJ over him
and 2. joining him will NOT destroy diversity

Failure to join? Proceed w/o him or dismiss.
Factors:
a. alternative forum available
b. actual likelihood of harm to A
c. can ct shape relief to avoid potential harm to A

54

Impleader

D wants to bring in TP absent D (indemnity/contribution); right to do w/in 14 days or w/ ct permission.
1. File TP complaint and 2. serve process (need pj)

Can sue this TP and TP can sue P, if same T/O

55

Intervention

TP Absentee wants to join pending suit as P or D; must be timely;
Right to intervene if:
A's interest may be harmed if she is not joined and her interest is not adequately represented

Discretionary/Permissive right if:
(FED) at least 1 common question of law/fact
(CA) TP must have "direct and immediate" interest in litigation or success of 1 party
need smj

56

Interpleader (rule (reg diversity) and statutory)

One holding property (or claims to) forces all potential claimants to consolidate into single suit to avoid multiple litigation (Stakeholder v. Claimants)

Statutory diversity - ok if 1 claimant diverse from another claimant, +500$, nationwide service

57

Class Action Must Have:

FEDERAL -
1. TANC and 2. Type
1. TANC
Typicality - Rep's claims/defenses typical of class

Adequate Rep- is fair and adequate rep of class (Rep's citizenship & claim$ determines diversity & AIC)

Numerosity - too many class members for practical joinder

Commonality - all suffer same injury; Common contention capable of class wide resolution in one stroke; old: Question of law or fact in common to class;

2. Type -
a. Prejudice: class necessary to avoid harm to class members or opposing party (deplete $)

b. Injunction/DJ: seeks Inj or DJ (no damages) bc class treated alike by D

c. Damages:
1. common questions predominate and
2. Class A is superior method to handle dispute
(ex. mass tort, Rep must pay & give indiv NOTICE to all reasonable identificable members informing of: opt out avail, bound if no opt out, can enter sep appearance via counsel)

must be certified by court, define class (issues/defenses) and appoint counsel for class that fairly/adequately reps interests of class

settled only w/ Ct approval and after Ct gives notice and gets feedback from Class whether to settle/dismiss

Class Action Fairness Act CAFA - if over 100 members - gives SMJ different from regular diversity rules. Diverse if any 1 claimant is diverse from any 1 Defendant, and aggregated claim of class is +$5 million


CA -
No comparable rule 23 but similar; only 1 type of Class Action

Cts certify where:
Question is one of common or general interest of many person, & impracticable to bring all P actions before ct, one or more may sue for benefit of all
1. ascertainable class
2. well defined community of interest (whether common questions predominate, Rep is adequate, and class will result in subst'l benefit to parties and ct)
-Indiv notice is not required, can be by publication to class, Ct decides who pays for it
-ct does NOT appoint counsel
AIC = aggregate of all claims

58

12b6 failure to state a claim test

BEFORE D has made answer -
Based on face of complaint, If these FACTS were true, would P win a judgment? Ct ignores legal conclusions and looks at allegations of FACT. Is claim plausible?

59

Failure to state claim motion made AFTER D's answer is

Motion for Judgment on the Pleadings (after D's answer)

60

Summary Judgment

After Discovery before trial: Look at 1st hand evidence (not hs)(affidavits, declarations, depositions, etc.) Pleadings not usually evidence unless verified (under oath)

Moving party must show
1. no genuine DISPUTE as to any material fact and
2. entitled to judgment as a matter of law;
3. Evidence viewed in light most favorable to non moving party;
4. must be done w/in 30 days of close of discovery;

61

Right to Jury (Federal only)

7th Amend FEDERAL right to jury for civil actions at LAW (not equity);

if hybrid case -
(FED) Jury only decides issue of law and goes 1st; bench decides equity

(CA) Equity issues decided 1st by bench; and Equity Cleanup Doctrine bench decides any legal issues merely incidental to equitable issues

62

PreTrial Conference

Final Conference which supersedes the pleadings and determines issues to be tried and evidence to be offered listed in Pre trial Conference Order

63

rights to strike Jury

peremptory strikes are state action and cannot violate 14th Amend discrimination laws,

FED - no limit on strikes for cause;
only 3 peremptory strikes and must be race/gender neutral;
MIN 6 jurors Max 12, no alternates;
Verdict must be unanimous, unless agreed otherwise

CA - 6 peremptory challenges and must be neutral regarding race, color, religion, sex, alienage, sexual orientation, or similar;
12 jurors in civil case unless agreed otherwise, alternates available
Verdict only must be 75%

64

JMOL Judgment as a matter of law (=JNOV, DV)

Test: Reasonable people could not disagree on the result

EXCEPTIONAL order Made after Opponent has been heard; (D can make again at close of evidence) takes verdict away from jury; must raise early or waived

CA - JMOL called motion for Directed Verdict; can move only at END of ALL evidence;
if before close of P's evidence it is "motion for non-suit"


RJMOL (renewed) - comes up after jury verdict; must have moved for JMOL prior to be eligible; made w/in 28 days of entry of judgment; reverses judgment and gives to other party
CA - called JNOV; must be earlier of 1. w/in 180 after entry or 2. 15 days of mailing of entry of judgment

65

Motion for New Trial

final judgment, miscarriage of justice! Vital errors require new trial (w/in 28 days FED) asks to overturn or set aside a court's decision or jury verdict
prejudicial error,
new evidence not avail orig,
prejudicial misconduct,
judgment against evidence,
-excessive/inadequate damages (Damages amt shocks the conscious) (option for Remit or Addt)

either party could win 2nd trial

66

Motion to set aside judgment

asks the court to vacate or nullify a judgment and/or verdict, often later down the road after trial
-Clerical Error (anytime)
-Mistake or excusable neglect (reas time w/in 1yr)
-new evidence not reas discoverable for new trial motion (reas time w/in 1yr)
-judgment is void (no smj) (reas time, no max)

67

Final Judgment Rule

FED - You cannot appeal case until merits of entire action have been resolved; move w/in 30 days

Test: after making this order, does trial judge have anything left to decide on the MERITS of the case? if yes, not final and no appeal

new trial - not final
Remand - not final
denial of new trail - yes final
granted RJMOL - yes final

CA only- if part of case is decided/final, that PART can be appealed; exception for multiple Ds
and final by Statute

68

interlocutory review

FED - review/appeal of claim available even when no final judgment
decisions on injunctions,
appointing receivers,
certain claims [among others] that are disposed of;)

CA - by statute appealable examples p69
grant of motion to quash
grant of new trial!
Grant of FNC
Denying certification of class for CA w/in 14 days but no stay given;

Collateral Order Rule - Ct appeal MAY hear
1. issue collateral to merits of case
2.that trial ct has decided finally
3. if it direct payment of money or performance of act

69

Fed Q (no state SMJ)

bankruptcy, fed securities, antitrust, patent infringement

70

CA Small claims

P is individual 7500 or less; P is entity 5k or less

71

Service by Mail (CA only)

Can Mail to D in CA or also out of state. summons and complaint and 2 copies of acknowledgment (waiver form) mailed to D with prepaid return
(called "waiver" in Fed Court
CA - 20 days to return, complete upon execution
Fed - 30 days to return, complete when filed

72

General Demurrer CA (pleading)

used to assert some MAJOR defenses especially:
Failure to state facts sufficient to constitute c/a (bc need facts for ALL elements of claim);

[Or could be raised in affirmative defense or judgment on pleading if D already pleaded and demurrer time passed]

Ct takes factual allegations as true and limits assessment to complaint (like Fed 12b)
Lack of SMJ

demurrers are Sustained or overruled
motions are granted or denied

venue???

73

Special Demurrer CA (pleading)

used to assert many MINOR defenses [which can also be raised in answer instead] but be careful of Waiver! not avail in Limited civil case
-Complaint uncertain, ambiguous, or unintelligible
-unclear about theories of liab
-lack of capacity
-defect or misjoinder of parties
-existence of another claim w/ P&D and same c/a
-failure to plead if K oral or written
-failure to file certificate of merit for suit for land prof negligencefo

74

Motion to quash service of summons (CA)

*SPECIAL Appearance to assert:
1. lack of PJ
2. Improper process
or 3. Improper service of process
(like 12b motions; can be waived)
*if denied, must seek write of mandate from Ct of Appeal w/in 10 days or waived!

Diff than FED!
*Special Motion must be made BEFORE or separately side by side with demurrer, answer (Gen'l appearance), or motion to strike or WAIVED! (cannot include in answer)
Fed - can include complaint in 1st answer & be ok

75

verified pleadings

signed under oath (can be treated as affidavits); If P makes verified complaint, D must verify answer

76

motion to strike

FED and Ca - motion to strike all or part of pleadings as irrelevant, false, or improper matter

77

CA anti-SLAPP motion to strike
Strategic Lawsuits Against Public Participation

concern about suits brought to chill valid exercise of 1A; If D sued for act in furtherance of 1A, D can make anti Slapp motion to strike; which Shifts burden to P to show probability of winning on merits (hard to show) and can give rise to SLAPPback suit; Limited - motion not proper if P is acting in public interest

78

ALL Secondary Claims in CA are called

Cross Complaints, Must be separate doc from answer

Fed=Cross Claim/Counter Claim/impleader, can be part of answer

79

Deposition availability

FED - 1 day of 7 hours unless agreed otherwise
CA - no time limit or limit on number

80

Subpoena Dues tecum

CA subpoena for Depo requiring witness bring evidence/information with him

FED - can just make subpoena demand w/o depo

81

work product

FED - can be generated by party or any representative
CA - must be generated by ATTORNEY or his agent (or pro se)

82

Involuntary Mandatory dismissal

CA
(excluding stays) State court must dismiss if
1. not brought to trial w/in 5 yrs of filing
OR
2. Process is not served w/in 3 yrs of filing

83

Default Judgment

cannot exceed or give different type of relief than what claimant orig demanded; (D fails to respond)

84

Remittitur

CA and FED
damages so high shocks conscience, so court gives P option to take lesser amount ct sets or get new trial

85

Additur

CA- damages award too low so ct gives D option to pay greater amt set by ct or go though new trail

Unconstitutional IN FED CT per 7th Amend

86

extraordinary writ

CA
an order is not otherwise appealable, but aggrieved party seeks writ of mandate from higher ct to compel/forbid lower court from doing something law requires/forbids (not technically appeal) showing:
1. irreparable harm if not issued and
2. normal appeal route inadequate and
3. movant has beneficial interest in outcome of writ proceeding
Great example and only remedy - for Denial of Motion to Quash Service of Summons (p. 53)

87

Erie Doctrine

In diversity case, fed ct must apply state law substantive law.
1. Direct conflict of law, supremacy clause Fed law applies
2. Per SCOTUS, Substantive:
a. Elements of claim/defense
b. statute of Limitations and rules for tolling
c. conflict (or choice) of law rules

3. Substantive 3 tests:
1. outcome determinative
2. balance of interests (state vs Fed)
3. Avoid Forum shopping

88

Aggregate AIC

if Joint Tortfeasors (Same claims) OR vicarious liable (Res. Superior) ?>?

89

Request to Produce

Fed rules permit Request to make tangible material (including ESI) available for review and permit entry onto land for relevant testing;
on Party; or Non party (if accompanied by subpoena), w/ showing of good cause:
Declaration explaining why record relevant to action.

90

Physical/Mental Examination

FED
rules provide for independent physical/mental exam of party, when that party's physical or mental condition is in controversy;

Exam only available upon court order w/ showing of Good Cause (can't get elsewhere): Facts showing why exam is relevant and necessary to action;

Movant chooses physician; person examined may receive report by request, but waives privilege by doing so

CA - Get 1 w/o leave of court

91

“true bill.”

bill of indictment

92

An Information

written accusation of crime prepared by the prosecutor. In most states west of the Mississippi, crimes are charged this way. Informations are also used when the defendant waives his right to a grand jury indictment.

93

A Gerstein hearing (not report)

hearing to determine probable cause to hold a detainee who was arrested without a prior finding of probable cause (e.g., if the arrest was not pursuant to an arrest warrant or grand jury indictment).

94

If a defendant invokes her right to counsel, under the Fifth Amendment

the police cannot interrogate the defendant about ANY charge without counsel.
The 5A right to counsel, on the other hand, applies only when the defendant knows that she is being interrogated by a government agent. Thus, an undercover informer in the defendant’s cell can question the defendant about anything without violating his Fifth Amendment right to counsel,
NOT offense specific

95

under the Sixth Amendment,

the defendant can be interrogated regarding a different charge.
The Sixth Amendment right to counsel applies to any post-charge interrogation—whether or not the defendant knows she is being interrogated by a government agent. The informer can question the defendant about any crime but the one with which she is charged.
offense specific

96

Judgment on the Merits =

includes involuntary dismissal, except one based upon Jurisdiction, Venue, or indispensable parties

97

Right to Jury (FED)

7th Amend preserves Right to jury trial in FED courts in all suits of common LAW (not equity). Where both legal and Equitable claims, jury decides legal claim 1st and bench decides equitable claim

CA: Equity decided by bench 1st, and
Equity Cleanup Doctrine - bench decides any legal issues merely incidental to equitable issues

98

Claim Preclusion - Res Judicata

affirmative defense, only get to sue on C/A once:
1. Identity of the parties in same configuration - Same P suing same D; (in privity)
2. valid Final judgment on MERITS in case 1 (everything except venue, jurisdiction, or indispensable parties); doesn't matter if actually litigated if could;

3. both case 1 and 2 have same c/a
FED claim = same t/o;
CA: 1 c/a for each different right invaded (Primary Rights)

FED - preclusion available regardless of appeals
CA-No preclusion if appeal is still possible/pending

99

Issue Preclusion - Collateral Estoppel

affirmative defense, precludes re litigation of that ISSUE decided before IF:
1. Valid final judgment on merits
2. Issue Actually LITIGATED and determined
3. Issue was essential to the judgment (diff result w/o that issue; careful more than 1 issue)
4. IP can only be asserted Against a Party/Rep in Case 1
5. Modern - non mutual person in Case 2 can bring sometimes

-Defensive IP - D2 wasn't in case 1, but can use IP against P (who was in case 1) if P had full chance to litigate in Case 1.

-Offensive IP harder - P2 wasn't in case 1, but can use IP against D2 who was P1 if:
-D had full and fair opp to litigate in case 1
-D2 could forsee multiple suits from case 1
-NEW party could not have been joined in case 1
and -
! no inconsistent judgments on record

FED preclusion available regardless of appeals
CA - NO preclusion if appeal still possible/pending

100

Removal

D (not P) can remove from State to fed ct if there is SMJ. cannot remove if D is citizen of forum (instate D rule). All Ds must agree