Civil Procedure** Flashcards
(29 cards)
Proper Summons/Service of Process
Service of the summons and complaint can be made by anyone at least 18 years old and who is not a party. Personal service is adequate. Substituted service is allowed if personal service cannot be accomplished with reasonable diligence.
The process must be mailed by first class mail. Service on parties in a foreign country can also be done as the court directs, or in accordiance with the laws of the foreign jurisdiction, or in accordance with the rules of an international treaty.
Personal Jurisdiction - Traditional Basis
Traditional basis of jurisdiction are consent, domiciled in forum state, or present when served in forum state.
Personal Jursidction
Power over a particular Defendant. CA: Use same analysis.
- Traditional Basis (CDP)
- Statutory Basis (Long-Arm Statue)
- Constitional basis
Personal Jursidction - Statutory basis
A state’s long-arm statue gives jurisdiction over non-residents to constitionally premissible extent. Exercise of such must still have constitional basis.
- MINIMUM CONTACTS between defendant and forum state = PURPOSEFUL AVAILMENT to forum state + REASONABLE FORESEEABILITY of being haledi nto forum state court (e.g. working, receiving compensation. TRADITIONAL BASIS. are constitutional adequte to supply “minimum contacts” with forum.
- RELATENEDSS of P’s claim to D’s contact with forum. SPECIFIC JURISDICTION arises when the cause of action is related to D’s contacts. GENERAL JURISDICTION arises even when cause of action is not related; D must have had CONTINUOUS AND SYSTEMATIC CONTACT with forum state such that D is ESSENTIALLY AT HOME (domicile, state of incorporation, principal place of business)
- FAIRNESS FACTORS: Consider interests of (a) PLAINTIFF GETTING RELIEF; (b) FORUM STATE in providing REDRESS; (c) D not being gravely inconvenience
Personal Jursidiction - Min. Contacts/Constitutional Analysis
MINIMUM CONTACTS between defendant and forum state = PURPOSEFUL AVAILMENT to forum state + REASONABLE FORESEEABILITY of being haledi nto forum state court (e.g. working, receiving compensation. TRADITIONAL BASIS. are constitutional adequte to supply “minimum contacts” with forum.
Personal Jursidction - Fairness Factors
FAIRNESS FACTORS: Consider interests of (a) PLAINTIFF GETTING RELIEF; (b) FORUM STATE in providing REDRESS; (c) D not being gravely inconvenience
Personal Jurisdiction - Relatedness
RELATENEDSS of P’s claim to D’s contact with forum. SPECIFIC JURISDICTION arises when the cause of action is related to D’s contacts. GENERAL JURISDICTION arises even when cause of action is not related; D must have had CONTINUOUS AND SYSTEMATIC CONTACT with forum state such that D is ESSENTIALLY AT HOME (domicile, state of incorporation, principal place of business)
Venue - California
Venue is proper in any county where the clain arose (injury occurred) or the defendant resides.
Removal
D may remove to federal court if the case could properly have been brought in federal court (has subject matter jurisdiction and personal jurisdiction). All D’s must agree to removal. In diversity cases, the defendant may not remove to federal court if he is a citizen of the forum state. D must remove no later than 30 days after service of the first removable document, but never later than one year after the initial filing.
**On exam, need to then do SEPARATE ANALYSIS of SUBJECT MATTER JURISDICTION and PERSONAL JURISDICTION
Subject Matter Jurisdiction
Federal question or complete diversity betwen the parties and more than $75,000 amount in controvery. Domicile determines a person’s citizenship. A person’s domicile iw where he is physically present with a subjective intent to remain. A corporation is a domicile of the state of incorporation and the PPB. There is SMJ of an alien (or citizen of different country). However, diverse U.S citizens must be on both sides of the controversy for alienage jurisdiction
For class actions, look only to the CLASS REPRESENTATIVE and not the class members: Class Action Fairness Act (2005) allows federal court to hear a class action if any class member is diverse from any D and the class claims exceed $5 million.
Remand
A federal court can remand a case back to state court if removal was improper.
Motion for summary judgment
No genuine issue of material fact, and the moving party is entitled to judgment as a matter of law.
Res Judicata
- Prior judgment valid, final, and on merits
- Same parties/privies
- Same claim cause of action
FED: same transaction and occurrence
CAL: primary rights
Collateral Estoppel
- Prior proceeding resulted in valid final judgment on merits
- Same issue actually litigated
- Issue necessarily determined (essential)
- Mutuality of parties
- Traditional: party/privity
- Modern/Cal: nonparty ok if:
-Defensive: fair opportunity to be heard in prior case
-offensive: not unfair to apply
a way to start essays -
Applicable Law
Erie: A federal court sitting in diversity applies federal procedural law and state substantive law.
Scope of Discovery
FRCP provides for broad discovery for information relevant to the cause of action, including any materials reasonably calculated to lead to the discovery of admissible evidence.
Physica/Mental Exam
Request for physical examination of a party may be sought by opposing party. Requires court order upon showing (1) physical condition is at issue and (2) good cause for examination (relevant and not overly intrusive).
**Analyze Physical and Mental exam if they are treated separately in the facts
Deposition
Nonparties can be deposed through means of notice by a subpoena served directly on them. The FRCP permits one deposition per person, not to exceed 7 hours in one day.
Physician-Patient Privilege
Erie: A federal court sitting in diversity applies federal procedural law and state substantive law. If the application of a rule is outcome determinative, it is substantive and the state law applies.
FED: There is no federal physician-patient privilege.
CAL/ Generally: Confidiential communications made for the purpose of receiving a medical diagnosis and treatment are privileged. EXCEPTION when the patient puts his physical condition at issue.
7th Amendment Right to Jury Trial
In federal court, there is a right to a jury trial in all civil actions at law. Plaintiff must demand in writing, no later than 14 days after the service of the last pleading that he wants a jury trial, or it is waived.
JMOL
After the close of evidence for the other side, the moving party must show that based on the evidence before the court, no reasonable jury could find in favor of the opposing part.
CA: called DIRECTED VERDICT or DEMURRER to the evidence)
Renewed JMOL
After the jury reaches its verdict, the losing party can file a renewed JMOL ONLY if it filed a JMOL during the trail.
CA: called a JNOV and the losing party is not required to make a previous directed verdict motion to file a JNOV)
Class Action
To quality as a class action suit, there must be:
1. NUMEROSITY
2. COMMONALITY
3. TYPICALITY; and
4. THE REPRESENTATIVE MUST BE ADEQUATE
(CA: Allowed if there is an ascertainable class, AND a well-defined community of interest; court looks at whether common questions predominate, the representative is adequate, and the class will result in substantial benefit to the parties and the court)
Venue
Venue is proper in any district where the (1) CLAIM AROSE; (2) for transitory actions (not local), venue is proper in a district where ANY D RESIDES if they all reside in the same state OR a substantial part of the claim arose.
natural persons: residence equals domicile
Corp: reside in all districts where they are subject to PJ when the case is filed
