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Flashcards in Civil Procedure Deck (97):


Limited ($25,000 or less), unlimited ( > $25,000), small claims ($5000 or less)


Federal question

all claims arising under Constitution, laws or treaties of US


Well-pleaded complain

FQ exists only when federal issue is presented on the fact of the complaint (not defenses, answers or counterclaims)


Citizenship of individauls

state in which person is present and intends to reside for an indefinite period; only one domicile; determined at time action is commenced


Citizenship of corporations

state of incorporation; principal place of business ("nerve center" from which the high-level officers direct, control and coordinate the activities of the corporation)


Aggregation of claims

permitted for multiple Ps with common/undivided interest (counterclaims don't count); can aggregate claims against multiple Ds jointly and severally liable



federal court with JX may exercise SJ over additional claims which court would not independently have SMJ (usually state law claims against a non-diverse D), but that arise out of a “common nucleus of operative fact” such that all claims should be tried in a single judicial proceeding



common nucleus of operative fact test



Permissive joinder: addition of P asserting additional claim can't violate complete diversity (but no need to satisfy jurisdictional amount)

Counterclaim: compulsory (SJ); permissive counterclaim (NO SJ)

Cross-claims: SJ



Claims by existing plaintiff against person made party to case by rule 14, 19, 20, or 24;
Claims by persons joined as plaintiff under Rule 19;
Claims by person seeking to intervene as plaintiff under


Removal jurisdiction

D may generally remove case from state court to federal district court having SM


Removal based on DJ

diversity must exist at time of filing of original action and time of removal; no D is citizen of state where action was filed;



Lack of SMJ; remand any time before final judgment is rendered


Defenses to PJ

ack of JX, insufficiency of process or service of process must be asserted in responsive pleading (or motion before it is submitted), and failure to object waives the objection


Consent to PJ

Express, implied (through conduct, filing counterclaim or driving vehicle in state) or voluntary appearance in court (unless to object to lack of PJ)


Basis for in personam JX

Voluntary (voluntarily present in state and served with process); domicile; consent; long-arm statute


Purposeful availment

D’s contacts with forum state must be purposeful and substantial, such that D should reasonably anticipate (foresee) being taken to court there; Foreseeability depends on whether a defendant recognizes or anticipates that by running his business, he runs the risk of being party to a suit in a particular state


Specific and general JX

The scope of contacts necessary for the assertion of personal jurisdiction depends on the relationship that the cause of action has with the forum state.

Specific: when c/a arises out or closely relates to D's contact with forum even if it's only contact

General: when c/a doesn't arise out of or relate to D's contacts with forum, JX warranted only when D is "at home" (incorporation, principal place of business)


Fair play and substantial justice

(1) Interest of forum state in adjudicating matter
(2) Burden on D of appearing in case
(3) Interest of judicial system in efficient resolution of controversies, and
(4) Shared interests of the states in promoting common social policies


In personam JX over corporations

corporation is a resident for PJ purposes only if it is incorporated in the forum state (otherwise must apply MC analysis)



must be reasonably calculated (under all the circumstances) to apprise interested parties of pending action and afford them the opportunity to object


Venue in CA (transitory actions)

(claim arose elsewhere)
(1) county where D resides when action commences; any county if no D is from CA;
(2) K action: where K was executed or performed;
(3) personal injury/wrongful death: where injury occurred


Venue in CA (mixed actions)

in actions subject to multiple venue rules; venue proper where any D resides


Venue transfer (CA)

(1) fair trial cannot be had in original county; (2) convenience of witnesses and ends of justice require it; (3) no judge of court qualified to act



venue proper in judicial district where any D resides in state where all Ds reside; or where substantial part of the events/omissions occurred; or where property that is subject of the action is located (otherwise where any D is subject to PJ)


Venue (residence)

judicial district where D is domiciled for individual; where D subject to PJ for an entity; or, when entity is P, where principal place of business is located; non-resident of US can be sued in any judicial district


Change of venue (original forum proper)

for convenience of parties, in the interest of justice, a district court may transfer any civil action to any other district where it might have been brought or to any district to which all parties consent; available only when jurisdiction and venue of court considering issue are proper; law of transferor court applies


Change of venue (original forum improper)

dismiss case or transfer case to proper district in which it could have been brought if it’s in the interest of justice; law of transferee forum applies; if no timely objection is made to venue, then district court with improper venue can still exercise jurisdiction


Forum non conveniens (federal)

allows a court to dismiss an action if the court finds the forum would be too inconvenient and another more convenient venue is available; primarily used when forum that is deemed most appropriate for the action is foreign court


forum non conveniens (CA)

court can stay/dismiss action in interests of justice if such action should be heard in different state/country


Choice of law (in general)

FQ: federal substantive and procedural law controls; and federal common law

DJ: state substantive law; federal procedural law


choice of law (substantive v. procedure)

1. Is there a conflict between state and federal law? No, apply both
2. Valid federal statute on point when state and federal law conflict -> apply federal law
3. no federal rule on point -> apply state law if failure to do so would lead to different outcomes in state and federal court unless affirmative countervailing federal interests at stake; federal common law if no different outcomes


choice of law (substantive law)

elements of claim; defense; statute of limitations; burden of proof; choice of law


choice of law (procedural law)

judge/jury allocation (jury decide factual issues); assessment of attorney's fees; whether issue is equitable/legal


conflict of law (CA tort claims)

government interest approach: If two states have interest in applying its own law → compare the impairment of each state’s interest if the other state’s law is applied


conflict of law (CA contract choice of law clause)

Does the state law chosen substantially relate to the parties? No → unenforceable
Yes → does the law conflict with CA policy? No → apply
Yes → does CA or chosen state have a greater interest in determining the issue?
If no choice of law clause → apply government interest approach


Service of process

within 90 days; personally; at D's usual place of abode with person of suitable age/discretion who resides there; D's agent; state law for service


Service of process (CA)

requires follow-up mailing to D for substitute service; allows service by first class mail/return receipt for out-of-state D if PJ exists


Complaint (federal rule)

short/plain statement of court’s SMJ, P’s entitlement to relief, and demand for judgment (notice pleading)

Twombly/Iqbal: Requires allegations in complaint state plausible case for recovery; Judges can dismiss complaints that are obviously unfounded; Can’t merely recite the elements of a cause of action with broad, conclusory statements


Complaint (CA)

all pleadings must contain statement of all material, operative facts constituting each c/a and demand for relief, and amount of damages (fact pleading)



(1) Lack of SMJ (can be raised at any time);
(2) Lack of PJ, improper venue, insufficient process or service (can be raised in pre-answer
motion or answer, otherwise waived)
(3) Failure to state a claim upon which relief can be granted and failure to join necessary/indispensable party (can be raised in any pleading, motion for judgment on pleadings, or at trial)



claim will be dismissed if it fails to assert legal theory of recovery cognizable at law or allege facts sufficient to support cognizable claim; and court treats well-pleaded facts as true, resolves doubts/inferences in P’s favor, and views pleading in light most favorable to P


Motion for judgment on the pleadings

after answer filed; allows the court to dispose of a case when the material facts are not in dispute and judgment on the merits can be achieved based on the content of the pleadings



must admit/deny P's allegations; raise affirmative defenses or deemed waived; failure to deny (other than amount of damages) will be deemed admitted; 21 days after service; 14 days after court's decision of of motion to dismiss



Party may amend a pleading once as of right within 21 days if no responsive pleading is required, or after being served with an answer or 12(b) motion; court should freely give leave to amend when justice so requires and will not result in undue prejudice to opposing party


Amendments (CA)

party may amend once as of right before answer/demurrer is filed, or after demurrer but before trial on the issue raised in the demurrer; otherwise by leave of court or written consent of adverse party


Relation back (new claim)

Rule—relates back to date of original pleading if amendment asserts claim/defense
that arose out of same conduct, transaction, or occurrence as original pleading

CA—amended pleading must also involve same accident/injuries, and refer to same offending instrumentality


relation back (new party)

(1) Relates back to date of original pleading if amendment asserts claim/defense that arose out of same conduct, transaction, or occurrence as original pleading

(2) New party receives notice of action within 120 days after original complaint filed

(3) D knew or should have known action would have been brought agianst him but for mistake concerning proper party’s identity


Permissive joinder

Ps & Ds may join/be joined in one action if any right to relief is asserted jointly, severally, or with respect to or arising out of the same transaction, occurrence AND a question of law or fact common to all Ps or Ds will arise


Necessary parties

(1) Complete relief cannot be provided to existing parties in the absence of that person;
(2) Disposition in the absence of that person may impair the person’s ability to protect his interest; or
(3) The absence of that person would leave existing parties subject to a substantial risk of multiple or inconsistent obligations


Indispensable parties

(1) Extent to which judgement would prejudice the parties in the person’s absence; (2) The extent to which prejudice could be reduced or avoided by protective provisions in the judgement; (3) Whether a judgment rendered would be adequate; and (4)
Whether the plaintiff would have an adequate remedy if action were dismissed


Compulsory joinder

(1) The party must be necessary; (2) There needs to be personal jurisdiction over the new party; (3) There must be subject matter jurisdiction; (4) The venue must still be proper


Intervention as of right

(1) Nonparty has an interest in the property or transaction that is the subject matter of the action; (2) Disposition of the action may impair the nonparty’s interest; and
(3) Nonparty’s interest is not adequately represented by existing parties; (4) federal statute confers right o intervene


Permissive intervention

(1) Movant has conditional right to intervene under federal statute, or (2) Movant’s claim/defense and original action share a common question of law or fact

CA: intervenor's interest must be "direct and immediate"


Federal interpleader Rule

Ps—persons with claims that may expose P to multiple liability may be joined as Ds and required to interplead claims though they lack common origin or are adverse and independent rather than identical or P denies liability

Ds—persons exposed to similar liability may seek interpleader through a cross-claim or counterclaim


Federal statutory interpleader

SMJ: DJ met if any two claimants are citizens of different state and proeprty at issue must merely exceed $500;

JX: nationwide PJ and service of process permitted

Venue: proper in any district where a claimant resides


Permissive joinder of claims

party may join independent or alternative claims of whatever nature against opposing party

CA: there must be at least one question of law or fact common to all Ds
and court may sever claims if undue delay or prejudice would result


Compulsory counterclaim

at time of service, counterclaim is compulsory if it arises out of same transaction/occurrence that is subject matter of opposing party’s claim and doesn’t require adding another party over whom court has no JX


Permissive counterclaim

party has discretion if counterclaim isn't compulsory



claim against co-party may be asserted if they arise out of same transaction/occurrence that is subject matter of original action or counterclaim and new parties subject to joinder rules (never compulsory)


Third party claims (impleader)

defending party (third-party P) can implead non-party (third-party D) for liability on original claim


Class actions

(1) Class is so numerous that joinder of all members is impracticable
(2) Must be questions of law or fact common to class
(3) Claims/defenses of representatives must by typical of class
(4) Representatives must fairly and adequately protect the interests of class


Class certification (risk of prejudice)

separate actions would create risk that the class opponent would become subject to inconsistent adjudications or if separate actions would impair the interests of the class members


Class certification (final equitable relief)

equitable relief based upon a shared general claim must be the primary relief sought


Class certification (common legal/factual questions)

must predominate over questions affecting individual members and class action is superior method for bringing about fair and efficient adjudication of controversy


Discovery scope

Generally permitted with regard to any non-privileged matter relevant (need not be admissible to be discoverable) to any party’s claim or defense in action; Information may be discoverable if it “appears reasonably calculated to lead to the discovery of admissible evidence.” limited to matters that are proportional to the needs of the case


Limitations on discovery

(1) Discovery sought is unreasonably cumulative or can be obtained from a more convenient or less expensive source
(2) Party seeking discovery had ample opportunity to obtain information by discovery
(3) The proposed discovery is not relevant and proportional

weigh party's interests in seeking discovery against privacy interests of party resisting discovery


Work-product doctrine

Party may not discover documents and tangible things prepared in anticipation of litigation or for trial, unless (1) other party shows that it has substantial need for the materials to prepare its case and (2) cannot, without undue hardship, obtain their substantial equivalent by other means

Mental impressions, conclusions, opinions, or legal theories of party’s attorney or other representative must be protected against exposure (In CA, writings that contain these are absolutely privileged and never discoverable)



Testifying expert witnesses may be deposed, but expert report drafts and disclosure are protected, as well as any communications between the party’s attorney and expert witness unless they relate to compensation, facts/data used or assumptions relied upon by expert in forming his opinion


Motion to compel

party can move to compel disclosure or discovery against party failing to make automatic disclosures, or to respond to discovery requests (including evasive or incomplete disclosure); certify in good faith conferred or attempted to confer with opposing party to resolve issue without court action

CA: party must first make reasonable and good faith effort to informally resolve issues before filing motion to compel


Discovery sanctions

if party fails to obey a court order regarding discovery, the court may impose sanctions subject to the abuse of discretion standard


Failure to make automatic disclosures

party will not be permitted to use the documents or witnesses that were not disclosed unless nondisclosure was substantially justified or harmless


Voluntary dismissal

can be filed without prejudice (unless same claim dismissed by P in prior action) any time before opposing party serves answer, motion for summary judgment; or stipulation of dismissal by all parties in the action

CA: after commencement of trial, P can only dismiss with prejudice (absent agreement or good cause)


Involuntary dismissal

when P fails to prosecute or comply with the rules of civil procedure or court order, D can move to dismiss, which if granted is with prejudice and operates as an adjudication on the merits


Involuntary dismiss (CA)

under “diligent prosecution” statutes, the court must dismiss an action after five years have elapsed since filing of the complaint or three years if complaint has not been served, and may dismiss if two years have elapsed since filing of complaint


Summary Judgment

no genuine dispute as to any material fact and movant is entitled to judgment as a matter of law; court will construe all evidence in the light most favorable to the non-moving party and resolve all doubts in favor of non-moving party


Judgment as matter of law (directed verdict)

insufficient evidence for jury to reasonably find for the opposing party; court must view evidence in light most favorable to the opposing party and draw all
reasonable inferences from evidence in favor of opposing party; anytime before case is submitted to jury after close of plaintiff's case; no consideration of credibility of witness or weight of evidence


Renewed motion for judgment as a matter of law (JNOV)

if court doesn’t grant directed verdict, movant can file a JNOV no later than 28 days
after entry of trial judgment

CA: same standards as federal rule, but there is no requirement that party move for a directed verdict before moving for JNOV


Collateral order doctrine

a court of appeals has discretion to hear and rule on an issue if it is distinct from the merits of the case, involves a serious and unsettled legal question, and would be effectively unreviewable if court waited until final judgment to hear the claim or issue


Appeal of interlocutory order

Immediately appealable as of right: (1) Injunctions

Discretionary interlocutory appeal: (1) Controlling question of law AND immediate appeal may advance termination of litigation; (2) Trial court must certify and appellate court must agree

May grant appeal of order granting/denying class action certification; but appeal will not stay proceedings in district court unless district court/appeals court so orders


Standards of review

Questions of law: de novo

Findings of fact:
(1) Jury verdict -> if reasonable and supported by substantial evidence even if against weight of evidence; (2) bench trial -> clearly erroneous

Admissibility of evidence: abuse of discretion


Claim preclusion (res judicata)

(1) valid final judgment on the merits; (2) sufficiently identical causes of action (transaction approach v. primary rights); (3) sufficiently identical parties


Valid final judgment on the merits

court must have PJ & SMJ, D must have had proper notice and opportunity to be heard, court must have nothing further to do but order entry of judgment, and decision must be made on merits of claim/defense (rather than technical grounds)


Primary rights doctrine

causes of action are based on individual harms

Each harm can be brought individually (i.e. in a car accident, P can sue in one action for personal injury and a separate action for property damage)


Issue preclusion (collateral estoppel)

(1) same issue (facts relevant to particular issue and applicable law must be identical; (2) actually litigated (CA: unlike federal, default and consent judgments in CA are give issue preclusive effect as to material issues actually raised in pleadings that were necessary to judgment); (3) final, valid judgment; (4) essential to the judgment



A party can depose another party or a nonparty after serving a subpoena; give reasonable written notice about time and place of deposition


Request to produce documents and inspect land

May serve any other party a request t produce and inspect documents; Nonparties may be compelled to produce documents and other things or submit to an inspection pursuant to a subpoena.


Physical and mental exams

If the mental or physical condition of a party is in controversy, then the court may order such person to submit to a physical or mental examination by a suitably licensed or certified examiner; An order for a physical or 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, and scope of the examination and the identity of the examiner.


Requests for admission

If not responded to in 30 days, it is an admission conclusive in the proceeding; must specifically deny or state why answering party cannot truthfully admit/deny it; no preclusive effect for other proceedings


Class Action Fairness Act

(1) at least 100 members; (2) AIC over $5M; (3) minimum diversity: any P diverse from any D


Initial disclosures

individuals having discoverable information, documents supporting claims/defenses, computation/backup of damages; relevant insurance agreements for satisfying judgment


Mandatory disclosure (expert testimony)

identify expert witnesses who may testify and produce expert reports


Mandatory disclosure (pretrial)

witness list by testimony or deposition, documents and exhibits


Bulge provision (4k1b)

court has PJ over any party served within 100 miles of court where summons is issued; only for third party D joined under R14 and required party under R19


Rule 4(k)(2)

P's claim must be based on federal law; no state court can exercise PJ; exercise is consistent with minimum contacts


Right to jury trial

Right of jury trial is preserved to parties inviolate. Action at law is tried on demand to a jury; action in equity is not. generally federal law will determine right to jury trial in diversity actions

must make demand in writing within 14 days of last pleading directed to the issue; or else waived


Judgment on the merits

on the merits of the claim, rather than technical grounds

full trial, SJ, JMOL, default judgment, involuntary dismissal on non-jurisdictional grounds