Civil Procedure Bar Prep

Question 1

Subject matter jurisdiction (SMJ)

Answer 1

Federal courts are of limited jurisdiction and can only hear cases where it has SMG. SMJ exists where there is federal question, diversity of citizenship, or supplemental jurisdiction.

Question 2

SMJ CA

Answer 2

California divides SMJ into 3 defined categories (effective 1/1/24): 1) Unlimited civil cases - > $35k AIC and includes full range of motions and remedies; 2) Limited civil cases - =< $35k AIC and limited to monetary remedies; and 3) Small claims cases - =< $12.5k, or $5k if business entity, no attorneys, pro se only.

Question 3

Federal question

Answer 3

A federal question arises under federal law, the US constitution or US treaties. Raising a federal defense is not sufficient.

Question 4

Diversity jurisdiction

Answer 4

Exists where there is complete diversity of citizenship between litigants and the AIC > $75k.

Question 5

Citizenship

Answer 5

For a person, depends upon domicile. Domicile is where a person resides with intent to make it their permanent home of records. College students generally retain domicile of their parents. Corporations are citizens of their headquarters and state incorporated.

Question 6

Amount in controversy (AIC)

Answer 6

In federal courts, AIC must be greater than $75k and alleged in good faith. A plaintiff can aggregate claims to get to $75k if making multiple claims against one defendant.

Question 7

Pleadings

Answer 7

A pleading is an initial filing that states a claim for relief. It must contain a short and plain statement that lists the grounds for jurisdiction, that the pleader is entitled to relief, and the prayer for relief sought.

Question 8

Good faith claims

Answer 8

a claim must be made in good faith, and in the case of fraud, must include specificity regarding the details of the case. A claim that concludes in a trial where less than the required AIC is awarded does not invalidate the claim, as long as the AIC was greater than $75k and pled in good faith.

Question 9

Supplemental jurisdiction (SJ)

Answer 9

A federal court with SJ may exercise SJ over state claims where they arise from a common nucleus of operative fact. A federal court may decline SJ over state claims when the claim raises a novel or complex issue of state law, it substantially predominates over the original federal claim, or if the court has dismissed the claim which had original jurisdiction.

Question 10

Removal to federal court

Answer 10

Only a defendant may remove a case to federal court. This requires that the federal court have SMJ, no defendant be domiciled in the forum state (under diversity), and removal is sought within 30 days.

Question 11

Remand to state court

Answer 11

A remand occurs when a case is sent from federal court to state court. This typically occurs when there is invalid SMJ. A federal court may remand a case that originally had SMJ, but one the federal claims have been decided, the court may remand at their own discretion.

Question 12

State vs. federal jurisdiction

Answer 12

State courts can try federal cases provided there is no implied restriction by Congress. States may not discriminate because a case is based strictly on federal law.

Question 13

In personam jurisdiction

Answer 13

Required for a court to exercise judgement, and normally falls into two categories: 1) Traditional bases of jurisdiction; and 2) Modern bases of jurisdiction.

Question 14

Personal Jurisdiction Approach

Answer 14

I. Traditional basis – consent, presence while served, domicile, waiver
II. Modern bases – long-arm statute and constitutionality
1. Contacts – not to offend traditional notions of fair play and substantial justice)
a. Purposeful – availed themselves of the benefits of the state’s law
b. Foreseeable – that D could be haled into court there
2. Relatedness
a. General jurisdiction – at home in the forum state
b. Specific – D’s contacts must relate to the claim.
3. Fair play and substantial justice
a. Burden on D
b. State’s interest
c. P’s relief interest
d. Interstate judicial system’s interest in efficiency
e. Shared social policy interest of the states

Question 15

Foreign corporation in personam jurisdiction

Answer 15

Requires that the foreign corporation be “at home” in the forum state through systematic and continuous contacts. In 2023, the Supreme Court ruled in Mallory v. Norfolk Southern that registering to do business in a state suffices for consent to jurisdiction.

Question 16

Traditional bases of jurisdiction

Answer 16

The traditional bases of jurisdiction include domicile, presence when served, and waiver.

Question 17

Modern bases of jurisdiction

Answer 17

The modern bases of jurisdiction are the long-arm statute and constitutionality.

Question 18

Long-arm statute

Answer 18

Many states have adopted long-arm statutes which allow personal jurisdiction over nonresidents. While long-arm statutes can differ by state, jurisdiction under a long-arm statute must satisfy the constitutional requirement for the exercise of jurisdiction. Many states, like California, have adopted long-arm statutes which extend personal jurisdiction to the limit of the Constitution. (Note: If you don’t get facts with traditional bases or long-arm statute, you can’t exercise out of state jurisdiction, so there will usually be a long-arm statute. If not, assume there is an analyze minimum contacts as necessary).

Question 19

Constitutionality

Answer 19

To satisfy the constitutionality for personal jurisdiction, the defendant must have such minimum contacts with the forum state as not to offend traditional notions of fair play and substantial justice. In determining whether such minimum contacts are present, courts consider three factors: 1) Extent of the contacts; 2) Relatedness to the cause of action; and 3) Whether exercise of jurisdiction would be fair.

Question 20

Minimum contacts

Answer 20

In determining minimum contacts, the court looks at whether the defendant purposefully availed himself of the forum state, and whether the exercise of jurisdiction by the forum state would be foreseeable.

Question 21

Purposeful availment

Answer 21

The contacts were purposeful if the defendant availed themselves of the benefits and protections of the forum state’s laws. (Note: Knowledge that your product is being sold is not sufficient; must be advertising, mailing goods, operating a 2-way website, etc. Likewise, if you drive on another state’s roads, you’ve purposefully availed yourself of their traffic laws.)

Question 22

Foreseeability of contacts

Answer 22

The contacts were foreseeable if the defendant could reasonably expect to be haled into court on the basis of their contact with the forum state.

Question 23

Relatedness of contacts

Answer 23

The relatedness of contacts to the controversy determines whether the court will exercise General or Special jurisdiction.

Question 24

General jurisdiction

Answer 24

Exists if contacts are so systematic and continuous that the defendant is essentially at home in the forum state.

Question 25

Specific jurisdiction

Answer 25

May exist if general jurisdiction does not. Courts consider whether the contacts gave rise to the cause of action.

Question 26

Fair play and substantial justice

Answer 26

Requires courts to consider the burden on the defendant, the state’s interest in justice, the plaintiff’s relief interest, the interstate judicial system’s interest in efficiency, and shared social policy interests (i.e., the “Burger King” factors.)

Question 27

Judgement on the pleadings

Answer 27

Motion for judgement on the pleadings can be made when material facts are not in dispute and the pleadings reveal merit of the claim for either party. These are filed only after an answer has been filed and pleadings are closed.

Question 28

Venue

Answer 28

Venue is proper in any district where any defendant is a resident, where a substantial portion of the claim occurred, or where a substantial part of the property is located. Otherwise, venue is proper in any judicial district where any defendant is subject to personal jurisdiction. Venue may be transferred for party convenience or in the interests of justice if the action could have been brought in the transferee court. In CA, if the suit is considered a local action (involving real property), venue will be set in the same county as the real property. Otherwise, the venue will be considered a transitory action, and venue will be considered proper in the county where any defendant resides.

Question 29

Forum non-conveniens

Answer 29

Allows a court to decline exercise of jurisdiction and dismiss an action if the court where the action was brought would be seriously inconvenient, and an adequate alternative forum exists in a foreign country.

Question 30

Service

Answer 30

Must be made within 90s, but upon showing of good cause, the court must extend an additional appropriate period. Requires summons and complaint. Failure to serve timely results in dismissal without prejudice.

Question 31

Service of process

Answer 31

Process may be served by an adult who is not a party to the action. The federal methods of service upon individuals include: 1) Delivery to the defendant personally; 2) Leaving service at the defendant’s dwelling with someone of suitable age and discretion who resides there; or 3) Delivery to the defendant’s agent. If the defendant has waived the right to personal service, process can be served by sending a copy of the summons and complaint by first-class mail.

Question 32

Service upon corporations

Answer 32

Process may be served upon corporations by hand delivery to an officer or designated agent of the corporation. Otherwise, process may be served by any method authorized by state law in the state where the action is pending or in the state where service occurs.

Question 33

Service upon foreign corporations

Answer 33

Service upon a foreign corporation can be made by any means proper in their home country. In CA, service upon a foreign corporation can also be made to the local subsidiary general manager of a foreign parent corporation (provided the local subsidiary is not a party to the suit).

Question 34

Waiver of service

Answer 34

Provides a defendant additional time to respond to the complaint. The defendant must be mailed two copies of the summons and complaint and a Request to Waive form, along with a pre-paid, addressed return envelope. This waiver must be returned within 30 days in the continental US, or 60 days outside the US. This allows the defendant 60 days to answer, or 90 days if they are outside the US. In CA, waiver of process does not allow additional time to answer.

Question 35

12(b)(6) motions

Answer 35

These motions subject the movant to personal jurisdiction of the court, however are an attempt to have the case dismissed due to: 1) Lack of subject matter jurisdiction; 2) Lack of personal jurisdiction; 3) Improper venue; 4) Insufficient process; 5) Insufficient service of process; 6) Failure to state a claim upon which relief can be granted; and 7) Failure to join t a required party per Rule 19.

Question 36

Demurrers (CA)

Answer 36

In CA, a demurrer functions similar to a 12(b)(6) motion in federal court, whereas a Motion to Quash is used to claim a lack of personal jurisdiction, insufficient process, or insufficient service of process. A General Demurrer is used to claim a failure to state a claim upon which relief can be granted, and a Special Demurrer is for other technical reasons.

Question 37

Scope of discovery

Answer 37

Discovery shall include all information relevant to the party’s case that is not privileged. This discovery must be proportional to the needs of the case, such that the costs of discovery cannot greatly exceed the value of the original claim. In CA, a party may obtain discovery of all non-privileged information that is relevant to the subject matter of the case. (Privileged information is not discoverable, such as work product, strategies, and mental observations.)

Question 38

Motion to compel discovery

Answer 38

A party may move for an order compelling disclosure or discovery. The motion must include a certification that the movant has, in good faith, conferred or attempted to confer with the person or party failing to make disclosure or discovery in an attempt to obtaining without court intervention.

Question 39

Discovery initial disclosures

Answer 39

A party to a case must, without awaiting a discovery request, provide other parties with: 1) The name, and if known, the address and telephone number of each person that may have discoverable information; 2) A copy of or description of all documents, electronic media, or tangible things within that party’s control which can support their claims; 3) A computation of damages; and 4) Any insurance policies that could potentially satisfy a judgement.

Question 40

Physical or mental examinations

Answer 40

When a person’s physical or mental condition is in controversy, a physical or mental exam of the person may be requested. Physical and mental examination are the only discovery tools for which court approval is required. The court requires a showing of “good cause” for the examination.

Question 41

Disclosure of persons with knowledge

Answer 41

A party has no obligation to include in their initial disclosures information concerning individuals who have discoverable information, but whom the party does not intend to call to testify. This includes expert witnesses that provided a service, but their reports will not be admitted, and they will not be called to testify.

Question 42

26(f) conference

Answer 42

The parties meet and confer to plan discovery as soon as possible and must take place 21 days prior to the Settlement Conference. Initial disclosures must be exchanged 14 days after the 26(f) conference unless otherwise stipulated by the court.

Question 43

Interrogatories

Answer 43

An interrogatory is a formal written question submitted to opposing counsel. A party may initially request 25 interrogatories. If more are needed, bring this issue up at the 26(f) conference. Parties have 30 days to respond to interrogatories.

Question 44

Depositions

Answer 44

A deposition is a formal interview under oath. A party is initially limited to 10 depositions, but the parties may stipulate a different number. Depositions are normally limited to one day, seven hours max. A party may depose any person, giving them notice via a subpoena.

Question 45

Expert witness disclosure

Answer 45

Parties to a trial are required to present an expert witness list to opposing counsel. Additionally, parties must include a report stating the expert’s opinions, facts they considered, exhibits, and the expert’s qualifications at least 90 days before trial, or 30 days only if rebuttal of opposing experts, unless otherwise stipulated.

Question 46

Work product doctrine

Answer 46

Material a lawyer prepares for litigation is immune from discovery unless the opposition shows a substantial need and inability to obtain without undue hardship. Absolute privilege applies to mental impressions, legal strategies, notes, or opinions. Qualified privilege applies to other materials that can be discoverable upon showing substantial need and an ability to acquire the material elsewhere.

Question 47

Res judicata

Answer 47

Claim preclusion. Prohibits parties from relitigating claims. Requires identical litigants or their privies, a final judgement on the merits, and the same claim based on the same transaction or occurrence previously litigated. In CA, all appeals must be exhausted. A dismissal with prejudice equals a final judgment on the merits. If the plaintiff wins, then the new claim is merged. If the defendant wins, the new case is barred. Same parties, final judgement, same T&O.

Question 48

Collateral estoppel

Answer 48

Issue preclusion. Prohibits a party from re-litigating a specific issue. Requires a final judgement on the merits, identical to issue previously decided, the issue was actually litigated and essential to the prior case, and the opposing party had the opportunity to litigate the issue in the original case. If one state initially issues a judgement, that forum’s state law determines if it can be used non-mutually in another state.

Question 49

Res judicata / collateral estoppel example)

Answer 49

Passenger 1 sues bus driver for negligence and wins, and later sues for battery from same accident – claim precluded (res judicata). Passenger 2 sues for negligence and does not need to relitigate negligence – issue precluded (collateral estoppel).

Question 50

Erie doctrine

Answer 50

In a federal diversity case, the court will apply federal procedural law but substantive state law. The forum state’s choice of law rules are substantive. The goal of the Erie doctrine to prevent forum shopping, where a plaintiff will file in a federal court when faced with unfavorable state law, and to ensure justice is evenly applied. Federal procedural law includes court procedures, federal rules of evidence and civil procedure, deadlines, etc. Substantive law includes things that affect legal rights and responsibilities, such as the elements of a claim, statute of limitations, etc. In general, apply federal rules if on point and do not violate a substantial right. If not, use state law to determine the outcome.

Question 51

Statute of limitations

Answer 51

Limits the amount of time a plaintiff has to bring a claim to encourage resolution in a reasonable time before evidence is list or facts become unclear through passage of time, defect of memory, death, or disappearance of witnesses.

Question 52

Relation back

Answer 52

An amendment to a pleading overcomes the statute of limitations when the claim arises from the same transaction or occurrence as the original claim, the new party received notice of the lawsuit, and knew or should have known the action should have been filed against the party.

Question 53

Class action certification

Answer 53

Judge must determine that the class is so large that joinder of all parties would be impracticable, there is a common question of law or fact shared by the class, the claims of named representatives are typical of the class, and representatives fairly and adequately protect the interests of the class.

Question 54

Certifying a class action under FRCP 23

Answer 54

Because usual litigation process CAN'T handle. 1. Common question 2. Adequate representation 3. Numerous claimants 4. Typical claims

Question 55

CAFA

Answer 55

Allows federal courts to preside over class action cases when the amount in controversy exceeds $5M, the class is at least 100 persons, and where minimal diversity exists (at least one plaintiff and defendant are diverse).

Question 56

Summary judgement

Answer 56

Should be granted if the pleadings, discovery, and affidavits bear no genuine issue of material fact and the movant is entitled to judgement as a matter of law. Either party can file until 30 days after close of all discovery.

Question 57

Judge or jury

Answer 57

Under 7a, if the case contains both legal and equitable claims arising from a common nucleus of operative fact, the legal claims should be tried first with a jury, and the equitable claims would be tried by the court afterward. Equitable is first in CA.

Question 58

Judgement as a matter of law (JMOL)

Answer 58

Can be motioned-for if a party has been fully heard and no reasonable jury could find in their favor. The movant must make this motion prior to sending the case to a jury. If they make this motion and the verdict is directed against them, they can move for a renewed JMOL.

Question 59

Directed verdict

Answer 59

This is a JMOL in a California court, CCCP §630.

Question 60

Renewed JMOL

Answer 60

May be filed no later than 28 days (15 in CA) after entry of the judgement, as is limited to those issues raised in the JMOL. If the party did not file JMOL prior to the case going to a jury, they did not preserve the right to file a JMOL.

Question 61

New trial

Answer 61

A new trial may be ordered when there is an error during trial, juror misconduct, verdict is excessive or inadequate, or the verdict is against the weight of evidence. A motion for a new trial must be filed no later than 28 days after the judgement has been entered. A renewed JMOL can be filed simultaneously with a new trial motion. If the renewed JMOL is approved, the court should conditionally rule on a motion for a new trial. (A renewed JMOL should be filed if the verdict is against the weight of evidence, and motion for a new trial if there was an error that occurred during the trial).

Question 62

Insufficiency of evidence

Answer 62

Where a party fails to raise the issue of insufficiency of evidence in a motion for JMOL, RJMOL, or new trial, then the issue of insufficiency of evidence cannot be raised on appeal.

Question 63

Judicial order for a new trial

Answer 63

A judge can order new trial for any reason that a party could motion for one. E.g., If the judge overhears a juror say they did not understand the jury instructions, they may order a new trial sua sponte.

Question 64

Joinder of claims

Answer 64

A plaintiff can join any number of claims against a defendant. These can include state and federal claims, and they are not required to be related. However, all claims must be between the same litigants, and one of the cases must meet the requirements of subject matter jurisdiction.

Question 65

Joinder of parties

Answer 65

For compulsory joinder, a plaintiff must join all interested parties or face dismissal of the suit. The court asks: 1) Should the absentee be joined? 2) Can the absentee be joined? And 3) If the absentee cannot be joined, can sufficient relief be granted? For permissive joinder, parties may join as plaintiffs or be joined as defendants when: 1) Some claim is made by each plaintiff and against each defendant relating to or arising out of the same series of transactions or occurrences; and 2) There is a question of fact or law common to all parties. Simply being jointly or severally liable does not deem a party a necessary party.

Question 66

Other jury issues

Answer 66

If an action is not one where a jury might be demanded, a court cannot grant a jury without the consent of both parties. The court may try any jury issue with an advisory jury. If both parties consent, the court may allow a jury trial on a non-jury trial issue, and the effect is binding.

Question 67

1791 rule

Answer 67

If a party would have been entitled to a jury in 1791, before the split of common law and courts of equity, then the party is entitled to a jury today.

Question 68

Right to jury in civil court

Answer 68

The right to a jury trial in civil cases is only guaranteed in federal courts for legal issues, but not for equitable issues. State laws determine jury rights in state courts.

Question 69

Motion to dismiss

Answer 69

A court may dismiss a civil claim without legal merit by determining if sufficient facts are pled to sustain a prima facie case for the alleged cause of action. If not, the court will not evaluate the merits of the case. If the motion is based on insufficient process, proper procedure would be to file a motion to dismiss, not with an answer stating an affirmative defense per FRCP 12(b).

Question 70

Juror misconduct

Answer 70

Testimony that a juror used extraneous, prejudicial information or proper outside influences is grounds for a new trial. Misunderstandings of the standard of proof, mental states, and relying on evidence that was directed to be disregarded are not grounds for a new trial.

Question 71

Final judgement exceptions

Answer 71

A claim or issue may be immediately appealable (interlocutory) if it is too important to wait for a final judgement. These cases require that the lower courts have conclusively determined the disputed questions, the issues must be separate from and collateral to the merits of the main issue of the case, and the issue must be effectively unreviewable on appeal from final judgement. (Extreme cases only – immunity, double jeopardy, or some right that would negate the need for standing trial.)

Question 72

Appeals

Answer 72

Must be filed within 30 days, unless the party is the US government or an agent thereof, then the appeal must be filed within 60 days (CA is 60 days also). However, if applied to a RJMOL, for a new trial, or to set aside or amend the judgement of the day, the running of the 30 days is terminated. Upon a ruling of the post-trial motions, a new 30-day clock will start.

Question 73

Issues eligible for review on appeal

Answer 73

Requires the losing party to preserve the issue during trial, typically by making a timely objection, then raising the issue on appeal. If the issue is of fact, the appellate court will give great deference to the trial court’s ruling, as well as the jury determination. The appellate court will not reverse if they find the error to be harmless. 1) Factual finding = plain error affecting a substantial right; 2) Evidentiary = abuse of discretion; 3) Law or mixed law-fact = de novo.

Question 74

Harmless error

Answer 74

An error that does not affect a substantial right of one of the parties.

Question 75

Default entry

Answer 75

If a party has made an appearance but later defaults, they must be given a 7-day notice of the default entry hearing. If they never appeared, they are not afforded a 7-day notice and proceed straight to default. If a party files a motion for lack of personal jurisdiction, it is still an appearance, so that if the party fails to appear, they are still entitled to a 7-day notice.

Question 76

Default amount in controversy MBE example

Answer 76

Party sues for $80k and the opposing party fails to appear at trial. If during trial the plaintiff can show $200k in damages, and the opposing party didn’t appear, the plaintiff will receive the $200k in a default judgement, despite initially suing for only $80k.

Question 77

Amending a complaint

Answer 77

A pleading may be amended once within 21 days of serving, 21 days after being served a responsive pleading or pre-answer (if it requires a response), or after seeking leave of the court or written consent of the adverse party. If a party moves to dismiss a claim twice without seeking leave of the court, it acts as an adjudication on the merits and will be dismissed with prejudice. For statutes of limitation purposes, an amendment to a pleading that arises from the same transaction or occurrence set forth in the original pleading is generally deemed filed on the date the original pleading was filed.

Question 78

Additur and remittitur

Answer 78

In cases where jury awards are deemed insufficient, a court may invoke additur, providing the losing party the option of adding to their judgement or facing a new trial, or when excessive, remittitur, offering the winning party the option of lowering their award or facing a new trial. Federal courts do not permit additur, but may invoke remittitur.