Civil Proceedure Flashcards
1
Q
Proper court issues
A
- Personal jurisdiction (PJ)
- A. traditional bases
- - consent
- - domicile (intent to reside) in forum
- - present and served
- B. modern: minimum contacts
- - long-arm statute AND
- – CA: to constitutional limits
- – specific statute: as limited
- - nature of contacts: sufficient minimum contacts w/ forum state such that PJ does not offend traditional notions of fair play and substantial justice
- – purposeful availment to benefits and protections of state
- – foreseeable haled into court
- – relatedness b/w D’s contact and P’s claim (specific jurisdiction)
- – systematic and continuous (general jurisdiction)
- - fairness factors
- – convenience (Ws, evidence, D’s travel)
- – state’s interest in regulating activity
- – other interests (P’s interest in relief) - Subject matter jurisdiction (SMJ)
- federal question
- diversity of citizenship
- - exceeds $75K; AND
- - complete diversity required
- – person: domicile
- – corporation: may have 2: incorporation state and principal place of business (PPB) state
- – unincorporated assoc: domicile of members - CA subject matter jurisdiction
- unlimited case: exceeds $25K
- limited case: exceeds $7,500
- small claims case: under $7,500 - Supplemental jurisdiction: additional claim
- must have common nucleus of operative facts (same transaction or occurrence)
- still need complete diversity if diversity is basis of SMJ - Removal jurisdiction
- defendants only may remove
- diversity case: D can’t be citizen of forum state
- 30-days-1-year max - Remand
- to state court if removal improper - Venue
- claim arose
- defendant resides
- - fed: all Ds reside
- - CA: any D resides
- reside venue definition:
- - person: domicile
- - corp:
- – fed: where subject to PJ,
- – CA: PPB, or K entered into, performed, or breached - Transfer of venue
- fed:
- - interests of justice
- - public factors
- - private factors
- CA:
- - interests of justice
- - convenience of the parties
- - forum non conveniens
- fed: forum more appropriate
- CA:
- - interests of justice
- - public factors
- - private factors - Notice: D properly notified of pending action
- service of process: summons and complaint
- method of service
- - personal service: personally delivered to D
- - substituted service: delivered to D’s abode w/ someone suitable age and discretion who resides there
- – CA: must mail too
- - constructive service: by registered mail if D waives service of process - Choice of law: goal to prevent forum shopping
- state substantive law
- fed procedural law
2
Q
Pretrial Issues
A
- Pleadings
- fed: notice pleading
- CA: fact pleading - Complaint
- identify parties
- statement of claim
- demand for judgment
- signature - Response
- preanswer motions
- - motion for a more definite statement (CA: demurrer)
- - motion to strike (CA: anti-SLAPP for suits against free speech)
- fed: 12b(6) motions
- - lack of SMJ (anytime before all appeals exhausted)
- - lack of PJ (waived after 1st response)
- - improper venue (waived after 1st response)
- - insufficient process (waived after 1st response)
- - insufficient service of process (waived after 1st response)
- - failure to state a claim (before trial ends)
- - failure to join an indispensable party (before trial ends)
- CA: demurrer (response)
- - uncertain pleading
- - liability theory unclear
- - lack of legal capacity
- - another case exists
- - misjoinder of parties
- - contract pleadings not ok
- - certificate if required
- CA: motion to quash
- - lack of PJ
- - insufficient process
- - insufficient service of process
- answer
- - respond
- - assert affirmative defenses - Amended pleadings
- relation back doctrine
- - claims: same conduct, transaction or occurrence
- - defendants:
- – same conduct, transaction or occurrence
- – new party knew
- – would have been named
- CA: “doe” amendments: 3 years if genuine ignorance of:
- - identity of party
- - facts giving rise
- - law allows cause of action - Joinder of parties: same transaction or occurrence and at least one common question
- necessary party
- - complete relief
- - interest harmed
- - multiple inconsistent obligations
- - join if PJ and diversity not destroyed
- - if can’t join, court may dismiss or proceed without
- - indispensable party: dismiss
- - impleader: D can add a 3rd party D
- - intervention: nonparty wants to join
- - interpleader: property holder wants single lawsuit - Joinder of claims
- counterclaim
- - compulsory: same transaction or occurrence
- – supplemental jurisdiction will extend
- - permissive: not same transaction or occurrence
- – supplemental jurisdiction will not extend
- cross claim: against co-party
- - not compulsory
- - must be from same transaction or occurrence
- - supplemental jurisdiction will extend
- - CA: called “cross complaint” - Class action
- numerosity
- commonality: questions of law or fact are common to class
- typicality: rep’s claims/defenses are typical to class
- adequacy: fair representation of class
- fed: type of class
- - prejudice: class necessary to avoid funds depleted
- - injunctive relief sought
- - questions of law/fact common to class predominate
- fed: citizenship issues
- - diversity: amount in controversy each
- - Class Action Fairness Act
- – any class member diverse
- – aggregate exceeds $5 million
- – 100+ class members
- CA: class action (no types)
- - ascertainable class
- - community of interest b/w parties and court
- – common question of law or fact
- – adequate representative
- – class substantial benefit to parties and court - Discovery
- fed: Rule 26 mandatory disclosures
- - initial disclosures
- - expert information
- - pretrial witness and documents - Discovery tools
- depositions
- interrogatories
- request for admissions
- request to inspect and produce
- physical or mental exam
- CA: limited cases, less discovery - Scope of discovery: reasonably calculated to lead to discovery of admissible evidence
- no attorney work product
3
Q
Disposition without trial
A
- Dismissal
- voluntary
- involuntary
- failure to state a claim - Default judgment: D fails to respond
- Motion summary judgment
- no genuine issue of material fact and entitled to judgment as matter of law
4
Q
Trial
A
- Right to jury trial
- fed: legal, then equity
- CA: equity, then legal - Judgment as a matter of law
- reasonable people could not disagree
- CA: directed verdict
5
Q
Post-trial issues
A
- Renewed JMOL
- only allowed if JMOL first
- CA: called JNOV and not required to file DV first - Motion for new trial
- prejudicial error
- new evidence
- prejudicial misconduct
- judgment against weight of evidence
- excessive/inadequate damages - Motion to set aside judgment
- clerical errors
- neglectful mistake
- newly discovered evidence
- judgment is void - Conditional new trial on damages
- remittitur: damages too high
- additur: damages too low
6
Q
Appeal
A
- Final judgment rule (FJR)
- FJR exceptions
- injunctions
- trial court certifies for appeal
- collateral issues (i.e., proceedural issues)
- multiple claims/parties and final judgment to one or more
- extraordinary writ (party seeks appeal b/c exceptional circumstances)
7
Q
Use of final judgment
A
- Res judicata (claim)
- valid and final judgment on the merits
- - fed: final when rendered
- - CA: final when appeals done
- actually litigated
- same P and same D
- same claim
- - fed: same transaction or occurrence
- - CA: primary rights theory - Collateral estoppel (issue)
- valid and final judgment on the merits
- - fed: final when rendered
- - CA: final when appeals done
- issue actually litigated
- issue essential to judgment
- who can rely?
- - fed: party or privy can assert
- - CA: stranger can assert if
- – identical issues
- – valid final judgment
- – party against had fair opportunity to be heard
- – not unfair to apply
- – party or privy if against
