CivPro

Question 1

Traditional Basis for Personal Jurisdiction

Answer 1

Served in the state
Domiciled in the state
Consent to service

Question 2

Personal Jurisdiction

Answer 2

Refers to a courts power to exercise its judicial authority over a particular defendant. There are three basis from which a court can derive this authority: traditional, statutory and constitutional.

Question 3

Personal Jurisdiction - Statutory Analysis

Answer 3

Most states, including California, have a series of statutes that grant courts personal jurisdiction if a person 1) is served within the state, 2) is domiciled in the state, 30 consents to jurisdiction, 4) conducts business or commits a tort in the state or
5) falls within a long arm statute and meets the constitutional requirements of the minimum contacts standard.

Question 4

Personal Jurisdiction - Statutory Analysis

Answer 4

Most states, including California, have a series of statutes that grant courts personal jurisdiction if a person 1) is served within the state, 2) is domiciled in the state, 30 consents to jurisdiction, 4) conducts business or commits a tort in the state or
5) falls within a long arm statute and meets the constitutional requirements of the minimum contacts standard.

Question 5

Long Arm statute

Answer 5

A mechanism that gives a state the power to reach beyond its own borders and assert jurisdiction over a non-resident.

Question 6

Statutory Basis for Jurisdiction

Answer 6

Modernly, most states have adopted long-arm statutes, which have incorporated the traditional bases and identify the precise circumstances under which a court has personal jurisdiction over a defendant. Since states have the ultimate power to decide over whom their court may exercise jurisdiction, if the state has a long arm statute, this statute will govern this issue.

Question 7

Constitutional Basis for Jurisdiction

Answer 7

Even if a court’s exercise under the state long-arm statute, it must also comply with the limitation set forth under the Due Process Clause of the Constitution. Those limitations require sufficient minimum contacts between he defendant and the forum state such that exercise of jurisdiction over the defendant does not offend “traditional notions of fair play and substantial justice” and that the exercise of jurisdiction is reasonable.

Question 8

Minimum Contacts

Answer 8

A defendant is said to have minmum contacts with the forum state when they have purposely availed themselves of the laws of the state such that it is reasonably foreseeable that they will be “hauled into court” there.

Question 9

Purposeful Availment

Answer 9

Purposeful availment occurs when the defendant, through his or her contacts with the forum state, has availed himself or herself of the “privilege of conducting activities” in the forum state, thus invoking the benefits and protections of its laws.

When considering whether a defendant has availed himself or herself of the privileges of the forum state, the court will consider 1) that nature and quality of D’s actions, 2) voluntary acts of the D directed at the forum 3) whether D intentionally placed a good in the stream of commerce; and 4) whether jurisdiction is established.

Question 10

Foreseeability

Answer 10

** THE BULK OF ANALYSIS ***

The foreseeability of a reasonable person, based on all of the defendant’s contacts with the forums state, to be hauled into court in that state.

Question 11

Fair Play and Substantial Justice

Answer 11

Exercise of jurisdiction must not offend the notions of fair play and substantial justice. Courts have held this not to be offended when: 1) D has systematic and continuous contact with the forum; 2) the claim is related to the D’s contact with the forum. Court’s also weigh the state’s interest, the plaintiff’s interest, and relative burdens of the parties.

Question 12

Depositions

Answer 12

Oral and written depositions can depose a non-party or a party. However, to ensure attendance, a non-party should be subpoenaed through a court order. If the party defending a deposition claims that certain material is privileged, that party has to object with particularity.

Federal: Presumptive time limit on depositions of 10 hours except by party agreement or court order.

State: No state presumptive limit.

Question 13

Scope of Discovery

Answer 13

Scope:
Federal:
Unless there is a limitation by a court order, the scope of discovery allows parties to obtain discovery regarding any non-privileged matter that is relevant to any party’s claim or defense.

Relevant:
Means it must be reasonably calculated to lead to the discovery of admissible evidence, which could be inadmissible itself, so long as it reasonably could lead to admissible evidence.

Question 14

Discovery - Relevance

Answer 14

Means it must be reasonably calculated to lead to the discovery of admissible evidence, which could be inadmissible itself, so long as it reasonably could lead to admissible evidence. Privileged matter is not discoverable.

Question 15

Amending the Complaint to Change the Defendant After the Statute of Limitations has Run

Answer 15

Changing the defendant after the staute of limitations has run relates back if 1) it concerns the same conduct, transaction or occurrence as the original; 2) the new party knew of the action within 120 days of its filing, 3) he also knew that but for a mistake, he would have been named originally.

Question 16

Doctrines of Res Judicata and Collateral Esoppel

Answer 16

These two doctrines establish the rule that once a case has reached a final judgment, re-litagation of the claims and issues is generally barred.

Question 17

Res Judicata (Claim Preclusion)

Answer 17

If judgment is rendered in favor of a plaintiff in a particular suit, the plaintiff is precluded from raising claims (in any future litigation) that were raised in (or could have been raised) in that lawsuit. Before a court applies the doctrine of res judicata to a claim, three elements must be satisfied. 1) Identical claims, 2) identical parties, and 3) a final judgment on the merits.

Question 18

Collateral Estoppel (Issue Preclusion)

Answer 18

If an issue has been decided in a particular case, it is treated as decided - without further proof - in any subsequent litigation that involves the issue. In other words, a person or party who seeks to re-litigate any already decided issue is collaterally stopped from doing so. Before a court will apply the doctrine of collateral estoppel, three elements must be satisfied. 1) identical issues, 2) actually litigated, 3) issue was decided.

Question 19

Venue

Answer 19

Venue determines which court should hear a particular case. It is proper where: 1) A substantial part of the claim arose or in the district where the claim or where the land in dispute is located, 2) when any defendant resides in a district, or 3) at least one defendant can be subjected to personal jurisdiction and no other district qualifies under the above two provisions.

CA-in county where claim arose or any county if all defendants reside out of state.

Question 20

Subject Matter Jurisdiction

Answer 20

Subject Matter jurisdiction refers to the court’s authority to exercise its discretion over a particular controversy. Federal Courts are courts of limited jurisdiction and therefore only have subject matter jurisdiction over, 1) cases involving diversity of citizenship and 2) cases involving a question of federal law. There is generally a presumption against federal jurisdiction.

NOTE: Parties must specifically plead the facts that confer such jurisdiction, parties may not consent to SMJ and its absence may not be waived.

Question 21

Diversity of Jurisdiction

Answer 21

Diversity of citizenship jurisdiction exists when the matter in controversy exceeds the sum of $75,000 and the parties involved are citizens of different states.

Headings:
Complete Diversity
Physical Presence
Intent to Reside
Citizenship of a Corporation
Amount in Controversy Exceeds $75k
Aggregation of Claims
Equitable Relief

Question 22

Complete Diversity

Answer 22

A jurisdictional requirement of US District Courts; that all persons on one side of the controversy be citizens of different states than all persons on the other side. Citizenship refers to a person’s domicile which is determined by 1) physical presence in the state and 2) their principle place of business.

Headings:
Physical Presence
Intent to Reside

Question 23

Forum Non-Conveniens

Answer 23

IF there is a far more appropriate court elsewhere, court may dismiss (usually without prejudice) or stay to let the plaintiff sue the defendant there. If it is dismissed, if it is impossible to hear, because it is in a different judicial system. It requires a very strong showing, but the facts are the same as in transferring venue.

Question 24

Duces Tecum

Answer 24

Duces Tecum is a type of court summons that requires the deponent to produce documents or other tangible evidence. Can only be used after a Discovery conference or if approved by a judge.

Question 25

The Doctrines of Res Judicata and Collateral Estoppel

Answer 25

These two doctrines establish the rule that once a case has reached a final judgement, re-litigation of the claims and issues is generally barred.

Question 26

Issue was decided - Collateral Estoppel

Answer 26

The issue must necessarily have been decided and rendered as a necessary part of the court’s final judgment. The rule is, unlike Res Judicata, collateral estoppel does not bar future litigation over issues not actually raised in the original judicial proceeding, even if the issues could have been raised. Historically only the original parties could be bound but courts have increasingly been willing to allow strangers in various situations to prevent another party from re-litigating an issue.

Question 27

Collateral Estoppel (Issue Preclusion)

Answer 27

If an issue has been decided in a particular case, it is treated as decided – without further proof – in any subsequent litigation that involves the issue. In other words, a person or party who seeks to re-litigate (Shearer in this case) any already decided issue is collaterally stopped from doing so. Before a court will apply the doctrine of collateral estoppel, three elements must be satisfied, 1) identical issues, 2) actually litigated, 3) issue was decided.

Question 28

Identical Issues - Collateral Estoppel (Issue Preclusion)

Answer 28

There must have been a prior litigation in which the identical issue was brought before the court.

Question 29

Actually Litigated - Collateral Estoppel (Issue Preclusion)

Answer 29

The issue must have been actually litigated in the first judicial proceeding, and the party against whom collateral estoppel is being asserted must have had a full and fair opportunity to litigate the issue in the first judicial proceeding.

Question 30

Discovery

Answer 30

Discovery enables parties to obtain information from one another relevant to their claims and defenses. Before parties may properly begin discovery, they must make initial disclosures of certain information, including names of those who have information, and other necessary information to disclose. Further, parties must also confer to create a discovery schedule.

Question 31

Motion to Compel

Answer 31

A motion to compel may be filed only upon a good faith certification by the person seeking discovery that they have either conferred or made a good-faith effort to confer with the opposing party in seeking the discovery, and the party opposing the discovery refuses to turn over the discovery regardless.

Question 32

Res Judicata / Claim Preclusion

Answer 32

If a judgement is rendered for the plaintiff, his claim is “merged” into the judgement – the claim is extinguished and a new claim to enforce the judgement is created. If a judgement is for the defendant on the merits, the claim is extinguished and nothing new is created; plaintiff is then “barred” from raising the claim again.

For claim preclusion to apply there must be 1) identical claims, 2) identical parties and 3) final judgement on the merits.

NOTE: In diversity cases, the federal courts follow state law with respect to the application of the rule. In other words, if the law in the state where the district court sits would have granted claim preclusion or collateral estoppel then the federal court will do the same.

Headings:
Identical Claims
Identical Parties
Final Judgement on the Merits

Question 33

Identical Claims - Res Judicata (Claim preclusion)

Answer 33

There must have been prior litigation which identical claims were raised or could have been raised. In general, claims are sufficiently identical if they are found to share a “common nucleus of operative fact.”

Question 34

Well Pleaded Complaint

Answer 34

Plaintiff’s initial complaint must contain the references to the federal question and the federal issue evoked. The federal question and issue cannot arise in an anticipate defense, it must be present from the initial complaint.

Question 35

Supplemental Jurisdiction

Answer 35

Supplemental Jurisdiction allows the court to hear a claim that does not have an independent basis for SMJ but is joined in a single suit with a jurisdictionally sufficient claim. Valid Supp Jx arises out of the same common nucleus of operative fact as the federal valid claim. Supp jx is barred if the new claim destroys diversity.

Question 36

Ancillary Jurisdiction

Answer 36

Allows a P who has a jurisdictionally valid federal question claim to join related claims that would otherwise not have SMJ to the original complaint.

Question 37

Pendent Jurisdiction

Answer 37

Allows a federal court to assert jurisdiction over claims brought by the defendant that arose from the same t/o as an action within the SMJ of the court.

Question 38

Aggregation of Claims

Answer 38

P may aggregate two or more claims against a single defendant or aggregate joint claims against different defendants.

Question 39

Transfer of Venue

Answer 39

A transfer of venue occurs when a case is sent from one federal district court to another. In Federal courts, where the original district is proper, the court may transfer at its discretion considering the convenience of the parties, the interests of justice, and public and private factors. If the original district is not proper then the court may transfer in the interests of justice or dismiss the action.

When venue is transferred, personal jurisdiction must be re-established.

Question 40

Erie Doctrine

Answer 40

Where a matter is in federal court based on diversity, the court must apply the state substantive law and federal procedural law.

Question 41

Erie Doctrine Analysis

Answer 41

Outcome Determinative Test: Would application modify, abridge, or enlarge substantive right?

Balance of Interest: Does either system have a strong interest in the application of the rule?

Avoid Forum Shopping: Did P select federal forum to gain a distinctive, substantive right?

Question 42

Removal

Answer 42

Removal is proper if the case could have originally been heard in federal court. Must be done within 30 days

Question 43

Remand

Answer 43

When a defendant attempts to remove a case to federal court and the removal is improper, the federal court can remand the case to state court. P must remove within 30 days, unless based on lack of diversity- no limitation

Question 44

Joinder of Parties

Answer 44

A joinder is the acting of “joining” several legal issues together in the same lawsuit. A joinder allows for two or more issues to be heard during one hearing or trial, so as to make the process run more smoothly, and to help ensure the outcome is fair for all involved.
There are two main types of joinder: 1) Compulsory Joinder and 2) Permissive Joinder.

Question 45

Compulsory Joinder

Answer 45

A party must be joined if complete relief cannot be given to current parties in the initial party’s absence, a decision in their absence might impair their ability to protect their own interests, or the absence would pose existing parties to a substantial risk of double or inconsistent obligations.

Question 46

Necessary and Indispensable Parties

Answer 46

Some parties must be forced to join an action because their presence is required. If they cannot be joined and the court dismisses the action, then due to it, the party is “indispensable”

Question 47

Dismissal Due to Nonjoinder of Indispensable Party

Answer 47

The court will consider:

1) Extent to which a judgment rendered in the person’s absence might prejudice that person or the existing parties;

2) Extent to which prejudice could be lessened or avoided by: protective provisions, shaping relief, or other measures;

3) Whether a judgment in the person’s absence would be adequate;

4) Whether P would have an adequate remedy if action dismissed for nonjoinder.

Question 48

Permissive Joinder

Answer 48

A permissive joinder allows two or more people to join an action if they each have a claim that arose from the same incident. A permissive joinder is when there is a common question of law or fact that pertains to all of the parties’ claims.

Question 49

Impleader

Answer 49

D brings additional parties who owe indemnity or contribution to the D on the underlying claim. Court must have PJ over the additional party. P may bring separate action against the new party so long as there is SMJ or Supp Jx is proper. Impleader must be filed within 14 days of serving answer unless otherwise requested by court.

Question 50

Intervention

Answer 50

When a third party wants to join a pending lawsuit, it may as either plaintiff or defendant, although a court may realign the intervening party if it believes that it is entering in on the wrong side. intervention is allowed if the party’s rights will be impaired by not being involved timely.

Question 51

Interpleader

Answer 51

(Property Holder)
To avoid multiple litigation and inconsistency, a party holding property may force all potential claims into a single lawsuit. All of the potential claims must be diverse from the party holding the property.

Question 52

Class Actions

Answer 52

Where there are too many people who share a question of law common to bring them all before the court, one or more may sue for the benefit of all. That one must have adequate jurisdiction and claims. The court must decide whether or not to certify the class at a practicable time and must then define the class, claims, issues, and defenses.

Question 53

Class Action Elements

Answer 53

You CANT have a class action without:
Commonality (Question of Law/Fact)
Adequate Representation
Numerosity (Joinder would be ineffective)
Typicality (Claims typical for all members)

Question 54

Class Action Notice Requirement

Answer 54

Individual notice is not required, and the class rep must pay the cost of notice if one is sent out (in CA, court determines who pays). If the class is for damages, notice must be sent to all class members who are reasonably identifiable.

Question 55

Class Action Damages

Answer 55

AIC is the total amount for each of the members in the class. Any judgment is binding on the entire class unless individual members opt out. Members must be told they can opt out and are bound if they fail to do so, and that they may make separate appearances throughout their own counsel if they choose.

Question 56

Federal Counterclaims

Answer 56

A counterclaim is a claim against an opposing party. A counterclaim can be compulsory or permissive.

Question 57

Federal Compulsory Counterclaim

Answer 57

A compulsory counterclaim arises out of the same transaction or occurrence as the underlying claim. It must be filed in the pending case otherwise it is waived.

Question 58

Federal Permissive Counterclaim

Answer 58

A permissive counterclaim does not arise out of the same transaction or occurrence. So long as the claim invokes an independent basis for SMJ, it is allowed. If not, consider Supplemental Jx.

Question 59

Federal Cross-Claim

Answer 59

A cross-claim is a claim against a co-party. The cross-claim must arise out of the same transaction or occurrence as the underlying claim. Cross-claims are not compulsory, meaning they are not waived in filed in the underlying claim. Consider Jx issues.

Question 60

California Cross-Claim

Answer 60

California does not recognize counterclaims and instead refers to all forms as cross-claims. In CA, one may assert:

1) Cross-Complaint against an Opposing Party
2) Cross-Complaint against a Co-Defendant
3) Cross-Complaint against a Third Party Defendant

Question 61

California Cross-Claim Against Opposing Party

Answer 61

If arising out of same T/O: This type of claim is compulsory, meaning it must be filed otherwise it is deemed waived.

If not from same T/O: treat as permissive

Question 62

California Cross-Claim Against Co-Defendant

Answer 62

Must arise our of the same T/O, but is not compulsory.

Question 63

California: Cross-Complaint Against TPD

Answer 63

May be filed at any time before court has set a trial date. Never compulsory. Difference from Federal: Joinder of TPD is broader in CA and can be brought for any claim TPD is liable to Defendant so long as it arises from the same T/O (not just for indemnity/contribution)

Question 64

Federal: Judgment as a Matter of Law
California: Directed Verdict

Answer 64

Allows the court to grant a motion to resolve the issue against a party of the court of the court finds that a reasonable jury would not have sufficient legal basis to find for the non-moving party.

D may file at close of P evidence or all evidence
P may file at close of all evidence

The standard is that reasonable persons could not disagree on the result. Evidence viewed in favor of non-movant.

Question 65

Federal: Renewed Motion for Judgment as A Matter of Law RJMOL
California: Judgment Notwithstanding the Verdict JNOV

Answer 65

In Federal Court, this is a renewal of JMOL and on the same issues.
Federal: Must be filed within 28 days of Judgment
In California, a Directed Verdict need not have been filed.
California: Earlier of 15 days of Clerk’s mailing or 180 days of Judgment

Same standard of law applies: Reasonable persons could not disagree on the result.

Question 66

Motion for New Trial

Answer 66

Request for the court to reconsider the evidence, this is required to preserve the issues for appeal.
Federal Courts: Must be filed within 28 days of Judgment
California: Earlier of 15 days of Clerk’s mailing or 180 days of Judgment

Question 67

Federal: Motion to Alter/Amend Judgment
California: Motion to Set Aside and Vacate Judgment

Answer 67

Applies when: Intervening change in controlling law, new evidence previously unavailable, need to correct error or prevent manifest injustice.

Federal: Must be filed within 28 days of entry of Judgment
California: Earlier of 15 days of Clerk’s mailing or 180 days of Judgment

Question 68

Remittur

Answer 68

Plaintiff can choose to take a lesser amount or go through a new trial. The courts cannot simply lower the award.

Question 69

Additur

Answer 69

A defendant can chose to pay more, to go through trial (California only)

Question 70

Final Judgment Rule

Answer 70

A party can only appeal a final judgment on the merits of the case or claim. Notice must be filed with the trial court within 30 days of entry of the final judgment.

Question 71

Interlocutory Order

Answer 71

An order that relates to some intermediate matter in the case, most are not reviewable until the case is fully resolved.

Question 72

Summary Judgment

Answer 72

Movant must show there is no genuine dispute of material fact and that they are entitled to a JMOL. Evidence is viewed in light most favorable to non-moving party.

Question 73

Failure to State a Claim: Rule 12(b)(6)

Answer 73

A claim for relief is dismissible if it either fails to assert a legal theory of recovery or fails to allege facts sufficient to support the claim.
The court looks to the face of the complaint, not the evidence.

Question 74

Rule 11 Sanctions

Answer 74

Rule 11: An attorney is required to sign all papers. Signature certifies that to the best of their knowledge after reasonable inquiry:
1. Paper is not for improper purpose
2. Legal contentions are warranted by law, and
3. Factual contentions and denials have evidentiary support

Violation of Rule 11 may result in evidentiary sanctions, with notice.

Question 75

Safe Harbor Period

Answer 75

If another party violates Rule 11, one cannot move for sanctions for 21 days

Question 76

Right to a Jury Trial

Answer 76

7th Amendment preserves the right to a jury trial in federal court. Applies to civil cases at law, but not at equity.

Question 77

Service of Process

Answer 77

The defendant must be served with process which is a summons and a copy of the complaint as a means to provide notice of a pending action. Any non-party over 18 years old is qualified.

Question 78

Substituted Service

Answer 78

Federal: Follow State law procedure or leave a copy at dwelling or usual place of abode with someone of suitable age and discretion who resides there or to an authorized agent.

CA: Sub service only allowed if personal service cannot be accomplished with reasonable diligence