CivPro Flashcards
(92 cards)
1
Q
PJ rule
A
Personal jx refers to the court’s power to have jx over an individual or entity. PJ can be met through traditional or modern means.
2
Q
Traditional bases
A
A traditional basis for PJ exists if:
- D consented to suit in forum
- D domiciled in forum
- D served with process while in forum
3
Q
Long-arm statute rule
A
If there is no traditional basis for PJ, the state’s long arm statute determines if the court has the power to exercise jx over the out-of-state defendant. The long-arm statute must comport with DP requirements.
- Ask: is there statute? if yes, do analysis under that AND minimum contacts analysis.
4
Q
Constitutional analysis rule
A
Personal jx is only proper if
- D has such minimum contacts w/ forum state
- that the exercise of jx comports with
- traditional notion of fair play and substantial justice.
5
Q
Minimum contacts rule
A
Minimum contacts requires a showing of
- purposeful availment,
- foreseeability and
- relatedness.
6
Q
Purposeful availment rule
A
D’s contacts w/ the forum state must be assessed to determine if D purposefully availed himself of the benefits and protections of the forum state.
7
Q
Foreseeability rule
A
D must know or reasonably anticipate that its activities in the forum state render it foreseeable that it may be taken to court there.
*Ask: what are D’s contacts? Look at outline for more
8
Q
Relatedness rule
A
Relatedness can be met through specific jx or general jx.
9
Q
Specific jx rule
A
Specific jurisdiction is established if the cause of action arises out of or is closely related to the defendant’s contacts with the forum state.
10
Q
General jx rule
A
General jx is established when the defendant’s contacts with the forum state are so systematic and continuous, the defendant is essentially “at home” there.
11
Q
Fairness factors
A
The exercise of jurisdiction must be fair and reasonable. The fairness factors include the convenience of the parties and witnesses (burden on either party to travel) as well as the forum state’s interest. The court will also look at the interstate judicial system’s interests.
12
Q
Subject matter jx rule
A
Federal courts are courts of limited jurisdiction and must have jurisdiction arising under federal question jurisdiction or diversity jurisdiction. In some cases, the court may be able to exercise supplemental jurisdiction.
Here… “X court” must have had jurisdiction over each and every claim in the matter (DO NOT FORGET TO ANALYZE EACH CLAIM SEPARATELY, e.g., different plaintiffs)
13
Q
Federal q
A
involves question of fed law
14
Q
Diversity
A
requires complete diversity between the parties and an amount in controversy in excess of $75,000.
*for diversity of parties, look at domicile of each party (person has one,
15
Q
*for diversity of parties, look at domicile of each party
A
Domicile = physical presence plus intent to remain indefinitely
Person: 1 domicile
Corp: 2 domiciles (PPB aka nerve center and incorporation)
16
Q
AIC rule
A
Must exceed $75,000, exclusive of interests and costs. P’s good faith claim will control, unless it is clear to a legal certainty that plaintiff cannot recover the required amount.
*If P recovers less than AIC, will not defeat diversity jx bc good faith claim controls.
17
Q
Aggregation of claims to meet AIC
A
- By single P against single D: P can aggregate all claims to satisfy AIC
- By multiple P’s: not allowed except under limited circumstances (undivided common interest like JT)
- By 1 P against multiple D’s: not allowed if P’s claims are separate and distinct. If D’s jointly liable, then P can aggregate
18
Q
Supplemental jx
A
Court can exercise supp jx over an additional claim that shares a common nucleus of operative act (arises from same transaction or occurence) as preexisting claim that has fed or div jx.
19
Q
Supp jx and single P
A
Applies when P brings state law claim that relates to P’s preexisting fed question or div jx claim
20
Q
Supp jx and multiple P’s
A
- Fed q: additional P can join if claim relates to existing fed q claim
- Div jx: additional P can join only if (1) claim relates to existing claim and (2) additional P does not destroy diversity
21
Q
Supp jx and discretion
A
Courts have discretion not to exercise supp jx in certain cases (e.g., if case is complex)
22
Q
Removal
A
- Only D’s can remove. Case can be removed from state to fed if:
- (1) case could have been brought in fed court (subject matter jx analysis only, NOT PJ)
- (2) all D’s agree to removal,
- (3) notice of removal is filed between 30 days or 1 year of initial filing.
**If D is citizen of forum state and subject matter based on diversity, action is NOT removable.
23
Q
Remand
A
If removal improper, P can move to remand back to state court within 30 days of removal
24
Q
Was original venue proper? analysis
A
Venue is proper where:
- the claim arose or
- where D resides, if all D’s reside in same state (domicile analysis).
- If neither applies, venue proper where any D subject to PJ (e.g., for corp, could be their PPB state)
**Walk through each basis and conclude if venue was proper in original jx.
25
Transfer of venue "can/should case be transferred to new venue?"
Depends on whether original venue was proper or improper.
- If original venue proper, venue can be transferred to where case could have been filed OR all parties consent and there is proper PJ, SMJ, and venue (Fed). Venue can be changed at judge's discretion, interests of justice (CA)
- If original venue improper, court must dismiss or transfer where case could have been brought (Fed). May transfer to proper county (CA).
26
Notice
Rule: To have proper service of process, summons and complaint must be served on D within 90 days after complaint is filed by anyone at least 18 years old and not a party to the suit.
27
Different ways to effectuate service
- Personal service to D (always adequate)
- Substituted service at D's abode with someone suitable permissible or other methods permitted by state law (FED). Sub. serv. only allowed if D personal service cannot be accomplished with reasonable diligence (CA)
28
Erie analysis
Rule: Fed courts sitting in diversity must apply state substantive law and federal procedural law (use below to see which applies)
1. Is there a fed law on point that conflicts with state law? If yes, use fed law.
2. If no fed law is on point, would applying state law affect outcome of case? If yes, apply state law.
**Always be governed by state law: SOL, elements of claim or defense, choice of law rules, privileges
29
Types of pleadings
- Complaint (filed by P, starts suit)
- Response (filed by D after service of process)
- Pre-answer motions
- Answer (D's response to complaint)
- Amended pleadings
30
Complaint rule
A complaint (Initial pleading in a lawsuit filed by P) begins an action and gives notice to opposing parties. Complaint must contain:
- statement of jx
- statement of the plausible claim, showing entitlement to relief;
- demand for relief.
31
FRCP 9 Complaint (fraud)
A claim for fraud or mistake requires the complaint to set forth with particularity the facts that give rise to the fraud or mistake and the damages in question.
*Then ask: whether P stated specific facts that showed fraud by going through elements. *Note a potential 12(b)(6) issue
32
Pleading requirements Rule 11
Rule 11 requires attorney or pro se party to (1) sign all documents filed with the court, (2) certifying the filing is not for an improper purpose.
33
Rule 11 sanctions
Court may issue sanctions for violations (on its own or by request of opp. party).
*Safe harbor: Rule 11 motion is served but may not be filed with the court for 21 days, creating a safe harbor for L to remedy mistake.
*Hearing must be held on sanctions, court may punish noncompliant party or attorney
34
Response
D must respond by either a motion or by an answer within 21 days after service of process (or 60 days if service waived).
**CA allows 30 days to respond
35
Pre-answer motions: Motion for a more definite statement
Used where complaint is too vague.
**CA: this would be done by special demurrer on grounds that pleading is uncertain
36
Pre-answer motions: Motion to strike
- Aimed at pleadings containing unimportant or redundant issues (e.g., demand for a jury trial when there is no right to one)
37
FRCP 12(b) defenses (can be raised by a pre-answer motion or in the answer)
- Lack of SMJ (can be raised any time before appeals)
- Lack of PJ (must be raised in first response or is waived)
- Improper venue (must be raised in first response or is waived)
- Insufficient service of process OR process e.g., something wrong w papers (must be raised in first response or waived)
- Failure to state a claim (can be raised anytime until trial concludes)
- Failure to join necessary party (can be raised any time until trial concludes)
38
FRCP 12(b)(6) rule (usually comes up with fraud)
Under FRCP 12(b)(6), a claim can be dismissed if it fails to assert a legal theory of recovery that is cognizable at law or fails to allege facts sufficient to support a cognizable claim. In deciding a motion under Rule 12(b)(6), courts:
- treat all well-pleaded facts of the complaint as true,
- resolve all doubts and inferences in the plaintiff’s favor, and
- view the pleading in the light most favorable to the plaintiff. (then assess elements of P’s claim in light most favorable to her)
39
CA demurrer (general or special)
Typically used to respond to the complaint
40
CA general demurrer
File if:
- Pleadings failed to state facts sufficient to constitute a cause of action
- Court lacks SMJ
41
CA special demurrer
Only allowed in unlimited cases and can be raised in answer
- Uncertain pleading (like Fed. def. statement)
- Complaint unclear re: theories of liability
- Lack of legal capacity to sue
- Existence of another case between P and D on same case
- Defect or misjoinder of parties
42
Answer
D's response to complaint.
- D must respond 21 days after service of process (or 60 if waived service) but CA allows 30 days
- D must also assert any affirmative defenses in answer or they're waived (SOL, SOF, self-defense, res judicata)
- D must respond to allegations in complaint (failure to deny operates as admission).
43
Amended pleadings: Right to amend
- P has right to amend once within 21 days of service or 21 days after service of a responsive pleading or pre-answer motion
- D has a right to amend once within 21 days of serving his answer.
- Otherwise, a party must seek leave of court to amend, which the court will grant freely if justice so requires.
44
Amended pleadings: Relation back for claims
Amends the pleading back to the date of the original filing for SOL purposes.
- Claims: relate back if amendment concerns same conduct, transaction or occurrence
45
Amended pleadings: relation back for D's
Amended D's relate back if:
- Amendment concerns same conduct, transaction or occurrence
- within 90 days of filing original pleading, new D: (i) knew or received notice of action AND (ii) knew but for P's mistake she would have been named.
46
Joinder of parties: permissive joinder
P's and/or D’s may be joined to an existing case if (1) the claims arise from the same transaction or occurrence and (2) raise at least one common question of fact or law. Must have SMJ.
47
Joinder of parties: necessary (indispensable) party
Party is necessary if:
- Court can't provide complete relief to existing parties in absence of that person, (ask: can P still get complete relief w/o person? If joint tortfeasor, yes. And joint tortfeasor can later implead and sue for contribution from other party if he bears some responsibility for P's harm) or
- Person's interest will be harmed if there's a disposition in their absence (can party defend himself in later suit?), or
- Person's absence would leave existing parties subject to sub. risk of mult. or inconsistent obligations
Join NP if (1) PJ and (2) diversity not destroyed.
*If court can't join NP, may dismiss or proceed without
48
Joinder of parties: Impleader
D can add a third party D for all or part of D's liability on OG claim. Must have SMJ.
*D's claim will always have supp jx.
*P's claim (if P adds one) needs to be based on diversity or fed q.
49
Joinder of parties: Intervention
Nonparty seeks to join (CA requires direct and immediate interest)
50
Joinder of parties: Interpleader
Property holder (stakeholder) wants single lawsuit with people who have claims to property (claimants). Two types:
- Statutory (1 claimaint must be diverse from other claimant and AIC can be $500 or more)
- Rule 22 interpleader: stakeholder must be diverse from every claimant and AIC exceed $75K.
51
Joinder of claims: Permissive joinder of claim
1 P may join all claims against 1 D regardless of whether the claims arise out of the same transaction or occurrence, if court has SMJ over each claim.
E.g. P has 60K breach of K claim and 30K negligence claim against 1 D. She can aggregate both to meet AIC requirement for diversity, even though they arise out of different facts.
52
Joinder of claims: compulsory joinder of claims
P has multiple claims against 1 D or multiple D's arising from the same transaction or occurrence.
53
Joinder of claims: Compulsory counterclaims
- Claim by D against P that arises from the same transaction or occurrence as one of P’s claims
- Must be filed in D’s answer or it will be waived.
***Compulsory counterclaims will always have supp jx
54
Joinder of claims: permissive counterclaim
- Claim by D against P that's Not same transaction or occurrence
- Not required in answer but NO supp jx and must have independent basis for SMJ
55
Joinder of claims: crossclaim
Offensive claim by a co-party against other co-party.
- Must arise from same transaction or occurrence as the underlying action
***Need SMJ, but crossclaims will almost always satisfy supp jx
56
Class Action
Requirements:
- Numerosity
- Commonality
- Typicality
- Adequacy
57
Class action has to fit in one of 3 types
- Prejudice
- Injunctive or declaratory relief is sought
- Questions of law/fact common to class predominate
58
Fed class action citizenship issues: diversity action
- Only citizenship of named rep. matters and 75K AIC can be satisfied by any named rep.
59
Fed class action citizenship issues: Class Action Fairness Act (relaxes fed requirements)
Applies where there isn't complete diversity. Fed court can hear class action if:
- Any class member diverse from any D
- Class claims aggregate to exceed $5 mil
- There are at least 100 members
60
CA class action
CA class action allowed if:
- Ascertainable class,
- Well defined community of interest among class members. For this, look at whether:
- Common questions of law or fact predominate,
- Rep will adequately represent the class interests,
- class will result in sub. benefit to parties and court.
61
Discovery triggering facts/questions
“did the court err in denying or granting motions to compel, physical and mental exam, copy of records, etc.”
62
Discovery analysis
(1) Broad scope of discovery rule statement
(2) analyze whether doc or thing @ issue is discoverable by asking if above elements satisfied
(3) If discovery is being challenged, weigh party's privacy interest against interests of party seeking discovery
(4) Then answer call of question (e.g., did court err in granting motion to compel?). Don't forget to include specific rules and analysis for diff. discovery tools (mental exam, request to produce, etc.)
*Also, did the parties have an initial discovery conference?
63
Broad scope of discovery rule statement
The scope of discovery is broad. Material is generally discoverable if it is
(1) non-privileged,
(2) relevant to a claim, and
(3) proportional to the needs of the case. (timing)
*In general, a party may not seek discovery until after a Rule 26(f) discovery conference, unless ordered by the court, stipulated by the parties, or authorized by a specific rule.
64
Initial disclosures approach
*NOTE: CA does NOT require this but Fed does
*Triggering q: if party served initial disclosures but withheld something.
- Rule: When a party fails to produce mandatory initial disclosures, then the party seeking the information may move to compel such disclosures. Therefore, the issue is whether Pam was required to include Wynne's written statement in her initial disclosures.
Initial disclosures must provide other party with following:
- name, address phone # of those likely to have discoverable info that disclosing party may use to support its claim or defense (e.g., expert who will testify info info, list of non expert witnesses, list of docs/exhibits)
- copy or description of all docs, ESI, tangible things in disclosing party's possession that they plan to use in support of their claim or defense
- relevant insurance documents
- computation of damages
*WATCH OUT for potential work product issues (e.g., one party seeking report of other that was made at direction of legal counsel)
65
Rule 26 initial discovery conference
Parties must have an initial conference that includes a proposed discovery plan before parties seek discovery of documents or things.
66
Motions to compel
If party fails to respond or objects to a document request, then the requesting party may move to compel. However, parties must have (1) completed an initial discovery conference at least 30 days before trial and (2) made a good faith attempt to meet and confer to try to resolve the issue before filing the motion.
67
Discovery tools: Deposition
Parties can be deposed and nonparties can be deposed through means of subpoena (giving notice to other parties NOT sufficient) if testimony is relevant and not privileged.
- Fed allows 1 deposition per person (unless court allows otherwise), with 10 depositions total, not to exceed 7 hours in a day unless court says otherwise
- CA has no limits to the number of depositions
68
Discovery tools: Interrogatories (parties only)
Questions in writing to another party.
- Must be answered in writing under oath within 30 days
- FED: no more than 25 q's unless court says otherwise (if party gives more than that then they have to either withdraw one or seek court permission)
- CA: unlimited # of form interrogatories, max. of 35 specific
*basis of objection: Each interrogatory must be answered fully and separately under oath unless the responding party objects to the interrogatory. The grounds for objecting to an interrogatory must be stated with specificity.
69
Discovery tools: Requests for admission (parties only)
Request another party to admit the truth of any discoverable matter. (to identify areas not in controversy)
- CA allows max. of 35
70
Discovery tools: Requests to inspect and produce
- FED: any party can request another party or nonparty with subpoena to produce a doc or copies or allow entry onto prop.
- CA: allows for a party to make requests to inspect and produce on another party, but not nonparty.
- Timing: Party who received request must respond in writing (1) within 30 days after being served or (2) within 30 days after the parties’ first Rule 26(f) conference—unless court says differently
71
Discovery tools: electronically stored data
Parties have to meet to discuss discovery and preservation of electronic data and report back to court. Even if not reasonably accessible, court can order production and split costs between parties if good cause
*Parties must take care to preserve electronic info
72
Discovery tools: Request for physical or mental exam
May be sought by the opposing party. Requesting party must obtain a court order upon a showing that the physical or mental condition of the party is:
- at issue, and
- there is good cause for the examination.
73
Procedure for mental or physical exam
After above requirements met (court order, at issue, good cause), all parties must be given notice specifying
- the time,
- place,
- conditions, and
- scope of the examination and - the identity of the examiner.
74
Physician-patient privilege / Atty client privilege
State the rule for the privilege (confidential communications that were made for purpose of obtaining legal advice/medical treatment are protected. HOWEVER, the privilege is waived if patient’s physical condition is at issue OR if L's services used for crime/fraud. Then assess whether privilege blocks evidence or is waived.
75
Attorney work product
Material prepared in anticipation of litigation and is generally not discoverable unless
- there is substantial need and - inability to obtain info by other means.
***NOTE: L’s mental impressions, opinions, theories, conclusions absolutely protected and NEVER discoverable.
76
Motion for summary judgment
MSJ proper if moving party can establish there is no genuine issue of material fact and he is entitled to judgment as a matter of law. Evidence must be viewed in light most favorable to the nonmoving party and credibility is not weighed here.
***Triggering q’s will be whether a party is entitled to a MSJ or dismissal. This is used to ask about the underlying procedural issues present in the question like jx or res judicata.
77
JMOL (or directed verdict in CA)
Occurs when 1 party files a motion after the other side has been heard at trial (so a D can move twice), contending that reasonable people could not disagree on the result and asks for a judgment as a matter of law.
78
JMOL attack
1. State rule.
2. Ask was JMOL acceptable from timing perspective? I.e., did party bring their JMOL after close of all evidence?
3. Analyze evidence and use facts to determine whether a reasonable jury could believe either P or D (JMOL improper and should be denied) or could not disagree on result (JMOL should be granted.
79
Renewed JMOL (CA calls it JNOV)
After the jury reaches its verdict, the losing party can file a renewed JMOL only if it filed a JMOL during trial, contending that reasonable people could not disagree on the result and asks for a judgment as a matter of law
- CA does NOT require to make a previous directed verdict motion.
80
Timing of renewed JMOL
FED: must be made within 28 days after entry of judgment
CA: must be made within 15 days after mailing or service
of judgment or 180 days after entry of judgment
81
Renewed JMOL analysis
- Ask, was the renewed JMOL timely? I.e., did the party file a JMOL during the trial after the close of P or D’s case?
- If not, it should be denied but still say it whether it should or shouldn’t be denied based on whether a reasonable person could disagree on the result.
- Note CA difference
82
Motion for jury trial
In fed court, the right to jury trial is governed by the 7A for all "suits of common law" where AIC exceeds $20.
- Extends to legal, but not equitable, issues.
- If the case involves both, then the jury determines the legal claims first, and the court determines the equitable claims second.
- Timing: P must demand in writing, no later than 14 days after the last pleading directed to the issue is served or it is waived.
83
Motion for new trial grounds include
- Prejudicial error that makes judgment unfair
- New evidence
- Prejudicial misconduct of party, L or judge
- Judgment against weight of evidence
- Excessive or inadequate damages
84
Motion to set aside judgment based on
- Clerical errors
- Neglectful mistakes
- Newly discovered evidence
- Fraud, misrepresentation, etc.
- Judgment is void for lack of DP
85
Final Judgment Rule
Only final judgments may be appealed. Final judgment is an ultimate decision by trial court on merits of an entire case.
*Note, appeals must be filed within 30 days of judgment or order filed (FRCP), 60 for CA
86
FJR exceptions
- Injunctions and some interlocutory order
- Collateral orders regarding procedural issues
- Collateral order doctrine: A court of appeals has discretion to hear and rule on a district court order if (1) the order conclusively determines the disputed question, (2) resolves an important issue that is completely separate from merits of the action and (3) is effectively unreviewable on appeal from a final judgment.
87
Time limits for appeal
FED: must file notice of appeal within 30 days after final judgment
CA: 60 days after service of notice, or 180 days after entry of judgment if no notice served
88
Collateral estoppel (issue preclusion) more narrow, just an issue, more likely to be granted
Collateral estoppel precludes relitigation of a particular issue that has already been decided where there is:
- valid final judgment on the merits,
- same issue was actually litigated (i.e., underlying court heard extensive evidence) and
- necessarily determined (essential to the judgment - e.g., issue of defective design would have been necessarily determined and essential to the judgment bc P needed to prove each element to prevail).
*Traditionally, the mutuality principle required privity between the parties. Modernly, some states, including CA, allow a nonparty to assert collateral estoppel where it would not be unfair to do so and the party against whom the issue is to be precluded was a party to the original action.
89
Res judicata (claim preclusion)
Res judicata precludes a claim from being relitigated where:
- valid final judgment on the merits,
- same P & D,
- same claim
FED same claim = claims derive from same transaction or occurrence
CA same claim = primary rights doctrine, permits separate claims for each primary right invaded (one car accident causing prop and personal injury damage)
90
objections rule (e.g., withholding info basis of privilege or denying interrogatory)
grounds for objection must be specific, not general
91
remittitur
if the court determines that a verdict was excessive, then it may offer a reduction of the verdict, known as a remittitur, and grant a new trial on the condition that the remittitur is not accepted
92
Adittur
If a judge in California believes that a jury’s verdict on compensatory damages is inadequate, the court may offer the party the option of a new trial or an enhanced judgment as determined by the court.
NOT ALLOWED IN FED
