Rule Splits Flashcards Preview

Flemings-Civil Procedure > Rule Splits > Flashcards

Flashcards in Rule Splits Deck (27):

In a complaint, what is the difference in Fed/CA between the demand in the complaint controlling?

Fed: Demand in complaint controls but it must be in good faith subject to the legal certainty test.

CA: Demand in complaint controls unless prayer is fraudulent or is fictitious on its face; however, court can reclassify a case, even at trial, that necessarily involves less than $25K.


What is the CA version of a Federal counter-claim?

Ca calls it a cross-complaint


Are counterclaims/cross-complaints considered in determining the amount in controversy?

Feds: No
CA: Yes


Single P v. Single D: Claim Aggregation rules for Fed and CA.

Same for both: P can aggregate all claims against a single defendant.


Multiple Ps v. Multiple Ds: Aggregation rules for Fed and CA.

Fed: Can only aggregate if claims based on "common undivided interest." (i.e. partnership). There is no aggregation if the claims are separate and distinct. If any one of the P's claim exceeds the $75K and the other Ps claims are less, the court can exercise Supplemental Jurisdiction.

CA: Same as Fed except that only one claim needs to exceed $25K for the case to be an Unlimited Case.


Can individual class members aggregate their claims in a class action?

Fed: (CAFA) No, if the claims are separate and distinct unless the amount in controversy exceeds $5.0M

CA: Yes


Difference between service of process

Fed: Substituted Service
1) As an alternative to personal service
2) Summons may be left with person of "suitable age and discretion"
3) Only at D's "dwelling house or place of abode"

CA: Substituted
1) Requires showing that summons "cannot with reasonable diligence be personally delivered."
2) Left with person at least 18 years old.
3) Deliver can be made at usual place of abode or D's usual place of business. However, copy of summons and complaint must also be mailed to the person where teh summons and complaint were left.
4) Substituted service not allowed on nonresidents temporarily present in CA: only personal service.


Challenging Personal Jurisdiction both at trial level and on appeal.

Fed: Must be raised in pre-answer motion or as a defense in Answer or else it is waived. Appeal of denial of motion must wait until final judgment.

CA: Accomplished through Motion to Quash Service of Summons. If denied, appeal must be taken within 10 days of motion to quash or else it is waived.


Proper venue locations for corporations

Fed: (Same as individual PJ)

1) If all D's reside in same state, any federal district where any D resides or;
2) Where a substantial part of the events giving rise to the claim arose or
3) Where any D is subject to PJ


1) Where it has its principal place of business or;
2) Where it entered or is to perform its contract or'
3) Where the breach occurred or liability arose.


Proper venue for individuals

Fed: (Same as corporate PJ)

1) If all D's reside in same state, any federal district where any D resides or;
2) Where a substantial part of the events giving rise to the claim arose or
3) Where any D is subject to PJ


1) If all D's are non-residents of CA, in any CA county.
2) Any county where D resides at commencement of the action or to which he returns in seasons of repose or;
3) or, in a breach of contract case, where the contract was entered or to be performed or;
4) in a personal injury case, either in the county where any D resides or where the injury occurred.


Transfer and Forum Non Conveniens Dismissal


1) Fed district court has option to transfer a case to another Fed district court
2) If appropriate forum is another country, Fed court can only dismiss based on forum non conveniens
3) Factors inlcude convenience of witnesses and parties
4) Forum state citizenship of plaintiff just one factor to balance against inconvenience to parties and wits


1) Case can be transferred to another CA county but not to another state's court.
2) Dismissal of forum non conveniens requires another state court.
3) Party convenience generally not a factor unless seriously ill
4) Strong preference for CA plaintiff and courts rarely dismiss CA plaintiff's case.


Pleadings: Prayer for relief


1) Complaint must allege SMJ
2) Complaint must contain a "demand for judgment for relief the pleader seeks."
3) Items of special damages shall be specifically stated.


1) Complaint must not allege SMJ
2) In a PI or wrongful death action to recover actual or punitive damages, the amount demanded shall NOT be stated.
3) In a PI or wrongful death action, D may request a statement setting forth nature and amount of damages P is seeking.


Relation Back Rules for amended pleadings


1) Amendment to add a new claim against the saem party after SOL has run relates back as long as same T&O
2) Amendment to correct a misnomer: allowed to correct misspelling of names
3) Where P sued wrong D and claim arose out of same T&O, within 90 days of filing of complaint, and D knew or should have known that, but for the mistake, they would have been the one sued.


1) Relates back if amended complaint rests on the "same general set of facts" and refers to the "same accident or injuries" (narrower than Fed)
2) If P ignorant of D's names, must state that fact in complaint and true name must be submitted when discovered. SOL is tolled for 3 years after filing the complaint to identify and serve these D's.
3) These more liberal relation back rules are applicable in federal court.


Joinder of Claims and Partys

Fed and CA are the same:

One party may join any and all claims he has against another party even if unrelated.

Permissive Joinder: P's may join their claims if they arise from the same T&O and share a common question.


Counterclaims/Cross Claims/Impleaders


1) Compulsory Counterclaims: same T&O; must be asserted or may be subsequently barred; Fed court asserts supplemental jurisdiction over compulsory counterclaims.
2) Permissive Counterclaims: Not same T&O but may be asserted. Fed court will not assert supplemental jurisdiction over permissive counterclaims.


1) Claims by a party against a co-party
2) Arise out of same T&O
3) Never compulsory; only permissive: Fed court asserts supplemental jurisdiction over proper cross claims.

1) Assert third party claim for indemnity or contribution against a non-party.
2) Fed asserts supplemental jurisdiction over properly impleaded party


1) Does not recognize counterclaim, cross-claim, or impleader but replaces these with cross-complaints.
2) Compulsive and Permissive cross-complaints same as compulsive and permissive counter-claims
3) Right to join a third party is broader than in federal court: New party can cross complaints not limited to indemnity or contributions claims but includes any claim if it arrises from the same T&O or involves an interest in the controversy as the original claim.


Class Actions (7 requirements for Fed)


Prerequisites include
1) An identifiable class
2) Class representative must be a member of the class
3) Numerosity
4) Commonality
5) Typicality
6) Adequate Representation of the class
7) Must fit under one of three types of actions including Prejudice, Injunctive or Damages.


Class action is proper "when the question is one of common or general interest of many persons and it is impractical to bring them all before the court

1) An ascertainable class
2) A well-defined community of interest
3) Common questions predominate
4) Class action will result in a substantial benefit
5) Adequate representation.


Work Product

Fed/CA the same:

Three elements
1) Documents an other tangible things
2) Prepared in anticipation of litigation
3) By or for a party or that party's representative

Witness statements made by the witness to th interviewing attorney in anticipation of litigation are protected as work product.


Number of allowed oral depositions

Fed: Limited to 10 per side; otherwise requires leave of court.

CA: No numerical limit in unlimited cases but only one in a limited case.


Number of allowed interrogatories

Fed: Limit of 25 including all discrete subparts: may be increased by leave of court

CA: 35


Request for Admission

Fed: If party fails to respond, the matter is deemed admitted.

CA: If a party fails to respond, the matter is not automatically deemed admitted. The requesting party may move for an order for it to be admitted.


Physical or Mental Examinations


1) Motion required
2) Only parties or persons in custody or under legal control
3) Specific mental or physical condition must be in controversy
4) Good cause showing
5) Examined party has right to receive a copy but, by making the request, he must deliver the reports by his own doctor to the opposing party therefore waiving doctor/patient privilege.


In a PI case, D has right to one physical exam without the requirement of a court order by serving a written demand on P. However a court order is required for a mental exam and the party's mental condition must by in controversy and the moving party must show good cause.


Deadline for Motion of Summary Judgment

Fed: Notice of SJ must be served at least 28 days before the hearing date.

CA: Notice of SJ must be served at least 75 days before hearing date.


Right to Trial by Jury

Fed: P only has a right to jury trial for legal remedy (damages), not equitable remedy. Most important factor in characterizing a claim as legal or equitable is the remedy sought.

CA: Courts do not focus on remedy but ask whether the gist of the action as a historical matter is legal or equitable.


Asserting the Right to Jury Trial and Waiver

Fed: Must affirmatively assert his jury trial right by serving upon the other parties a demand in writing at any time after the commencement of the action but not later than 14 days after the service of the last pleading directed to such issue.

CA: No particular form of demand is required and it can even be requested orally at the case management conference. However, it must be asserted by the time the case is first set for trial or it will be waived.


Differences between Federal version and CA version of Motion for Judgment Notwithstanding the Verdict and Renewed MJNWV (JNOV)

Fed: Judgment Notwithstanding the Verdict must have been filed before Renewed Motion for Judgment Notwithstanding the Verdict can be filed.


1) Nonsuit upon completion of P's opening statements on the grounds that based on the facts, P can't make a Primae Facie case.
2) Nonsuit on completion of the evidence (like a directed verdict in federal court which challenges the sufficiency of P's evidence)
3) Directed Verdict: After all parties have presented their evidence
4) JNOV: Post verdict motion like Renewed Motion for Judgment as Matter of Law but not requiring the moving to have previously filed a directed verdict or nonsuit.


Res Judicata

Fed: A valid and final judgment on the merits precludes a second action upon the same claim or cause of action between the same parties or those in privity iwth the parties to the first action. It precludes not only claims that were asserted but also claims that should have been asserted but were not.

CA: Same


Default Judgment and Issue Preclusion

Fed: A default judgment will not be given collateral estoppel effect because there is no actual determination of facts on the evidence in a default judgment.

CA: A default judgment conclusively establishes, in subsequent proceedings between the same parties on a different cause of action, the truth of all material allegations in the complaint and every fact necessary to uphold the default judgment, but is not conclusive as to any defense or issue not raised.