Bar Review Civil Procedure

Front 1

Constitutional Limits on In Personam Jurisdiction

Back 1

1) Fairness - International Shoe - the exercise of jurisdicition must not offend traditional notions of fair play and substantial justice

2) Contacts - there must be minimum contacts which exist where the defendant has purposefully availed herself of the benefits and protections of the forum state's laws such that she could reasonably foresee being haled into court there.

3) Notice - due process requires that a reasonable method be used to notify the defendant of the lawsuit and be given an opportunity to appear and be heard.

Front 2

Federal Subject Matter Jurisdiction

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1) Diversity Jurisdiction - controversies between citizens of DIFFERENT STATES with amount in controversy in excess of $75,000.

2) Federal Question Jurisdiction - all civil actions arising under the Constitution, laws or treaties of the U.S.

Front 3

CA Conflict of Law Rule - Torts

Back 3

Comparative Impairment Approach
.
First - Tort law identical?

Second - Interest in application of state law?

Third, if GENUINE CONFLICT - court analyzes the COMPARATIVE IMPAIRMENT to each state's interest should the other state's law be applied.

Hint 3

Identical
State interest
Comparative Impairment

Front 4

CA Conflict of Law Rule - Contracts

Back 4

Materially Greater Interest Test

First, CHOICE OF LAW CLAUSE? If so, does it have a substantial relationship to parties/transaction or any other reasonable basis?

Second, does that chosen state law CONFLICT w/ FUNDAMENTAL CA POLICY?

Third, if such a conflict exists, does CA have a MATERIALLY GREATER INTEREST than the chosen state in the determination of the specific issue?

Hint 4

Materially Greater Interest

Front 5

California Demurrer

Back 5

An action claiming that the pleading fails to state facts sufficient to constitute a cause of action, or a claim that the court lacks subject matter jurisdiction.

Front 6

Motion to Quash Service of Summons

Back 6

A defendant objecting to the court's personal jurisdiction must raise the objection at the earliest opportunity. In CA a defendant must immediately appeal denial of PJ challenge.

If the defendant files the motion to quash before or at the same time as as the answer, the defendant will preserve the jurisdiction objection and not be deemed to have made a general appearance.

Front 7

Discovery Scope

Back 7

Discovery must be relevant (and not privileged) to the pending action.

In CA, the standard is more stringent and the discovery must be relevant to the subject matter involved in the pending action.

Front 8

Res Judicata

Back 8

The doctrine which says that a claim may not be re-litigated.
Four Prerequisites (CPJJ):
1) Claims are the same in first and second actions (same transaction and occurrence test.
2) PARTIES ARE THE SAME in both actions
3) Judgment is on the merits.
4) Judgment is final - most courts give res judicata effect if final judgment in trial court - CA requires conclusion of appeal.

Hint 8

CPJJ

Front 9

Collateral Estoppel

Back 9

This doctrine prevents re-litigation of factual issues previously decided.

Requirements (FAND):
1) First case the issue was the same
2) Actually litigated the issue
3) Necessary (material) issue in the court's judgment of the case.
4) Decided the issue in the previous action

Hint 9

FAND

Front 10

Long Arm Statute

Back 10

CA allows a state court to exercise personal jurisdiction based on any basis consistent with the Constitutional requirements of due process. Federal district courts apply the long arm statute of the state in which they are located.

Front 11

Domicile (or state citizenship)

Back 11

Where a party maintains their residence with intent to remain indefinitely, or no definite plans to go elsewhere.

Front 12

Constitutional Due Process Requirements on In Personam Jurisdiction

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"Consistent with the due process clause of the Constitution, the defendant must have certain minimum contact with the forum state such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice."

Hint 12

Quote

Front 13

Minimum Contacts

Back 13

Minimum contacts exist where the defendant purposefully avails herself of the benefits and protections of the forum state's laws such that she could reasonably foresee being haled into court there.

Front 14

Minimum Contact Elements

Back 14

1) Purposeful availment
2) Foreseeability

Front 15

Elements in Consideration of Fairness of Personal Jurisdiction

Back 15

1) Whether the claim arises from the contacts
2) The convenience of the parties
3) Location of witnesses and evidence
4) Forum state's interest in resolving the dispute.

Front 16

General Jurisdiction

Back 16

Where the defendant's contacts are systematic and continuous the court may exercise general jurisdiction of the defendant, even if the claim is not related to the contacts.

Hint 16

Systematic and continuous

Front 17

Specific Jurisdiction

Back 17

The claim is related to the defendant's contact with the forum state.

Front 18

Situational Jurisdiction

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1) Where the D is present in the forum state at the time of service
2) D is domiciled in the forum state
3) Consent to personal jurisdiction
4) Fictional presence in the forum state (corporate)
5) D has committed the act within the reach of the state long arm statute.

Front 19

Notice

Back 19

Due process also requires that a reasonable method be used to notify D of the lawsuit and be given opportunity to appear and be heard. D must be served with a summons and a copy of the complaint.

Front 20

Subject Matter Jurisdiction

Back 20

The power of the court to hear a particular case. Federal courts have diversity and federal question subject matter jurisdiction.

Front 21

Diversity Jurisdiction Requirements

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1) Complete diversity of citizenship (when the action is filed).
2) Amount in controversy must exceed $75,000, exclusive of costs and interest

Front 22

Corporate Citizenship

Back 22

A corporation is deemed a citizen of the state in which it is incorporated and in which it has its place of principle business. If it is a nationwide business, then it is the home office and state of incorporation .

Front 23

Erie Doctrine

Back 23

Federal courts must apply the substantive law of the state in which it is sitting, including the state's conflict of interest law rules. However, federal courts apply federal procedural law.

Front 24

Outcome Determinative Test

Back 24

It is used to find out if substantive law on the basis of whether it will substantially affect the outcome of the case.

Front 25

Balance of Interests Test

Back 25

Court weighs whether state or federal judicial system has the greater interest in having its rule applied.

Front 26

Federal Question

Back 26

Original jurisdiction of all civil actions arising under the Constitution, laws or treaties of the U.S.

Front 27

Supplemental Jurisdiction

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Claims by parties other than the plaintiff can invoke supplemental jurisdiction in any case that arises from the same transaction or occurrence as the original claim (same case or controversy). Aka Ancillary Jurisdiction.

Front 28

Impleader

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An impleader claim asserts that a third party defendant is or may be liable to the defendant for all or part of the plaintiff's claims against the defendant. In other words, an impleader claim is for indemnity or contribution.

Front 29

Pendant Claims

Back 29

Even where there is no diversity, the federal court has discretion to exercise pendent jurisdiction over the claim based on state law. The claims must arise from the same transaction or occurrence such that a plaintiff would ordinarily be expected to try them all in one proceeding.

Front 30

Removal

Back 30

A defendant can remove to federal court if plaintiff could have originally brought the case in federal court. Only a defendant may remove, and if there are more than one defendant, all must join in removal. If the defendant is a citizen of the forum state, and the case is based on diversity, the action is not removable.

Front 31

CA Venue Rules

Back 31

Venue is proper in a county where any defendant resides at the commencement of the action. If no defendant resides in CA, then any county is proper.

Front 32

CA Expanded Venue - Contract

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Proper venue is in the county where the obligation is to be performed or the contract was entered.

Front 33

CA Expanded Venue - Tort

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Proper venue is in the county where the injury or wrongful death occurred.

Front 34

CA Transfer of Venue

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A court may transfer even where the original venue is proper, if:
1) Impartial trial cannot be had
2) Convenience of witnesses and ends of justice would be promoted by change
3) No judge of the court qualified to act.

Front 35

Service of Process

Back 35

Any person not a party who is at least 18 years of age may serve process.

Front 36

Proper Service of Process

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1) Personal service, OR
2) Service left at the defendant's usual place of abode with one of suitable age and discretion residing therein, or
3) Service upon an authorized agent of the defendant, is valid.

Front 37

Notice

Back 37

Must be reasonably calculated to appraise interested parties of action pending, Mail and publication are alternative means of notice.

Front 38

CA Code (fact) Pleading

Back 38

Must contain two components:
1) A statement of facts constituting the cause of action
2) A demand for judgment for the relief to which the pleader claims to be entitled.

Front 39

CA Pleadings

Back 39

1) Complaints
2) Demurrers - within 30 days
3) Answers - within 30 days
4) Cross-complaints

Front 40

Federal Notice Pleading

Back 40

Each claim should contain the following in order to satisfy the due process requirement:
1) Statement of the grounds for the court's jurisdiction
2) Statement of claim showing pleader is entitled to relief
3) Demand for judgment for relief.

Front 41

Interpleader

Back 41

A defendant who does not know to whom it owes money may join all possible claimants. There only needs to be diversity between the opposing sides, not the claimants.

Front 42

Intervention

Back 42

A party may intervene in a lawsuit in order to protect their interests. Supplemental jurisdiction covers intervenors as of right.

Front 43

CA Doe Amendments

Back 43

Plaintiff generally has three years to discover the identity of the doe defendants. The complaint:
1) Must be timely filed and include all defendants, including does
2) Plaintiff must be genuinely ignorant of fictitiously named defendants
3) Plaintiff's ignorance must be pleaded in the complaint.

Front 44

Temporary Restraining Order

Back 44

TROs are granted by a court when it is necessary to prevent irreparable injury to a party.

Front 45

TRO Ex-Parte Requirements

Back 45

1) Specific facts showing immediate and irreparable injury
2) Effort to give notice, or show why notice should not be given
3) Moving party must provide some security to pay for costs and damages incurred if wrongfully restrain or enjoin defendant.
4) 10 day limit on restraint unless extension is granted or consent by restrained party.

Front 46

CA TRO Distinctions

Back 46

CA TRO has no time limit, but expires on issuance of a preliminary injunction.
If no notice was given to the opposing party, court will set a hearing on the application for a preliminary injunction within 15 days.

Front 47

Rule 12b - Pre-Answer Motions

Back 47

1) Lack of SMJ
2) Lack of PJ
3) Improper venue
4) Insufficiency of process
5) Insufficiency of service of process
6) Failure to state a claim upon which relief can be granted (same as CA demurrer)
7) Failure to join a party needed for just adjudication (necessary and indispensable party)

Front 48

CA Special Demurrers

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1) Lack of legal capacity
2) Existence of another pending action
3) Defect or misjoinder of parties
4) Uncertain pleading (similar to a motion for a more definitive statement in federal practice).

Front 49

Summary Judgment

Back 49

Must be granted if there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law (JML), formerly a directed verdict. Must be made before case submission to a jury.

Front 50

Class Action

Back 50

Diversity may be established by selecting representatives of the class who are diverse from the defendants. Each member must have claims exceeding $75k for federal court diversity. It requires:
1) Numerosity - joinder of all members is impracticable.
2) Commonality - questions of law or fact common to the class predominate over other questions.
3) Typicality - named members must be typical of the class
4) Fairness - named members will ensure fair and adequate representation of the interests of the absent members of the class.

Front 51

Judgment as a Matter of Law

Back 51

Formerly directed verdict. The motion may be made at any time before submission of the case to the jury. May only be granted if the "non-moving party" has been fully heard.

CA calls it a non-suit or directed verdict.

Front 52

CA Primary Rights Doctrine

Back 52

In CA a cause of action is defined as an invasion of a single primary right. A primary right is to be free from a particular harm.

In CA a plaintiff in an accident may sue the defendant in one action for personal injury and in a separate action for property damage. Each injury is considered an invasion of a different primary right.

Hint 52

separate actions

Front 53

CA Class Action

Back 53

1) Ascertainable class
2) Well defined community of interest among the class (commonality).

Community interest analysis includes:
1) common questions of fact or law (commonality)
2) Action will result in substantial benefit to court and parties (numerosity)
3) class representatives adequately represent class interests (typicality)

Front 54

CA Doe Amendment Requirements

Back 54

Fictitious Doe designations may be used where:
1) Complaint is timely filed w/ charging allegations as to all Ds
2) P must be genuinely ignorant of fictitiously named Does
3) P's ignorance must be pleaded in the complaint.
4) 3 year limit on discovery of Does and serve them.

Front 55

CA Substantive Evidence Test

Back 55

In CA the test used by an appellate court in reviewing a jury verdict. The power of the appellate court begins and ends with the determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the finding of fact.

Front 56

Relation Back

Back 56

In federal civil procedure, an amended pleading may relate back, for purposes of the statute of limitations, to the time when the original pleading was filed. The party being served by the amended complaint must have been aware of the original action, and they must have had reason to know the original complaint was mistakenly served.

Front 57

Supplemental Jurisdiction

Back 57

A court may use supplemental jurisdiction to allow additional parties into a lawsuit such that their conduct arises from the same nucleus of operative facts such that they should be litigated at the same time. However, supplemental jurisdiction is subject to the limits of diversity jurisdiction – the parties must still be diverse from one another.

Front 58

Joinder of Parties in Indemnity or Contribution

Back 58

A defendant may join another party who is non-diverse to the plaintiff where they are seeking indemnification or contribution from the newly joined defendant.

Front 59

Motion for Nonsuit

Back 59

This motion is made by the D after the P's presentation of evidence. The motion asks the judge to find that there is NO EVIDENCE to support the PLAINTIFF'S CASE.

Front 60

Motion for Directed Verdict (Judgment as Matter of Law - FED)

Back 60

This motion can be made by either side at close of evidence - it says that there is no substantial evidence to support a jury verdict in the opponent's favor.

Front 61

Judgment Notwithstanding the Verdict (JNOV - Judgment non obstante veredicto) (FED - Renewed Judgment As a Matter of Law)

Back 61

The verdict could not have been reached by reasonable persons. In federal court, the party must have moved for for a judgment as a matter of law before the case went to a jury. If they have, they may renew it after the verdict but no later than 10 days after the entering of the judgment.

Front 62

CA Substantive Evidence Test

Back 62

This test is used by the trial court in deciding on motions as a matter of law. The CA appellate court uses the same test - their review begins and ends with the determination as to whether there is any substantial evidence, contradicted or not, which will support the finding of fact.

Front 63

Jury Misconduct (Impeachment of the Jury Verdict)

Back 63

A motion for a new trial may be made on two basis:
1) Insufficient evidence to support a verdict (JNOV), OR
2) Jury misconduct.

Jury misconduct includes:
1) Jurors lied on voir dire
2) Jurors relied on extrinsic evidence
3) Jurors reached a decision on chance or quotient verdict.

Front 64

Res Judicata - Same Transaction Rule

Back 64

In a state which follows the same transaction rule, where a party has multiple causes of action against a D and only brings one, and the case is decided on that transaction, res judicata will prevent the P from bringing the related claims later. The matter has been adjudicated.

Front 65

Res Judicata - Primary Rights Doctrine (CA)

Back 65

This is the minority position and allows the case to be relitigated where a different primary right is brought before the court. If a plaintiff has already had a decision on personal injury, they may now bring a case for breach of contract in the same matter because it is a separate primary right. However, collateral estoppel may still be involved if a same issue is being relitigated.

Front 66

In CA, a motion for a directed verdict after the verdict by the jury is called ...

Back 66

A motion for a Judgment Notwithstanding the Verdict in CA. Fed is a Renewed Motion for a Directed Verdict.

Front 67

In a decision as to whether a rule is substantive or procedural, how does a federal court decide in a diversity case?

Back 67

Under Erie, a federal court is to use the substantive law of the state in which it sits, and federal procedural law. The courts have largely abandoned the outcome determinative test in favor of a balancing test as to whether the state's interests in having its law applied outweighs the federal interest. If it is a FRCP rule, the federal interest prevails.(Hanna v. Plumer)