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92 Cards in this Set
- Front
- Back
What is the basic Personal Jurisdiction question? |
Main Question: Can P sue D in THIS state.
Must BOTH: 1. Satisfy a statute (state long arm); AND 2. Satisfy the Constitution (Due Process) |
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What is the Statutory Analysis of In personam jurisdiction? |
All have domicile, presence and consent
Some long arm statutes simply say they reach the constitutional limit. Such as **CA** |
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What is the basic Constitutional Analysis of In personam jurisdiction? |
Does the D have 'such minimum contacts with the forum so that exercise of jurisdiction does not offend traditional notions of fair play and substantial justice?'
My Parents Frequently Forgot to Read Children's Stories Easy Cases (domiciled, presence, consent) |
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What is the contacts analysis of In personam jurisdiction?
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Some tie between D and the forum.
Two Factors to consider: The contact MUST result from PURPOSEFUL AVAILMENT (D's voluntary act, must reach out or direct activities in some way) i.e.. ship goods, use road, cause an effect FORESEEABILITY that D would get sued in this forum |
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What is the fairness analysis of In personam jurisdiction? |
Fair play and Substantial Justice
1. RELATEDNESS: between the contact and the claim, does claim arise from contact -Substantial ties (domiciled, continuous business, served)- lead to general jurisdiction 2. CONVENIENCE (severe disadvantage in the litigation - Hard to meet this standard) 3. STATE'S INTEREST (provide forum for its citizens) |
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My Parents Frequently Forget to Read Children's' Stories
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M inimum Contacts
P urposeful availment F oreseeability F air play & substantial justice R elatedness of contact and claim C onvenience S tate's interest |
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How do In rem and quasi in jurisdiction work? |
HAS NEVER BEEN ON EXAM
Jurisdictional basis is property and Statutory basis is an attachment statute Constitutional if: Suit relates to property; OR Meets Minimum Contacts/Fairness Test |
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What are the 2 areas of federal Subject Matter Jurisdiction?
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2 types of federal cases:
1. Diversity of Citizenship 2. Federal Question |
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What is Diversity of Citizenship? |
The action must be between citizens of different states (or a foreigner)
There is no diversity of citizenship jurisdiction if any plaintiff is a citizen of the same state an any defendant when the case is filed. The amount in controversy must exceed $75,000 |
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How is Citizenship of Individuals for diversity determined?
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Domicile is established by two concurrent factors:
1. Presence instate (physical) 2. Subjective intent to make it her permanent home (mental) - No single factor determinative for intent Always have a domicile, CAN'T have more than one |
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How is Citizenship of Corporations for diversity determined? |
1. All states where incorporated
AND 2. the ONE state where the corporation has its principle place of business (PPB) i. Headquarters(nerve center) DEFAULT TEST OR ii. Where the corp. does MOST of production of service activity than anywhere else(muscle test) |
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How is Citizenship of Unincorporated Associations for diversity determined? |
Use the citizenship of all members
Includes general and limited partners May mean all 50 states |
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How is Citizenship of Decedents, minors, and incompetents for diversity determined?
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Look to their citizenship, not the citizenship of their representative
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What and How is the Amount in controversy for diversity determined? |
GOOD FAITH allegation that claim EXCEEDS $75,000.
P who recovers less than $75,000 may be liable to D for litigation costs (not att. fees) AGGREGATION allowed when case is a single P against a single D EQUITABLE RELIEF: P's viewpoint OR D's viewpoint injunction's value exceeds $75,000 EXCLUSIONS: divorce, alimony, child custody or probate |
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What is Federal Question jurisdiction?
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Claim arises under federal law
- Well-plead complaint: Fed Q based on complaint, NOT anticipated defenses ASK:'Is P enforcing a federal right?' - Ask for every claim!!! (If no, diversity? If no, try supplemental jurisdiction) |
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What is the Supplemental Jurisdiction Test? |
Lets a federal court hear ADDITIONAL claims over which there is no diversity of citizenship or FQ jurisdiction |
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What Limitations are there to Supplemental Jurisdiction? |
In a DIVERSITY case, PLAINTIFF cannot use supplemental jdx to overcome a lack of DIVERSITY or DESTROY complete diversity |
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What is Removal and what is the test? |
Allows Defendants (ONLY) to have case filed in state court 'removed' to fed court.
- One way only, remanded back if improper Test: If P could have originally filed case there Where: District Court within area of State Court When: No later than 30 days after SERVICE of the FIRST removable document. - All D's must agree Special rules for diversity cases: 1. No removal if any D is a citizen of the forum 2. No removal more than one year after case filed (even if D, a citizen of forum, is dropped) |
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What is the Procedure for Removal? |
1. D files notice of removal in federal courts
2. Stating grounds of removal 3. Signed under Rule 11 4. Attach all documents served on D in state action 5. Copy to all adverse parties |
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Can you waive your Right to Remove?
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A D who files a PERMISSIVE counterclaim in state court probably WAIVES the right to remove
Filing a MANDATORY counterclaim in state court probably DOES NOT WAIVE |
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Basically, what is the Erie Doctrine?
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In diversity cases, federal court must apply state substantive law.
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What is Clearly Substantive Law under erie?
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1. Elements of claim or defense
2. Statute of limitations 3. Rules for tolling statutes of limitations 4. Choice of law |
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What do you do if Substantive Law is Not Clear under erie? |
Is there a federal law on point that directly conflicts with state law?
If so, apply the federal law as long as it is arguably procedural. (FRCP is valid if is 'arguably procedural') Analyze the facts per these three tests, and come to a reasonable conclusion 1. Outcome determinative: would applying or ignoring the state rule affect outcome of case? 2. Balance of Interests: does either federal or state system have strong interest in having its rule applied? 3. Avoid Forum Shopping: if the federal court ignores state law on this issue, will it cause parties to flock to federal court? |
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What is SMJ in **CA** Superior Court?
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General Jurisdiction - Can hear just about anything
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What are the Classification of Cases in **CA**?
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Limited - Does NOT exceed $25,000, not including attorneys fees, interests, or costs.
- Claimant is barred from reward of more than $25K Unlimited - Exceeds $25,000 Small Claims - $7,500 or less. Separate court, simple procedures Entire Case is either 1 or the other. Aggregate all claims by 1P v. 1D |
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What are the Classification Procedures in **CA**? |
Plaintiff initially determines - Must not classification in caption |
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How do you determine Venue - Both Federal and **CA**? (long sorry) |
1. Local actions: actions re ownership, possession or injury (including trespass) to land |
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Where do D's reside for venue purposes - Both Fed and **CA**?
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Humans: domicile |
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How do you do a Transfer of venue, federal only?
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Sending a case from one federal district to another.
If improper, can transfer or dismiss Can only transfer to a district where case could have been filed: Means (i) a proper venue which (ii) has personal jurisdiction over D (must be true without waiver by the D) Court discretion to transfer even if proper if convenience and interests of justice: 1. Public factors (what law applies, what community should be jury) 2. Private factors (where are the witnesses, evidence, etc?) NOTE: Court to which transferred applies choice of law rules from original court. -- Does not matter if will recover less -- Almost never granted if P is resident of the present forum |
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What is Forum Non Conviens?
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If there is a far more appropriate court elsewhere, may dismiss without prejudice.
- Transfer MUST be impossible (i.e. foreign country) Court will balance same Public and private factors as venue. 1. Public factors (what law applies, what community should be jury) 2. Private factors (where are the witnesses, evidence, etc?) -- Requires a very strong showing because dismissal -- Does not matter if will recover less -- Almost never granted if P is resident of the present forum |
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How do you do a Transfer of venue - **CA** only? |
From a Court in one County to a Court in another County. |
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What is the Service of Process Procedure? |
Nonparty over the age of 18
**CA** serve w/in 60 days |
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What are the Service of Process Considerations - Fed and **CA**? Forms of service |
1)Personal service: Papers given to D personally anywhere in forum state Service effective 10 days after mailing
**CA** = also someone w/ apparent authority during regular business hours. |
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What are Pleadings - Fed and **CA**? |
Documents setting forth claims and defenses. |
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What is Rule 11? |
Requires attorney (or party representing herself, called a pro se party) to sign all pleadings, written motions and papers (except discovery documents, which are treated by another rule) |
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What is Frivolous Litigation - **CA**?
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Two statutes: |
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What is the Complaint federal? |
Principal pleading by plaintiff. Filing commences an action. |
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What is the Complaint **CA**? |
Filing commences an action. |
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What are the 2 forms of Defendant's Response to a Complaint? |
Rule 12 requires D to respond in one of two ways: |
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What are the Motions in Response to Complaint, Rule 12, Federal? |
Motions are not pleadings; they are requests for a court order. |
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What is a Demurrer - **CA**? |
General Demurrer - 1. Lack of SMJ; AND/OR 2. Fail to state facts sufficient to constitute a cause of action. Like 12(b)(6) |
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What are the Motions in Response to Complaint - **CA**?
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Motion to quash service of summons: |
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What are the Timing of the Answer - Fed and **CA**?
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Serve within 21 days after service of process if D makes no motions; |
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What is the Answer - Fed and **CA**?
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1. Respond to allegations of complaint:
(i) admit (ii) deny (iii) state that you lack sufficient information to admit or deny; - # iii acts as a denial, but can't be used if the information is public knowledge or is in defendant's control. - Failure to deny can constitute an admission on any matter except damages. (iv) **CA** General Denial - Short document denying everything 2. Raise affirmative defenses. - 'even if I did all the terrible things plaintiff says, plaintiff still cannot win.' - Classic affirmative defenses are statute of limitations, statute of frauds, res judicata, self-defense. - MUST PLEAD OR WAIVED |
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What are Counterclaims?
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These are offensive claims against an opposing party, e.g., D v. P.
They are filed with defendant's answer. 1. Compulsory: arises from the same T/O as P's claim. - MUST BE FILED IN THE PENDING CASE, OR IT'S WAIVED. - The claim cannot be asserted in another action, Res Judicata. (If dismissed, never have to answer, never had to assert) 2. Permissive: does not arise from same T/O as plaintiff's claim. - Does not have to be asserted in pending case; can sue in separate action. If a counterclaim is procedurally OK, then assess whether it has subject matter jurisdiction (diversity or FQ). - If not, can you get supplemental jurisdiction? (compulsory counterclaim always meets test) |
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What are Cross-claims?
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Offensive claims against a co-party.
- Claim must arise from the same T/O as the underlying action. - NEVER compulsory. SMJ: - FQ? Diversity? Supplemental? - Not considered P for purpose of supplemental limitation |
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Can you Amend the pleadings, Federal?
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PLAINTIFF has a right to amend once before responsive pleading or within 21 days of service of pleading. |
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What are the requirmetns to Amend after the statute of limitations has run - FED and **CA**?
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New Claim: amended pleading relate back if they concern the same conduct, transaction or occurrence as the original pleading.
- Relation back treats the amended pleadings as though it was filed when the original was filed, so it can avoid a statute of limitations problem. To change a D after the statue has run. This will relate 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; AND 3. She also knew that but for a mistake, she would have been named originally (Applies when P sued wrong D first, but the right D knew about it) Also SEE Amending Pleadings CA for Discussion of Fictitious Ds. |
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What is a Cross-Complaints - **CA**?
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ALL claims by defendant are called CROSS COMPLAINTS in CA
Cross-Complaint Against P: Same as Counter claim in Fed. Same Rules RE compulsory too. Cross-Complaint Against Co-party: Same as Cross-Claim in fed. Cross-Complaint against Third Party Defendant - Same as Impleader |
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How can you Amend the Pleadings - **CA**?
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PLAINTIFF has a right to amend anytime before D files an answer or demurrer.
If no right to amend, seek leave of court; it is usually granted unless 'Delay or Prejudice' Variance: Same as FED Relation back and Fictitious Defendants, OK if: 1. Original was before SoL and contained allegations against fictitious D 2. P was genuinely ignorant of the identity of Does 3. P pleaded that ignorance in original case. -- Must substitute within 3 years of filing |
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What is the process to Joinder of Normal Parties?
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1. Proper D and P's (who may be joined)
- Arise from same T/O AND - Raise at least one common question - Then assess subject matter jurisdiction Joinder rules that start with 'C' (counterclaim, crossclaim) are claims between present parties Claims that start with 'I' involve someone new to the case |
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When are Parties are necessary?
How are they joined? |
Necessary party if: (ANY)
1. INCOMPLETE - Without A, the court cannot accord complete relief; 2. HARMED - A's interest may be harmed if not joined (practical harm) (MOST LIKELY); OR 3. MULTIPLE - A claims an interest which subjects a party (usually D) to multiple obligations - Joint tortfeasors are not necessary Can be joined if: 1. There is personal jurisdiction 2. Joining him will not make it impossible to maintain diversity If party cannot be joined then: 1. Proceed without him 2. Dismiss the whole case(because indispensable party) Factors: (i) Is there an alternative forum available? (ii) what is the actual likelihood of prejudice? (iii) can court shape relief to avoid that prejudice? |
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What is Impleader?
And who can sue whom in that situation? |
A defendant party wants to add new third party defendant. The TPD may owe indemnity or contribution to the defending party on the underlying claim |
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What is Intervention? |
Absentee WANTS to join a suit: |
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What are the Class Action Initial Requirements, Federal? Relating to representation?
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Must satisfy all of these |
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What are the Three types of Class Actions? Subject Matter. |
1. Prejudice: class treatment necessary to avoid harm either to the class members or to the party opposing the class (individual suits depleting a fund)
2. Injunction or declaratory judgment (not damages) sought because class was treated alike by other party (employment discrimination) 3. Damages . i. Common questions predominate over individual questions AND . ii. Class action is the superior method to handle the dispute . . . - i.e. Mass Tort, Bus Accident Notice paid for by class representative. No clear method regarding aggregating claims |
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What are**CA** Class Action Requirements? Representative
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1) Must show an ascertainable class; AND
2) A well defined community of interest . a) Common Questions predominate; . b) The representative is adequate; AND . c) The class will result in a benefit to the parties and the court Court decides who bears the cost of notice Agregate all class members damages to determine amount in controversy |
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What are the Required Disclosures in discovery? Must be made no matter what.
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Must be made even if no one asks for them:
1. Initial disclosures. Must identify persons and documents likely to have discoverable information that the disclosing party may use to support its claims or defenses, computation of damages and insurance for any of judgment. 2. Experts. As directed by court, must identify experts 'who may be used at trial' and produce written report containing opinions, data used, qualifications, compensation for study, etc. 3. Pretrial. No later than 30 days before trial, must give detailed information about trial evidence, including documents and identity of witnesses to testify live or by deposition. |
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What are the Discovery Tools?
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1. Depositions
2. Interrogatories 3. Requests to Produce 4. Physical or mental examinations 5. Requests for admission |
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What are the Depositions procedures?
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Form: Questions can be oral or written.
Who: Parties or Nonparty w/ subpoena. Subpoena could be 'duces tecum' which requires the deponent to bring material (e.g., documents) with her. |
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What are the Interrogatories procedures and **CA** distinctions?
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Questions propounded in WRITING to another party, to be answered in writing under oath.
Time Frame: Must respond with answers or objections within 30 days. Unable to Respond: Can say you don't know the answer, but only after reasonable investigation; if the answer could be found in business records and it would be burdensome to find it, can allow propounded access to those records. Use at trial: cannot use your own answers; others may be used per regular rules of evidence. Limits: Cannot serve more than 25 (including subparts) without court order or stipulation. - **CA** No limit on FORM interrogatories - **CA** No more than 35 of drafted interrogatories |
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What are the Requests to produce procedures and **CA** distinctions?
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Description: Requests to another party (or to non-party if accompanied by subpoena) requesting that she make available for review and copying various documents or things, or permit entry upon designated property for inspection, measuring, etc. |
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When is a Physical or mental examination allowed?
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Only available through court order.
and only used against Ps where: 1. Health Issues in controversey (PI case); AND 2. Good Cause Exists |
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What is a Request for admission?
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A request by one party to another party to admit the truth of any discoverable matters.
Use: Often to authenticate documents Timeframe: Must respond within 30 days of service. The response is to admit or deny; can indicate lack of information only if indicate you've made a reasonable inquiry. NOTE: Failure to deny tantamount to admission; can amend if failure not in bad faith |
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What are Parties duties in responding to discovery? |
Certified: Every discovery request and response is signed by counsel certifying it is warranted, not interposed for improper purpose and not unduly burdensome. Not Rule 11, this is a separate certification.
Supplement: If a party learns that its response to required disclosure, interrogatory, request for production or request for admission is incomplete or incorrect, it must supplement its response. - **CA** there is no duty to supplement discovery. But opposing party can propound supplemental interrogatories twice before date of trial is set. |
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What is allowed for **CA** Discovery in LIMITED cases? |
Depositions: 1 ONLY
Interrogatories, inspection demands, and requests for admission: Combined total of 35. Additional Discovery: Only with a court order |
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What is the Substantive scope of discovery Fed and **CA**?
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1. Standard. Can discover anything 'relevant to a claim or defense.'
- Relevant mean'reasonably calculated to lead to the discovery of admissible evidence (this is broader than admissible)' - For good cause, the court can expand discovery to 'relevant to the subject matter of the case.' - **CA** always at the broader 'relevant to subject matter' standard 2. Privileged matter not discoverable - **CA** Privilege must be identified with particularity 3. Work product or 'trial preparation materials' Generally protected from discovery. SEE Work Product Card 4. Expert witnesses: - Must produce information about experts who may be used at trial without request from party. - Party may take deposition of any expert 'whose opinions may be presented at trial.' - **CA** Party may request simultaneous exchange of expert information |
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What is Work Product Fed and **CA**?
And when is it discoverable? |
Work product of lawyers and OTHERS in anticipation of litigation is discoverable only if:
1) upon showing substantial need; AND 2) avoid undue hardship **CA** Only work product produce BY ATTORNEY is protected. Absolute protection to: 1) mental impressions 2) opinions 3) conclusions 4) Legal Theories |
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How Party seeks enforcement of discovery rules?
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1. Receiving party seeks protective order (26(c), e.g., overburdensome, or involves trade secrets and we want an order limiting use to the litigation);
2. Partial Violation: Receiving party answers some and objects to others expect a LIGHT sanction. 3. Total Violation: Receiving party fails completely to attend deposition, respond to interrogatories or to respond to requests for production expect a HEAVY sanction. |
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What are Sanctions against a Party for failure to comply with discovery, Fed and **CA**?
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To get sanctions:
1) Must certify to the court that he tried in good faith to get the info without court involvement 2) Types of Violations: . .a) Partial Violation: Compel party to answer the questions, plus costs of bringing motion (including attorney's fees). . . . .(i) If violates this than RAMBO plus costs and possible Contempt . .b) Total Violation: RAMBO Plus costs; RAMBO SANCTIONS (choices available to judge): i. Establishment order (establishes facts as true) ii. Strike pleadings of the disobedient party (as to issues re the discovery) iii. Disallow evidence from the disobedient party (as to issues re the discovery) iv. Dismiss plaintiff's case (if bad faith shown) v. Enter default judgment against defendant (if bad faith shown) **CA** Sanctions are basically the same but not as harsh. Court will generally move through each level to encourage party to comply. |
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What are the Pretrial Adjudication (List of Options)?
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1. Voluntary Dismissal
**CA** Involuntary Dismissal 2. Default and Default Judgment 3. Failure to State a Claim 4. Summary Judgment |
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What is a Voluntary Dismissal?
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Plaintiff files a written notice of dismissal.
Dismissed w/out prejudice unless second case |
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What is a Involuntary Dismissal Fed and **CA**?
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All courts have authority to dismiss for various reason, such as not following procedure.
**CA** Mandatory Dismissal 1) Not brought to trial within 5 years of filing 2) Process is not served within 3 years after filing. |
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What is a Default?
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Default is a notation made by the court clerk on the docket sheet for the case.
In order to recover plaintiff needs a judgment. The clerk of the court can enter judgment if: 1. there has been no response at all by the defendant; 2. the claim itself is for a sum certain; 3. claimant gives an affidavit that that is owed; AND 4. defendant is not a minor or incompetent. If any of those four things is not true, the claimant must go to the court itself (not the clerk) to get the judgment. 1. A default judgment cannot exceed what the claimant demanded in her complaint 2. After default, D can move to set aside the default, usually by showing good cause and a viable defense. Good cause usually means excusable neglect. 3. After default judgment, D can move to set aside the judgment. Same basic showing as to set aside the default. |
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What is a Failure to State a Claim both Fed and **CA**?
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Under Rule 12(b)(6) D can move to dismiss for failure to state a claim. |
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What is a Summary Judgment? |
Moving party must show:
Deadlines: anytime until 30 days after post-discovery; Response w/in 21 days; moving party response w/in 14 days.
Deadlines: 60 days after general appearance of nonmoving party File and serve 75 days before hearing Opposing papers due 14 days before hearing Reply papers due 5 days before hearing |
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What are Affidavits? |
Are sworn statements, under penalty of perjury, so they can be evidence
Pleadings are not evidence, unless a verified pleading |
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What are Conferences and Meetings?
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1. Rule 26(f) Conference
2. Scheduling Order 3. Pretrial Conference |
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What is a Rule 26(f) Conference?
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Unless court order says otherwise, at least 21 days before scheduling conference (or scheduling order is due), parties discuss claims, defenses and settlement. Must form discovery plan and present it to court in writing within 14 days.
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What is a Scheduling Order?
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Unless local rule or court order says otherwise, the court enters an order scheduling cut-offs for joinder, amendment, motions, etc.
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What are Pretrial Conferences?
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Final pretrial conference determines issues to be tried and evidence to be proffered.
The final pretrial conference order is an important document -- it is a roadmap of issues to be tried, evidence to be presented at trial, witnesses, etc. So there are NO surprises at trial. |
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What rights exist to a Jury Trial?
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FEDERAL |
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What is a Motion for judgment as a matter of law? |
aka Directed verdict (**CA** also calls it DV)
When = after non-moving side has present its case (e.g. Deft-movant = close of Ps evidence or all trial evidence; P-movant = only after close of all trial evidence)
**CA** Motion for Non Suit = D-movant after close of Ps evidence
Standard: No reasonable people could disagree.
Evidence viewed in light most favorable to motion's opponent |
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What is a Renewed motion for judgment as a matter of law (judgment notwithstanding the verdict (JNOV)? |
**CA** called judgment not withstanding the verdict; Feds no longer call it that)
**CA** Must file notice of intent to move w/in 15 days of mailing service of notice of judgment OR 180 days after entry of judgment |
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What is a Motion for a new trial?
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Make motion after verdict: |
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What are Remittitur and Additur **CA**?
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Court Can offer a New trial or a:
1) If P won but too much, Remittitur - offer less, take it or forced to go through another trial 2) If P won but too little, Additur - Offer P more, D can pay it or be forced to go to a new trial |
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What are the Final Judgment Rules both Fed and **CA**?
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As a general rule, can appeal only from final judgments, which means an ultimate decision by the trial court of the merits of the entire case.
File notice of appeal in trial court within 30 days after entry of final judgment. **CA** 60 Days Ask: after making this order does the trial court have anything left to do on the merits of the case? If so, probably not appealable |
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When is Interlocutory (non-final) review available?
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These might be appealed even though not final judgments. (Little Tested)
1. Interlocutory orders reviewable as of right: orders granting, modifying, refusing, etc. injunctions; appointing, refusing to appoint receivers; findings of patent infringement where only an accounting is left to be accomplished by trial court; orders affecting possession of property, e.g., attachments. 2. Interlocutory Appeals Act. Allows appeal of nonfinal order if trial judge certifies that it involves a controlling issue of law as to which there is substantial ground for difference of opinion and the court of appeals agrees to hear it. 3. Collateral order exception. Appellate court has discretion to hear ruling on an issue if it (a) is distinct from the merits of the case, (b) involves an important legal question, and (c) is essentially unreviewable if parties must await a final judgment (e.g., claim of immunity from suit, such as a state=s claim of Eleventh Amendment immunity from suit for damages). 4. When more than one claim is presented in a case (e.g., claim and counterclaim), or when there are multiple parties, the trial court may expressly direct entry of a final judgment as to one or more of them if it makes an express finding that there is no just reason for delay. 5. Extraordinary writ. Not technically an appeal, but an original proceeding in appellate court to compel the trial judge to make or vacate a particular order. Not a substitute for appeal; available only to enforce a clear legal duty. 6. Class action. Court of appeals has discretion to review order granting or denying certification of class action. Must seek review within 10 days of order. Appeal does not stay proceedings at trial court unless trial judge or court of appeals so orders. |
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Which court systems laws apply regarding Claim and Issue Preclusion?
Is a case on appeal entitled to claim or issue preclusion effect? |
Case 1 determines the rules.
Federal cases on appeal still can be used for issue or claim preclusion. **CA** No must be final final. |
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What is Res Judicata?
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You only get to sue on a cause of action (or claim) once. So if you have a claim you only get one case in which to vindicate all rights to relief for that claim.
PFC: 1. Same PARTIES 2. Case 1 ended in a valid FINAL judgment on the merits. 3. Same CLAIM - Feds define claim transactionally: a claim is any right to relief arising from a transaction or occurrence. **CA** there are separate claims for property damage and for personal injuries, though, because those are different PRIMARY RIGHTS. |
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What is Collateral Estoppel?
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This precludes relitigation of a particular issue litigated and determined before. Requirements:
FLEAM: 1. Case 1 ended in a valid, FINAL judgment on the merits. 2. The same issue was actually LITIGATED and determined in Case 1. 3. The issue was ESSENTIAL to the judgment in Case 1. 4. Asserted AGAINST one who was a party to Case 1. 5. MUTUALITY, See Mutuality Card. |
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By whom can collateral estoppel be asserted?
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Traditional view (mutuality): only by one who was a party to Case 1.
- Not a requirement of due process, SOME COURTS HAVE REJECTED IT 'NONMUTUAL' : Its being used by one who was not a party in Case 1. That person may be the defendant or the plaintiff in Case 2. |