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152 Cards in this Set

  • Front
  • Back
What is personal jurisdiction?
The ability of the court having smj to exercise power over a particular D or chattel.
What are the limits on PJ?
Must not exceed state statue or US cont.
If no statue grants court power the the court lacks pj. Under DP clause notice must be fair and adequate notice. Also there must be minimum contacts between D or property and the forum state so that the assumption of jurisdiction is fair and reasonable. Absent some federal provision each fed court must analyze pj as if it were a court of the state in which it is located.
What are the statutory limitations on PJ?
- D can be served personally (unless immunity granted for nonresident).
- Defendant is Domiciled (maintains permanent home) in state
- D consents by express or implied (making general appearance)(special appearance allowed to contest PJ)
What is the extent of the jurisdiction granted by california's long arm statue?
Courts have power over any person or property over which the state can constitutionally exercise jurisdiction.
What are the constitutional limits on PJ?
1. Sufficient nexus with the forum (Due process)- Modern:
CONTACT: D must have such minimum contacts with forum that jurisdiction would be fair and reasonable. The contacts can't be accidental; the court must find that D purposely availed herself of the privilege of conducting activities in the forum state, thus invoking the benefits and protections of its laws." The defendant must also KNOW OR REASONABLY ANTICIPATE that her activities in the forum render it forseeable that she may be "haled into court" there

FAIRNESS
The exercise of J must not offend the traditional notions of FAIR PLAY and SUBSTANTIAL JUSTICE.
FAIRNESS FACTORS: If the claim is related to the contacts a court is more likely to find that "specific jurisdiction" is fair and reasonable. If the D engages in SYSTEMATIC and CONTINUOUS ACTIVITY in the forum state, the court could find this activity a sufficient basis for exercising in personam jurisdiction over any cause of action ("general jurisdiction"). CONVENIENCE to the D is another factor. Unless forum is "so gravely difficult and inconvenient" that the D is put at a severe disadvantage. The forum must have a LEGITIMATE INTEREST in providing redress for its resident. Other factors include the P's interest in obtainging convenient and effective relief, the interstate judicial system's interest in efficiency, and the shared interest of the states in furthering social policies.
Is notice required under the fairness prong?
yes the best practical means must be used.
What is IN REM jurisdiction
Personal Jurisdiction over property located in a state. Court has no power over property brought into the state by fraud or force. Person's affected must be notified by mail if addresses are known.
What is a QUASI IN REM action?
2 types
1. Parties dispute there rights over property. (connection between the litigation and the contact provides the minimum contacts necessary).
2. Dispute is unrelated to the property (Mere presence of property is insufficient contact; must have another basis (such as PJ)).
DIVERSITY AMONG THE PARTIES
GOOD LUCK!
What is the complete diversity when action commenced requriement?
Every P must be of diverse citizenship from every D. If one D and one P are co-citizens of the same state, there is no diversity j. This this is the rule of COMPLETE DIVERSITY. The matter in controversy must also exceed $75,000. EXAM TIP: Check for diversity and FEDERAL QUESTION
Is notice required under the fairness prong?
yes the best practical means must be used.
What is IN REM jurisdiction
Personal Jurisdiction over property located in a state. Court has no power over property brought into the state by fraud or force. Person's affected must be notified by mail if addresses are known.
What is a QUASI IN REM action?
2 types
1. Parties dispute there rights over property. (connection between the litigation and the contact provides the minimum contacts necessary).
2. Dispute is unrelated to the property (Mere presence of property is insufficient contact; must have another basis (such as PJ)).
DIVERSITY AMONG THE PARTIES
GOOD LUCK!
What is the complete diversity when action commenced requriement?
Every P must be of diverse citizenship from every D. If one D and one P are co-citizens of the same state, there is no diversity j. This this is the rule of COMPLETE DIVERSITY. The matter in controversy must also exceed $75,000. EXAM TIP: Check for diversity and FEDERAL QUESTION
What is the interpleader exception?
Fed interpleader statute where MINIMAL DIVERSITY and Amount in controversy of $500 or more are sufficient to convey jurisdiction.
What is ALIENAGE JURISDICTION?
A fed court has smj over disputes between citizens of a state and an alien, but not over 2 aliens.
What is the rule on DIVERSITY WHEN ACTIOn COMMENCED?
Diversity must exist as of the time the suit is instituted. It need not exist at the time the cx of action arose, and it is not defeated if, after commencement of the action, a party later becomes a citizen of the same state as one of his opponents.
How is STATE CITIZENSHIP determined?
State citizenship of a natural person depends on the permanent home to which he intends to return. The citizenship of a child is that of her parents.
How is CORPORATION CITIZENSHIP determined?
A Corp is a citizen of every state of incorporation, and also of its principal place of business. When a corp. has exec. officers in one state and its
what is the rule on corporations charged in foreign countries?
A corporation is exclusively a citizen of the foreign country of incorporation and thus is an ALIEN FOR DIVERSITY PURPOSES. If the foreign company has its principal place of business in this country, it is ALSO A CITIZEN OF THE STATE IN which that place is located.
What is the rule on unincorporated associations?
For diversity purposes an unincorporated association, such as a partnership or labor union, is considered a citizen of each state of which any member is a citizen.
What is the rule on Legal Representatives
The LR of the estate of a decedent, an infant, or an incompetent is deemed to have the same citizenship as that person.
What is the diversity rule for CLASS ACTIONS?
Diversity is determined on the basis of the citizenship of the named members of the class who are suing.
What is the rule on Nonresident U.S. Citizens and aliens?
A U.S. citizen domiciled abroad is not a citizen of any state and is also not an alien. A permanent resident alien is deemed to be a citizen of the state he resides in.
What is the rule on Collusion and devises to create or defeat diversity?
If a party attempts to create diversity by a sham transaction, such as assigning a claim for collection purposes only to create diversity, the courts look through the transaction and declare that diversity did not exist.
- 1. Class actions and voluntary Changes of citizenship: In class actions diversity may be created by properly selecting named plaintiffs bringing the action on behalf of othes. A p can also create diversity by changing his state citizenship after the cause of action accrued but before suit is commenced, however change must be genuine and not temporary.
2. Defeating diversity; No rule exists to prevent assignment of a claim to defeat diversity on the other hand fraudulent joinder of an in-state defendant to defeat diversity is no bar to removal.
What is the rule on REALIGNMENT ACCORDING TO INTEREST?
To determine diversity the court will look beyond the nominal designation of the parties in the pleadings and realign them.
according to their true interest in the dispute. Thus realignment may create or destroy diversity.

SHAREHOLDERS DERIVATIVE ACTIONS
In shareholder derivative actions, the court will realign the corporation as a defendant to determine diversity.
What is ANCILLARY (SUPPLEMENTAL) JURISDICTION?
SUPPLEMENTAL JURISDICTION allows a court to entertain claims that could not, by themselves, invoke federal question jurisdiction or diversity jurisdiction if the claims arise from a COMMON NUCLEUS OF OPERATIVE FACT AS THE CLAIM THAT INVOKED FEDERAL SMJ.
EXAM TIP- Make sure that you analyze smj independently before analyzing ancillary J.
What is the rule on subsequent addition of parties?
- Must satisfy some basis of federal smj such as diversity or fed question jurisdiction if the claim doesn't satisfy either of these, it might invoke supplemental jurisdiction.
INTERVENTION OF RIGHT: Person seeking to intervene in a case as of right didn't have to show an independent basis for jurisdiction as long as the req's for intervention were met. Under the supplemental jurisdiction statue, however there is no ancillary j. for claims by or against intervenors, and such a claim can proceed only if an independent basis for jurisdiction can be shown.

.
What is the rule on substitution of the parties?
When a party is substituted, the citizenship of the substituted party is disregarded, and that of the orignial party controls; thus, diversity jurisdiction is not affected. Compare; If a party is replaced (e.g. because plaintiff sued the wrong party) rather than substituted the citzenship of the replacement party controls, and diversity jurisdiction could be lost.
What is the rule on Third- Party Impleaders?
Generally, no diversity is requried in third party practice between the third party defendant and the third party plaintiff or the original plaintiff UNLESS the plaintiff asserts a claim against the third party defendant.
What is the rule on CROSS CLAIMS?
A cross-claim is a claim by 1 co party against another. It may be asserted if the claim arises out of the SAME TRANSACTION OR OCCURRENCE as the underlying dispute. If the cross-claimant doesn't have an independent smj basis, the cross claim may nevertheless be asserted in federal court through the ancillary form of supplemental jurisdiction.
What is the federal rule for amount in controversy?
Diversity actions require the amount in controversy to be $75,000 and over, exclusive of interests and costs. The amount is determined from the Plaintiff's good faith allegation. The complaint can be dismissed if it appears there is no legal possibility of a recovery exceeding the jurisdictional amount.
"In Controversy:" Collateral consequences of the judgment (rights to payment of future installments) not in controversy. However attorney's fees that are recoverable by contract or by statute are considered part of the matter in controversy. Interest that constitutes a part of the claim itself, as distinguished from interest payable by virtue of a delay in payment , is also part of the Jurisdictional amount. A punitive damages claim permitted under state substantive law may be sued in meeting the dollar amount requirement.
2. Aggregation of separate claims. A Plaintiff may aggregate all of her claims to meet the jurisdictional amount. Several P's may only if they are seeking to enforce a single title or right in which they have a common or undivided interest.
What is the rule on Supplemental Jurisdiction over Claims not exceeding $75,000 in diversity cases?
Supplemental J may be invoked if the claim rises from the same nucleous of operative fact as the claim that invoked diversity. HOWEVER supplemental j cannot be used to override the diversity requirement.
What is the rule on COUNTERCLAIMS?
A defendant's counterclaim cannot be combined with the Plaintiff to reach the jurisdictional amount. A compulsory counterclaim need not meet the jurisdictional amount requirement, as the court may hear it under its supplemental jurisdiction. However, a permissive counterclaim must have an independent jurisdictional basis, and thus must meet the jurisdictional amount requirment.
ALSO: A plaintiff who claims $75,000 or less in state court action who is met with a counterclaim for more than $75,000 may not remove the suit to federal court, regardless of whether the counterclaim is compulsory or permissive, because removal is permitted only by defendants. Also, a plaintiff with a small claim can require a defendant with a large claim to litigate it in state court simply by being the first to file. Even though this is the traditional rule, there is a trend allowing removal.
THE ERIE DOCTRINE
GOOD LUCK!
What is the ERIE DOCTRINE?
Applies in a federal diversity case. Under ERIE, a fed court will apply its own procedural law, but must apply the substantive law and conflict of laws rules of the state in which it is sitting. Courts use the OUTCOME DETERMINATIVE TEST - a state law that substantially determines the outcome of the litigation must be applied. HOWEVER if the federal ruel is ARGUABLY PROCEDURAL it will be applied. Some state statutes may have both substantive and procedural elements.
What are the California Conflict of Laws rules?
Fed court in CA sitting in diversity must apply CA conflict of laws rules in determining the applicable substantive law. CA resolves conflict of laws iissues using the following approaches:
1. Tort actions: governmental interest approach THe court first determines whether the laws of the two (or more) states are identical . If they are not, the court evaluates whether each state has an interest in teh application of the law. If each state has such an interst, a true conflict exists and the court then analyzes the comparative impeairment to each state's interest should the law of the other state be applied.
Contract actoins-Choice-of-law issues: If the choice-of-law clause in a contract encompasses all causes of action, the court must determine whether the clause is enforceable by examining whether the chosen state's law has a substantial relationship to the parties or their transaction or any other reasonable basis exists for the parties' choice of law. If the clause is enforceable, the court then assesses whehter the chosen state's law conflicts with a fundamental Ca policy. IF such a conflict exists, the court must decide whether CA has a materially greater interest than the chosen state in teh determination of the specific issue. If the contract doesn't contain a choice -of-law clause, or if it is unenforceable the governmental interst approach generally applies.
What are the historical exceptions to diversity Jurisdiction?
Generally no div. j over domestic relations or probate proceedings. THe claim asserted must involve actual probate or annulment of a will, or seek to reach property of the state probate court (for probate)
What is the Multiparty, Multiforum Trial Jurisdiction ACt?
Applies to all accidents in which at least 75 people have died from a single accident at a discrete location. Minimal diversity is required; i.e. one plaintiff jmust be of diverse citizenship of one defendant. ONe of the three other conditons must be met:
1. one d must reside in a different state from the place where a substantial part of the accident took place;
2. any two defendants must reside in different states.
3. substantial parts of the accident must have taken place in different states. Finally, anyone with a claim arising from the accident is permitted to intervene as a plaintiff even if she could not have maintained an action in the district in which the case is pending, and nationwide service of process is alowed.
FEDERAL SUBJECT MATTER JURISDICTION: FEDERAL QUESTOIN
GOOD LUCK!
What are the rules on pleading a complaint alleging federal question jurisdiction?
Must appear as part of the P's COA. The exiistence of a defense based on fed law won't create federal question j. A complaint doesn't raise a federal question if it does so in anticipation of a defense.
What is the rule on FEDERAL CORPORATIONS?
Fed. question jurisdiction doesn't arise just because corp. was created by an Act of Congress, unless US owns more than one-half of the corp's capital stock.
What is the Rule on pendent claims?
If P has both fed and state claims, fed court has discretion to exercise pendent jurisdiction over the claim based on state law if the two claims "derive from a common nucleus of operative fact" and are such that a plaintiff "would ordinarily be expected to try them all in one judicial proceeding." Pendent jurisdiction, along with ancilalry juridiction, is now codified under the name "supplemental jurisdiction."
What happens to a pendent claim on dismissal of federal claim?
the court may exercise pendent jurisdicton over the state claim even if the federal claim is dismissed on the merits. However, the state claim should probably also be dismissed if the federal claim is dismissed before trial.
What is the rule on Pendent Parties?
Pendent parties juridiction can arise in cases in which
1. the P sues more than one defendant
2. there is federal jurisdiction over the claim against one defendant. and
3. the claim against the 2nd D does not invoke federal questoin or diversity of citizenship jurisdiction. THe claim against the second defendant might invoke supplemntal jurisdiction i it arises from the same nucleus of common fact as the claim against the deendant. Pendent parties jurisdicton can also arise when multiple plaintiffs assert claims against one defendant. Here, assuming again the second plaintiff's claim is derived from the same nucleus of fact, the second plaitiff might invoke supplemental jurisdiction to support a state law claim in a federal quetion case.
What is the rule on Specific STATUTORY GRANTS
There is no Amt. in controversy requirement in federal question cases (with the limited excepotino for cases broght against private parties under the Consuper Product STafety ACt). Jurisdictoin of the federal courts is exclusive of the state courts in:
1. bankruptcy proceedings 2. patent and copyright cases 3. many cases where the US is involvesd 4 cases whte consuls and vice-consuls are sued as defendants 5 antitrust cases 6 actons aginat foreign states removed from state courts to federal corut 7 postal matters 8 IRS cases 9 SEC cases; Admiralty (only in limitation of liablity proceeds and maritime actions in rem).
SMJ in CALIFORNIA STATE COURTS
GOOD LUCK
SUBJECT MATTER JURISDICTION IN CALIFORNIA COURTS
GOOD LUCK!
What are the three jurisdictional amount classifications in CA?
1. Limited: 25k or less...restrictions on smj over equitable claims, declaratory relief and request fo ancillary relief.
Unlimited: over 25k and full range of pleading motions disc. and equitable and declaratory relief available. Sup ct.s have small claims div. for limited civil cases where the am't in controversy is $7,500 or less for an individual 5k for other lit.
What is RECLASSIFICATION?
If action was originally misclassified, or if it was originally correctly classified but subsequent pleading or proceedings show that it should be alterd. Sup court doesn't lose smj. Instead, party or court sue esponte may request reclassification of the actoin. Notice and hearing are required. In considering reclassification from an unlimited civil case to limited civil case, the court must determine that a recovery over 25 k must be VIRTUALLY UNOBTAINABLE. The standard fro reclassification from a limited civil case to unlimited is POSSIBLITY that verdict will exceed 25k.
VENUE IN FEDERAL COURT
GOOD LUCK!
What is the difference between venue and smj?
SMJ: power of the court to ajudicate the matter before it.

VENUE: In FED court relates to the proper DISTRICT in which to bring the action; SMJ is a question of authority, venue is a question of convenience. SMJ can't be conferred by agreement; venue can be. A court can have proper smj without proper venue.
What are the general rules for VENUE?
1. Judicial Dist. where ANY DEFENDANT RESIDES, if all D's reside in the same state.
2. Judicial Dist. in which A SUBSTANTIAL PART OF THE EVENTS OR OMISSIONS giving rise to the claim occured, or A SUBSTANTIAL PART OF PROPERTY that is the subject of the actoin is situated; or
3. If there is no district anywhere in the US that satisfies 1 or 2:
- for actions based solely on DIVERSITY, a judicial district in which ANY DEFENDANT IS SUBJECT TO PERSONAL JURISDICTION AT THE TIME TEH ACTION IS COMMENCED; OR
- For actoins NOT BASED SOLELY ON DIVERSITY a judicial district in which ANY DEFENDANT MAY BE FOUND.
What are the rules on residence for Individuals, Corporations, and UnincorporatedAssociations with respect to venue?
1. Individuals residence is deteremined by domicile for fed purposes.
2. Corporations. D corp is deemed to reside in any J where it is subject to personal J.
3. Unincorporated Associations: An unincorporated association is deemed to reside where it does business.
What is the Venue rule in "local actions?"
Must be brought in district where property that is the subj. matter of the action is located.
Can improper venue be waived?
Yes, unlike improper smj.
What is trasfer of venue?
Court may transfer venue for convenience of the parteis to any court where it could have orignally been filed. If original venue is improper transfer is more appropriate than dismissal except in extraordinary cases. The standard for transfer is "the interest of justice." The transferee forum must have smj and in personam jurisdiction over the d and venue must be proper.
LAW APPLICABLE ON TRANSFER:If original venue proper apply law of the state in which the transferor court sits.
If original venue was improper, apply the law of the state in which the transferee sits.
What is the rule on VENUE IN CALIFORNIA STATE COURTS?
- improper venue may be WAIVED if no timely objection made.
1. Local actions: Venue in a local action is proper in the county in which the land, or some part of it, is located.
2 Transitory Actions: IN CA, venue refers to the county in which an action may be tried. for transitory actions, the general ruel is that venue is proper in the county in which any defendant resides at teh commencement of the action. If no defendant resides in CA, venue is proper in any county. Also, for CONTRACT ACTIONS, venue is also proper in the county in which the obligation is to be performed or the contract was entered, and, for PERSONAL INJURY OR WRONGFUL DEATH ACTIONS, venue is also proper in the county in which the injury occured.
EXAM TIP CA VENUE
Its easy to get mixed up about subltle distinctions EX. subtle diff betwe CA and FED venue rules. IN CA venue is proper in the CA county in which ANY D resides. IN FED court for venue to be fixed on the basis of a D's residence, ALL d's must reside in the same state. IN ca state corut, the fasct that all D's don't reside in the same county would not, by itself, destroy venue, nor would the fact that one defendant is a nonresident of CA, but in FED court, the fact that all D's don't reside in teh same state doesn't destroy venue.
What is the rule on mixed actions?
Actions whre D's or cx's of action are subj. to different venue rules- venue generally is proper in the county in which any d resides, unless policy or another compelling reason requries venue to be placed in a different county.
What is the CA venue rule on cases against Corps, Assoc. or Partnerships?
Ven ue in thes cases is proper in the county in hwich the contract is made or to be performed, in which the obligation or liabilty arises, in which the breach occurs, or in which the corp. has its principle place of business.
What is the CA rule on transfer of venue?
A d may move for a transfer of venue when venue is improper. THe courtalso may transfer venue, on motion and even if original venue is proper, when: 1. there is reason to believe that an impartial trial cannot be had in the original county
2. the convenience of witnesses and the ends of justice would be promoted by the change; or
3 there is no judge of the court qualified to act.
What is the CA rule on forum and venue selection clauses?
CA courts enforce reasonable forum selection claues that call for the action to be tried in another state. VENUE selection clauses are UNENFORCABLE IN CA.
REMOVAL JURISDICTION (FEDERAL COURT)
GOOD LUCK!
Is original juridiction neccessary?
Yes, an action originally filed in state court can be removed if 1. the case could have originally been filed in federal court. 2. for cases removed on the basis of diversity, no defendant is a citizen of the state where the action is filed. THe prevailing rule is that jurisdiction is tested as of the date of removal, but some courts have held that orig. j must have existed at the time the state suit brought and at the time of removal.
- Federal defense is insufficient.
- State court need not have had juridiction
Who may remove a case to FED court?
Only D's can remove...if more than one all must join in petition.
What is the VENUE rule on REMOVAL JURISDICTION?
Venue lies in the FED dist. Court "EMBRACING THE PLACE WEHRE SUCH STATE ACTION IS PENDING."
Can a D remove separate and independent claims?
Yes when there are multiple claims or partiies
What is the rule on removal after the dismissal of a nondiverse party?
- When no fed question is involved and diversity doesn't exist because a party is co-citizen to opposing party, removal is permitted if nondiverse parties are dismissed from the action and there is complete diversity between the remaining parties.

BONUS:
- when in div case 1 def is th citizen of the same state in which action is brought, action is not removeable. Also, case may not be removed on basis of div. j more tha one year after commenced in state court.
What is the procedure for removal?
A Dee must file notice with Fed. dist. ct. in dist. and div. where action pending. Copy of notice should be sent to state court and other parties. NOTICE MUST BE FILED W>IN 30 days after D receives notice, that case has become removable...REMEMBER CANT REMOVE MORE THAN 1 YEAR AFTER CASE IS FILED.
BONUS: REMAND P can motino to remand case will be remanded if no fed j. Fed court has discretion ro remand a case to state court once all fed claims have been resolved, leaving only state claims over which there is no diversity jurisdiction.
CONFLICT OF JURISDICTION BETWEEN STATE AND FEDERAL COURTS
GOOD LUCK!
What are the rules on injunctions in state court proceedings?
1. PENDING STATE PROCEEDINGS: Fed court gen. prohibited from enjoining pending state actoin unless expressly authorized by statute or when necessary in aid of its jurisdiction or to protect or effectuate its judgments. If a state action is not enjoined, the case comiing to a final decision first will have preclusive effect on the other.
Injunctions against state court proceedings con't...
THREATENED STATE PROCEEDINGS: Fed court may not enjoin a threatened state criminal proceeding unles irreperable harm is clear and imminent (usually limited to a showing of serious interference with 1st Amendment rights) and the appellate remedy is clearly inadequate to provide relief.
What is the rule on ABSTENTION?
Unless doctrine of ABSTENTOIN applies, nothing prohibits a federal court from hearing a case that is pending in state court.
1. Grounds: Fed. court will abstain and req. a litigant to seek relief in a state court (while retaining jurisdiction).
a. if the state law is unclear or could be interpreted to avoid the federal constitutional question; or
b. If there isa state admin. regulatory plan that would be disturbed by the fed. court taking the case.
2. PROCEDURE: after fed court abstains, the litigants must present their issues to the state court in light of their fed contentions. The fed court will ordinarily stay the federal action rather than dismis it. 3. FEDERAL INTERVENTION: fed intervention on constitutional grounds may occur if the federal plaintiff can demonstrate i. great and immediate irreperable injury; ii bad faith in the prosecution of state action; or iii. harassment or other unusual circumstances calling for federal equitable relief.
PRETRIAL AND TRIAL PROCEDURES
GOOD LUCK!
how is an action commenced
by filing a complaint
WHAT IS THE RULE ON SERVICE OF PROCESS?
1. HOW SERVICE IS MADE: in fed court any nonparty at least 18 may serve. Personal service, left at d's usual place of abode, or service upon an authorized agent of the defendant is valid service of process. Alternatively, service may be made as provded by state rules or by mail under the waiver of service provision of RULE 4(d). CA statutes authorize service of process by nonparties over age 18 on D's within CA by : i. personal deleiver; ii substituted service (leaving copy of summons and service by mail; and iv. service by publication. CA also has a service by mail provision under which the D will become liable for the costs of sercie if he doesn't acknowledge reciept of service. Additionally, in both court systems, service must be made on an appropriate person.
TIP WHEN substituted service on home made CA requries follow up mailing FED doesn't
What is the rule for Parties Served outside the state?
FED court will also acquire pj over parties served outside the state : 1. under the state's statues and rules for extraterritorial service 2. if they are thrid party d's or requ'ed to be joined for just adjudication, if served within 100 miles from the place where the action is pending; and 3. when out-of-state service is permitted by federal statue (e.g. interpleader). AS to fed question laim, the court may exercise pj ovre a d who is not subject to the j of a particular state, as long as the d's contacts with the US would satisfy the constitutional standard for exercise of j and jurisdiction is not precluded by statute. IN ca state courts, ion addition to the methods authorized for sercieon in-state defendants service of process on a person outisid eof CA may be mad eby first-class mail and postage prepaid, requireing a return reciept, but note that a proper statutory and constitutional basis for pj must still exist.
What is the rule on immunity from service of process?
In fed court immunity from sercei of process of parties, witnesses and attorneys who enter a state to appear in another action. I addtion,
What are the two types of interlocutory Injunctions and what are their elements?
1. Preliminary INjunctions: IN both Fed and CA courts, a party may seek a preliminary injunction prior to trial to preservethe status quo. The adcerse party must be given notice and an opportunicy to be heard.
2. TRO (temporary restrainiging orders)
- If irreperable injury will occur before the hearing on the preliminary injunction can be held, a party may seek a temporary restraining order to preserve the status quo until the hearing. Generally, the adverse party must be given notice of the hearing, but a TRO may be imposed w/o notice for a maximum 10-day period if 3 conditions are met:
1. The moving party staes specific facts in an affidavit or verified complaint of the irreperable injury she will suffer if the TRO is not granted. 2. The moving party certifies in writing the efforts she made to notify the adverse party and the reasons why notice should not be requried;
3. The moving party provides security to pay for any damages incurred by the adverse parrty if the court later finds he was wrongfully restrained.
What is the CA distinction on TRO's?
CA has similar req's for the issuance of a TRO but in CA the TRO doesn't have a specific time limit; rather it expires automatically when a preliminary injunction is either issued or denied. If
no notice was provided to teh opposing party, teh court will set a hearing on teh application for preliminary injunctino within 15 days of the issuance of the TRO(or 22 days if good cause is shown). Also, court has discretin to issue a TRO w/o a bond or undertaking (in Contrast, the court must requrie an undertaking for the issuance of a preliminary injunction).
What are the rules on pleadings?
Fed courts gen. folow NOTICE fatehr tahn fact pleading. Although fed. complaints generally require less specificity than state pleadings, teh SC recently requried more detailed pleadings CA state courts use FACT pleading (or code pleading). Both federal and California state courts reqrue a heightened specificity for certain causes of action (e.g. fraud). If damages are sought, the amt. must be stated, except in actions for recovery of punitive dx. or in personal injury or wrongful death actions seekng actual or punitive dx.
What is a rule 12(b)?
D may file motion and raise any and all of the following defenses:
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; 7 failure to join a requried party. D must raise defense 2 to 5 the first time he files a motion or his answer- whilchever is first. If he deoesn't, the d waives these defenses. Defesnes 6 and 7 can ve made at any time prior to trial or at trieal defesne 1 can be raised any time untiall all appeals are exhausted.
How does California handle 12(b) type motions?
Instead of or in addition to filing an answer, the D in an uliminted civil case may file a general or special demurrer to the entire complaint or any causes of action contained in it. No special demurrers may be filed in a limited case. THE grounds for a general demurrer are 1. that the pleaing falis to state facts sufficient to constitue a cause of action or 2. that the court lacks smj. THese grounds for ageneral demurrer are also the grounds for a later motion for judgment on the pleadings. SPECIAL DEMURRERS include those based on 1. lack of legal capacity 2. the existence of another pending action 3 defect or misjoinder of parteis 4. uncartain failure to plead wher a contract is oral or written; and 6 failure to file certain required certificates. THe court considers only the material allegations pleaded in the complaint and matters subject to JN. a p may file a demurrer to defendats' answer.
What is a motion to quash service of summons?
D objection to pj over him must object at the earliest opportunity, commonly by mtqss. If the d files a mtq before or at the same time as filing an answer demurrer or motion to strike the d will have preserved the jurisdictional objection. In contrast to FED court CA D may not object to pj in an affirmative defense in teh answer, then proceed to litigate the action and raise the objection at close of trial
What is a motion for forum non vonceniens?
FNC..statute permits court to stay or dismiss action if it finds it should be heard in the interest of substantial justice, in a different state or country. THe moving party must establish that : 1. the alternative forum is suitable ; and private and bublic interest factors balance in favor of teh alternative forum...
FNC must be brought within time to respond to the the complaint if D has not generally appeared a D who whas filed a demurrer or motion ot strike is deemed to have made a general appearance unless he concurrently files FNC..D who has already filed answer may still bring FNC.
What is SLAPP
Strategic lawsuit agaisnt public participation. D must show complaint arises from protected activity (Fee speech). Burden then shifts to P to show probabilty of prevaliing on merits. D who prevails in anti-SLAPP motion may bring action for malicious prosecution.
What are the requirments for an answer in Federal court?
Must contain spec. denial or admission for each averment of the complaint or a general denial with specific admissions of the averments admitted may be made. IF the D is without konwlege or information sufficient to form a belief, a statement to that effect constitutes a denial. Afailure to deny constittues and admission. The answer must also state any affirmativedefense of the D. if no ruel 12 motion is made a d who was formally served msut present an answer w/in20 days after service; a d whto whom a complaint was mailed and who waives formal service must answer w/in 60 days after the reqruest for waiver was mailed to her. IF a rule 12 motion is made and the court doesn't fix another time the responsive pleading must be served wi/in 10 days after the court's denial or posponement of teh motion. THe answer is due within 10 days after teh court's denial or posponement of the motion. THe answer is due w/in 10 days after service of a more definite statement if the court grants a ruel 12(e) motion.
What is the the rule on filing an answer in CA?
D may file gen denial which denies each and every material allegation of the p's complaint. The D also has the option of filng spec. denials, which deny particular paragraphs or parts of the compaint and which permit defendant to deny allegations on teh basis of information and belief (or lack therof). If the plaintiff has filed a verified complaint, the D usually must respond with a verfied answer that contains spec. denials. Any material allegations not denied by de's answer are deemed admitted. IN pleading affirmative defenses, defendant must adhere to the same fact-pleading standards as plaintiffs. The D has 30 days from the date of service of process to file an answer. If D instead brings a demurrer or motion to strike, and the court overrules the demurrer or motion, the d must file an answer within 10 days, unless the court orders otherwise. The time period begins to run as of the date of service of notice of the court's ruling.
What is the the rule on filing an answer in CA?
D may file gen denial which denies each and every material allegation of the p's complaint. The D also has the option of filng spec. denials, which deny particular paragraphs or parts of the compaint and which permit defendant to deny allegations on teh basis of information and belief (or lack therof). If the plaintiff has filed a verified complaint, the D usually must respond with a verfied answer that contains spec. denials. Any material allegations not denied by de's answer are deemed admitted. IN pleading affirmative defenses, defendant must adhere to the same fact-pleading standards as plaintiffs. The D has 30 days from the date of service of process to file an answer. If D instead brings a demurrer or motion to strike, and the court overrules the demurrer or motion, the d must file an answer within 10 days, unless the court orders otherwise. The time period begins to run as of the date of service of notice of the court's ruling.
What is the the rule on filing an answer in CA?
D may file gen denial which denies each and every material allegation of the p's complaint. The D also has the option of filng spec. denials, which deny particular paragraphs or parts of the compaint and which permit defendant to deny allegations on teh basis of information and belief (or lack therof). If the plaintiff has filed a verified complaint, the D usually must respond with a verfied answer that contains spec. denials. Any material allegations not denied by de's answer are deemed admitted. IN pleading affirmative defenses, defendant must adhere to the same fact-pleading standards as plaintiffs. The D has 30 days from the date of service of process to file an answer. If D instead brings a demurrer or motion to strike, and the court overrules the demurrer or motion, the d must file an answer within 10 days, unless the court orders otherwise. The time period begins to run as of the date of service of notice of the court's ruling.
What is the effect of a failure to answer (default and default judgments)?
- once a default has been entered, teh am't of dx must still be dtermined before a defeault judgment may be enterd. In fed court, the court clerk may enter jugment if: 1. the p's claim against teh defaulted defendant is for a sum certain 2. the default was enterd becasue the dfendant failed to appear; and 3 the clerk may enter a default judgmet if 1. the action arises out of a contract or judgment 2 the action is for a sum certain and 3. the d was not served by publication....
-Notice after default requried in federal coiurt to all parties who have appeared and to the defaulted party after the entry of a default. Also if the d has appered wheither or not he has answered he must be notified of the request for a default judgment by 1st class mail at least 3 days before the hearing on teh application for a default judgment. IN ca state court the defaulted defendant is not entiteld to notice and has no right to appear or present evidence.
What is the effect of a failure to answer (default and default judgments)?
- once a default has been entered, teh am't of dx must still be dtermined before a defeault judgment may be enterd. In fed court, the court clerk may enter jugment if: 1. the p's claim against teh defaulted defendant is for a sum certain 2. the default was enterd becasue the dfendant failed to appear; and 3 the clerk may enter a default judgmet if 1. the action arises out of a contract or judgment 2 the action is for a sum certain and 3. the d was not served by publication....
-Notice after default requried in federal coiurt to all parties who have appeared and to the defaulted party after the entry of a default. Also if the d has appered wheither or not he has answered he must be notified of the request for a default judgment by 1st class mail at least 3 days before the hearing on teh application for a default judgment. IN ca state court the defaulted defendant is not entiteld to notice and has no right to appear or present evidence.
What is the effect of a failure to answer (default and default judgments)?
- once a default has been entered, teh am't of dx must still be dtermined before a defeault judgment may be enterd. In fed court, the court clerk may enter jugment if: 1. the p's claim against teh defaulted defendant is for a sum certain 2. the default was enterd becasue the dfendant failed to appear; and 3 the clerk may enter a default judgmet if 1. the action arises out of a contract or judgment 2 the action is for a sum certain and 3. the d was not served by publication....
-Notice after default requried in federal coiurt to all parties who have appeared and to the defaulted party after the entry of a default. Also if the d has appered wheither or not he has answered he must be notified of the request for a default judgment by 1st class mail at least 3 days before the hearing on teh application for a default judgment. IN ca state court the defaulted defendant is not entiteld to notice and has no right to appear or present evidence.
What are the rules on compulsory and permissive counterclaims?
iN CA STATE COURT A COUNTERCLAIM IS CALLED A CROSS COMPLAINT.
1. Compulsory: If the claim arises from the same transaction or occurrence as teh p's claim, it must be pleaded as a counterclaim or it will be thereafter barred.
- Permissive counterclaims are any other claims the d has against the p may be assereted as permissive counterclaims. IN fed court, it must meet the jurisdictional requriements for filing a claim in federal court.
What are the rules on compulsory and permissive counterclaims?
iN CA STATE COURT A COUNTERCLAIM IS CALLED A CROSS COMPLAINT.
1. Compulsory: If the claim arises from the same transaction or occurrence as teh p's claim, it must be pleaded as a counterclaim or it will be thereafter barred.
- Permissive counterclaims are any other claims the d has against the p may be assereted as permissive counterclaims. IN fed court, it must meet the jurisdictional requriements for filing a claim in federal court.
What are the rules on compulsory and permissive counterclaims?
iN CA STATE COURT A COUNTERCLAIM IS CALLED A CROSS COMPLAINT.
1. Compulsory: If the claim arises from the same transaction or occurrence as teh p's claim, it must be pleaded as a counterclaim or it will be thereafter barred.
- Permissive counterclaims are any other claims the d has against the p may be assereted as permissive counterclaims. IN fed court, it must meet the jurisdictional requriements for filing a claim in federal court.
CAn a party put out incosistent claims or defenses?
Yes, unless it is in a verified complaint.
CAn a party put out incosistent claims or defenses?
Yes, unless it is in a verified complaint.
CAn a party put out incosistent claims or defenses?
Yes, unless it is in a verified complaint.
When is a reply required by the P?
Only when the d's anwer contains a counterclaim denominated as such or when teh court so orders. THe reply must be served within 20 days after teh court order. IN CA , the p would file an answer to D's cross complaint.
When is a reply required by the P?
Only when the d's anwer contains a counterclaim denominated as such or when teh court so orders. THe reply must be served within 20 days after teh court order. IN CA , the p would file an answer to D's cross complaint.
When is a reply required by the P?
Only when the d's anwer contains a counterclaim denominated as such or when the court so orders. The reply must be served within 20 days after the court order. IN CA , the p would file an answer to D's cross complaint.
What is the the rule on filing an answer in CA?
D may file gen denial which denies each and every material allegation of the p's complaint. The D also has the option of filng spec. denials, which deny particular paragraphs or parts of the compaint and which permit defendant to deny allegations on teh basis of information and belief (or lack therof). If the plaintiff has filed a verified complaint, the D usually must respond with a verfied answer that contains spec. denials. Any material allegations not denied by de's answer are deemed admitted. IN pleading affirmative defenses, defendant must adhere to the same fact-pleading standards as plaintiffs. The D has 30 days from the date of service of process to file an answer. If D instead brings a demurrer or motion to strike, and the court overrules the demurrer or motion, the d must file an answer within 10 days, unless the court orders otherwise. The time period begins to run as of the date of service of notice of the court's ruling.
What is the effect of a failure to answer (default and default judgments)?
- once a default has been entered, the am't of dx must still be determined before a default judgment may be enterd. In fed court, the court clerk may enter jugment if: 1. the p's claim against the defaulted defendant is for a sum certain 2. the default was enterd becasue the defendant failed to appear; and 3 the clerk may enter a default judgmet if 1. the action arises out of a contract or judgment 2 the action is for a sum certain and 3. the d was not served by publication....
-Notice after default requried in federal court to all parties who have appeared and to the defaulted party after the entry of a default. Also if the d has appered whether or not he has answered he must be notified of the request for a default judgment by 1st class mail at least 3 days before the hearing on the application for a default judgment. IN ca state court the defaulted defendant is not entiteld to notice and has no right to appear or present evidence.
What are the rules on compulsory and permissive counterclaims?
iN CA STATE COURT A COUNTERCLAIM IS CALLED A CROSS COMPLAINT.
1. Compulsory: If the claim arises from the same transaction or occurrence as teh p's claim, it must be pleaded as a counterclaim or it will be thereafter barred.
- Permissive counterclaims are any other claims the d has against the p may be assereted as permissive counterclaims. IN fed court, it must meet the jurisdictional requriements for filing a claim in federal court.
CAn a party put out incosistent claims or defenses?
Yes, unless it is in a verified complaint.
When is a reply required by the P?
Only when the d's anwer contains a counterclaim denominated as such or when teh court so orders. THe reply must be served within 20 days after teh court order. IN CA , the p would file an answer to D's cross complaint.
What is the rule on Amendments and Supplemental Pleadings?
- Can occur in all stages of lit. IN FED court, pleading may be amended once, as a matter of course, before a responsive pleding is served, or, if no responsive pleading is requried, w/in 20 days of service of the pleading.
- IN CA court a party may amend once, as a matter of right, before an answer or demurrer to the complaint is filed, or, after demurrer and before trial on the issue raised by the demurrer. THereafter, a pleading may be amended only by the written consent of the adverse party (in FED COURT) or by leave of court upon motion (both courts), which is liberally granted. Typos can be fixed at any stage?
What is the rule on an amendment to add a new cx of action against a named Defendant?
RElation back applies when amended complaint adds a new cx of action. IF the new cx of action is based on the same general set of facts as those in the original complaint, the amended complaint will relate back to the date of the filing of the original. Some courts, in addition to the "same general facts" requirement, have imposed two additional requirements for relation back: 1. the amended pleading must also involve the same accident and injuries...2. the amended pleading must refer to the same offending instrumentality.
What is the rule on amending to add a Defendant?
If the statute of limitations hasn't run the answer is generally yes provided that time for the amendment has not yet run, or the court has granted leave to amend. In such a case, there is NO NEED OFR ANY TYPE OF RELATION BACK DOCTRINE, because the P is within the SOL period. If the SOL period has run, the answer is generally nowith the following 3 exeptions:
1. Relation back in FED court mistaken identity cases: RElates back to the original complaint filing if the amendment concerns the same conduct, transaction or occurence as the original pleading AND, within 120 days after the filng of the complaint (and additional time granted for good cx shown) the party to be brought in by amentment: 1. has received such notice of the action that she will not be prejudiced in maintaining her defenseon teh merits; and 2. knew or should have known that, but for a mistake concerning the proper party's identity, the action would have been brought against her.
Adding d's con't:
2. Relation back in cases of Mistake in CA state court: CA allows a P to correct a mistake in namign the D in the complaint, even if the SOL has run (to correct typos in the party's name). However, under an EQUITABLE ESTOPPEL THEORY, the P will sometimes be allowed to correct a mistake in naming a closely related entity for the true defendant.
3. CA "Doe" Amendments: CA sometimes allows D to be sued under ficticious "Doe" designation. The Doe procedure has 3 requirements:
1. Original complaint must be timely filed and msut contain charging allegations agaisnt all D's including those designated as Doe. 2. THe P msut be genuinely ignorant of the identity of the fictitiously named D, or facts giving rise to a cx of action agains that D , or the fasct that the law provides a cx of action; and 3. P's ignorance must be pleaded in the complaint.
If these req's are there P has 3 years from the filing of the original complaint to discover the identity of the Doe defendant sand serve them with an amended complaint. *different times apply for fast-track cases.
What is the rule on Certification when presenting papers to the court?
In FED civil cases, the party, by presenting to the court a pleading, written motion, or other paper, certifies taht to the best of her knowlege, information and belief formed after an inquiry reasonable under the circumstances: i. the paper is not presented for any improper purpose (harrassment, delay); ii the legal contentions therein are warranted by existing law or a nonfrivolous argument for the modification of existing law or the establishment of a new law; iii the allegations and factual contentions either have, or upon further investigation or discovery are likely to have, evidentiary support; and iv denials of factual contentions are warranted on the evidence, or, where specified, are reasonably based on a lack of information or belief.
Not included...must review sanctions in fed court and ca court.
Good luck.
Are CA and Fed rules on Joinder similar?
Yes.
What is the rule on compulsory joinder?
Party should be joined if:
1. complete relief cannot be given to existing parties in his absence; 2. disposition in his absence may impair his ability to protect his interst in the controversy; or 3. his absence would expose existing parteis to a substantial risk of double or inconsistent obligations. IF a party needed for just adjudication is amenable to process AND her joinder will not destroy diversity in federal court or venue, she must be joined. UNLESS:
Joinder not feasable. If joinder is not feasibly, the court must decide whtehr the action can proceed in the party's absence or must be dismissed. The court must consider the following: 1. whether the judgment in the party's absence woud prejudice him or the existing parties; 2. whether the prejudice can be reduced by shaping the judgment 3. whther a judgment in the party's absence would be adequate and; 4 whether the P will be deprived of an adequate remedy if the action is dismissed.
What is the rule on permissive joinder?
Parties may join as P's or be joined as D's whenever; 1. some claim is made by each P and against each D relating to or arising out of the same series of occurences or transactions; and 2. there is a question of fact or law common to all parties. The rule permitting boracd joinder, however, doesn't lessen jurisdictional requriements.
What is the rule on Joinder of claims?
A P may join any number and type of claims against a D; when multiple plaintiffs or multiple defendants are involved, it is essential only that at least one of the claims arise out of a transaction in which all were involved (in CA a common question of law and fact must be present). A p may join 2 claims if success on the first is a prerequisite to the second. IN FED court, when jurisdiction is based on diversity of citizenship between the P and the d, the P may aggregate all claims that he has against the D to satisfy the jurisdictional amount. When jurisdiction is based on a fed question claim, a nonfederal claim can be joined only if it is regarded as part of the same case or controversy as the federal claim.
What are the charactaristics of RULE 23, the FED rule on Class Actions?
Class action is proper if:
1. the class is so Numerous that joinder of all members is impracticable;
2. There are questions of law or fact common to the class
3. Named parties interests are typical of the class;
4. Named parties will adequately represent the interests of the absent members of the class; and
5. One of the following 3 situations is present:
a. Separate actions would create a RISK OF INCONSISTENT RESULTS or impair the interests of unnamed parties;
2. THe D has acted or refused to act on grounds applicable to he class and INJUNCTIVE or DECLARITORY relief is appropriate for the class as a whole; or
c. Common questions of law or fact predominate over individual issues and a class action is superior to alternative methods of adjudication.
What are the considerations undertaken when treating a case as a class action?
The court should determine at an early practicable time whether to certify the class, but it can determine that a class action is NOT appropriate at any time. Considerations in determining whether to certify a class include: 1. the interest of the individual control; 2. the extent and nature of litigation elsewhere on tehsame subject; 3. the desirability of a joint trial; and 4 the difficulties in managing a class action. When certifying the class, the court must define the class and the class claims, issues, or defense. THe court must also appoint class counsel, who must fairly and adequately represent the interests of the class.
What is the effect of a class action judgment?
All members of a class will be bound by the judgment rendered in a class action except those in common question class action who notify the court that they do not wish to be bound. Note that if the substantive claim of the individual representing the class is mooted, this does not render the class action moot.
What are the 1. Notice, 2 jurisdiction and 3 court approval aspects of a class action?
1. Notice to all members of the class is required only in common question suits so that the class members can opt out. Notice to members of teh class in other class action suits is discretionary with the court. Notice must state: 1. Nature of the action; 2. the definition of the class; 3. the class claims, issues, or defenses and 4 the binding effect of a class judgment.
JURISDICTION: In class actions founded on div. only the citizenship of the named representatives of the class is taken into account to establish div. One class representative's claim generally must exceed $75,000, as the amount in controversy may be aggregated only in the rare situation in which the claims of the parties are "joint" or "common." However, class members with claims not exceeding 75k may invoke supplemental j. as long as complete div. is not destroyed.
COURT APPROVAL: Court msut approve dismissal or settlement of a class action. The class must satisfy the req's of certification before a court can approve a settlement. Notice of settlement must be given. IN a common question class action the court may provide the parteis with a second opportunity to opt out. A fairness hearing must also be held.
What is the CAFA?
smj established if: 1 any class member is of diverse citizenship from ANY defendant; 2. the amt. in controversy in the aggregate (+all d's). EXCEEDS 5 MILLION; and 3. there are at least 100 members in the proposed class or classes. Also, any D, rather than all d's required under the div. statute, may remove the case from the state to fed. court. Moreover, the case may be removed under the CAFA even if a d is a citizen of the forum.
- Excluded actions, there is no fed court jurisdiction under the CAFA if the primary d's are states, state officials, or other governmental entitites against whom the court may be foreclosed from ordering relief, or over a class action that solely involves a claim under Federal securities laws or that relates to the internal affairs of a corporation and is based on the laws of the state of incorporation.
- 2. Local Considerations may defeat J... the CAFA has some provisoins designed to defeat federal j in class actions that are relatively local in nature. a) Mandatory Decline of J...District court must decline jurisdiction provided by the CAFA if: i. more than 2/3 of the members of the proposed plaintiff class are citizens of the state in which the action was filed; 2. a d from whom significant relief is sought is a citizen of that state and 3. principal injuries were incurred in the state in which the action was filed.
CAFA cont...
b) Discretionary Decline of J...a dist. ct. may decline j provided by the CAFA if more tha 1/3 but less than 2/3 of the proposed plaintiff class are citizens of the state in which the action was filed and the primary defendants are also citizens of that state. On that case, the court considers whether the claims involve matters of national interest; 2. the claims will be governed by the law of the state in which it was filed; and 3. the state has a distinct nexus with the class members, the alleged harm, or the defendants.
What are shareholder Derivative Suits
Requirements. Under Federal Rule 23.1, a shareholder can sue to enforce a right of the corporation that htose in control of the corporatino refuse to assert if she can allege and prove that: i. she was a shareholder at the time of the transaction complained of (or received her shares thereafter by operation of law); 2. the action is not a collusive effort to confer jurisdiction on the court that it would otherwise lack; and 3. She made a demand on the directors and, if requried by state law, on the shareholders; or teh reasons why she did not make such demands. For this requirement, facts must be pleaded with particularity.
Rule 23.1, like Rule 23, requires that the class representative be able to fairly and adequately represent the class. 2. Jurisdictional Amount and Venue: a j in a derivative action runs to the corporation, and therefore the jurisdictional amount looks to the damages allegedly suffered by teh corporation. Venue is proper whereever the corp. could have sued the same d's (s of inc.)`
TIP
when shareholder der. shit under diversity corp treated as plaintiff for purposes of det. j amt., but is gen treated as a d for purposes of div.
What is the Ca rule on class actions?
In CA, class action may be maintained when teh "question is one of a common or general interest, of many persons, or when the parties are numerous, and it is impracticable to bring them all before the court." In ruling on class action issues, CA courts "often rely on the language of rule 23 and teh federal cases interpreting it. THe min. req's for cer. of a ca are 1. and ascertianable class 2. a well defined community of interest among class members. THe community of interest req involves aalysis of several factors, including whether: 1. common questions of law or fact predominate; 2. the class action device will result in substantial benefits to the parties and the court; 3. and the class rep will adequetly represent class interests.
Are CA's interpleader rules similar to the fed rule except that it is unclear under CA law whether the stakeholder needs to be a disinterested party.
YEs
What is Nature and GRounds of the interpleader issue?
1. Nature: Interpleader suit is instituted by a person in the position of a stakeholder to require the adverse claimants to determine which has the valid claim to the stake. It applies if separate actions might result in double liablity against the stakeholder. FED law abolished req that stakeholder must admit liability to the proper claimant and that the claims have a common origin.
2. Grounds IN fed court 2 interpleader procedures: Rule 22 interpleader and section 1335 interpleader.
a) Rule 22 interpleader req's 1. complete div. between stakeholder and all adverse claimants in excess of $75,000 in issue, or 2. a fed question claim. Normal service and venue rules apply.
b) Section 1335 interpleader req's only min div. between claimaints and $500 in issue. Service may be nationwide and venue is proper where any claimant resides.
MNEMONIC: RULE 22 Interpleader must follow the RRSSSS?
Regular Rules;
Statutory interpleader has Special Simpler Standards.
What is the rule on intervention?
Intervention may be granted to a party of right or permissively. INterventionof right is available whenever teh applicant claims an interst in teh property or transaction that is the sm of the action, and the disp. of hte action withou him may impair his abilty to protect that interest. In FED court, there appears to be no supplemental (ancillary) j over claims by or against one seeking to intervene in a div. action. Permissive intervention is available whe the applicant's claim or defense and the main action have a question of fact or law in common; no direct or pecuniary interest is req. Permissive intervention must be supported by its own judicial ground.
Note: CA principal issue that arises in permissive intervention is whether the potential intervenor's interest is "direct and immediate," which is req'd for permissive intervention, or is "indirect and consequential," which would defeat intervention.
g.
What is the rule on Third party practice?
A defending party may implead a nonparty who is or may be liable to him for any part of a j that the the p may recover against him. In fed court, if fed q. or div. j is not available, supplemental j will be available, becasue a claim for indemity arises from the common nucleus of fact as the underlying claim. Also, venue need not be proper for the third-party defendant. The defending party may assert defenses to the p's original claim as well as defenses to the third-party liability asserted against him. THE court may sever any third-party claim to be tried separately that is just.
What is the rule on 3rd party practice in CA?
The cx of action in a permissive cross complaint adding a new party for any purpose not only indemnity must either arise out of the same trans. or occurrence as the original p's cx of action against the third party plaintiff, or it must asert a claim or interest in the subj. of the p's action against the 3rd party P. The 3rd party p may then join any other new third-party defendant if it would not violate CA's liberal joinder statues, and may join any other cx of action he has against any of the third party defendants. In addition to filing an answer to the cross-complaint, a 3rd party defendant may file a special answer, asserting any affirmative defenses agaisnt the original plaintiff that the third-party plaintiff has.
What is the rule on Cross claims?
Co-parties may assert claims against each other that arise out of the same trans. or occurence as the main action by fiilng cross claims. SInce a cross claim is related to the existing action, it is commonly considered to come within the court's supplemental jurisdiction. IN CA state courts, a cross-complaint against a co-party is permissive, requireing a transactional relationship to the original complaint or a claim or interest in the subject of the original complaint.
What are the Disclosure req's in Ca and FED court?
Fed rule 26 requires parteis to disclose, without being asked, information to other parties about their case. There are no automatic disclosure requirements in CA state courts.
- A party has an obligation to make a rx inquity into the facts before disclosure. Rule 26 req's parties to disc. all info then rx available. A party is not relived from her obligation of disclosure merely because she has failed to complete her investigation or because another partyhas not made his disclosures or has made inadequate disclosures. Rule 26 requires three types of disclosure: initial disclosures, disclosure of expert testimony, and pretrial disclosures.
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what are the req's for initial disclosure?
1. initial disclosures: w/o waiting for dis. req. a party must provide to other parties: names addresses and numbers of people likely to have discoverable info, (unless used solely for impeachment)
-2. Copies or descriptions of doc's, electronically stored info and tangible things that are in th disclosing party's possession or control that the disclosing party may use to support unless for impeachment.
3. Computation of dx and copies of materials on which computation is based.
4. Copies of ins. agreements under which an insurer might be liable for all or part of any j that might b eentered.

These disclosures must be made 14 days after the conference of the parteis req. by 26(f) unless a different time is set by court order or stipulation.
- Exemptions from initial disclosure req. INitial disclosures are not requried in some cases (actions to review admin record, actions to enforce an arbitration award, pro se litigation brought by prisioners, actions to quash or enforce subpoenas or habeas corpus petititions)
Does a party need to Disclose experts?
Yes, disclosure must include report prepared and signed by each expert stating qual. opinions to be expressed, and the basis for thsoe opinions. THis disclosrue must be made at the time directed by the court or, in the absence of any directions or any stipulations among the parties, at least 90 days before trial. However, if the evidence is intended solely to rebut another party's disclosure of expert testimony, it must be made within 30 days after disclosure of the evidence being rebutted.
What is the timeframe for pretrial disclosures?
30 days before trial: party must disclsoe the w she expects to call at trial, the witness she will call if the need arises, the witness whose testimony will be presented by means of a deposition and a transcript of pertinent portions of the deposition, and a list of docs or exhibits she expects to offer or might offer if needed. W/in 14 days after this disclosure, a party may serve objections to the use of depos at trial and to the admiss. of disclosed docs and exhibits. Obj. are waived if not made here, except for objections that the evidence is irrelevant, prejudicial, or confusing under FRE 402 and 403.
What is the scope of Disclosure and Discovery in general?
Gen. any non privliegedmatter that is relevant to the claim or defense of any pary, including the identity of perosns having knowlege of rel. raft. As long as the ino fought is reasonalby caluclated to lead to the discovery of admissible evdience or a claim or defense in the case, it is not req. that the info itself be admissible at trial. THe CA std. is broader than the fed: the information must be "RELEVANT TO THE SUBJECT MATTER INVOLVED IN THE PENDING ACTION."
What are the CA and Fed rules on the scope of discovery of work product protection and privilege?
In FED court, work product of lawyers in anticipaiton of lit. is discoverable only upon showing of a "SUBSTANTIAL NEED" AND TO AVOID "UNDUE HARDSHIP" in obtaining materials in an alternative way, but the court must secure against disclosure of mental impressions, opinions and conclusions. However, a party may obtain, without a showing of need and hardship, a copy of any statement previously made by that party. CA provides an absolute work product protection ot writings reflecting an atty's impressions, conclusions, opinions, or legal research. IN CA, qualified work product is not discoverable except on a showing that denial of discovery will UNFAIRLY PREJUDICE A PARTY IN PREPARING HIS CLAIM OR DEFENSE, OR WILL RESULT IN AN INJUSTICE. IN addition to work product protection and statutory evidentiary privileges, the CA constitution provides for a right to privacy that may be exerciesed in the discovery context. The court balances the need for discovery against the right to privacy.
What is the CA and FEd rule on disclosure and disc. of experts?
A party may depose testifying experts. In FED court, the opinions of consulting experts may be discovered through depositions or interrogatories only if the party seekign discovery shows that it is impractiable to obtain such facts or opinions by other means. IN CA state court, a party need not disclose consulting experts.
What is the procedure for witholding privileged info?
PArty must make claim expressly and describe the nature of the doc's not disclosed in a manner that iwll enable other parties to assess applicibility of privilege.
What is the rule on supplementing disclosures and discovery requests?
In fed court: party msut supplement disc. and disc. responses if she learns that the info disclosed was materially incomplete or incorrect and the new info has not been made known to the other party in discovery or wrignt. IN CA there is no general duty to supplement previous discovery responses in CA state courts.
When can depositions be used at trial or hearing?
A depo may be used 1. to impeach t of deponent witness 2. for any purpose if the court finds that the deponent is dead or at a dist. greater than 100 miles (fed) or 150 miles (CA) from place of trial ro that d is unable to testify b/c age, sickness, etc. 3 for any purpose if the deponent is an adverse party.
What are the methods for enforcing discovery and disclosure?
- Motion to compell and for sanctions...court may 1. order the matters to be treated as admitted; 2. prohibit the party form supporitng or opposing designated claims or defenses; 3. strike pleadings, stay or dismiss the action, or render default j.; 4. hold the delinquent party or witness in contempt.
What are the discovery sanctions in FED and CA court?
FED 1. Immediate Sanction: if party fails to attend own depo or fails ot provide any answers to interrogatories, a party may move for immediate sanctions. THe court may make such orders in regard to teh failue as are just including 1, 2,3 (previous card).
AUTOMATIC SANCTION: against party who "without substantial justification" fails to disclose info as required under Rule 26, or who fails to supplement or amend discovery info as reuqired udner Rule 26(e)(1) or 2. the party who fails to make requried disclosures will not be permitted to use the info withheld as evidence at trial, at a hearing, or on a motion, unless such failure was "harmless." Other appropriate sancitions may be imposed including 123 prev. card. as well as informing the jruy of the failure ot make the disclosure. Also court may assess reasonable expenses incurred including atty's fees.
Con't Disc sanctions CA....
Sanctions for: failure to respond to discovery, making an unmeritous objection to discovery, and disobeying a court order to provide discovery. Generally, initial misuse of the discovery process shall result in a monetary sanction unless the potential sanctioned party acted with substantial justification or the sanction would be unjust. Subsequent instances of misuse could subject a party to escalating sanctions, including issue, evidence, and terminating sanctions, as well as more serious monetary sanctions.
What is required for Res Judicata (claim preclusion)
?
1. earlier j is final, and on merits.
2. the cases are brought by the same claimant agaisnt the same d.3. same cause of action or claim is involved in later lawsuit; and 4. the cause of action was actually litigated or could have been litigated in the prior action. In fed. court, a judgment is condidred findal when it is renderd, whereas in CA , a judgment is not considered final until the conclusion of any possible appeals.
0 Defining cause of action...CA state court adheare to the minority primary rights doctrine, under which a cx of action is defined as a invasion of single primary right. THus plaintiff injured by d in an accident may sue the d in one action for personal injury and in a separate action for property damage, as each injury would be considered an invasion of adifferent primary right to be free from harm.
What is requried for collateral estoppel (issue preclusion)
J for the p or d is conclusive in a subsequent action on a different cause of action between them as to issues actually litigated and essential to the j of the first action.
Exam tip.
In res judicata ca applies the primary rights doctrine which allows a p to slit a property dx and personal injury cause of action without risking that the claim will be barred by res judicata. THat said, be on the lookout for the possible application of collateral estoppel even though a claim by not be barred by res judicata, collateral estoppel may prevent it from being heard. For ex. in a CA state court final j concludign that d was not negligent in aproperty dx case, collateral estoppel may prevent the p from relitigating the issue of negligtence in a subsequent pi claim, thereby effectively preventing the p from bringing the subsequent claim. The prior finding that the d was not negligetn will prevent the p from proving a prima facie case for N.
Which parties are bound by a J?
Parties, privies to parties, and persons whose interests are represented are bound by a judgment. nonparties are normally not bound. In j's whre the mutuality principal has been eroded (ca) the follwoing tests are usually applied to determine whether a stranger may rely on a prior j: 1. was teh issue decided in the first case identical to that in the second? 2. was there a final judgment on the merits? 3. Did the party aginst whom the judgment is to be used have a fair opportunity to be heard on the critical issue? and 4. Is the posture of the case such that it would not be unfrair or inequitable to a party to apply collateral estoppel? CA has added a related inquiry: Was the party Against whom collateral estoppel is beign asserted a party or in privity with a party to the prior proceeding. If all YES then collateral estoppel will be upheld.