Civ Pro

Front 1

Claim preclusion

Back 1

Elements: (1) same claim, (2) same parties (P v. D), (3) final judgment, (4) on the merits, (5) in a court of competent jurisdiction. In Cal, if personal and property injuries, two bites at the apple.

Front 2

Same claim means

Back 2

All rights to relief arising from the same operative facts and transactions

Front 3

"Final judgment on the merits"

Back 3

General rule: unless the court said otherwise when it entered the judgment, any judgment is “on the merits” UNLESS it was based on (1) jurisdiction, (2) venue, or (3) indispensable parties. It can be on the merits even if there was no litigation.

Front 4

Issue preclusion

Back 4

Same issue; actually litigated & decided (not enough that issue could-have-been litigated); issue was essential to judgment; full and fair opportunity to litigate

Front 5

Due process limitation

Back 5

May only be asserted against one who was a party to the first case (due process). May only be asserted by one who was a party to the first case. But, some courts have rejected this traditional view to allow for non-mutual assertion (ie not a party to the first case) of issue preclusion.

Front 6

Personal jurisdiction

Back 6

Purposeful availment, and fairness: relatedness of the contact and claim where P’s claim arises from D’s contact with the forum (giving rise to specific PJ; general can be had if "continuing and systematic"); convenience (almost imposs to show this standard; a forum is OK unless it puts D at severe disadv. in the litigation); state's interest (look at facts to see if any given)

Front 7

For purposes of SMJ, associations are citizens of

Back 7

Citizens of every place a member is a citizen of

Front 8

Class action SMJ

Back 8

Look to lead plaintiff

Front 9

Amount in controversy

Back 9

Must not be "clear to a legal certainty" that relief in excess of $75,000 cannot be had. Aggregation: may aggregate claims where it is one P v. one D; and for joint claims use the total value of the claims; if seeking Equitable relief, look at value to both the plaintiff and defendant

Front 10

Supplemental jurisdiction

Back 10

Common nucleus of operative facts; Court has discretion NOT to hear the supplemental claim: (1) if the federal question is dismissed early in the proceedings; or (2) if the state law claim is complex or (2) state law issues would predominate.

Front 11

Removal

Back 11

What cases – those that could’ve originally been brought in fed court (diversity/ FQ); may only be removed to the federal district court which embraces the state court in which the case was originally filed; the case must be removed no later than 30 days after the initial service of process; all defendants must agree to removal; if diversity, no removal if any defendant is a citizen of the forum.

Front 12

For Erie, the following are all substantive

Back 12

Elements of a claim or defense; statute of limitations; rules for tolling statutes of limitations; choice of law.

Front 13

If there is a federal law on point that directly conflicts with state law

Back 13

apply the federal law as long as it is valid (i.e. it’s arguably procedural) under Supremacy Clause.

Front 14

If no federal law on point and no state law that's clearly substantive

Back 14

(1) Is the state rule outcome determinative? → apply state law
(2) Does either federal or state system have a strong interest in having its rule applied (balance of interests)?
(3) Avoid forum shopping. If the federal court ignores state law on this issue, will it cause parties to flock to federal courts? → apply state law.

Front 15

Venue

Back 15

"Local" (i.e. property) actions must be filed where the property lies. Otherwise, proper where all Ds reside, or failing that, where a substantial portion of the transactions underlying the claim happened; failing that, anywhere a court has PJ over a D

Front 16

If all Ds reside in different districts of the same state

Back 16

Venue is proper in all

Front 17

Transfer of venue

Back 17

Can only transfer to a district where a case could have been filed, that means to (1) a proper venue which (2) has personal jurisdiction over D. Must be true without waiver by the D. If venue in the original district is proper, you may transfer to another district based on convenience of the parties and witnesses and in the interest of justice.

Front 18

Forum non-conveniens

Back 18

If there is a far more appropriate court elsewhere, a court may DISMISS (usually w/out prejudice); occurs where transfer is impossible b/c it is in a different judicial system; does not matter that P may recover less in the other court; almost never granted if P is resident of the present forum.

Front 19

Process

Back 19

Never tested. Might want to look at.

Front 20

Pleadings

Back 20

i.Federal Rules adopt “notice” pleading = pleadings are only required to convey enough of one’s contentions to put others on notice and to allow a meaningful response. California uses fact pleading instead of notice pleadings and requires more details. The pleader must state the ultimate facts supporting her Cause of Action (CoA).

Front 21

Rule 11 requirements

Back 21

Requires an attorney or a pro se party to sign all pleadings, written motions, and papers certifying that to the best of her knowledge and belief, after reasonable inquiry: (1) the paper is not for an improper purpose, (2) the legal contentions are warranted by law, (3) that factual contentions and denial of factual contentions have evidentiary support.

Front 22

Safe harbor

Back 22

Motion for violation of Rule 11 is served on the other party, but is NOT immediately filed on the court. B/c the party allegedly violation Rule 11 has 21 days (safe harbor) to withdraw the document or fix the problem. If she does not fix the problem, then the motion can be filed. (no safe harbor if raised by court sua sponte).

Front 23

California equivalents

Back 23

Safe harbor applies also if raised by judge. Court can also assess punitive damages against P if action was by a convicted felon against the person’s victim or relatives, arising from the acts constituting the felony AND P is guilty of fraud, oppression, or malice in bringing the action.

Front 24

Complaint

Back 24

Under federal rules, must include only 1.(1) statement of subject matter; (2) short and plain statement of the claim, showing entitlement to relief; AND (3) demand for judgment. Fraud, mistakes, and special damages must all be pled with particularity.

Front 25

Cal complaint

Back 25

No need for SMJ statement, and requires statement of the "ultimate facts" warranting relief.

Front 26

Verified pleadings (cal)

Back 26

a.Are signed under penalty of perjury by the party. They are rare, but are required, for example, in SH derivative suits and for suits against government entities. Remember, verified pleadings can be treated as AFFIDAVITS (relevant for S.J.)

Front 27

Rule 12

Back 27

Motions to dismiss are not answers. Grounds: 1.Rule 12(b) defenses: (1) lack of subject matter jurisdiction; (2)lack of personal jurisdiction; (3) improper venue; (4) insufficiency of process; (5) insufficient service of process; (6) failure to state a claim; (7) failure to join indespensible party. In CA “general demurrer” is considered a pleading and can be raised in the answer instead!

Front 28

Counter-claim

Back 28

In Ca., must be filed in sep. doc. Compulsory if arising from same transaction or occurrence.

Front 29

Permissive

Back 29

OK, so long as doesn't destroy diversity J.

Front 30

Cross-claim against party

Back 30

Permissive, but must arise from the same transaction or occurrence as the underlying action.

Front 31

Amending pleadings

Back 31

Can amend once as of right within 20 days of filing. D has same right. Otherwise, must seek leave in interests of justice.

Front 32

To add claim or party

Back 32

Must "relate back": concern the same conduct, transaction, or occurrence as the original pleadings.

Front 33

If adding new party

Back 33

The new party must have received notice of the action within 120 days so that she will not be prejudiced by maintaining her defense on the merits, and
the right D knew or should have known that, but for a mistake concerning the proper party’s id, the action would’ve been bought against her.

Front 34

Joinder

Back 34

OK if supplemental J OK, and there if a Necessary and Indispensable Parties:
i.An absentee is forced to join the case if he meets one of three tests:
1.Without the absentee the court cannot complete relief
2.Absentee’s interest may be harmed if he isn’t joined.
3.Absentee claims an interest which subjects a party (usually defendant) to multiple obligations.

Front 35

If joinder isn't feasible

Back 35

Proceed, or dismiss, depending on: whether an alternative forum is available; the actual likelihood of prejudice; can the court shape relief to avoid that prejudice.

Front 36

Impleader

Back 36

A defending party wants to bring in someone new b/c that 3rd party may owe INDEMNITY or CONTRIBUTION to the defending party. D may implead as of right within 10 days after serving answer; after that, need court permission. After the 3rdP is joined, claims can be asserted by all pointers as against one another if same transaction, and SMJ.

Front 37

Class actions

Back 37

Look at numerosity: too many class members for practicable joinder; commonality: there are some questions of law or fact in common to the class; typicality: representative’s claims/defenses typical of those of the class; adequate representation: the class rep will fairly and adequately represent the interests of the class.

Front 38

If class action, must fit within three class

Back 38

(1) Prejudice (necessary to avoid harm to class or defendant interests), in which case no opt out or notice; (2) Injunctive or dec relief would be appropriate as to the entire class; (3) common questions of law or fact predominate over any question affecting only individual members, and class action is superior to other available methods (presumptive if money damages at issue). Here, need notice and opt-out.

Front 39

Certification

Back 39

Only required if federal. The Court must determine “at an early practicable time” whether to certify the class as a class action, and if the court certifies the class, it must define the class and the class claims, issues or defenses, and appoint a class counsel who will fairly and adequately represent the interests of the class.

Front 40

Judgment and settlement

Back 40

All class members are bound by judgment, except those who opt out [CA same]; court must approve a dismissal or settlement [CA same]; ALL types of classes require notice of a proposed settlement be given to the class, and an opportunity for feedback re the proposed settlement; damage class actions also have a back-end opt out opportunity for settlement.

Front 41

Scope of discovery

Back 41

Anything relevant to a claim or defense (something in the pleadings); relevant means “reasonably calculated to lead to the discovery of admissible evidence," privileged matter is NOT discoverable b/c of Evidence Law [CA uses a privilege log]; work product (material prepared by attorney or her agents in anticipation of litigation) is generally NOT discoverable.

Front 42

Enforcement of rules

Back 42

Hasn't been tested this decade, but may wish to look at.

Front 43

Pre-trial dismissal

Back 43

Once as of right without prejudice, otherwise, cooked. i.All courts (Fed and state) have authority to dismiss for failure to proosecute, to abide by court orders etc. (Mandatory within five years in Cal.)

Front 44

Pre-emptory challenges

Back 44

Feds give three per side, and Cal gives six per party

Front 45

JMOL, DV, or Demurrer

Back 45

Standard: when evidence is viewed in a light most favorable to the non-moving party, reasonable people could not disagree on the result. Made after opposing party has had chance to present all evidence.

Front 46

Renewed Motion for Judgment as a Matter of Law

Back 46

If fed, must have originally made such a motion before close of trial.

Front 47

Motion for new trial

Back 47

Must be raised within 10 days after judgment. Grounds: where something convinces the court that the parties should retry the case b/c “the error complained of has resulted in a miscarriage of justice.” Prej. error, or new evidence, typically.

Front 48

Post-judgment review

Back 48

As a general rule, a party can appeal only from final judgments, which means an ultimate decision by the trial court of the merits of the entire case. Must file notice of appeal in trial court w/in 30 days after entry of judgment.

Front 49

Interlocutory review

Back 49

As of right: anything having to do with injunctions; grant/denial of class cert. If discretionary: upon its own discretion, DC may certify that there should be an interlocutory appeal. And the Court of Appeals [CA – Appeal] has discretion to accept.