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Six Big Steps in Civ Pro Question
1) Are you in the right court (personal jdx, subject matter, venue)
2) Was the case filed appropriately? (service of process, pleadings, discovery)
3) Complex cases (party joinder)
4) Adjudication process (pretrial, conferences, trial)
5) Appeal?
6) Claim and issue preclusion?
What is the court seeking to determine in personal jurisdiction?
Do they have power over the parties?
What is the court seeking to determine in subject matter jurisdiction?
Do they have power over the case?
How is personal jurisdiction assessed in federal court?
Statutory long arm statute + constitutional due process.
-International Shoe: Does the defendant have such minimum constacts with the forum so that exercise of jurisdiction does not offend traditional notions of fair plan and substantial justice?
What are the two types of cases heard in federal court (two subject matter jdx)?
1) Diversity of citizenship
2) federal question
What is a diversity of citizenship case?
Case is either
1) between citizens of different states or between a citizen of a state and a citizen of a foreign country AND
2) amount in controversy exceeds $75,000
What is a federal question case?
Case raises a substantial question of federal statutory or constiutional law
What is alienage?
A case between a citizen of a state and a citizen of a foreign country
What is the complete diversity rule?
NO diversity for purposes of diversity jurisdiction if any plaintiff is a citizen of the same state as any defendant
Where do natural persons who are US citizens have citizenship for purposes of diversity jdx?
State of her domicile.
Domicile established by:
1) presence in state AND
2) intent to make it her permanent home
Can a person ahve more than one domicile at a time?
NO. Only a citizen of one state
Can a change in citizenship duri gthe course of litigation destroy diversity jurisdiction?
No.
Where do corporations have citizenship for purposes of diversity jdx?
1) state where incorporated AND
2) single state where corporation has its principal place of business.
When is diversity of citizenship tested for purposes of jdx?
When case is filed
Where is a corporation's principal place of business?
Where managers direct, control, and coordinate corporate activity
Where do unincorporated associations, sucha s partnership and LLCs, have citizenship for purposes of diversity jdx?
ANYWHERE that one of its members has citizenship
Where do decedents, minors, and incompetents have citizenship for purposes of diversity jdx?
Citizenship of THE ACTUAL PARTY, not their representative
Can plaintiff bring a suit for exactly $75,000 in federal court?
NO
If P sues for more than $75,000 but recovers less than $75,000, as jdx okay??
yes, what plaintiff wins is irrelevant to jdx, but may have to pay D's litigation costs..
Do the costs of litigation include attorney's fees?
NO
What is aggregation?
Adding two or more claims to meet theamoutn required to get into federal court
Can you aggregate claims to exceed the $75,000 requirement to get into federal court?
Only if the claims are still between identical plaintiff and defendant. Okay for claims to be totally unrelated, as long as parties are related.
What do you use to determine the value of a claim in a joint case?
THE FACE VALUE OF THE JOINT CLAIM. No matter how many parties, etc.
Can you sue in federal court for injunctive relief under diversity jdx? If so, what test?
Yes, if one of two tests is met:
1) Does the injunction decrease teh value of P's property by more than $75,000?
2) Would the injunction cost the D more than $75,000 to comply?
Do federal courts hear ations involving issuance of divorce?
NO
Do federal courts hear ations involving issuance of alimony?
NO
Do federal courts hear ations involving issuance of child custody?
NO
Do federal courts hear ations to probate an estate?
NO
What is requried to get into court on a federal question?
Complaint must show a right or interest founded substantially on a federal law, such that the claim "arises under" federal law. CITIZENSHIP AND AMOUNT IN CONtROVERSY IRRELEVANT
What is the well pleaded complaint rule?
The CLAIM itself, rather than other facts, must arise under federal law. Test: Is P enforcing a federal right?
Must every claim in a federal suit meet subject matter jdx, or is it sufficient that one claim in the case do so?
Must either:
1) meet FQ or diversity jdx OR
2) sneak in under supplemental jdx
What does supplemental jurisdiction do?
Allows certain claims into federal court in conjunction with a case already there if it share sa "common nucleus of operative fact" with the claim already there
Can the plaintiff bring a a claim under supplemental jurisdiction to overcome lack of diversity?
No
What claims does supplemental jurisdiction allow to br brought in federal court
1) Non-federal (state based), non-diversity claims
2) that share a common nucleus of operative fact with the claims already there can be brought in UNLESS it is:
a) asserted by a plaintiff
b) in a diversity of citizenship case AND
c) is against a citizen of the same state as the plaintiff.
SUBJECT TO DISCRETIONARY FACTORS NOT TO HEAR
What are the discretionary factors that may allow a court not to hear a claim under supplemental jdx?
1) federal question dismissed early in proceedings
2) state law claim is complex
3) state law issues would dominate.
Can the defendant bring a a claim under supplemental jurisdiction to overcome lack of diversity?
Yes
Can a plaintiff bring a claim under supplemental jurisdiction to overcome a defect in the amount in controversy?
Yes
When can the plaintiff overcome a lack of diversity in a diversity case?
NEVER EVER EVER
What is removal?
ONE WAY PROCESS allowing D sued in state court to remoe to federal court.
What is the timely for removal?
30 days after service of the first paper that makes the case removeable. If multiple Ds, new 30 day period after each D served
In a case with multiple Ds, can a single D remove to federal court alone?
NO. All D's just join.
What kinds of cases can be removed to federal court?
Any that meets the subject matter jdx tests, EXCEPT:
1) in diversity cases, no removal if any D is a citizen of the forum state
2) in diversity cases, no removal more than one year after the case was filed in state court.
- Exceptions may be waived if and only if federal judge finds that P acted in bad faith to prevent removal
Where can you remove to>
ONLY to the federal district embracing the state court
What is the procedure for removal to federal court?
1) D files notice of removal in federal court
2) stating grounds for removal,
3) that is signed under rule 11
4) and attaches all documents served on D in statte action
5) and copies all adverse parties
6) then files a copy of notice in state court.
What happens if removal to federal court is procedurally improper?
P can move to remand to state court within 30 days of removal.
What is the Erie doctrine?
Federal court sitting in diversity applies state substantive law
Three step process for analyzing Erie question:
1) Is there a federal law (incl. FRCP or FRE) on point that directly conflicts with state law? If so, appy federal law so long as valid because of Supremacy Clause
2) If no federal law on point, is it one of the "easy ones?" (elements of a claim or defense, statute of limitations, rules for tolling statutes of limitations, conflict choice of law rules). If so, apply state law, because these are substantive per se.
3) If not an easy one, must follow state law if it is "substantive" (outcome determinative, balance of interests, or avoid forum shopping).
When is a federal law "valid" for purposes of Erie analysis?
Whenever it is ARGUABLY PROCEDURAL. FRCPs always valid
What does venue tell us?
WHICH federal court we can sue in, assuming we can get into federal corut
Where can P lay venue?
Any distrct where EITHER:
1) all Ds reside OR
2) a substantial part of the claim arose OR
3) If all Ds reside in different districts of the same state, P can sue all Ds in any district where one D resides
Where do Ds reside for venue purposes?
1) Humans reside in district where domiciled (ONE ONLY)
2) Businesses reside in all districts where subject to personal jurisdiction for this case
What is the rule for transfer of venue?
In certain cases, federal district court may transfer a case to another federal district if the case could have been filed there to begin with (ie. proper venue that has PJ over the D).
EXCEPTION: If all parties agree, can transfer whenever.
If venue was proper in the original district, can court transfer?
Court has discretion to transfer based on:
1) convenience for the parties and witnessess AND
2) interests of justice, based on "public and private factors showing that the other district is the center of gravity"
What public factors are relevant when a court is considering transfer of venue?
What law applies, what communit should be burdened with jury service, keeping local controversy in local court, etc.
What private factors are relevant when a court is considering a transfer of venue?
CONVENIENCE. Where are the witneses and the evidence
If venue is transferred, waht choice of law rules apply?
Those of the original court
If venue was improper in the original district, can a court transfer in federal court?
yes, or dismiss.
What is forum non conveniens doctrine?
There is another court more sensible than thepresent one to adjudicate the case, but it is in another judicial system. THus, court must dismiss or stay the case, cannot transfer
When will a court stay or dismiss a case under forum nonconveniens?
So long as the other court is "adequate," need not result in same remedy
What is required for service of process in federal court?
1) Any non party
2) who is at least 18 years old
3) delivers to the D either
a) personally, anywhere or
b) via substituted service at D's usual abode with someone of suitable age and discretion who resides there or
c) on D's agent if receiving service is within scope of agency or
d) in compliance with state law where fed court sists or
e) in compliance with state law where services is effected or
f) by mail via waiver form with prepaid means of returning the form
4) process
a) a summons and
b) a copy of the complaint
5) within 120 days of service of process (unless P shows good cause for delay in serving).
What is a summons?
Formal court notice of suit and time for response
How does waiver by mail for service of process work in federal court?
1) P mails to D a copy of complaint and two copies of a waiver form and prepaid means of returning form.
EITHER
2a) D executes and mails the waiver form to P within 30 days, in which case D waives formal service.
OR
2b) D fails to return form with cause, resulting in formal service required
OR
2c) D fails to return form without cause, in which case D pays cost of formal service.
Can federal courts serve process outside the state in which it sits?
Only if state law allows via long-arm statute
Can a D be served with proess for a civil case while in state to be a witness or party in another civil case?
NO. Immune from service.
What are the requirements for serving documents beyond process?
Mail it or deliver it to the other party's attorney. Email okay with consent, get 3 extra days to respond if mailed
What does Rule 11 require?
Attorney must sign all papers (except discovery documents), certifying that to the best of your knowledgeand belief, after reasonable inquiry:
1) the paper is not from an improper purpose AND
2) all legal contentions are warranted by law or nonfrivolous argument for law change AND
3) factual contentions and denials of factual contentions have evidentary support or are likely to have support after further investigation
What is a continuing certification?
You "recertify" a position eveyr time you present a position tothe court from that document
What is the point of RUle 11 sanctions?
To deter a repeat of bad conduct. Can be nonmonetary
Does the court have to give you a hearing before Rule 11 sanctions?
YES
What is the procedure for a party filing Rule 11 sanctions?
1) At time of violation, opposing party serves motion for sanctions on their opponent
2) Party has 21 days to remedy the violation
3) If, at the end of the 21 day period violation has not been remedied, then motion can be filed
What is the procedure for sua sponte Rule 11 sanctions by the court?
Court must provide hearing, but need not provide safe harbor period to remedy
What are the pleadings in a federal civil case?
1) complaint
2) answer, including counterclaims and cross claims
What are the requirements for the complaint?
1) statement of grounds for subject matter jurisdiction
2) short and plain statement of the claim, showing entitled to relief ,
3) demand for relief sought
WhaWhat is requried for the "short and plain statement of the claim"?
Must allege facts supporting a plausible claim. Plausibility based on judicial experience and common sense
What matters must be plead with particularity and speicificity?
1) fraud
2) mistake
3) special damages
what are special damages?
Damages that do not normally flow from an event (detail!)
In what ways can a defendant respond to a complaint?
Under Rule 12, required to respond with either
1) a motion or
2) an answer
When does the D need to respond to a complaint?
21 days after service
Are motions pleadings?
No
What motions may the D file in response to a complaint
A: Issues of form.
1) motion for more defiite statement
2) motion to strike.
B: Rule 12(b) defenses.
1) lack of subject matter jdx,
2) lack of personal jurisdiction
3) improper venue
4) insufficiency of process (problem with papers)
5) insufficient service of process (problem with procedure)
6) Failure to state a claim.
7) failure to join an indispensible party
Which rule 12(b) defenses are waiveable?
2-5.
2) lack of personal jdx,
3) improper venue
4) insufficiency of process
5) insufficiency service of process
How do you avoid waiving a rule 12(b) defense?
MUST PUT IT IN THE FIRST RULE 12 RESPONSE (whether motion or answer)
When is subject matter jurisdiction waived?
NEVER EVER EVER EVER EVER
What is the answer
Defendant's response on the merits to the complaint
What are the requirements of an answer?
1) respond to allegations of complaints by admitting, denying, or state that you lack sufficien tinformation, AND
2) raise affirmative defenses AND
3) Counterclaims
Can a defendant say they lack sufficien tinformaiton to admit or deny an allegation if the information is public knowledge or in defendant's control?
NO. Must go look it up
What result from failure to deny allegations in a complaint?
Counts as admission on any matter except damages
What are affirmative defenses?
Claims that inject new facts into the case which would allow D to win. (eg. SoL, res judicata, statute of frauds, etc.)
What result if D fails to raise an affirmative defense in the answer?
Can be found waived.
What is a counterclaim?
Claim against an opposing party; may be compulsory or permissive
What is a compulsory counterclaim?
Claim that arises from teh same T/O as plaintiff's claim and so MUST BE FILED IN THE PENDING CASE or it will be waived. This is the ONLY one that's waived if not used.
What is a permissive counterclaim?
Claim that does not arise from teh same transaction or occurrence as P's claim; may be assserted in current case or later. Whatever.
If no answer required, are compulsory coutnerlcaims waived/
NO! Compulsory counterclaims only required where answer required
If a counterclaim is procedurally okay in federla corut, then waht?
CHECK SUBJECT MATTER JURISDICTION, followed by supplemental jurisdiction
What is a crossclaim?
Claim against a co-party. MUST arise from teh same transaction or occurrence as the underlying action?
What kinds of crossclaims are compulsory?
NONE>
If a crossclaim is procedurally okay in federal court, then what?
CHECK SUBJECT MATTER/SUPPLEMENTAL JDX. Supplemental JDX will ALWAYS exist between co-Ds, never between co-Ps.
When does a party have a right to amend a pleading?
1) Plaintiff: once within 21 days of D filing first rule 12 response OR after variance scenario
2) Defendant: once within 21 days of serving answer.
3) Any party: with leave of court, which will grant "if justice so requires," based on delay, prejudice, and the futility of amendment.
what is variance?
evidnce presented at trial does not match what was pleaded (eg. evidence presented of contract when tort alleged).
Can you amend a new claim to an existing pleading against an existing defendant after the statute of limitations has run for the new claim?
Yes, if it concerns the same conduct, transaction, or occurrence as the original pleading, it will "relate back"
Can you amend an existing pleading to include a new defendant after the statute of limitations?
Yes, under limited circumstances if: 1) it concerns same conduct, transaction, or occurrence as the original AND
2) The new party knew of this case within 120 days of its filing AND
3) She knew that but for the mistake, she would have been named in the original pleading.
IE. We sued the wrong guy, but the right guy knew about it.
What are required disclosures?
Material that must be produced even if no one asks for it.
1) Initial disclosures
2) expert info
3) pretrial disclosures.
Which discovery tools can be used to get information from non parties?
1) depositions
2) requests to produce
Do you need to subpoena a party to compel attendance at depositions?
No
Do you need to subpoena a non-party to compel attendance at depositions?
YES
Can you use depositions to get info from non parties?
yes, with subpoena
Can you use interrogatories to get into from non parties?
no
Can you use requests to produce to get info frmo non parties?
Yes, with subpoena
Can you use a physical or mental examination to get info from non party?
NO
Can you use the request for admission to get info from non parties?
No
What are the five tools of discovery?
1) Depositions
2) interrogatories
3) requests to produce
4) physical or mental examination
5) request for admission.
What is the duty to supplement?
If a situation changes after a discovery request is submitted, responding party must supplement the response to complete or correct the answer
What can you discover?
Anything relevant to a claim or defense.
what is required in the intial disclosures?
within 14 days of the 26(f) conference, just:
1) identify persons and
2) give copies of documents or electronic databases likely to have discoverable information regardin the merits or damage measures.
what is a deposition?
Discovery tool in which deponent gives sworn oral answers to questions by counsel that are recorded by sound or video or stenographically, such that a transcript can be made.
What is a subpoena duces tecum?
Subpoena requiring not just appearance of the person but also certain materials.
What are the limitations on the use of depositions?
1) cannot take more than 10 without court permission
2) cannot depose same person twice without court approval
3) one deposition cannot exceed one day of seven hours without court approval
4) may only be used at trial for limited purposes (impeach deponenet, deponent unavailable, or any purpose if deponent is an adverse party)
5) nonparty cannot be required to travel more than 100 miles from residence or regular place of business
6) Notice of subpoena to a business may require it to designate the right person for the deposition.
What is an interrogatorY?
Questions propounded in writing to another party to be answered in writing under oath.
How long does a party have to respond to an interrogatory?
30 days
What are the limitations on the use of interrogatories?
1) cannot serve more than 25 without court order
2) cannot introuce your own answers at trial
what are requests to produce?
Discovery tool involving a request to another person that they make available for review and copying various documents or items, including electronic info, or permit entry to inspect or measure the items.
How long does a party have to respond to a request to produce?
30 days
What are the limitations on the use of phsycial or mental examinations?
1) only available with court order
2) court order only to be granted on showing that the party's health is in actual controversy.
Who chooses the examiner in a court ordered physical exam?
Person seeking order
Does doctor patient privilege apply to court ordered physical or mental exams?
Only if person examined does nto request a copy of the report. Otherwise, waived
What is a request for admission?
Asking another party to admit the truth of any discoverable matters
How long does a party have to respond to a request for admission?
30 days
What does an attorney indicate by signing a discovery request?
1) warranted
2) not interposed for improper purpose
3) not unduly burdensome
What is considered "relevant" for discovery purposes?
Anything reasonably calculated to lead to the discovery of admissible evidence; each piece of discovery need not be admissible on its own
Are communications protected by privilege discoverable?
Only if the requesting party can show
1) substantial need and
2) that the info is not otherwise available.
Some things are ABSOLUTELY protected:
1) mental impressions
2) opinions
3) conclusions
4) legal theories
What materials are covered by the work producte privilege?
Material prepared in anticipation of litigation (NOT routine info)
Who can generate work product, protected by the privilege?
ANY PARTY or representative of the party.
What is necessary to claim privilege or work product?
1) Must claim protection expressly and
2) particularly describe the materials
what is a pprivilege log?
Document that lists documents protected by privilege listed by date, author, recipient, privilege, etc.
What happens if a party inadvertently discloses protected material?
1) notify other party ASAP.
2) other party msut return, sequester, or destroy it unless
3) court find sthat there has been a waiver
What obligations exist to disclose expert witness testimony?
1) must disclose inof about experts who may be used at trial
2) parties may take sepositions of exeprts whose opinions may be presented at trial
3) NEED NOT DISCLOSE draft expert reports
4) cannot compel discovery of consulting expert retained in anticipation of litigation but who will not testify at trial absent exceptional need
When can a party request a protective order?
1) request is overbrudensome
2) involves trade secrets
3) ESI is not reasonably accessible, etc.
What result from a request for a protective ofder?
eitehr you have to produce or you don't. The end.
What is a parital violation of discovery rules?
Responding party answers some questions and objects to others, but the objections are not upheld
What is a total violation of discovery rules?
Party completely fails to respond to discovery requests (ie. doesn't attend depo, doesn' respond to interrogatories, etc.)
What sanctions for a partial violation of discovery?
FIRST, party must certify to the cour tthat she tried in good faith to get the info without court involvement. THEN
1) Can get an order compelling the party to bring answered questions
2) if party violates order compelling him to answer, SNEED sanctions. + costs and attorneys fees for motions under both steps
What sanctions for a total violation of discovery?
FIRST, party must certify to the cour tthat she tried in good faith to get the info without court involvement. Then, SNEED sanctions.
1) Strike the pleadings of the disobedient party
2) No evidence presentable at trial by disobedient party regarding the issue in question
3) Establish the facts in question as true by judicial decree.
4) Dismiss plaintiff/s case or eter default judgment against D in cases of bad faith.
If a party fails to produce electronically stored informaiton because it was lost int he good faith, routine, operation of an electronic system, will sanctions result?
only in extraordinary cases
When may multiple parties bring suit as co-plaintiffs?
If their claims
1) arise from teh same transaction or occurrence AND
2) raise at least 1 common question
When may a plaintiff sue multiple parties as co-defendants?
When the claims arising against both parties
1) arise from the same transaction or occurence and
2) raise at least 1 common question
When is subject matter jurisdiction assessed?
After all parties have been joined
Who are necessary and indispensible parties?
Parties:
1) without whom the court cannot accord complete releif among existing parties because court concerned about multiple suits OR 2) absent party's interest may be harmed if he is not joined OR
3) absentee claims an interest which subjcts a party (typically a D) to multiple obligations
Are joint tortfeasors necessary and indispensibel parties?
NEVER
When is joinder "feasible"?
1) there must be personal jdx over the absentee party
2) joining party will not destroy diversity
Does the joinder of necessary parties need to be feasible?
YES
What happens if a necessary party cannot be joined because joinder is not feasible?
Court may elect to:
1) proceed without absent party or 2) dismiss the case based on
a) whether there's an alternative forum available,
b) actual likelihood of harm to absne tparty and
c) can court shape relief to avoid potential harm to bob
What is impleader?
Defending party wants to bring in a third-party-defendant because the thirdparty may be liable to defendant for plaintiff's claims against d. (eg. indemnity and contribultion)
When can a new party be impleaded?
1) within 14 days of serving answer OR
2) after that with court okay
What is the process for joining an impleader?
1) file thrid party complaint naming the third party defendant
2) serve process over TPD
After a third party defendant is joined by impleader, can impleaded defendant and plaintiffs assert claims against each other?
Yes, so long as
1) the claims arise from same transaction or occurrence as the underlying case AND
2) subject matter jurisdiction exists (FQ, diversity of citizenship, or supplemental jurisdiction)
What is intervention?
Absent party wants to join a pending suit, either as a plaintiff or defendant (court may realign if she comes in on wrong side)
What is the difference between a cross claim and impleader?
Cross claim is against a party who is already in the case. Impleader joins a new defendant
When does a party have a right to intervene?
1) Absent party's interest may be harmed if he is not joined AND
2) interest is not adequately represented now
When may a party intervene, but they do not have a right to?
A's claim or defense and the pending case have at least one comon question; intervention is in the discretion of the court
What is interpleader?
ONe holding property forces all potential claimants into a single lawsuit to avoid multiple litigation and inconsistency
\
cause it's unlikely, but it's there
What are the requirements for a class action in federal court?
A. Must demonstrate:
1) numerosity: to omany class members for practicable joinder AND
2) commonality: there is some common question of law or fact in common to the class AND
3) typicality: representative's claims and defenses are typical of those classes AND
4) representative is adequate: representative will fairly and adequate represent the class.
THEN B. Case must fit in one of three categories:
1) prejudice: class treatment is necessary to avoid harm either to class members or party opposing class (rare)
2) injunction or declaratory judgment (NOT damages) sought because class was treated alike by other party (eg. employment discrimination)
3) case for damages in which
a) common questions predominate over indivdiual questions AND
b) class action is the superior method to handle the dispute (eg. mass torts)
What are the requirements for a court to create a class action?
1) at an early and practicable time
2) must decide wehther to certify the court as a clas action AND
3) define the class claims, issues, or defenses AND
4) appoint class counsel
2
What are the notice requirements for a prejudice-based class action in federal court?
Limited
What are the notice requirements for an injunction-based class action in federal court?
Lmited
What are the notice requirements for a damages-based class action in federal court?
Huge! Court must give individual notice to all reasonably identifiable members, telling them numerous things, including:
1) they can opt out
2) they'll be bound if they don't opt out
3) they can enter a separate appearance through counsel, etc.
Who pays to provide the requisite notice in a class action?
the party representative
Is there a right to opt out of a prejudice-based class action?
No
is there a right to opt out of an injunction-based class action?
NO
Is there a right to opt out of a damages based class action?
YES
Can the parties dismiss or settle a certified class actioN?
Only with court's consent, which requires consult with class members and the opportunity for feedback
What are the requirements for subject matter jurisdiction over a class action?
EITHER :
1) raise a federal question OR
2) diversity of citizenship between representative party and all defendants and representative's claim exceeds $75,000 OR
3) under the class action fairness act, a court may hear a class action of at least 100 members if any class member is of diverse citizenship from any defendant and the aggregated claims exceed 5 million dollars.
What is voluntary dismissal?
P wants to dismiss the case on his own accord.
What are the requirements for voluntary dismissal?
1) generally, with court's permission but
2) P has a right to dismiss without prejudice simply by filing a notice of dismissal if D has not yet filed answer or motion for summary judgment BUT
3) if P refiles and then voluntarily dismisses agin, claim is dismissed with prejudice (regardless of original forum)
What is default?
Notation by the court clerk on the docket sheet of teh case indicating that D has failed to respond within 21 days after being servd with process
what is the consequence of default?
Nothing, unless d fails to respond before judgment is entered
When can a plaintiff obtain default judgment?
1) from clerk of court if:
a) D made no response at all and
b) claim itself is for a sum certain in money adn
c) claimant gives an affidavit of the sum owed and
d) D is not a minor or incompetent.
OR
2) from the judge , after judge holds a hearing to determine wehther judgement appropriate.
Does D get notice of a default judgment hearing?
Only if he has made some appearance in the case
Can a default judgment exceed theamount demanded in a complaint?
No
Can a default judgment be of a different kind than the one requested int he complaint?
No
Can a D set aside a default?
Only by showing good cause (excusable neglect) and a viable defense
When will a claim be dismissed for failure to state a claim?
1) After P files complaint, but before filing an answer, D moves for failure to state a claim
2) Ignoring legal conclusions, court determines whether the plaintiff's facts, if true, would result in a judgment.
If Yes, nt dismissed. if no, dismissed
Does the court consider evidence in a 12(b)6) motion to dismiss for failure tostate a claim?
No. Just face of claim and judicial notice
what is motion for judgemnt on the pleadings?
1) After P files complaint, AND AFTER filing an answer, D moves for failure to state a claim
2) Ignoring legal conclusions, court determines whether the plaintiff's facts, if true, would result in a judgment.
If Yes, not dismissed.
If no, dismissed
What is the standard for summary judgment?
Moving party must show:
1) there is no genuine dispute on a material fact AND
2) is entitled to judgment of a matter of law.
When must a summary judgment motion be brought?
within 30 days of end of discovery
Does a court consider evidence for a mottion for summary judgment?
Yes, as proffered by parties. Evidence viewed in light most favorable to the non-moving parties.
Does the evidence considered in a summary judgment motion need to be admissible at trial?
yes.... in general. Under oath. First hand knowledge.
What cases get resolved on summary judgments?
No question of fact, just issues of law.
Can a party rely on their own pleadings (complaint, etc.) in a motion for summary judgment?
VERY RARELY.
a) Pleadings are not evidence unless they are "verified" and under oath BUT
b) if D failed to deny an allegaiton in complaint, can be treated as fact. .
Can evidence based on hearsay be considered in summary judgment motions?
Nope
Can court make witness credibility determinations on a motion for summary judgment?
No. If conflicting witness., no summary judgment, unless videotape evidence conflict.s
What is a rule 26(f) conference?
at least 21 days before schedulign conference, parties must meet ot discuss claims, defenses, and settlement unless the court says otherwise. Parties must form a disovery plan and present it to the cour tin writing within 14 days
What is a pretrial conference?
conference held by the court to process case and foster settlement.
What is the pretrial conference order
Document issued by the court after the final pretrial conference, presenting the roadmap of the issues to be tried, evidence to be presented, witnesses, etc. to avoid surprises at trial.
Which trumps: pretrial conference order or pleadings?
Pretrial conference
When do civil litigants have a right to a jury trial in federal court?
Under Seventh Amendment, right to civil action at law NOT EQUITY.
IS there a constitutional right to a jury trial in civil cases in state court?
No
If there is a case of combined law and equity, do the parties have a right to a jury?
Only on the damages claims; court will deal with jury issues first
what is required to exercise right to a jury trial?
Demand in writing no less than 14 days afer service of last pleading raising jury triable issue
How many jurors may be eliminated for cause in federal civil cases?
unlimited
How many jurors may be eliminated peremptorially in federal civil cases?
ONLY 3, and must be used in race/gender neutral way
Does jury selection raise state action problems?
YES
How many jurors are required in a civil case?
Somewhere between 6-12.
Are alternate jurors used in civil cases?
Nope
What is judgment as a matter of law?
Case taken away from jury, such that judge issues order without jury input
when is a motion for judgment as a matter of law brought?
After the other side has been heard at trial?
Whhat is the standard for judgment as a matter of law?
reasonable people coudl not disagree on the result, when evidence viewed in light most favorable to non moving party
What is the difference between motion for judgment as a matter of law and renewed motion for judgment as a matter of law?
-JMOL: during trial
-RJMOL: after trial.
What is the result of a renewed motion for judgment as a matter of law?
Jury verdict set aside, and judgemnet entered for other party
When can a party bring a renewed motion for judgment as a matter of law?
1) if they brought a JMOL at trial THEN
2) can bring within 28 days of entry of judgment
What is the motion for a new trial?
Judgment enterd, but errors at trial require a new trial.
When must a motion for a new trial be brought?
Within 28 days of judgment
On waht grounds may a motion for a new trial be brought?
1) presjudicial error at trial makes judgment unfair (jury instructions, evidentiary ruling, etc.)
2) new evidence that could not have been obtained with due dilligence for original trial surfaces
3) prejudicial misconduct by party or attorney or juror or third party
4) judgement is against weight of evidence
5) excessive or inadequate damages
Which is a more drastic motion: JMOL or new trial?
JMOL because in new trial, same party might still win
On what grounds may a party bring a motion to set aside judgment?
1) clerical error
2) mistake, excusable neglect
3) new evidence that could not have been discovered with due dilligence for a new trial motion
4) jdugemtn void (eg. lack of jdx)
What is the final judgment rule?
Generally, only a right to appeal from the ultimate decision by the trial court of the merits of the entire case
When and where do you file a notice of appeal after a final judgment?
In trial court within 30 days of entry of final judgment
When will the court allow interlocutory appeals?
1) interlocutory appeals as of right
2) orders under the interlocutory appeals act
3) collateral order doctrine
4) more than one claim is presented and at least one claim is resolved
5) extraordinary write
6) granting or denying certification of class
Does an appeal of an orer granting or denying certification of a class stay proceedings at trial court level?
No
STATE CIVIL PROCEDURE
BEGINS HERE
Question raised by personal jurisdiction:
Can P sue D IN THIS STATE.
Analysis for personal jurisdiction
1) Satisfy a statute (eg. long arm statute) AND
2) Satisfy the due process requirements of Constitution
What are the differences between analyzing personal jurisdiciton for state court adn federal court?
NONE
What is the statutory analysis for personal jurisdiction in california?
"It reaches the constitutional limit."
What is the contitutional standard for personal jurisdiction?
International Shoe: Does the defendant have such minimum constacts with the forum so that exercise of jurisdiction does not offend traditional notions of fair plan and substantial justice?
Personal jdx "easy cases"
1) domiciled in the forum
2) consents to personal judx
3) served with process in state (tag jurisdiction), and not tricked there. Almost always jdx.
Factors to consider for constitutional analysis of personal jurisdiction
1) CONTACT: is there
a) a tie between D and the forum state
b) that results from PURPOSEFUL AVAILMENT
c) such that it was FORESEEABLE that the defendant could get sued in that forum?
2) RELATEDNESS: Specific or General Personal Jdx?
3) FAIRNESS: Weigh:
a) the CONVENIENCE of the forum,
b) STATE'S INTEREST in providing a forum, and
c) the PLAINTIFF'S INTEREST.
When has a defendant "purposfully availed" himself of the forum
when he reaches out ot the forum state for his own purposes. Eg. marketing a product, using the roads, causing some effect, etc.
Does the defendant need to set foot in the forum to be subject to personal jurisdiction
No
What is specific personal jurisdiction?
Plaintiff's claim arises from the defendant's contact with the forum, such that ourt may grant jurisdiction even if D had only limited contact with the form state
What is general personal jurisdiction?
Plaintiff's claim does not arise from defendant's contact with the state; available only where the defendant has continuous and systematic ties to the forum such that defendant is "essentailly at home" in the forum state.
Where is there always general personal jurisdiction over a human being?
State of domicile
Where is there always general personal jurisdiction over a business?
1) state of formation
2) principal place of business.
Can general personal jurisdiction be based solely o purchases or sales within the forum?
No, must have some physical contact
IF general personal jurisdiction exists over a D, can he be sued in that forum for claims arising in othe rjurisdictions?
YES
IF only specific personal jurisdiction exists over a D, can he be sued in that forum for claims arising in othe rjurisdictions?
NO
Is the relative wealth of the parties determinative in deciding whether a forum is convenient/fair?
No
If a D's product gets into a forum via a third party's actions, is there purposeful availment for purposes of personal jurisdiction?
Unclear. No, because they didn't send it there. yes because it makes money there....
Does Due Process guarantee the most convenient forum?
NO
If D hosts a website accessible by Ps in california, does that grant specific jurisdiction there for claims arising from the website?
Depends. Interactive websites: yes. Passive websites; no
What is the trial court in California?
Superior court; there's one in each county
Over what cases does the California superior court have subject matter jurisdiction?
Basically, any civil case. It has "general subject matter jurisdiction."
EXCEPTIONS: Federal questions over which the federal courts exercise exclusive jdx (bankruptcy, federal securities and antitrust, patent infringement)
What are limited civil cases in California?
Amount in controversy does not exceed $25,000
What are the distinctions between limited and unlimited civil cases in California, procedurally?
1) No claimant can recover more than $25,000.
2) Limited discovery only
3) cannot file a special demurrer
4) cannot get permanent injunction
5) cannot get declaratory judgment
6) Cannot determine title to land.
What are unlimited civil cases in california?
Civil cases seeking equitabl relief (injunction, declaratory judgement) or damages greater tahn $25,000.
IN a civil case, how much can each claimant recover?
Limited: no one claimant can recover more than $25,000. Unlimited: any claimant can recover any amount.
When are cases heard in small claims court?
1) Individual P with claim less than $7500.
2) Entitly P with claim less than $5000
Who determines whether a civil case is limited or unlimited, and how?
-PLAINTIFF based on "amount of the demand," OR
-"recovery sought" OR
-value of property OR
-amount of lien in controversy, NOT including attorney's fees
Does a plaintiff need to note the classification of a limited civil case on filling?
Yes
Does a plaintiff need to note the classification of an unlimited civil case on filing?
No
What happens if a case was misclassified in original filings?
Reclassified, and we move on.
How can a case be reclassified?
1) Automatic
2) on motion of any party
When will a case be automatically reclassified?
When P amends her complaint in a way that changes teh classifiction (eg. adds another $25,000 in claims), clerk of court automatically reclassifies
What is the process for reclassifying a case on motion of parties?
1) NOtice provided to all parties
2) hearing, where court must consider judicial arbitration award and may consider other materials beyond pleadings
3) If there is a possibility judgmeent will exceed $25k, may reclassify from limited to unlimited.
If Judgment is almost certain to be less than $25k, may reclasssify from unlimited to limited.
Can the court consider materials beyond the pladings in a hearing for reclassification of a case?
Yes. Can and must consider certain things (eg. judicail arbitration award)
If there are multiple claims in a single case, can some be classified as limited and others as unlimited?
No. Entire case is limited or unlimited
What rules apply for determining whether a case with multiple claims is limited or unlimited?
1) may aggregate claims of one P against 1 D to determine amount in controversy.
2) If even one claim qualifies as unlimited, entire case (and all claims) is elevated to unlimited status.
3) Cross complaints qualify as claims that may elevate a case to unlimitd status.
What is a local action case?
Cases for
1) the recovery of LAND or
2) determination of an interest in LAND or
3) injury to LAND.
Where is venue laid for locla action cases?
The county where the land lies
What is the relevant venue for state court?
relevant count
What is a transitory action?
Any case other than a transitory action
Where is the relevant venue for transitory actions in state court
-General: a county where any D resides when the case is filled.
-IN contract cases: ALSO where contract entered or to be performed.
-In Personal injury/wrongful death: ALSO where injury occurred
If all defendants are non-residents of California, but plaintiff wants to sue in california state court, what venue?
Any count in California
When is a D entitled to transfer venue to another county?
When original venue was improper, so long as motion made with or before answer, demurrer, or motion to strike
When is a court permitted, but not required, to transfer venue?
On motion of any party if:
1) there is reason to believe that an impartial trial cannot be had in the original venue OR
2) convenicne of witnesse and ends of justice would be promoted because center of gravity is elsewhere OR
3) no judge is qualified to act
In cases of voluntary/permissilbe transfer of venue, who decides where to transfer?
EITHER parties agree OR court chooses, if they cannot agree
What is te inconvenient forum doctrine?
State equivalent to forum non conveniens. State dismisses or stays a motion in the interests of substantial ustice because there is a better forum for the case in another judicial system
Can the court condition the grant of an inconvenient forum motion on D's waiver of personal jurisdictions and SoL in other court?
Yes
Who can serve process for a California civil case?
Any non party of at least 18 years old
How do you serve process for a California civil case?
-Must try PERSONAL SERVICE first.
-If personal service unavailable with reasonable dilligence, may use substituted service.
-Corporations can be served to agent, officer, or general managers, either personally or to someone apparently in charge during usual offic ehours.
What are the requirements for personal service in CA state court?
Anywhere in state, same as federal
What are the requirements for substituted service in CA state court
ONLY AVAILABLE IF PERSONAL SERVICE UNAVAILABLE.
Then may:
a)leave with a comptent member of the household
b) who is at least 18 years old
c) at D's usual abode or mailing address,
d) so long as they are informed of the contents, and
e) process is ALSO mailed to D by first-class mail.
When is substitued service deemed effective in cA state court?
10 days after mailing
what are the requirements for service by mail in California?
1) Contents: copy of summons and complaint and two copies of acknowledgement mailed to D
2) with a self addressed, stamped envelope addressed to P.
3) D has 20 days to complete and return the form
4) service deemed complete when D executes form
Is service by publication a thing in CA?
Not really; only when there is an affidavit from P's attorney that D cannot be served any other way
How do you serve process outside California for a californai state civil suit?
Any manner allowed by CA law OR by mail with paid postage and a return receipt requested. Deemed complete 10th day after mailing
Are individuals in CA exclusively to be a witness or a party in a civil ase immune from being served iwth process for a CA state civil suit?
No
In what ways are frivolous litigation attempts treated differently in state court than in federal court?
1) "Rule 11" equivalent grants 21 day safe harbor not only to motions by parties but to issues the court raises on its own
2) There is a second statute which allows the court to order a party or his attorey or both to pay expenses and attorneys fees incurred by another party because of bad faith ro frivolous tactics in litigation, after a motion and opportunity to be heard-
NO SAFE HARBOR.
What must be in the complaint in a CA state civil case?
1) statement of "ultimate facts" constituting a cause of action stated in ordinary and concise language. Must allege ultimate facts on each element of each cause of action
2) Demand for judgment to which the pleader claims to be entitled
3) if applicable, must note "limited" civil case.
4) NEED NOT ALLEGE SUBJECT MATTER JURISDICTION.
What is the difference between a claim and a cuase of action?
Cause of action: state court. Claim: federal court
If P is suing for damages, must the complaint state a specific damage amount?
Generally yes, but EXCEPTIONS:
1) in personal injury and wrongful death cases, forbidden from listing dollar amount.
2) no dollar amount allowed on punitive
How does D find out the value of a civil CA state case?
Generally, will be in the complaint. Otherwise, from statement of damages. Plaintiff obligated to provide for punitives, D can request for personal injury and wrongful death
For what types of civil cases are there heightened pleading requirements in CA?
1) Fraud
2) civil conspiracy
3) tortious breach of contract
4) unfair business practices
5) produt liability claims among multiple Ds resulting from exposure to toxins.
What should P due if P is genuinely unaware of D's identity?
Name D as a "doe" defendant, alleging that she is unawre of D's identity and stating the cause of action against htem.
What is a fictitious defendant?
Defendant of unknown identity
Can pleadings be treated as affidavits?
Only if they are "verified"
When are verified pleadings required?
1) shareholder derivative suits
2) suits against government entities
How long does D have to respond to a complaint served on them in CA state court?
30 days
How can a D respond to a complaint served on him in CA state court?
1) general demurrer: Asserts several defenses, including failure to state facts sufficient ot constitute a cause of action.
2) Special demurrer: asserts many minor defenses
3) motion to quash service of summons: lack of PJ, improper process, improper service of process.
4) motion to dismiss or stay for inconvenient forum
5) motion to strike
6) answer
How does a state court decide a motion for failure to state a cause of action?
Taking factual allegations as true and limitimg assessment ot complaint and matters of judicial notice, has P alleged facts which, if true, would entitle her to relief
Can failure to stat facts sufficient ot constitute a cause of action be raised in an answer?
yes
Is a genearl demurrer a pleading?
Yes, but acts like a motion
What is a special demurrer?
Pleading used to assert several small defenses, including:
1) uncertain, amiguous, or unintelligible claim
2) unclear about which theories of liability are asserted
3) lack of legal capacity
4) existence of another case between the same parties on the same cause of action
5) defect or misjoinder of parties
6) faiure to plead whether contract is oral or written
7) failure to file a certificate of merit
WHat is a certificate of merit?
Document required to sue arthitects, engineers, or alnd surveyors for propfessional negligence in which attorney certifies that she consulted with a professional and there is reasonable cause to file the case
Can teh defenses of a special demurrer be raised in an answer?
yes, EXCEPT failure to file a certificate of merit
what if D fails to raise a efense in their special demurrer or answer?
Defenses waived
Is a special demurrer a pleading?
Yes
When are special demurrers not available?
limited civil suits
What terminology is used to describe the outcome of a demurrrer?
Sustained/overruled
What defenses can be raised by motion to quash service of summons?
1) improper process
2) lack of PJ
3) improper service of process
What is the difference between a special appearance and a general appearance?
Special appearance does not waive defenses of personal jurisdiction, improper service, or servie of process
Is an answer a general appearance if it raises lack of PJ?
YES, so PJ waived.
-Must file separate motion to quash service of summons and answer at same time, or motion to quash first.
What happens if court denies motion to qush?
D has 15 days to file an answer or other pleading.
Is the denial of a motion to quash appealable?
yes, but must seek a "writ of mandate" within 10 days.
When can a motion to dismiss or stay for inconvenient forum be brought?
Before mtoion to quash, motion to strike, or demurrer
What is a motion to strike?
-state court party motion filed to strike any part or all of the pleading if it is irrelevant, false, or improper matter; -no certificate of merit required
What is an anti-SLAPP motion to strike?
Motion to strike in state court because complaint stems from an act taken in furtherance of exercise of a proteted right.
-D must show that cause of action arises from protected activity, then burden shifts to P to show probability of winning on the merits.
What result if D wins anti-SLAPP motion?
D can then sue back the person who sued her on malicious prosecution
What can be contained in a state answer?
1) general or patial denial (as short as 1 sentence)
2) affirmative defenses: state ultimate facts sufficient to constitute affirmative defense
When is D required to file a verified answer?
only if P filed a verified complaint
Where can D plead a recovery against P?
CROSS COMPLAINT ONLY, not answer
When must a D file a response to a complaint?
No later than 30 days after service of process is deemed complete; motion to strike does not extend time to demurr but does extend time to answer
In what document(s) can a D assert claims in a state court?
Cross-complaint.
What is a cross complaint?
State court complaints by D against another party (opposing party, co-defendant, impleaded third party).
When do cross complaints need to be filed?
1) against P: at same time as or before answer
Are there compulsory cross complaints?
Yes. Against P if arises from same transaction or occurrence
Are there compulsory cross-complaints a co-party?
No, BUT all cross-complaints must arise from same transaction or occurrence
When can a cross-complaint be filed against a third party/
Any time before trial?
Are there compulsory cross-complaints against third parties?
No
A cross complaint has been fileda gains tyou. What do you do?!?
Respond within 30 days, with any of the options available to defendants
When do parties have a right ot amend the pleading sin state court?
Plaintiff: before D files an answer or a demurer.
All parties: after demurrer but before hearin gon that issue, all parties can amend once.
With court's permission: anyone at any time
How does relation back work in state court?
Exactly as in federal
DEFINE RELATION BACK
IN BOTH STATE AND FEDERAL
How does relation back work in conjunciton with fictitious defendants?
1) Original complaint must have been filed within the statute of limtiations AND contained charging allegations against fictitious defendants.
2) P must have been genuinely ignorant of the identityfo the doe defendant
3) P pleaded ignorance in original complaint
4) IF WITHIN 3 YEARS, P substitues true D, it relates back
Are there required disclosures in federal court?
No
How does P exercise discovery powers over D?
Must get court order within 10 days after D i served with process.
What are the differences between federal and state depositions?
State: no presumptive time limit on the depositions and no limit on number of depositions.
What are the differences between state and federal interrogatories?
State:
1) form interrogatories exist approved by judicial council, and can serve unlimited numbers of those on toher parties.
2) Parties can draft their own interrogatories, but can only send 35 in an unlimited civil case UNLESS you also send a declaration of need for more.
What is an inspection demand?
A request to produce
What are the differences between requests to produce in state and federal courts?
State: cannot be used to produce information from a non-party, and can only be used to get THINGS from non parties by calling nonparty to a deposition and serving with a subpoena decus tecum UNNLESS seeking business records (subpoena only, no deposition necessary)
In state court, does a D ever have a RIGHT to demand a medical examination of P?
ONLY in personal injury cases (lawyer can accompnay physical exam, but not mental unless receives court order)
What are teh differences between state and federal requests for admissions in unlimited cases?
Same as interrogatories, except no limit on number of requests to admit the genuineness of documents
What are the didsocvery rules in limited civil cases?
1) only one deposition for each side
2) Each side can only propound a combined total of 35 interrogatories, inspection demans, and requests for admission on teh othe rparty.
3) additional discovery only available with court order
in state court, does a witness/party have a duty to supplement discovery responses?
NO
How can an opposing party find out if answers to discovery responses may have changed since they were given?
Must propound "supplemental interrogatories".
How many supplemental interrogatories can each party propound?
2x before trial date set, 1x after trial date set
What is the scope of discovery in state court?
Anything relevant to the subject matter involved in teh pending action
Are privileged matters discoverable in state court?
No
Are priv logs requried in state court?
yes
How does the CA constitutional right to privacy interact with discovery rights of a party in a civil suit?
Court must balance need for info v. need for privacy
What work product is protected from discovery in CA courts?
-ONLY work product generated by attorney of their agent in anticipation of litigation.
-Pro se litigants can protect work taht would have been WP if done by an attorney.
What information about expert witnesses are discoverable in state courts?
At any time, any party may request the simultaneous exchange fo exeprt witness info, including list of experts to be called at trial, nature and substance of the testimony, expert's qualifications, and reports by testifying experts; testifying experts are subject to deposition. Consulting experts NOT discoverable
What result if party refuses to comply with discovery rules in state court
Same as in federal court, except when a party seeks sanctions, it must state the sanction sought
Who are the proper plaintiffs and defendants in a california civil case?
Same as federal court
Who may be joined with permissive joinder in a california civil case?
Same as federal corut
Who are the necessary and indispensible aprties in a california civil case/
Same as federal court
Who can be joined through impleader in state court?
NO ONE. Cross complaints instead.
Who can intervene in a law suit in state court?
ALmsot same as federal corut, except applicant must have an interest in the matter in litigation or in the success of either of the parties.
How does interpleader work in california?
Same as in federal court, but unclear whether interpleader may claim she owns the property interpleaded.
What are the requirements for a class action in California courts?
1) ascertainable class
a) well-defined community of interest, as determined by whether
b) common questions predominate,
2) representative is adequate,
3) class will result in substantial benefit to teh parties and the court
Are there different types of class actions in state court?
No. Just a class action
How can notice be given to the class in state court?
Publication is sufficient. individual notice not required, and court decides who pays.
Does the court have to appoint class counsel in state court?
No
Requirements to settle or dismiss a class action in state court
Court approval
How is the amount in controversy calculated in a state court class action?
AGGREGATE the claims of all plaintiffs (DIFFERENT FROM FEDERAL COURT)
When does court have discretion to dismiss a CA state court case?
1) if a case has not been brought to trial OR
2) D is not served with process within 2 years of filing
When is dismissal mandatory in state court?
1) not brought to trial within 5 years of filing (exclude time when all proceedings were stayed) OR
2) process is not served within 3 years after filling (exclude time when any stay affected service.)
When will a default jdugment be entered against the defendant?
If D fails to respond to complaint within 30 days of service of process becoming effective. Very similar process to federal court
What kind of relief can plaintiff win in default judgment?
No more than or different in kind from that which was demanded in the complaint.
When can a default judgment be entered bythe clerk without a judge's involvement/
1) D made no response AND
2) claim is on a contract or judgment AND
3) certain sum of money at issue AND
4) D was not served by publicatio AND
5) P provides an affidavit stating relevant facts
What is the standard for summary judgment in state court?
Same as federal court
What is the timeline for filing papers for summary judgment in fstate court?
-Moving party must serve all papers 75 days before hearing.
-Opposition papers must be in 14 days before hearing.
-Reply papers must be in 5 days before the hearing.
What is a case management conference?
-State court proceeding required by rules of court.
-Case management conference held within 180 days of filin gthe complaint, wher court reviews service, pleadings, discovery issues, problems with discovery, appropriateness of ADR, settlement, trial date, etc.
- Parties must first meet and file a case management statement
What kind of relief can plaintiff win at trial?
Whatever the evidence will support, except that in limited civil cases, no one claimant can win more than $25,000
When do you have a right to a jury trial in state court?
-For causes of action in law but not in equity.
-If combined quesiton, jury decides questions of law and judge on equity, but EQUITY FACTS TRIED FIRST.
-If damages are merely incidental to equity cause of action, no jury right.
How many jurors are on a civil jury in state court?
12, unless otherwise agreed to. Alternate jurors used in case of illness
How many peremptory challenges does each party have in voir dire in state court?
6
How many challenges for cause does each party have in voir dire in state court?
unlimited
What are the limits on the use of peremptory challenges in state court?
May not be used on:
1) race
2) color
3) religion
4) sex
5) national origin
6) sexual orientation
7) similar grounds/protected classes
How many jurors must agree on a verdict in state court?
75%
What is the standard for a motion for directed verdict in state court?
reasonable people coudl not disagree as to the result
When can a party move for a directed verdict in state court?
Close of all evidence
What is amotion for non-suit?
Motion for directed verdict made at the close of P's opening statement or at close of P's evidence ins tate court
What is a judgement notwisthstandig the verdict?
State equivalent of renewed motion for judgemtn as a matter of alw. Jury reached a conclusion reasonable peopel coudl nto have reached
When must a party move for a judgment not withstanding the judgment?
15 days of mailing service or notice of entry of judgement or 180 days after entry of judgment
In state court, does a party moving for JNOV have to also move for a directed verdict at trial>
No
When does a party need to move for a new trial?
15 days of mailing service or notice of entry of judgement or 180 days after entry of judgment
What is the standard for granting a motion for a new trial?
Moving party can show that there was an error at tiral that has resulted in a miscarriage of justice (eg. excessive damages that "shock the conscience")
What is a remittitur?
Court plays hardball with P because they received excessive damages;
P can choose whether court orders new trial or P accepts a lesser damage measure
What is an additur?
Court plays hardball with D because jury awarded shockingly little damages; D can choose whether cour tordrs new trial or D pays greater damages
IS remittitur available in state court?
yes
Is remittitur available in federal court?
yes
IS additur available in state court?
Yes
IS additur available in federal court?
NO. Unconstitutional
What is the motion to set aside judgment?
Motion to set aside judgemnt because of mistake, inadvertence, surprise, or excusable neglect. Must include affidavit of fault demonstrating mistake.
What is the result of a motion to set aside jdugment?
Judgement, set aside, and other paryt must pay expenses and attorneys fees
When can you bring a motion to set aside jdugement?
Not more than 6 months afer entry of judgment
When do appeals need to be filed in state court?
1) 60 days after mailing or service of the notice of entry of judgment OR
2) 180 days after entry of judgment if no notice served
To what court are CA civil cases appealed?
-Unlimited: Court of Appeal of the district where superior case is located.
-Limited: appellate department of superior court
When can you appeal a civil case in California?
Merits of the entire action are resolve OR, if multiple Ds, judgement as to one of the parties is a final judgement.
Wen are interlocutory apeals available in state court?
1) Grant of motion to quash service of summons
2) grant of dismissal or stay of case for forum non conveniens
3) grant of new trial
4) denial of motion for JNOV
5) denial of certification of an entier class action
6) granting, dissolving, or refusing to grant or dissolve an injunction
7) Directing a party or attorney to pay monetary sanctions over $5000.
8) Collateral order doctrine: issue is collateral to merits of the case, court has fully decided that issue, and directs payment or perormance of act.
what is an extraordinary writ?
Party seeks a writ of mandate or prohibition from court of appeals
What is the standard for an extraordinary writ?
1) party will suffer irreparable harm if the writ is not issued AND
2) normal route of appeal ffrom final jdugement is inadequate AND
3) party has a benefician interest in the outcome of the writ proceeding
When is the extraordinary write the only way to seek review by an appeallate court?
Denial of a motion to quash?
when faced with a question of preclusion, which court system's rules about preclusion govern?
The SYSTEM that decied the first case's law will govern
If a judgement in case 1 is on appeal or still appealable, is that judgment entiteld to preclusie effect?
Federal: Yes
CA: No
Who is repsonsible for raising issues of preclusion?
D msut raise in her answer, because they are affirmative defenses
Where are preclusion issues usuall raised on the bar exam?
At summary judgment
what is the principle of claim preclusion?
You only get to sue on a cause of action ro claim once.
What is res judicata?
Claim preclusion
What is collateral estoppel?
Issue preclusion
What are the requirements for claim preclusion/res judicata?
1) C1 and C2 were brought by the same claimant against hte same defendant
2) C1 ended in a final judgment on the merits
3) C1 and C2 asserted teh same cause of action/claim
What is a final judgemtn on teh merits?
Any final judgment, unless based on:
1) jurisdiction
2) venue
3) indeispensible parties OR
4) the court notes otherwise
What defines a claim for purposes of federal preclusion law?
One claim per transaction or occurence
What efines a "cause of action" for purposes of CA preclusion law?
One cause of action per primary right invaded (bodily invasion, property invasion, etc.)
If D has violated a contract multiple times, does that result in a single cause of cation/claim or multiple?
JUST ONE in both federal and state court
What is the principle of issue preclusion?
Precludes relitigation of a particular issue litigated and determined before; NARROWER than claim preclusion
What are the requirements for issue preclusion/collateral estoppel?
1) C1 ended in a valid and final judgment on the merits. AND
2) IIQ (issue in question) was actually litigated and determined in C1 AND
3) IIQ was essential to the judgment in C1 (without that issue, the judgment woudl have been different) AND
4) Issue preclusion may only be asserted against one who was a party to C1 (or represented by a party) AND
5) asserted by someone who was a party in C1 (unless mutuality abandoned)
Must there be actual litigation for claim preclusion to come into effect?
NO
Must there be actual litigation for issue preclusion to come into effect?
YES
What is "mutuality?"
ONly someone who was a party in C1 can use issue preclusion in C2; optional doctrine
What is non mutual defenssive issue preclusion?
Issue preclusion used by a defendant in C2 who was not a party in C1.
When is nonmutual defensive issue preclusion permitted?
Under federal and state law, allowed when the person against whom it is being asserted had a full chance to litigate the issue the first time
What is nonmutual offensie issue preclusion?
Asserted by the P2 in C2 against D, and P2 was not a party in C1
when is nonmutual offensive issue preclusion permitted?
Under federal and state law, allowed only if it is "fair," based on:
1) full and fair opportunity to litigate the issue in C1
2) D could foresee multiple suits
3) P2 could not easily have joined C1, and
4) There are no inconsistent judgments on the record.
Top 8 issues to focus on:
1) Personal jurisdiction
2) federal subject matter jurisdiction
3) Defendant's response options
4)D Defendant's claims
5) Different pleading theories (notice pleading v. fact pleading)
6) Class actions
7) trial and motions
8) preclusion
Professor's Phone Number
404-727-6838
Easy cases for federal personal jurisdiction?
1) domiciled in the forum
2) consents to personal judx
3) served with process in state (tag jurisdiction), and not tricked there. Almost always jdx.
What are the SNEED sanctions, and when do they come into play?
1) Strike the pleadings of the disobedient party
2) No Evidence presentable at trial by disobedient party regarding the issue in question
3) Establish the facts in question as true by judicial decree.
4) Dismiss plaintiff/s case or eter default judgment against D in cases of bad faith.
Sanctions for certain discovery violations