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347 Cards in this Set
- Front
- Back
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Six major topics
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Right court, learning about case; complex cases; adjudication; appellate review; effective judgment
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In terms of "right court," federal courts need …
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personal jurisdiction, subject matter jurisdiction, venue
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Federal courts can hear only ________ or ___________ types of cases.
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federal question… diversity
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Diversity requires:
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Action must be between citizens of different state (or citizen and alien) AND the amount in controversy must > $75K
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Complete diversity - there is no diversity if…
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any P is citizen of the same state as any D.
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How to determine litigant's citizenship, if litigant is person?
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Domicile (physical presence in state, plus subjective intent to make it her permanent home)
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Every person has ________ domicile
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one, and only one
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Diversity is tested at time case is ______
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filed
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If P moves states in order to sue under diversity in federal court, is there diversity?
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Yes, *if* P had the subjective intent to make the new state her permanent home
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How to determine litigant's citizenship, if litigant is corporation?
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State where incorporated AND the one state where the corporation has its principal place of business
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A corporation can have _______ state of citizenship; and _______ PPB.
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more than one; only 1
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Jim Cramer, Inc. (inc. in PA, PPB NJ), sues Booyah Corp. (inc. in Del, PPB PA). Is there diversity?
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No - both have PA citizenship
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To determine PPB, two tests:
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Nerve centers (where decisions are made, usually HQ); Muscle center (where corporation does most work). Usually, use nerve center, unless all corporate activity is in one state
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How to determine litigant's citizenship, if litigant is unincorporated association (partnership, llc, etc.)?
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state of citizenship of all the members, including GPs and LPs
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How to determine litigant's citizenship, if litigant is decedent, minor, incompetent?
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Based on their citizenships, not the citizenship of their representatives
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Is there diversity if P's claim is $75k?
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No
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How to determine amount of controversy?
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Whatever the plaintiff pleads in good faith is OK, unless it is clear to a legal certainty that she cannot recover more than $75 (e.g., statutory ceiling)
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What P wins is __________ to jurisdiction, but if P wins less than $75K, she …
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Irrelevant… may have to pay the winner's litigation cost.
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P can aggregate claims to > the $75 limit, if __________.
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one P v. one D.
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For joint claims (P v. joint tortfeasors) establish diversity based on ____________ claim. Why?
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the total value of the … because any one of them could be liable for the total amount.
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To establish the amount in controversy in equitable suits for injunctive relief…
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two tests; either can suffice: Does harm cost P > $75K (or decrease value of P's property, etc.), or, would it cost D > $75K to comply with injunction?
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Cases federal courts won't hear, even if diversity requirements are met:
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Actions involving issuance of divorce, alimony or child custody degree, or to probate an estate
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For federal question jurisdiction, P must meet the ___________, meaning that __________.
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well-pleaded complaint rule … P's claim, properly pleaded, must arise under federal law - i.e., is P enforcing a federal right?
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Is citizenship/amount in controversy relevant in a federal question case?
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No
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Once a case is in federal court, test whether ___________ meets federal question or diversity jurisdiction; if not, P needs ____________.
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every single claim … supplemental jurisdiction.
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What is the test for federal supplemental jurisdiction?
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A claim must share a "common nucleus of operative fact," with the claim that invoked federal subject matter jurisdiction - this is always met by claims that arise from the same transaction or occurrence as the underlying claim.
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What is the limit for supplemental jurisdiction?
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In a diversity case, P may not use supplemental jurisdiction to overcome a lack of diversity.
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Can P use supplemental jx to overcome a lack of diversity for a claim in a federal question case?
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Yes.
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P(CA) sues D(CA) for (1) violation of federal antitrust laws and joins a transactionally related claim for (2) violation of state antitrust laws. OK?
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Yes. Claim 2 can invoke supplemental JX - it meets the test and the limitation for diversity cases does not apply because this is a federal question case.
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P may use supplemental jx to overcome ____________ in a federal diversity case.
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A lack of amount in controversy - but not a lack of diversity
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_____________ can use supplemental JX to overcome either a lack of complete diversity or amount in controversy in any case (diversity or FQ).
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Any party but P
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A non-federal, non-diversity claim can be heard in federal court if _______________, unless it is __________, ______________, AND _______________.
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it meets the test for supplemental jurisdiction (common nucleus of operative fact - i.e., same transaction/occurrence)… asserted by a P, in a diversity case, AND would violate complete diversity.
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Courts have discretion not to hear the supplemental claim…
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if the FQ is dismissed early in the proceedings, or if state law claim is complex, or if state law issues would predominate.
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Removal allows ____________ to have a case filed ________ to ____________,
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Defendants (only) … in state court … to a federal court.
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If removal is improper…
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federal court can remand to state court.
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D can remove a case if __________.
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if it could be heard in federal court - that is, it would invoke diversity or federal question.
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Where can a case be removed?
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To the federal district embracing the state court in which the case was originally filed.
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When can a case be removed?
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No later than 30 days after SERVICE of the first removable document (usually service of process)
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Must all defendants agree to remove a case?
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Yes.
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When can P remove a case to federal court?
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Never never never.
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P(PA) sues D(CA) in Pennsylvania state court for tort damages of $500,000. Can D remove?
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Yes - there is diversity.
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P(GA) sues D-1(CA) and D-2 (Alabama) in an Alabama state court for $500K - NOT on a federal question. Can D-1 and D2 remove?
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No removal if any defendant is a citizen of the forum.
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P(GA) sues D-1(CA) and D-2 (Alabama) in an Alabama state court for $500K - NOT on a federal question. Later, P dismisses the claim against D-2. Can D-1 remove?
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Yes, within 30 days from service of dismissal of D-2. BUT in a diversity case, there is no removal >1 year after the case was filed in state court.
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What permission does D need to remove the case?
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None
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If removal was procedurally improper, P…
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must move to remand to state court within 30 days of removal.
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Erie doctrine -
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In diversity cases, federal court must apply state substantive law.
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State law is substantive, and so governs in a diversity case on these settled issues:
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Elements of a claim or defense, statute of limitations, rules for tolling statutes of limitations, and conflict/choice of law rules.
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If it's unclear whether state law is substantive, ask…
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is there a federal law on point that directly conflicts with state law? If so, federal law wins.
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A FRCP is valid if it is …
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"arguably procedural" - none has ever been ruled invalid
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If state law is not clearly substantive, and there is no federal law on point, but federal judge wants to do something other than follow state law, 3 tests:
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Is state rule outcome determinative? If so, state rule is probably substantive. Balance of interests? (Does either federal/state system have strong interest in having its rule applied?) Avoid forum shopping (If Federal court ignores state law on this issue, will it cause parties to flock to federal court? if so, generally apply state law)
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Venue tells
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exactly which federal court
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Local actions, about ___________, must be filed _____________.
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ownership, possession or injury to land … in the district where the land lies.
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If it's not a local action, it is called
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transitory
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In any transitory case, P may lay venue in …
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any district where ALL Ds reside (or if all Ds reside in different districts of the same state, P can lay venue in the district in which any of them resides), or a substantial part of the claim arose.
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Human beings "reside" for purposes of venue…
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in the same state where they are domiciled
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Corporations reside for purposes of venue…
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in all districts where they are subject to personal jurisdiction when the case is filed.
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Venue can only be transferred…
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to a district where case could have been filed (i.e., proper venue and personal jx over D)
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Court has discretion to order transfer of venue based upon…
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public factors (what law applies, what community should be burdened w/ jury service), and private factors (convenience, e.g., where witnesses and evidence are).
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The court to which the case is transferred under a change of venue applies…
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choice of law rules of the original court (even if P sought the transfer)
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If venue in original forum is improper, court may transfer…
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in the interests of justice or dismiss
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What is forum non conveniens?
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If there is a far more appropriate court elsewhere, a court may dismiss (usually w/o prejudice) to let P sue D there
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Why does a court dismiss for forum non conveniens?
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Because the more appropriate court is one to which transfer is impossible because it is in a different judicial system (e.g., a foreign country)
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Does it matter for forum non conveniens that P may recover less than in the other court?
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Not determinative
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FNC dismissal is almost never granted if…
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P is resident of the present forum.
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__________gives notice to D of the case
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Service of process
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Service of process involves ___________ documents: ______________.
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two… a summons (formal court notice of suit and time for response) and a copy of the complaint = process
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Process must served _________
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within 120 days of filing the case, or else the case is dismissed w/o prejudice, unless P shows good cause for delay in serving
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Who can serve process?
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Any nonparty at least 18 years old.
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How is process served?
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Personal service, substituted service, service on D's agent, State law, waiver by mail
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Where may personal service be given?
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Anywhere in the forum state.
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How may substituted service be served?
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OK if its D's usual abode, and if P served someone of suitable age and discretion who resides there.
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Serving process on D's agent is OK…
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as long as receiving service is w/I the scope of the agency
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How does waiver by mail work?
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Process is mailed to D by first class mail, posted prepaid - OK if D returns waiver w/I 30 days. D waives only formal service of process. If D does not send waiver form back, P must serve her using other methods and D may be required to pay the cost of service.
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Process delivered to D in another state is allowed …
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only if the forum state law allows.
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When does D have immunity from service?
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If D is served for a federal civil case, while in state to be a witness or party in another civil case.
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Once process is served, subsequent papers may be served…
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by delivering or mailing the document to the party's attorney; if mailed, add 3 days for any required response.
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Federal pleading is…
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notice pleading
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_____________ requires attorney or pro se party to sign _____________, except ____________.
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Rule 11… to sign all pleadings, written motions and papers … discovery documents.
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Under Rule 11, the signor certifies that …
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paper is not for any improper purpose, legal contentions are warranted by law; factual contentions and denials have evidentiary support (or are likely to after further investigation)
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Rule 11 certification is …
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continuing - it is effective every time a position is "presented" to the court.
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Rule 11 sanctions are intended to _____________, not to ___________; they can be non-___________.
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deter, not punish; they can be non-monetary.
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Rule 11 procedure:
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Rule 11 motion is served on other parties but not immediately filed with the court; other party has 21 day safe harbor to withdraw document of fix problem; if not, motion can be filed. BUT if documents filed by court, no safe harbor.
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Can court raise Rule 11 problems sua sponte?
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Yes - and if so there is no safe-harbor
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Filing ___________ commences an action.
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the complaint
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Requirements for the complaint:
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statement of subject matter jurisdiction; short and plain statement of the claim, showing that P is entitled to relief; demand for judgment.
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What is the standard for notice pleading?
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Facts supporting a plausible claim
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Special matters, including _______________ must be pleaded with _____________
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fraud, mistake, and special damages (do not normally flow from event - e.g. permanent erection)… particularity or specificity
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D may respond to complaint either ____________; either must be _______ or risk _______.
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by motion or answer… within 20 days after service of process… default
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Motions of form include…
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motion for more definite statement (pleading is so vague, D can't frame a response); motion to strike - e.g., immaterial things
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Rule 12(b) defenses include:
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(1) Lack of SMJ; (2) Lack of PJ; (3) improper venue; (4) insufficiency of process; (5) insufficient service of process; (6) failure to state a claim; (7) failure to join indispensable party
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Which rule 12(b) defenses may be raised either by motion or answer?
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All of them.
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Which rule 12(b) defenses are waivable?
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2-5: (2) Lack of PJ; (3) improper venue; (4) insufficiency of process; (5) insufficient service of process
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Waivable 12(b) defenses _______________
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must be included in the first piece of paper, or else they are waived
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Which rule 12(b) defenses can be raised any time at trial?
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(6) failure to state a claim; (7) failure to join indispensable party
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Which rule 12(b) defense is never waived - can be raised even on appeal?
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(1) Lack of SMJ
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Answer must be filed
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within 20 days after service of process, or within 10 days after court denies a Rule 12 motion - unless D waived service, in which case D has 60 days from P's mailing of waiver form to answer
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An answer must:
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respond to the allegations of the complaint (admit, deny, state that lack sufficient information to admit/deny); raise affirmative defenses
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Stating that D lacks sufficient information to admit or deny acts as a _______; D can't use if ___________
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denial… the information is public knowledge or within D's control
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Failure to deny can constitute __________ on any matter except ___________.
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an admission… damages.
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If D says "P can't prove X," has P denied X?
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No - use the word deny
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What does an affirmative defense state?
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Even if P is correct, P cannot win - e.g., statute of limitations, statute of frauds, res judicata, self defense.
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If D does not plead an affirmative defense, D …
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risks waiving the affirmative defense.
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A counterclaim…
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is a claim against an opposing party (e.g., D v. P)
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A counterclaim must be filed…
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with D's answer
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Two types of counterclaims:
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Compulsory (arises from same T/O as P's claim; must be filed in pending case or else it's waived FOREVER); Permissive (arises from different T/O; may be asserted in pending case or later)
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What is the only compulsory claim in federal court?
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Counterclaim
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If P sues D, D answers P and then sues P later related to same T/O, what result?
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D's case is dismissed because it's a compulsory counterclaim.
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If P sues D, D moves to dismiss; motion granted. Later, D sues P later related to same T/O, what result?
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D's case stands, because since D never had to file an answer in the first case, D never had to file the counterclaim
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If counterclaim is procedurally OK, assess … if that doesn't work, it will be OK through _________.
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SMJ .. Supplemental jurisdiction.
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A cross claim is a claim against a…
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co-party
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Cross claims ___________ arise from ______________.
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must … same transaction as the original claim
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Which cross claims are compulsory?
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None
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P has a right to amend once before ________
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D serves his answer.
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If P amends, D must respond…
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within 10 days or the amount of time remaining on his 20 days, whichever would be longer
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D has a right to amend once _________
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within 20 days after serving his answer.
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If there is no right to amend…
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seek leave of court; it will be granted if justice so requires, based on delay and prejudice.
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Variance is where ___________ does not match __________.
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evidence at trial… what is pleaded.
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If D does not object to a variance, what happens?
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Evidence at variance with the pleadings is admitted; after trial, P can amend pleadings to conform to the evidence.
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If D does object to a variance, what happens?
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Evidence at variance with the pleadings is inadmissible
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Amended pleadings to add claims ______________if they concern ______________ as the original pleading.
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relate back… same conduct, transactions or occurrence
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Relation back means __________
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you treat the amended pleading as if it was filed when the original was filed, so it can avoid a statute of limitations problem.
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Amended pleadings to change defendants relate back if…
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it concerns the same conduct, transaction, or occurrence as the original, the new party knew of the action within 120 days of its filing, and she also knew that but for a mistake, she would have been named originally.
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Amendments to change defendants relate back in this factual situation, only:
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P sued the wrong D first, but the right D knew about it.
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Required disclosures in discovery involve
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initial disclosures, experts, pretrial
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Discovery tools may not be used until after _____________, unless _______________.
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Rule 26(f) conference … court order or stipulation allowed
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What is a key issue about discovery tools?
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Which can be used to get info from non-parties.
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Which discovery tools can be used to get info from non-parties?
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Depositions (but non parties must be subpoenaed); requests to produce (if non-party subpoenaed)
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What is a subpoena duces tecum?
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A subpoena that requires deponent to bring documents
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Interrogatories
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only go to parties, answered in writing under oath, response required w/I 30 days
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Physical or mental exams are the only discovery tool that requires…
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court order, on a showing that the health of the parties, or someone in the party's control, is in actual controversy and there is "good cause"
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The standard for scope of discovery:
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can discover anything relevant to a claim or defense (i.e., something in the pleadings)
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Relevant for discovery means:
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Reasonably calculated to lead to the discovery of admissible evidence
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Which is broader in discovery: relevant or admissible?
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Relevant
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___________ is not discoverable, but party objecting must ___________
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Privileged matter … object with particularity
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Most heavily tested topic in discovery is
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work product, aka trial preparation materials
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Work product is
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material prepared in anticipation of litigation
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Work product is generally protected from discovery unless…
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proponent shows substantial need and info is not otherwise available
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Work product is absolutely protected from discovery if it is
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mental impressions, opinions, conclusions, and legal theories
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Does work product have to be generated by a lawyer?
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No - a party or any representative of a party may generate work product
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Three ways to enforce discovery rules:
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Protective order (request is overburdensome, involves trade secrets, etc.), partial violation (light sanction); total violation (heavy sanction)
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A party seeking discovery sanctions must…
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certify to the court that she tried in good faith to get the info without court involvement
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Are there sanctions if a party fails to produce electronically stored information because it was lost in the operation of an electronic info system?
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not if info was lost in good faith
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In partial violations, sanctions are in two step:
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Order compelling party to comply + costs of bringing motion; if party violates that order, RAMBO sanctions plus costs, could be held in contempt (unless problem is refusal to submit to medical exam)
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In total violations, sanctions are in one step:
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Rambo plus costs - no need to get order compelling answers
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RAMBO sanctions give judge choices of:
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establishing facts as true, striking pleadings of the disobedient party (as to issues re the discovery), disallow evidence from the disobedient party (as to discovery issues), dismiss P's case (if bad faith), enter default judgment against d (if bad faith)
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Who may be joined as co-plaintiffs?
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Parties whose claims (1) arise from same T/O; and (2) involve at least one common q.
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Who may be joined as co-defendants?
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Parties, when claims against them (1) arise from the same T/O and (2) involve at least one common question
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What to do after deciding whether a party may be joined as a co-party?
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Assess SMJ
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When are absentees required to join the case?
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When Absentee meets any of these tests: Without A, court cannot accord complete relief (fear of multiple suits); A's interest may be harmed if A isn't joined (practical harm) or A claims an interest that subjects a party (usually D) to multiple obligations; Practical Harm is most tested on Bar Exam
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Are joint tortfeasors "necessary parties?"
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NO
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Necessary and indispensible parties involves assessing:
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Who's required, Can A be joined? If A cannot be joined, what happens…?
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Whether a necessary and indispensible party can be joined depends on …
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whether joinder is feasible - PJ, diversity?
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If A cannot be joined, the court may
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proceed without A or dismiss the case. Courts consider alternative forum (look for state court), actual likelihood of prejudice, whether court can shape relief to avoid that prejudice
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What happens if court decides to dismiss rather than proceed without A?
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A is "indispensible."
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Joinder rules that start with _____ are claims between present parties
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C - e.g., counterclaim/cross claim
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Joinder claims that start with ____ involve bringing someone new to the case
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Impleader, Intervention
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Impleader is
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used by defending party to bring in 3d party who may owe indemnity or contribution to D on underlying claim
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D may implead by right _______; after that ____________.
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within 10 days after serving answer… need court permission
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How to implead:
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file 3d party complaint naming 3d party as TPD; serve process on TPD (so must have personal jx)
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Can a plaintiff assert a claim against a TPD?
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Yes, if that claim arises from the same transaction or occurrence as the underlying case, and there is SMJ, or through supplemental jx
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After TPD is joined, can TPD assert a claim against P?
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Yes, if that claim arises from the same transaction or occurrence as the underlying case, or through supplemental jx
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Initial requirements for class action:
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Numerosity (too many class members for practicable joinder), commonality (some questions of law or fact in common to the class), typicality (representative's claims/defenses are typical of those of the class), and representation is adequate (the class rep will fairly and adequately represent class)
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Prejudice class action:
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Class treatment is necessary to avoid harm either to class members or the party opposing the class
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Injunction/declaratory judgment class action (not for money damages)
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Equitable relief sought because class was treated alike by other party (e.g., unemployment discrimination)
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Damages class action
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Common questions predominate over individual questions, and the class action is the superior method to handle the dispute - MOST LIKELY TO BE TESTED - e.g., mass tort
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Court must determine _____ whether to ______ the case as a class action
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at an early practicable time… certify
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If the court certifies the class, it must ____________
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define the class and the class claims, issues or defenses, and appoint class counsel
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Class counsel must ____________________-
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fairly and adequately represent the interest of the class
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Does the court notify the class of pendency of the class action?
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In a damages class, the court MUST notify class members, including individual notice (usually by mail) to all reasonably identifiable members
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What must class action notice tell class members?
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They can opt out; they'll be bound if they don't; they can enter a separate appearance through counsel
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Who pays to give class notice?
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Class action rep
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Who is bound by a class action judgment?
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All class members except those who opt out of a Type 3 class
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Settlement or dismissal of a certified class action requires…
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court approval; court will give notice to class members to get feedback on whether the case should be settled/dismissed; in a damages class action, court must give members a 2d shot at opting out
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Class action and SMJ:
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Fed Q works; Diversity, look only to rep and not to other class members to determine diversity and amount in controversy
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Voluntary dismissal…
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may be allowed on court order (and P may have to pay for D's costs); sometimes P may simply file a written notice of dismissal
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P may voluntarily dismiss by written notice without prejudice …
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before D serves her answer or a motion for summary judgment.
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Voluntary dismissal means…
|
P can refile the case
|
|
|
If P refiles a case and dismisses it by written notice…
|
claim can never again be reasserted - dismissal is with prejudice
|
|
|
If first dismissal is in state court, P refiles in federal court and files voluntary dismissal by written notice…
|
dismissal counts as 2d dismissal even though first case was in state court; P may never again refile because dismissal is with prejudice.
|
|
|
Standard for Rule 12(b)(6) motion:
|
Court assumes all allegations are true; if P proved everything she alleged, would she win a judgment?
|
|
|
In ruling on a Rule 12(b)(6) motion, court considers…
|
only the face of the complaint; not evidence.
|
|
|
Court will likely grant a 12(b)(6) without prejudice to …
|
give P another chance to say complaint
|
|
|
P's complaint sets forth elements of a claim, but also on its face shows that there is a complete defense that bars the claim, will a 12(b)(6) motion be granted?
|
Yes - standard is, if everything P says in complaint is true, motion granted
|
|
|
What's the term for a motion for failure to state the claim if D has already filed his answer
|
Motion for judgment on the pleadings
|
|
|
Motion for summary judgment must show
|
No genuine dispute as to material issue of FACT, and that she is entitled to judgment as a matter of law
|
|
|
Can a party move for partial summary judgment?
|
Yes
|
|
|
What can court consider in motion for summary judgment?
|
Evidence - which it considers in the light most favorable to the moving party
|
|
|
Why is there ever a trial?
|
To resolve disputes of fact
|
|
|
Pleadings are _______ evidence, unless _______, but they may be relevant to a motion for summary judgment if they __________
|
NOT… they are verified… show an admission
|
|
|
Evidence in affidavit for summary judgment must be …
|
firsthand knowledge
|
|
|
If firsthand evidence creates a dispute on a material issue of fact…
|
summary judgment cannot be granted
|
|
|
The final pre-trial conference determines…
|
issues to be tried and evidence to be proffered
|
|
|
Pretrial conference order ______________ and may be amended _____________ (or by ___________)
|
takes the place of the pleadings… to prevent manifest injustice… or by conforming to evidence if evidence beyond the pretrial conference order is proffered and not objected to
|
|
|
The final pretrial conference order is a roadmap of…
|
issues to be tried and evidence to be proffered, names of witnesses, etc. there are no surprises at trial.
|
|
|
Juries determine ________ and are instructed on ______ by _______
|
facts… the law… the judge
|
|
|
Seventh amendment (only in federal court) preserves the jury in
|
civil actions at law
|
|
|
If a case involves both law and equity, the jury hears
|
only issues of law; equity issues are tried subsequently, before the judge
|
|
|
Party must demand a jury trial _______ no later than ___________ after service of the last plea that raises a jury triable issue
|
in writing … 10 days
|
|
|
In selecting jurors, each side gets ________ strikes for cause; _______ peremptory strikes, which must be used in a _____________
|
unlimited … three … race and gender neutral way
|
|
|
Is jury selection in civil trials state action?
|
Yes
|
|
|
No fewer than ______ jurors and no more than ____; _______ alternate jurors
|
6… 12 … 0
|
|
|
Granting a ______________ takes the case away from the jury
|
motion for judgment as a matter of law
|
|
|
A JMOL can only be brought
|
after the other side has been heard at trial
|
|
|
The standard for granting a JMOL is…
|
reasonable people could not disagree on the result
|
|
|
Renewed motion for judgment as a matter of law (formerly judgment notwithstanding the verdict) means…
|
court finds that the jury reached a conclusion that reasonable people could not have reached
|
|
|
What is a prerequisite for a renewed motion for judgment as a matter of law?
|
Motion for judgment as a matter of law
|
|
|
When must a renewed motion for judgment as a matter of law be filed?
|
w/I 10 days after entry of judgment
|
|
|
Grant of new trial is ________ than grant of renewal motion for judgment as a matter of law, because ___________
|
less radical.. It just means the court will start over and decide who wins
|
|
|
In federal system, appeal is from federal district court to…
|
united states court of appeals
|
|
|
As a general rule, can appeal only ________, meaning
|
from final judgments, meaning an ultimate decision by the trial court of the merits of the entire case
|
|
|
Where is a notice of appeal filed, and when?
|
In the trial court, w/I 30 days after entry of final judgment
|
|
|
To determine if it's a final judgment, ask…
|
after making this order, does the trial court have anything left to do on the merits of the case?
|
|
|
Is grant of a motion for new trial a final judgment?
|
No, because the court must hold a new trial
|
|
|
Is denial of a motion for new trial a final judgment?
|
Yes
|
|
|
Is grant of motion to remand to state court a final judgment?
|
No
|
|
|
Is grant/denial of renewed motion for judgment as a matter of law a final judgment?
|
Yes
|
|
|
Is naming fictitious Ds OK in federal court, CA court, or both?
|
Only CA court (subject to rules). Never in fed court
|
|
|
Personal jurisdiction is the question of whether…
|
P can sue D in this state?
|
|
|
Requirements for personal jurisdiction:
|
satisfy a statute, satisfy the U.S. Constitution
|
|
|
Difference between PJ in CA/US -
|
none - they're the same
|
|
|
In personam jurisdiction means:
|
P wants to impose a personal obligation on D - jurisdiction is over the person, not her property, because of some contact between D and the forum state.
|
|
|
CA statutory analysis for in personam jurisdiction…
|
California's statute reaches the Constitutional limit; therefore, the only analysis we need is the Constitutional analysis.
|
|
|
Constitutional Analysis for in personam jurisdiction…
|
International Shoe: Does D have minimum contacts with the forum so that exercise of JX does not offend traditional notions of fair play and substantial justice.
|
|
|
Easy ways to satisfy International Shoe test:
|
D is domiciled in forum, or consents, or is present in forum when served with process (at least if not forced or tricked into forum) - these are "traditional bases" and almost always meet the constitution test.
|
|
|
Factors in the constitutional analysis:
|
Contact (purposeful availment, Foreseeability) + Fairness (relatedness, convenience, state's interest)
|
|
|
Purposeful availment for PJ purposes means …
|
D must reach out to forum through a voluntary act. E.g., trying to make money, using roads, causing some effect,
|
|
|
Foreseeability for purposes of PJ means…
|
it must be foreseeable that D could get sued in this forum
|
|
|
What is relatedness mean for PJ purposes?
|
Does D's claim arise from D's contacts with the forum? If so, there is specific personal jx. Otherwise, JX OK only if court has general personal jurisdiction.
|
|
|
What must be true for there to be general personal jx (i.e., when claim does not arise from D's contacts with the forum)?
|
D must have continuous and systematic ties with the forum - e.g., domicile, incorporation, doing continuous business
|
|
|
What does convenience mean for purposes of PJ -
|
Forum is OK unless it puts Ds at a severe disadvantage in the litigation - almost impossible standard - good process does not guarantee D a good/convenient court just one that's not unconstitutionally/grossly bad
|
|
|
What does state's interest mean for purposes of PJ -
|
providing a forum for its citizens
|
|
|
Sum of constitutional test for personal jurisdiction:
|
My Parents Frequently Forgot to Read Children's Stories - (MINIMUM contacts, PURPOSEFUL availment, FORESEEABILITY, FAIR play and substantial justice, RELATEDNESS of contact and claim - here, discuss both specific and general jx), CONVENIENCE, STATE'S interest)
|
|
|
Who has burden of showing lack of convenience for PJ?
|
D
|
|
|
What matters for PJ re an Internet website?
|
An interactive website may be purposeful availment, but a passive website, providing only information, in another state, is probably not a relevant contact with California
|
|
|
California trial courts are called ____________, each county has ___________.
|
Superior Courts… one Superior Court
|
|
|
Superior court has _____________ jurisdiction; thus, it can hear ______________.
|
general subject matter jurisdiction… any civil case, unless it involves a federal question cases invoking exclusive federal jurisdiction (bankruptcy federal securities, antitrust, patent infringement)
|
|
|
Classification of cases within the Superior Court include
|
Limited Civil Cases, Unlimited Civil Cases
|
|
|
A limited civil case is one in which ____________________
|
the amount in controversy is less than or equal to $25K
|
|
|
Key limitation in a limited civil case:
|
No P can recover > $25K
|
|
|
Limited civil cases are governed by statutes that limit…
|
pleadings and discovery
|
|
|
Small claims cases are heard by _____; amount in controversy limits are __________
|
a small claims division of the superior court; $7.5K or less for individuals, $5K or less for entity
|
|
|
Who determines what kind of case - limited or unlimited, and how?
|
Plaintiff, based on "amount of the demand, or the recovery sought, or the value of the property , or the amount of the lien, that is in controversy" - NOT including attorney's fees, interest or costs.
|
|
|
If P files a ______ she must note the classification in the caption of the complaint; otherwise ____________.
|
limited civil case; the case is an unlimited civil case
|
|
|
If a case is misclassified, or if the original classification should be changed because of subsequent events, what happens?
|
Case can be reclassified
|
|
|
How can a case be reclassified?
|
Automatic - clerk of court reclassifies if P amends her complaint in a way that changes the classification (by changing amount in controversy); on motion (a party/the court can reclassify; court must give notice to all parties and hold a hearing)
|
|
|
In determining whether to reclassify…
|
the court may not consider the merits of the underlying claim - the court will not try the case simply to determine classification; the court may go beyond the pleadings, considering judicial arbitration award, settlement conference statement
|
|
|
If there is a motion to reclassify, the court may reclassify from unlimited to limited when the judge is convinced that the matter…
|
will necessarily result in a verdict of $25K or less - that > $25K is virtually unobtainable
|
|
|
If there is a motion to reclassify, the court may reclassify from limited to unlimited when the judge is convinced that…
|
there is a possibility the verdict will > $25K.
|
|
|
How do multiple claims a case's classification?
|
The whole case is either limited or unlimited.
|
|
|
If P sues D for $20K in a limited civil case, D files a cross-complaint against P for $26K. What happens?
|
The entire case is reclassified as unlimited.
|
|
|
IN federal court venue is laid in ________; in state court, it is laid in _____________.
|
an appropriate federal district … an appropriate county
|
|
|
Venue for local actions:
|
For recovery of, or determination of an interest in, or for injury to real property, lay venue in the county where the land is.
|
|
|
An action is either local or ___________.
|
transitory
|
|
|
General rule for venue in CA state court:
|
Venue is OK in a county where any D resides when the case is filed.
|
|
|
Additional rule for venue in Contract cases:
|
venue is also OK in the county where the contract was entered or to be performed.
|
|
|
Additional rule for venue in personal injury or wrongful death cases
|
Venue is also OK in the county were the injury occurred
|
|
|
If D is corporation or business association, Venue is OK in the county where
|
D has its PPB, or D entered into or is to perform a contract, or where breach occurred or liability arises
|
|
|
If all Ds are non residents of CA, venue is OK
|
in any California county
|
|
|
Transfer of venue means…
|
from the superior court in one county in CA to the superior court in another county in CA.
|
|
|
If original venue is improper, D can…
|
move to transfer to a proper county, either with or before his responsive pleading
|
|
|
If original venue is property, a court may…
|
on motion transfer IF there is reason to believe impartial trial cannot be had in the original venue, convenience of witnesses and ends of justice would be promoted, no judge is qualified to act; venue transferred to a county on which parties agree or if no such county to one the court chooses
|
|
|
California's equivalent to forum nonconveniens is called
|
Inconvenient forum
|
|
|
Inconvenient forum applies when…
|
there is a far more convenient and appropriate court in a different judicial system.
|
|
|
Inconvenient forum works if..
|
on motion by party/court, state court may dismiss or stay, if it finds that in the interest of substantial justice an action should be heard in a forum outside CA.
|
|
|
if court grants motion for inconvenient forum, court may do so on condition that…
|
D waive a PJ or statute of limitations objection in the other forum
|
|
|
Who may serve process in CA?
|
Any non party who is at least 18
|
|
|
Personal service in CA is…
|
good anywhere in the state
|
|
|
Substituted service in CA is _____________ federal law
|
different from
|
|
|
Substituted service in CA may be used ________________.
|
Only when personal service "cannot with reasonable diligence" be had - must try personal service first.
|
|
|
Substitute service requirements:
|
must be made at D's usual abode or mailing address (no PO box), must be left with competent member of household who is at least 18, person must be informed of contents, and process must also mailed by first-class mail, postage prepaid to D.
|
|
|
When is substituted service deemed effective in CA?
|
10 days after mailing.
|
|
|
How do you serve process to corporations/other businesses?
|
deliver process to registered agent, or to an officer or general manager, either personally or by leaving process with someone apparently in charge at her office during usual work hours
|
|
|
If D waives service by mail, in CA -
|
D has 20 days (not 30) to return the waiver form. Service is deemed complete when D executes the waiver (different from Fed)
|
|
|
Service by publication is allowed only if…
|
D cannot be served, after demonstrating reasonable diligence to serve D in another way
|
|
|
Service outside CA can be made in any manner…
|
allowed by CA, OR by mail, postage prepaid, return receipt requested… if by mail, deemed complete 10th day after the mailing
|
|
|
Immunity from service…
|
abolished in CA, unlike Fed court. So, nonresident D may be served while in CA to be a witness or party in another civil case.
|
|
|
Service of subsequent documents
|
Can be delivered or mailed; if mailed, add 5 days to time required for response
|
|
|
California uses _________ pleading, not __________ pleading, so state courts ___________
|
fact … notice … require more detail
|
|
|
Ca's statute mirroring Rule 11 differs in this one way:
|
The 21-day safe harbor also applies when court raises issue sua sponte
|
|
|
What does CA's anti-frivolous litigation statute allow?
|
A court may order a party or his attorney or both to pay expenses and attorney's fees by another party because bad-faith or frivolous tactics in litigation
|
|
|
Frivolous/bad faith means …
|
raised something completely without merit or for the sole purpose of harassing an opposing party - must be in litigation
|
|
|
There is _____ safe harbor for frivolous litigation or tactics; there must be _________ and ___________.
|
no … a motion (by a party or the court) and an opportunity to be heard
|
|
|
California courts pleadings must include:
|
statement of facts constituting a cause of action, stating in ordinary and concise language - this means the "ultimate facts," and demand for judgment for the relief to which you're claiming to be entitled to; in a limited civil case complaint must say so
|
|
|
CA says __________, where fed court says claim
|
cause of action
|
|
|
Must a CA plaintiff allege SMJ?
|
NO (because CA courts have general SMJ)
|
|
|
If CA plaintiff seeks damages must she state the amount in the demand for judgment? General rule/exceptions?
|
Generally yes, but not in personal injury/wrongful death case, and not amount of punitive damages
|
|
|
In a personal injury or wrongful death case, how can D find out about actual/punitive damages?
|
D requests statement of damages (SOD); P must provide it w/I 15 days; P must serve her SOD on D before she can take a default
|
|
|
In a case involving punitive damages, how can D find out about amount claimed?
|
D requests statement of damages (SOD); P must provide it w/I 15 days; P must serve her SOD on D before she can take a default
|
|
|
What does "fact pleading" mean for P?
|
P must allege the "ultimate facts" on each element of each cause of action
|
|
|
Heightened pleading requirements:
|
P must plead with particularity circumstances constituting fraud, civil conspiracy, tortious breach of contract, unfair business practices, and toxic exposure product liability claims
|
|
|
Fictitious defendants -
|
P may name D as a Doe defendant; P must also allege that P is unaware of D's true identity and include a "charging allegation" against D. Later, P may be able to amend the complaint to name the Doe defendant when she discovers identity, even if after statute of limitations has run.
|
|
|
Verified pleadings are…
|
signed under penalty of perjury by the party; required in shareholder derivative suits and for suits against governmental entities; may be treated as affidavits (for use in SJ)
|
|
|
D must answer within _______ days _________.
|
30 ... after service of process is deemed complete.
|
|
|
General demurrer can be used to assert ________ defenses: _________ and ____________
|
2… P failed to state facts sufficient to constitute a cause of action, lack of subject matter jx (i.e., exclusive fed q)
|
|
|
How does a court consider a defense that P failed to state facts sufficient to constitute a cause of action?
|
like Rule 12(b)(6) - court takes all allocations as true, limits assessment to the complaint (and judicial notice). If sustained court will usually try to let P replead.
|
|
|
How else can general demurrer defenses be raised?
|
In the answer, in a motion for judgment on the pleadings
|
|
|
Is the demurrer aimed at entire complaint or individual causes of action?
|
Can be either
|
|
|
Is a demurrer considered a motion or a pleading?
|
Pleading
|
|
|
What defenses can be raised in a special demurrer?
|
Complaint is uncertain, ambiguous or unintelligible; complaint is unclear about which theories of liability are asserted against each D; lack of legal capacity; existence of another case between same parties on the same cause of action; defect or misjoinder of parties; failure to plead whether a contract is oral/written; failure to file a certificate (required for professional negligence of architects, engineers, land surveyor)
|
|
|
How else can special demurrer defenses be raised?
|
In the answer, in a motion for judgment on the pleadings
|
|
|
What if special demurrer defenses are not raised by demurrer or answer?
|
they are considered waived
|
|
|
How does the court consider special demurrer defenses?
|
As with the general demurrer, the court treats allegations as true and limits assessment to the complaint and matters of judicial notice
|
|
|
Is a special demurrer a pleading?
|
Yes
|
|
|
When are special demurrers not available?
|
Limited civil cases
|
|
|
Motions are "granted"/"denied." Demurrers are ____________ or ___________.
|
Sustained or overruled
|
|
|
Motion to quash service of summons is used to assert…
|
lack of PJ, or improper process, or improper service of process
|
|
|
Challenging PJ in a motion to __________ is called a _____________
|
quash service of summons… special appearance
|
|
|
A special appearance to challenge PJ in a motion to quash service of summons must be made _______________- or else, D ___________________.
|
before or with a demurrer or a motion to strike, or else D waives those defenses.
|
|
|
P sues D. D files an answer in which he asserts the affirmative defense of lack of PJ. What result, why?
|
D has waived lack of PJ, because an answer is a general appearance.
|
|
|
If court denies the motion to quash, the moving party can seek appellate review ______________
|
ONLY by writ of mandate from the Court of Appeal within 10 days of service of the written notice of entry of the order denying her motion.
|
|
|
Motion to dismiss or stay for inconvenient forum - what is the timing?
|
Waived if raised after a demurrer or motion to strike.
|
|
|
What can D do in a motion to strike?
|
D can move to strike all or part of a complaint if it is "irrelevant, false, or improper matter."
|
|
|
If P files a malpractice case against a professional, but fails to file the required licensed professional's certificate, D can…
|
attack the complaint with a special demurrer or move to strike the entire complaint.
|
|
|
SLAPP stands for
|
strategic lawsuits against public participation
|
|
|
Anti-SLAPP motions are motions to __________, filed by __ when _______________.
|
strike … D… P sues D for an act D took in furtherance of her free speech right, or the right to petition the government on a public issue
|
|
|
What burden does D have in an anti-SLAPP motion? What burden does P have?
|
D must show that P's cause of action arises from protected activity; then burden shifts to P to show probability of winning on the merits
|
|
|
When is anti-slapp motion not available?
|
If P's case is truly in the public's interest, or on behalf of the general public (e.g., P doesn't seek greater relief than that sought for public)
|
|
|
If D wins an anti-SLAPP motion, D can sue the person who sued her for malicious prosecution. This is called ___________-
|
a SLAPPback suit.
|
|
|
In an answer, D _________
|
responds to the allegations of the complaint (admits, denies, states lack of information, which = admission) and raises affirmative defenses.
|
|
|
In a general denial -
|
D denies each and every allegation of P's complaint - only use if true
|
|
|
In stating affirmative defenses, D must…
|
state ultimate facts sufficient to constitute an affirmative defense.
|
|
|
If D's answer is insufficient, P can…
|
demur to the answer.
|
|
|
If P filed a verified complaint, D must…
|
file a verified answer
|
|
|
Can D include demand for recovery against P in an answer?
|
no; for that, D must file a cross-complaint.
|
|
|
When must D respond?
|
D must file demurrer, answer, or other motion within 30 days after SOP deemed complete; a motion to strike does not extend the time in which to file an answer or demurrer
|
|
|
If a demurrer or motion fails, D must…
|
answer within 10 days after the ruling.
|
|
|
Claims by the Defendant:
|
Cross-complaint against P; cross-complaint against co-party; cross-complaint against third-party defendant
|
|
|
Cross-complaint must be ______________ the answer
|
a separate document from
|
|
|
A cross-complaint against P is _______ a federal counterclaim.
|
the same as
|
|
|
A cross-complaint against P must be filed __________ the answer.
|
before or at the same time as
|
|
|
A cross-complaint against P is compulsory if_______________; otherwise it is called a ____________
|
it arises from the same T/O as P's claim… cross-complaint (same name).
|
|
|
A cross-complaint against a co-party may be filed…
|
any time before the court has set a trial date
|
|
|
A cross-complaint against a co-party must _________, and is never __________.
|
arise from the same T/O as the underlying dispute… compulsory
|
|
|
A cross-complaint against a 3d party defendant is like
|
federal interpleader
|
|
|
Right to file a cross-complaint against a third-party defendant is _________ in state court; it works for ______, __________, and __________, as long as it arises from same T/O, or an interest in the controversy which is the basis of the underlying claim.
|
broader … indemnity, contribution, any claim that the TPD is liable for on the underlying case
|
|
|
Person against whom a cross-complaint is asserted must __________
|
respond w/I 30 days.
|
|
|
If a cross-complaint is asserted against one who has not yet appeared, it must be served with a __________, to get _______ over the person.
|
summons … PJ
|
|
|
P has a right to amend as a matter of course ____; P may also amend once as a matter of course __________.
|
before d files an answer or demurrer … after demurrer but before trial on the issue raised by the demurrer.
|
|
|
When can a party seek leave to amend? It is usually….
|
Anytime… usually granted unless delay or prejudice.
|
|
|
May parties conform pleadings to the evidence?
|
Yes
|
|
|
The court will usually sustain a demurrer or grant a motion to strike __________.
|
with leave to amend.
|
|
|
______is available to add new claims after the statute of limitations has run, but only if ___________.
|
Relation back … if the new claim relates to the same general facts as originally alleged.
|
|
|
Is relation back available to change a D if the statute of limitations has run?
|
Yes, if there was a misnomer - P sued wrong D and D knew.
|
|
|
Relation back is OK to name fictitious defendants…
|
if original complaint was filed before the statute of limitations ran and contained charging allegations against the fictitious defendant; P was genuinely ignorant of the identity of the Doe defendants; P pleaded that ignorance in the original complaint.
|
|
|
If P substitutes the true D within ___________ of filing, it __________.
|
three years … relates back.
|
|
|
Are there any required disclosures in CA?
|
No
|
|
|
The maximum of drafted interrogatories allowed in an unlimited civil case is ______, but ________; if then, ________.
|
35, but you can serve more with a declaration supporting the need for more… the responding party may serve a request to protective order?
|
