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333 Cards in this Set
- Front
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Juris/n
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court's power to decide a case or issue a decree
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Personal juris/n
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court's power over a particular D or item of prop
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Subj matter juris/n
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court's power over the nature of a case & type of relief sought
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Personal juris/n limited by
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1. state stats
2. Con |
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Due Process Clause requires
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1. fair & adequate notice
2. min contacts b/n D or prop so that juris/n fair & reasonable. |
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3 types of juris/n
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1. in personam
2. in rem 3. quasi in rem |
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In personam juris/n
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1. exists when forum has power over particular D
2. judmt is entitled to full faith & credit in all other states |
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In rem juris/n exists
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when the court has power to determine rights of all persons w/ respect to a particular prop.
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Quasi in rem juris/n
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1. exists when the court has power to determine the rights of particular inds w/ respect to specific prop
2. judmt does not bind D personally & cannot be enforced against D's other prop |
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Areas in wh state places statutory limits on in personam juris/n
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1. physical presence at time of personal service
2. domicile 3. consent 4. long arm stat. |
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Will immunity from personal juris/n be granted to nonresidents who are parties or wits in court?
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1. most states yes
2. CA no |
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Domicile means
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place where person has permanent home. (If person lacks capacity, law decides.)
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Consent to personal juris/n may be
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1. express or implied
2. given in advance 3. by K 4. by agent |
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long arm stats
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provide for juris/n over a nonresident D who has had contacts w/ state.
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CA's long arm stat is
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coextensive, giving its courts power over any person or prop which the state can CONSTITUTIONALLY EXERCISE POWER.
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Con limits in personum juris/n by requiring
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1. sufficient contacts
2. notice |
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Traditional bases for personal juris/n based on power to arrest person b/e of
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1. presence
2. residence 3. consent |
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Under SC decisions, modern bases for personal juris/n based on
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1. contact
2. fairness |
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How does SC define contacts sufficient to est in personum juisd/n?
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Such MINIMUM CONTACTS w/ the forum state that juris/n would be fair & reasonable. Court must find D PURPOSELY AVAILED herself of the protections of state such that D MUST KNOW OR REASONABLY ANTICIPATE her activities in the forum state render it FORESEEABLE she may be hailed in court there.
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How does SC generally define fairness in exercising in personum juisd/n?
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not offend the traditional notions of fair play & substancial justice
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What factors does SC include as ways to determine fairness when exercising in personum jurisd/n?
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1. whether claim is re/d to D's contacts w/ forum
2. whether D's contacts w/ the forum state are systematic & continuous 3. whether forum is convenient for D 4. whether state has a legitimate interest in providing redress for its resident 5. whether other factors are involved such as P's interests in obtaining relief, interstate jud system's int in efficiency & shared int in furthering social policies. |
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Notice requirement to est in personum juris/n means
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a reasonable method must be used to notify D of a pending ac/n against him so that D has an opportunity to appear & be heard
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If an agent fails to notify D of service of process in personum jurisd/n is
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prohibited
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How can multiple or unknown parties be apprised of a law suit?
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the best, most practical means, but if P knows notice not successful, P cannot proceed.
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Most states have statutes providing for in rem juris/n in actions such as:
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condemnations, title registrations, estate distributions, grants of divorce when only complaining spouse is present, etc.
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States do not have in rem juris/n over prop
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located outside of the state or brought into the state through force or fraud
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2 types of quasi in rem cases & est of personal juris/n.
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1. disputes over rights to prop w/in state. Close connect/n b/n litigation & contact provides sufficient min contacts.
2. disputes unre/d to prop. Mere presence of prop which D may own w/in state does not est juris/n over person--must be some other basis for personal jurisd/n. |
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Federal subj matter jurisd/n occurs in what 2 broad types of cases?
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1. Diversity of citizenship
2. Fed ? |
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Diversity establishing fed sub matter juris/n require
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1. complete diversity among parties
2. amount in controvery over $75,000 |
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What is the rule of complete diversity of citizenship?
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Every P must be of diverse citizenship from every D
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Fed interpleader exception to complete diversity
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Interpleder (3rd party stake holder) does not destroy diversity if "min diversity" & min. amt in controvery of $500
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Does fed court have subj matter juris/n b/n a cit & an alien?
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Yes, but not b/n 2 aliens.
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When must diversity of cit exist?
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at time suit instituted
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How is state of cit determined for natural person?
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place of permanent home to which he intends on returning or where he plans on remaining. A child's is that of her parents.
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How is state of cit determined for corp?
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Corp is cit of EVERY state incorp AND the ONE state in which is has its principal place of bus from which high level officers direct corp's activities.
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How is cit determined for corps chartered in foreign countries?
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Foreign corp is cit of forein country where incopr--so deemed alien. If principal place of bus is also in US, it is ALSO A CIT OF STATE where that place is.
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How is cit determined for unincorp. assoc?
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cit of each state of which any member is a cit
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How is cit determined for LLCs?
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cit of all states of which its members are cits
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How is cit determined for legal rep?
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same cit as the decedent in estate case, infant in a custody case, or incompent in commitment case, etc.
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How is cit determined for class actions?
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diversity is determined on the basis of the cit of the named members of the class who are suing.
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Cit of nonresident US cit living abroad
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not a cit of any state & is also not an alien (i.e. alienage depends on nationality, not citizenship)
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How is cit determined for permanent resident aliens?
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state in which domiciled.
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Generally, if a party attempts to create diversity by a sham trans/n, the court
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will look thru the trans/n & declare diversity does not exist.
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May the named P in a class action vol change cit?
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Yes if before suit commenced & change is genuine & permanent.
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Realignment is
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process by wh court, usu. in determinign diversity, identifies & rearranges the parties as P & D according to their true interests.
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Realignment in share holder derivative ac/ns
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usu. means court will realign the corp as a D to determine diversity
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Under ancillary or supplemental juris/n,
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fed court will entertain claims which could not otherwise invoke fed ? or diversity juris/n if they are part of a COMMON NUCLEUS OF OPERATIVE FACTS of a case already before the court.
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Intervention
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entry of an unnamed 3rd party into a lawsuit who has a personal stake in the action
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Under supplemental juris/n, an intervenor of right must show
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an independent basis for subj matter juris/n.
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Effect of substitution of parties on citizenship
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1. When a party is substituted, cit of original party controls so diversity not effected.
2. When a party is replaced--e.g. when P sued the wrong party--cit of replacement controls, so diversity juris/n could be lost. |
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Impleader
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procedure by which a 3rd party is brought into a lawsuit esp by D who seeks to shift liablity to someone not sued by P.
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Diversity requirement for impleader
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Generally no diversity is required b/n 3rd party D or 3rd party P or original P UNLESS P asserts a claim against the 3rd party.
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Under supplemental juris/n, an intervenor of right must show
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an independent basis for subj matter juris/n.
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Cross claim
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A claim asserted b/n co-Ds or co-Ps. If not arisng from same trans/n or occurrence as underlying dispute, ind subj matter juris/n not required & claim can be heard in fed court through a form of supplemental juris/n.
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Juris/nal amt in fed court diversity cases must be
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in excess of $75.000.
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The amt in controvery is based on
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P's good faith estimate. Not retroactively defeated if amt recovered less.
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What is included as part of "in controversy" when figuring amt of $?
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collateral consequences of judgmt (e.g. rights to future installments on disability), attorney fees if recoverable by K or stat payments (but not costs), interest that is part of claim itself (but not int due to delay in payment) punitive $ claim permitted under state substantive law.
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May P aggregate (add up) claims to meet amt in controvery requirement?
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Yes, P may aggragate claims against a single D. If several D, claims can be aggregated if joint liable. No if spearate claims or concurrent liabilities.
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Supplemental jurisd/n for claims not exceeding $75,000?
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may invoke supplemental juris/n if the claim arises from same nucleus of operative facts that invoked diversity of cit requirement but SUPPLEMENTAL JURIS/N MAY NOT BE USED TO OVERRIDE THE COMPLETE DIVERSITY REQUIREMENT
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Counterclaim is
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a claim for relief asserted against an opposing party after an original claim has been made.
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Compulsory counterclaim
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counterclaim which must be asserted to be cognizable usu. b/e it arises out of the same trans/n or occurence.
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Permissive counterclaim
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counterclaims which does not need to be asserted to be cognizable b/e it does not arise out of the same trans/n or occurence.
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May a D's counterclaim be added to P's claim to reach juris/nal amt in controvery?
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No
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Must a compulsory counterclaim meet the juris/nal amt in controversy requirement?
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No, b/e it can be heard under the court's supplemental juris/n.
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Must a permissive counterclaim meet the juris/nal amt in controversy requirement?
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Yes
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Can P remove a case from state to fed court if met w/ a counterclaim for over $75,000?
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No, b/e removal is permitted only for Ds.
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Under Erie Doctrine, a fed court in a diversity case
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will apply fed procedural law but must apply the substantive law of state in which it is sitting.
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What is clearly substantive law under Erie?
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1. Elements of claim or defense
2. SoL 3. Choice of law rules |
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If the cause of ac/n arises under fed Con or fed laws, does state law apply at all?
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No, Fed law applies under the Supremacy Clause
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If there is no conflict b/n fed & state law on a particular matter in a diversity case, is there an Erie prob?
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No; fed procedural & state substantive law apply.
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If there is a conflict b/n fed & state law on a particular matter, and there is an "arguably procedural" fed directive on point,
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fed law applies
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Under Erie, what do you do if it is not clear whether state law is substantive or procedural?
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Analyze the facts per following tests & come to reasonable
conclusion 1. Outcome determination 2. Balance of interests 3. Avoidance of forum shopping |
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Outcome determination test under Erie asks
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would applying or ignoring the state rule affect outcome of case?
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Balance of interest test under Erie asks
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whether either fed or state system have strong interest in having its rule applied?
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Forum shopping test under Erie asks
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if the federal court ignores state law on this issue, will it cause parties to flock to federal court?
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Fed court in CA sitting in diversity must apply
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CA conflict of laws rules in determing the applicable substantive law.
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CA conflict of law rules in tort ac/ns
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1. take an IMPAIRMENT OF GOVT INT APPROACH
2. Court will 1st determine if there is a conflict b/n the 2 state's laws 3. If so, court will decide whether a state's interest would be more greatly impaired if its law were subordinated to the policy of the other state & not applied. |
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How are choice of law K clauses approached under CA civ pro?
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1. examine the facts to see if the parties have a reasonable basis for the particular state law choice.
2. if not, the choice of law clause is unenforceable. 3. If so, the clause will be enforced only if it does not conflict w/ any CA policy and courts determine that CA does not have a materially greater interest than the chosen state in determining the issue. |
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Historical exceptions to diversity of cit juris/n include
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domestic re/ns
probate proceedings |
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Multiparty Multiforum Trial Juris/n Act applies to accidents
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in which at least 75 peo have died from a single accident.
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Elements of juris/n in Multiparty Multiforum Trial
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1. min diversity (i.e. one D in diff state than accident or any 2 Ds in diff states or substantial part of accident occurred in diff states).
2. Any P can intervene even if she could not have maintained an ac/n in district in which case is pending. 3. nationwide service allowed. |
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Fed subj matter jurisd/n
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power of fed court to hear case b/e of claim arising under fed law.
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Fed ? must appear in
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complaint
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Existence or anticipation of a defense based on fed law
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will not create fed ? jurisd/n
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Can an implied fed right of ac/n create a fed ?
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yes
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Does fed ? arise from fact co was incopr by act of Congress?
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No, unless US owns more than 1/2 of corp.
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Pendent juris/n
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A court's juris/n to hear a claim over wh it would not otherwise have juris/n b/e the claim is re/d to same trans/n & occurrence as a claim already before the court.
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Fed court can exercise pendent or supplemental juris/n when
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P has both fed & state claims which arise from the same trans/n & occurence & a P would expect to try both cases in the same proceeding.
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Effect of dismissal of fed claim on pendent state claim
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fed court may still exercise pendent juris/n over state claims if fed claim dismissed on merits but state claim should probably also be dismissed if fed claim dismissed before trial.
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For fed ? cases, is there an amt in controversy requirement?
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No (with limited exception of cases brought against private parties under the Consumer Prod Safety Act.
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Juris/n of fed courts is exclusive of state courts in
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bankruptcy, patent & copyright cases, many cases where US is involved, cases where consuls are Ds. USPS. IRS, SEC, antitrust, ac/ns against foreign states removed from state courts to fed court, admiralty cases
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Under CA unifed court sys,
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all counties have one superior court that can exercise gen, original subj matter juris/n over most civil matters in CA.
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How are CA cases classified?
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1. Small claims
2. Limited 3. Unlimited |
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Small claims division has juris/n over all claims where the amt demanded does not exceed
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$7500 for ind, $5,000 for other litigants
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Limited civil cases are ac/ns in which the amt in controversy is
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$25,000 or less & restrictions are placed on pleadings, subj matter juris/n over equitable claims, etc.
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Unlimited civil cases are act/ns in which amt in controverys exceeds
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$25,000.
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Standard in CA for reclassification of case from unlimited to limited
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recovery of amt greater than $25,000 is "virtually unattainable"
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Standard in CA for reclassification of case from limited to unlimited
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whether there is a "possibility" that the verdict will exceed $25,000.
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In fed court, venue relates to
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the proper distict in wh to bring ac/n
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While subj matter juris/n is a ? of proper authority, venue is a ? of_______________.
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convenience
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Fed forum non conveniens
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CL doc permitting a dist court to dismiss an ac/n in favor of a more convenient forum outside the fed judicial sys; also been codified to allow a dist court to transfer a case to another fed dist in wh the ac/n could have been brought.
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Venue in civ ac/ns in fed court sys is proper in
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1. dist where any D resides, if all Ds reside in same state.
2. dist where substantial part of the events giving rise to the claim occurred or a substantial part of prop subj to litigation is located or 3. if there is no dist anywhere in the US that satisfies 1 or 2: a dist in wh any D is subject to per jurisd/n when ac/n commenced (diversity ac/ns) or for ac/ns not based solely on diversity, a dist in wh any D may be found. |
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Residence of inds for fed venue purposes is
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person's domicile
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Residence of D corps for fed venue purposes is
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any juris/n in which corp is subj to personal juris/n
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Residence of unincop assocs is
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deemed to reside where it does bus.
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May improper venue be waived?
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Yes, unlike subj matter juris/n. Venue is considered waived unless timely objection made to improper venue..
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Standard for transfer of venue is
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"interests of justice." In CA, where ac/n may be "fairly & more conveniently litigated."
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Law applicable upon transfer of venue
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If original venue proper, apply the law of the transferor court. If improper, apply the law where the transferee court sits.
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In CA, venue refers to the __________
in which ac/n may be tried. |
county
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In CA, gen rule is venue is proper
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in county in which ANY D resides at start of ac/n. For K cases, also proper in county where K obligation is to be performed or where K formed. For tort ac/ns, also in county where injury occurred.
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Note subtle distinction b/n state & fed courts re: venue
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In CA state court, fact that all Ds don't reside in the same county would not by itself destroy venue, nor would the fact that one D is a nonresident of CA, but in fed court, the fact that all Ds don't reside in the same state does destroy venue.
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Residence of inds for CA venue purposes is
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county of person's domicile
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Residence of D corps for CA venue purposes is
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county where K was made or to be performed, where obligation or liability arose, where breach occurred or where the organization has its principal place of bus.
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Residence of unincorp assocs or partnerships for CA venue purposes is
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In CA county where the entity has its principal place of bus. IF THE ENTITY'S PRINCIPAL PLACE OF BUS IN ON FILE W/ THE SEC OF STATE--otherwise in the county where a member or partner resides.
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CA court may on its own motion transfer venue if
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1. reason exists to believe impartial trial cannot be had in the original county
2. convenience of wits & ends of justice would be promoted by change or 3. there is no judge of the court qualified to act. |
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Forum & venue selection clauses in CA Ks
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1. CA courts enforce "reasonable" forum selection clauses
2. Venue selection clauses are unenforceable. |
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CA forum non conveniens
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CL equitable doc has been codified. Stat permits a court to STAY OR DISMISS an ac/n if the interests of justice indicate it should be heard in a diff state or county
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To establish forum non conveniens in CA, the moving party must est that
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1. the alternative form is suitable
(i.e. D is subj to per juris/n, SoL would not bar, forum would provide due process & impartial judiciary) 2. private & pub interest factors balance in favor of the alternative forum. |
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Removal
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transfer of an action from state to fed court
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Removal possible if
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1. case could have originally been filed in a fed court &
2. In diversity cases, no D is a citizen of a state where the ac/n is filed. |
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To what time is removal test applied?
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Prevailing--time of removal
Some courts--both time of origin of suit & time of removal |
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Procedure for removal--2 time periods to remember
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1. 30 day rule--D must file notice of removal w/in 30 days of date D receives copy of initial pleading.
2. a case may not be removed on the basis of diversity juris/n (i.e if diversity is created by a case being dismissed against a D) more than one yr after it was commenced in state court. |
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Other key removal issues
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1. Fed court must have juris/n
2. Case goes to the fed dist court whose territory encompasses the state court 3. Only Ds can remove & all Ds must join 4. A case based on diversity may not be removed if any D is a citizen of the forum state 5. If case contains a sep & ind claim based on a fed ?, D may remove the whole case. |
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Remand of case removed to fed court
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P can file a motion to have the case remanded (sent back) to state court if there is no fed juris/n.
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Fed court has discretion to remand a case to state court if
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all fed claims have been resolved, leaving only state claims over which there is no diversity juris/n.
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Issues which address conflicts of juris/n b/n state & fed courts include
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1. Full Faith & Credit extended to fed courts
2. Presumption of concurrent juris/n 3. Injunctions against state proceedings 4. Abstention |
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Full Faith & Credit Clause
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requires states to give effect to legislative acts, public records & judicial decisions of other states.
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Full Faith & Credit Clause, fed implementing stat
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extends clause to fed courts.
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Concurrent juris/n b/n fed & state courts is
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presumed. Defeated if Congress expressly deprives the state court of juris/n or the state court declines juris/n b/e of neutral state law re: admin of courts.
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Can a fed court enjoin a pending state court proceeding?
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Generally no unless expressly authorized by stat, when necessary in aid of its juris/n or to effectuate its judgments.
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When can a fed court enjoin a pending state crim proceeding?
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only when irreparable harm is clear & imminent (usu limited to a showing of serious interference w/ 1st A rights) & appeal remedy is clearly inadequate to provide relief.
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Under doc of abstention, a fed court will not hear a case that is pending in state court if
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1. state law is unclear & could be interpreted to avoid the fed Con ? or
2. there is a state admin regulatory plan that would be disturbed by the fed court taking the case. |
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If doc of abstention does not apply, can a fed court hear a cast pending in state court?
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Yes, nothing prevents it.
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Fed intervention into a state court ac/n may occur if fed P can show
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1. great & immediate irreparable injury
2. bad faith in the prosecution of state ac/n or 3. harassment or unu circumstances calling for fed equitable relief. |
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An ac/n is commenced by
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filing a complaint
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Methods: fed service of process
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1. personal service by person at least 18 y/o
2. service left at D's home 3. w/ authorized agent 4. by state rules 5. by mail & D will become liable for costs of service if he does not have good cause for waiving service. |
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Methods: CA service of process
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1. personal by over 18 y/o
2. substituted 3. mail 4. publication. 5. CA also has service by mail provision under which D will become liable for cost of service if he not acknowledge receive of service. |
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Service of process: subtle distinc/n b/n fed & CA
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When "substituted" service at D's home is made, CA requires a follow-up mailing to D whereas there is no similar requirement in fed court.
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Fed service of process for parties outside juris/n but still in US
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1. Under state's stat
2. w/in 100 miles of court 3. Under fed stat (e.g. interpleader) 4. For fed ? anywhere if Con stand met. |
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CA service of process for parties outside state
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In addition to methods for in state:
1. certified mail / sig 2. but must be proper statutory & Con basis for personal juris/n |
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Fed service of process for parties outside US
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1. internatl law
2, by foreign country's law or directed by foreign official (but must be reasonably calculated to provide notice) 3. personal service but not corp, minors or incompetents 4. certified mail w/ sig but not minors or incompetents 5. by any method court orders (unless prohibited by internl agreement) |
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CA service of process for parties outside US
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any method OK for in state +:
1. as court directs 2, as law of place directs or 3. as foreign official directs in response to a letter of request |
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Do fed courts recognize an immunity from process?
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Yes for parties, wits, attorneys entering a state to appear in another ac/n AND if party induced by deceit to enter a state for service, it is invalid to confer personal juris/n.
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Do CA courts recognize an immunity from process when D is in CA to participate in litigation?
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NO
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Prelim injunc/ns in fed & CA courts
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Party may seek prior to trial to preserve the status quo. Adverse party must be given notice & opportunity to be heard.
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TRO
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Party may seek if irreparable injury will occur before prelim injunc/n hearing can be held.
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TRO may be imposed w/o notice for 14 day period if
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1. moving party states specific facts why irreparable injury w/o TRO
2. moving party certifies in writing made effort to notify D & why notice should not be required. 3. moving party pays security 4. D must have notice to be bound. |
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TRO: CA distinctions
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1. no time limit, expires when ruling made on preliminary injunc/n
2. If ex parte, court will set hearing on prelim injunc/n w/in 15 days (22 if good cause) 3. court has discretion to issue w/o bond. |
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Pleadings in Fed court
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1. notice pleading--a short & plain stmt of claim showing P is entitled to relief.
2. SC recently required more detail |
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Pleading in CA courts
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1. fact pleading (or code) showing the facts giving rise to the claim
2. If damages sought, the amt must be stated except punitive or actual & punitive in personal injury or wrongful death. |
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Both Fed & CA pleadings require a heightened specificity for pleadings in
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some types of cases such as fraud
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Pre-Answer motions in fed court include
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1. Motions for dismissal under Fed Rule 12(b)
2. Motion for More Definite Stmt 3. Motion to Strike |
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In fed court, which defenses will D lose if D does not raise the def the 1st time he files a motion or ans?
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1. lack of per juris/n
2. improper venue 3. insufficiency of service 4. insufficiency of service of process |
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In fed court, which defenses can be made any time prior to or at trial?
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1. failure to state a claim upon which relief can be granted
2. failure to join a required (indispensable) party |
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In fed court, what def can be raised at any time until all appeals have been exhausted?
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lack of subj matter juris/n
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In CA state practice, pre-answer motions include
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1. general demurrer
2. special demurrers in unlimited cases 3. motion to quash service of summons 4. motion to strike 5. Anti-SLAPP Motion to Strike |
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define demurrer
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A pleading stating that although the facts alleged may be true, they are insufficient for the P to state a claim for relief & for D to form an answer. In most juris/ns now termed motion to dismiss but still used in CA.
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CA: grounds for general demurrer (or for later motion for judgment on the pleadings) include
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1. pleading fails to state facts sufficient to constituent a cause of ac/n
2. court lacks subj matter juris/n |
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CA: special demurrers include:
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1. lack of capacity
2. existence of another pending ac/n 3. defect of parties 4. uncertain pleadings 5. failure to plead whether K oral or written |
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If pleading is vague, uncertain, ambiguous, name of motion in fed & CA courts D likely to file
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Fed: motion for more definite stmt
CA: special demurrer on the ground the pleading is uncertain. |
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Motion to Quash Service of Summons--fed & CA diffs
|
Fed: If D objecting to court's exercise of personal juris/n, he must file motion to quash service of process at earliest opportunity so as to preserve juris/nal objection.
CA: D may not object to personal juris/n in affirmative def then proceed to litigate & then raise the objection at or close to trial. |
|
Motion to strike
|
party's request that court delete insufficient defenses or immaterial, redundant, impertinent or scandalous stmts from an opponent's pleading.
|
|
Anti-SLAPP Motion
|
CA motion to stike when P has file a "strategic lawsuit against public participation." D must make showing that cause of action arose from activity protected by 1st A. If D makes this showing burden shifts to P to show a probability of prevailing on the merits. (A SLAPPback is a cause of ac/n for malicious prosecution of abuse)
|
|
Answer in fed court
|
* must contain specific denial or admission of each averment of complaint or a general denial w/ specific admission of the facts admitted.
* failure to deny = admission. * Answer must be filed w/in 21 days of service of complaint * or if Rule 12 motion filed, w/in 14 days after court's denial or postponement. |
|
Answer in CA state court
|
* Usu. D must file a gen denial which denies ea & every material allegation of P's complaint; or D may also file specific denials.
* Any material allegations not denied are deemed admitted. * In pleading defenses, D must adhere to fact pleading standards. * D has 30 days from date of service of process to file an answer. * or If D brings a demurrer or motion to strike & court overrules, w/in 10 days. |
|
Default
|
failure to plead, answer or defend & fact made known to clerk who enters default. CA: notice that a default may be entered must be mailed to D
|
|
Fed: clerk may enter default judgment if
|
1. P's claim is for an amt certain
2. default was entered b/e D failed to appear 3. D is not child or incompetent |
|
CA: clerk may enter default judgment if
|
1. ac/n arises out or a K or judgment
2. ac/n is for a sum certain 3. D was not serve by publication |
|
Fed: Notice after default
|
Clerk or party must give notice to all parties who have appeared & to the defaulting party after entry of a default. If D has appeared he must be notified of request for default judgment by mail 3 days before hearing.
|
|
CA: Notice after default
|
Defaulting D is not entitled to notice of the hearing & has no right to appear or present evid.
|
|
Counterclaim
|
claim for relief asserted by D against P in response to original claim
|
|
CA's counterclaim is called
|
cross complaint
|
|
compulsory counterclaim
|
arises from same transac/n or occurrence as P's complaint. Must be plead or later barred.
|
|
permissive counterclaim
|
any claim D has against P not arising from same occurrence as P's complaint--in fed court, must meet jurisd/nal requirements
|
|
Fed: P's response to D's counterclaim or by court order to D's answer
|
reply
|
|
CA's reply is called
|
answer
|
|
Fed: a party may amend a pleading
|
w/o court leave w/in 21 days of original filing; w/ court leave at any stage
|
|
CA: a party may amend a pleading
|
once as a matter of right; after only by written consent of the adverse party (in fed court) or by leave of court upon motion (both courts)--liberally granted
|
|
Relation back
|
If new cause of ac/n is based on the SAME GEN SET OF FACTS as original complaint, the amended complaint will relate back to date of the original. Some courts also require (1) same accident & injuries (2) reference to same offending instrumentality.
|
|
May P add a new D?
|
Yes, if SoL has not yet run
|
|
Fed: relation back in cases of mistaken identity?
|
yes if same transaction or occurrence AND:
1. party has received such NOTICE of ac/n that SHE WILL NOT BE PREJUDICED and 2. she knew or should have known that BUT FOR A MISTAKE CONCERNING THE PROPER PARTY'S IDENTITY, the ac/n would have been brought against her. |
|
CA: re/n back in cases of mistaken identity?
|
CA allows P to correct a "mistake" in naming D even if SoL has run
|
|
CA Doe Amendments
|
1. P has 3 yrs to substitute actual names if
2. original complaint containing all allegations against all Ds timely filed & 3. P genuinely ignorant of Doe's identity & 4. that ignorance is plead in complaint |
|
Rule 11
|
1. by signing papers w/ court, attorneys represent filed in good faith after reasonable inquiry under the circumstances
2. imposes sanctions for violation |
|
When attorney or unrep party presents pleadings, etc to court, he is asserting that info is
|
(1) not presented for improper purpose; (2) legal contentions are warranted by existing law or nonfrivolous argument for changes to law; (3) allegations & factual contentions will be supported by evid & (4) denials of facts are warranted
|
|
2 types Rule 11 sanctions (fed)
|
1. court's initiative
2. opposing party may so move & if opponent does not correct or w/draw w/in 21 days, then request for sanctions w/ court |
|
CA sanctions stat & distinctions
|
nearly identical to Rule 11; distinctions include : (1) court assesses whether party seeking sanctions has exercised due diligence (2) 21 day safe harbor applies to both court initiated & opponent's motions for sanction; (3) if motion for sanction brought for improper purpose, itself subj to sanction.
|
|
joinder
|
uniting of parties or claims into a single law suit; fed & CA similar
|
|
Compulosory joinder of parties
|
If party needed for just adjudication is amenable to process (+ in fed court joinder will not destroy diversity) the party must be joined.
|
|
Factors to analyze to assess if party needed for just adjudication:
|
1. complete relief cannot be given to existing parties if absent
2. disposition in his absence may impair his ability to protect his interest or 3. his absence would expose existing parties to a substantial risk of double or inconsistent obligations. |
|
If joining of indispensable party not feasible . .
|
court must decide whether the ac/n can proceed or should be dismissed.
|
|
Whether case should be dismissed or proceed w/o indispensable party depends on whether
|
1. prejudice to absent or existing parties would likely occur
2. prejudice can be reduced by shaping the judgment 3. judgment in party's absence would be adequate; and 4. whether P will be deprived of an adequate remedy if dismissed. |
|
Permissive joinder if
|
1. some claim made by ea P against ea D arising from same transaction or occurrence
2. there is a ? of fact or law common to all the parties 3. does not lessen the juris/nal requirements. |
|
joinder of claims
|
Party may join as many claims in a single action as the party has against an opposing party. CA: common ? of law or fact must be present. Fed: fed ? cases, nonfed claim can be joined only if regarded as the same case or controversy.
|
|
Elements of a proper fed class action suit
|
1. Numerosity
2. Common ?s of law or fact 3. Typicality 4. Named parties will provide fair & adequate rep/n. |
|
In addition to commonality, numerosity, adequate rep & typicality, fed class ac/n must be one of 3 types:
|
1. sep ac/ns would create a risk of inconsistent results or impair the interests of unnamed parties;
2. D's acts have led to alleged injury applicable to a class & injunctive or declarative relief is appropriate for the class OR 3. Common ?s of law or fact predominate over ind issues & class action is superior to alternate methods of adjudication. |
|
Which type of fed class ac/n requires notice to all class members & allows opting out?
|
the one in which common ?s predominate & the class ac/n is superior to other forms of adjudication
|
|
Considerations as to whether to certify a class include
|
1. whether there is interest in individual control
2. extent of litigation elsewhere on the same subj 3. desirability of a joint trial + 4. difficulties in managing a class ac/n |
|
Effect of judgment in class ac/n
|
Binds all members except those who opted out. NOTE: if claim of representative becomes moot, it does not render the class ac/n moot.
|
|
In fed class ac/n founded on diversity
|
1. only the named rep is used to est diversity
2. one class rep's claim must exceed $75,000 but other members w/ claims not exceeding $75,000 might be able to invoke supplemental juris/n. |
|
Before a fed class ac/n can be dismissed or settled,
|
the court must approve.
|
|
Under Class Ac/n Fairness Act (CAFA), fed subj matter jurisd/n is established if
|
1..ANY member is of diverse cit from ANY D
2. the aggregate amt in controversy exceeds $5 mil and 3. at least 100 members in the proposed class. |
|
W/ re removal CAFA provides
|
1. ANY D (rather than ALL Ds) MAY remove the case from state to fed court &
2. case may be removed even if D is a cit of forum. |
|
What types of class acn/s are excluded from fed juris/n under the CAFA?
|
1. those in wh primary Ds are states or state officials
2. cases arising under fed securities laws 3. cases that relate to the internal affairs of a corp & are based on state corp law. |
|
Under CAFA, fed juris/n must be declined if:
|
1. more than 2/3 of proposed class are cits of the state in wh ac/n filed
2. a D from whom "significant relief" is sought is a cit of that state + 3. the principal injuries were incurred in the state in which the ac/n was filed. |
|
Under CAFA, fed juris/n MAY be declined if
|
more than 1/3 but lest than 2/3 of the proposed P class are citizen of the state in which the ac/n was file and the "primarily Ds" are also citizen of that state.
|
|
For the discretionary juris/n analysis under CAFA, the court considers
|
1. whether the claims involve matters of natl interest;
2. whether the claim will be governed by the law of the state in wh it was filed & 3. if the state has a distinct nexus w/ the class members, the alleged harm or the Ds. |
|
In SH derivative ac/n SH is:
|
asserting the corp's rights rather than the SH's own.
|
|
Elements of SH derivative action
|
1. Standing--SH at time complained about
2. Demand requirements--SH must show SH made demand on directors or why he did not do so. 3. Suit can't be a collusive effort to confer juris/n on the court that it would otherwise lack. 4, Board will dismiss if found not in corp's best interest. 5. Discontinuance or settlement requires court approval. 6. If ac/n results in benefit to corp, court may order corp to pay P's expenses. |
|
Juris/nal Amt & Venue in SH derivative ac/n
|
1. Corp is treated as a P for purposes of determining juris/nal amt.--i.e. court will look to corp's damages.
2. But Corp is treated as a D for purposes of determining diversity. |
|
CA: minimum requirements for class ac/n cert:
|
1. ascertainable class
2. well defined community of interest among class members |
|
CA class actions: how to analyze whether "well defined community of interest" exists
|
1. common ?s of law or fact predominate
2. class ac/n device will result in substantial benefits to the parties & court & 3. class rep will adequately represent class |
|
Interpleader
|
suit to determine a right to prop held by a (usu. disinterested) 3rd party (stakeholder) who is doubt about ownership & deposits prop w/ court to permit interested parties to litigate ownership so as to avoid multiple liability.
|
|
Fed: 2 interpleader procedures are
|
1. Rule 22 interpleader
2. Statutory Sect 1335 interpleader |
|
Rule 22 interpleader requires
|
1. complete diversity b/n the stakeholder & all adverse claimants & in excess of $75,000 in issue OR
2. fed ? claim |
|
Sec 1335 Statutory Interpleader requires
|
only minimum diversity b/n the claimants & $500 in issue.
|
|
Mnemonic for Rule & Statutory Interpleader
|
Rule 22 must follow the Regular Rules
Statutory interpleader has Special, Simpler Standards |
|
Interven/n by right
|
is available whenever the applicant claims an interest int the subj matter of the ac/n & w/out him may impair his ability to protect that interest
|
|
Interven/n by right & whether fed supplemental juris/n available in diversity ac/ns
|
Traditionally interven/n by right invoked ancillary juris/n. Under supplemental jurisd/n stat, however, there appears to be no ancillary (supplemental) juris/n over claims by one seeking to intervene of right as a P. The stat appears to allow ancillary (supplemental) juris/n when one intervenes as a D
|
|
Permissive interv/n
|
is available when applicant's claim or defense has a fact or law in common w/ the main ac/n. Must be supported by its own jurisdictional grounds. Trial court has great discretion.
|
|
Third party practice or impleaders
|
Procedure by wh 3rd party is brought into a lawsuit esp by D who seeks to shift liability to someone not sued by P.
|
|
Fed, is supplemental jurisd/n available to impleaders
|
Yes, b/e a claim for indemnity arises from the common nucleus of fact as the underlying claims
|
|
Must venue be proper in fed court for 3rd party D?
|
no
|
|
CA's equivalent of impleader is
|
3rd party cross complaint which can be the addition of a new party for any purpose (not only indemnity).
|
|
cross claim
|
claim asserted b/n co Ds or co Ps involving same transaction or occurrence so comes w/in fed court's supplemental juris/n.
|
|
Gen fed & CA disclosure requirements
|
Fed Rule 26 requires parties to disclose--w/o being asked-- info to other parties about their case. CA--no auto disclosure requirements. Party not relieved from her obligation of disclosure merely because she has failed to complete her investigation or b/e anyother party has not made his disclosures or has made inadequate disclosures.
|
|
3 types of disclosures required by Fed Rule 26
|
1. initial disclosures
2. expert testimony 3. pretrial disclosures |
|
Initial disclosures include
|
1. Names, addresses, #s of inds likely to have discoverable info
2. docs wh support claims or defs (unless solely for impeachment) 3. damages computations 4. copies of insurance agreements under which insurer may become liable for judgment. |
|
Initial disclosures must be made
|
win 14 days of initial discovery conference unless diff date set by court
|
|
Disclosure of expert testimony includes
|
names, qualifications, opinions to be expressed & basis
|
|
Disclosure of expert testimony must be made
|
at least 90 days before trial (or if solely to rebut, 30 days after disclosure of evid being rebuted)
|
|
Pretrial disclosures include
|
witnesses party expects to call at trial, will call if need arises, what depositions will be presented, list of docs or exhibits party expects to present, etc
|
|
Pretrial disclosures must be made
|
at least 30 days before trial.
|
|
Objections to admission of disclosed depositions, docs or exhibits must be made
|
w/in 14 days after disclosure or those objections are waived--except for objections that the evid is irrelevant, prejudicial or confusing under FRE 402 & 403
|
|
Fed: gen standard for scope of discovery
|
Fed: any nonpriveleged matter RELEVANT TO THE CLAIM OR DEFENSE OF ANY PARTY, including ID of persons having knowledge of relevant facts. As long as the info sought is reasonable calculated to lead to the discovery of admissible evid or a claim or def in the case
|
|
CA: gen standard for scope of discovery
|
Info must be RELEVANT TO THE SUBJ. MATTER INVOLVED IN THE PENDING ACTION
|
|
work product
|
Material prepared (1) by lawyer (2) to assist in prosecution or defense of a pending suit or (3) in reasonable anticipation of litigation
|
|
Fed: Work product protected from discovery except
|
upon showing of SUBSTANTIAL NEED and avoiding UNDUE HARDSHIP in obtaining materials in alternate way
|
|
Are draft reports & disclosures of experts work product?
|
Yes and confidential communications b/n such experts and counsel for the party are generally protected under the lawyer-cl priv except communications re to expert's compensation or to the facts or data the attorney provided to the expert.
|
|
However while enforcing the required disclosures, fed courts seek to protect against disclosures of
|
attorney's mental impressions, opinions & conclusions
|
|
Attorney client privilege
|
protect from disclosure of confidential communications b/n lawyer & client (Evid #176-86--waiver, etc)
|
|
CA: work product protection
|
provides an absolute work product protection to writings reflecting an attorney's impressions, conclusions, opinions or legal research
|
|
In CA qualified work product is not discoverable except on a showing that
|
DENIAL WILL UNFAIRLY PREJUDICE A PARTY IN PREPARING HIS CLAIM OR DEF, OR WILL RESULT IN AN INJUSTICE.
|
|
In addition to protection of work product + attorney client confidential communications, CA Constitution provides
|
for a right to privacy which may be exercised in the discovery process. Court balances need for discovery against the right of privacy.
|
|
Fed: May a party depose testifying experts?
|
Yes but only if party seeking discovery shows that it is impractical to obtain facts or opinions by others means
|
|
CA state courts: Must a party disclose consulting experts?
|
No
|
|
In fed & CA, how can witnesses & parties be protected from unwarranted annoyance, burden & expense in the process of discovery?
|
protective orders
|
|
procedure when party w/holds info she believes is privileged
|
The party must make the claim expressly & describe the nature of the docs not disclosed in a manner that will enable other parties to assess the applicability of the priv.
|
|
What duty does a party have if he learns the information he disclosed during discovery was materially incomplete or incorrect?
|
Fed-duty to supplement required disclosures & discovery response .
CA state courts: no gen duty to supplement previous discovery responses, |
|
In fed court, does party have a duty to supplement required disclosures & discovery?
|
Yes, if she learns that the information disclosed was materially incomplete or incorrect & new info has not been made known to the other party in discovery or in writing.
|
|
In CA court, is there a duty to supplement required disclosures & discovery?
|
NO GEN DUTY TO SUPPLEMENT PREVIOUS DISCOVERY RESPONSES IN CA STATE COURTS. (In limited sits, party may request another party to supplement earlier discovery responses.)
|
|
Methods of discovery include
|
pre-action discovery, oral depositions, written interrogatories, production of physical material, physical & mental exams when party's phyiscal or mental cond/n is in controversy & requests for admissions
|
|
Ways depostions used at trial or hearing
|
1. impeach the testimony of the deponent as a wit
2. any purpose if court finds that the deponent is dead or too far away (100 fed court, 150 miles CA state courts) or unavailable 3. any purpose if deponent is an adverse party. |
|
motion to compel discovery
|
party's request to court to force the party to respond to discovery request
|
|
In both fed & CA, if a party fails to comply w/ an order to provide discovery, the court may
|
1. order the matters to be treated as admitted
2. prohibit the party from supporting or opposing designed claims or defenses 3. strike pleadings, stay or dismiss ac/n or render default judgment 4. hold delinquint party or wit in comtempt |
|
Discovery sanctions in Fed court include
|
immediate and automatic sanctions
|
|
In fed court, party may move for immediate sanctions if
|
party fails to attend to his own deposition or fails to provide ANY answers to interrogatories. Sanctions include order the matters to be treated as admitted, prohibit the party from supporting or opposing designated judgment, strike pleadings, stay or dismiss action or render a default judgment.
|
|
In fed court, party may move for automatic sanction against party who w/o justification fails to supplement or amend discovery responses. Those sanctions include
|
not beling able to use the info w/held as evid at trial, at a hearing or on a motion unless such failure was harmless. Courts may impose other sanctions as above
|
|
Discovery sanctions in CA state courts
|
authorize court to imposes sanctions for failure to respond to discovery, making an unmeritorious objection & disobeying a court order. Gen. misuse of the discovery process "shall" result in a monetary sanction unless substantial justification or unjustice would result.
|
|
Pretrial conferences: FRCP
|
Fed Rule 26 requires: conference of party to plan for discovery, consider claims & defenses, possibility of settlement, etc
|
|
Pretrial conference: CA?
|
parties are not specifically required to meet & confer re: discovery plan
|
|
Case Management
|
Both Fed & CA courts required to hold scheduling conference. In CA some cases fall under "Fast Track" in which judge manages pace of litigation & conducts frequent case management conferences.
|
|
Alternative dispute resolution (ADR)
|
procedure for settling dispute in ways other than litigation
|
|
Methods of ADR include
|
1. Kual arbitration
2. Judicial arbitration 3. Mediation |
|
Contractual arbitration
|
written agreement to arbitrate a dispute--valid & enforceable unless ground for revocation
|
|
FED & CA arbitration award can be vacated by judicial review on grounds such as
|
fraud, partiality of the arbitrator, arbitrator's refusal to delay proceeding for good cause, not following arbitration agreement, etc.
|
|
Judicial review of arbitration--diff b/n fed & CA
|
Fed will allow overturning of arbitration award when it "reflects a manifest disregard of the law." CA will not apply this test nor allow review of legal errors unless parties had expressly Ked for this.
|
|
Judicial arbitration
|
dispute resolution process conducted by a neutral person under the auspices of the court in an attempt to resolve the ac/n w/o trial.
|
|
Is judicial arbitration vol?
|
fed court, yes
CA state courts may require judicial arbitration for unlimited civil cases in wh the amount in controversy is $50,000 or less. Ac/n requesting equitable relief are exempt. |
|
Characteristics of judicial arbitration include
|
Parties possess full discovery rights; proceedings are conducted according to the rules of evid & proc. W/in 30 days of the award, parties may request a trial de novo--otherwise award has the same effect as court judgment.
|
|
Mediation
|
use of a neutral person to help parties reach a mutually acceptable agreement; absent express statory exception, confidentiality rules prohibit parties & mediators from disclosing any written or oral communications made during mediation.
|
|
Mediation rules in fed court
|
local district rule--which could make it mandatory in certain cases
|
|
CA--Civl Ac/n Mediation Program
|
If county participates in prog, court may order cases into mediation when the amount in controversy does not exceed $50,000 for ea P (except a case order to judicial arbitration)
|
|
Right to Jury Trial in Fed Court
|
7thA guarantees right to jury trial in fed courts in all "suits in common law" when amt in controversy exceeds $20
|
|
A party who desires a jury trial in fed civil court must
|
make a written demand w/in 14 days after filing of pleading or right will be considered waived
|
|
Re fed jury trial--where legal & equitable claims are joined,
|
the LEGAL CLAIM SHOULD BE TRIED FIRST to the jury & then the equitable claim to the judge.
|
|
Re: fed jury trial--where a procedure formerly available only in equity (such as a class suit or interpleader) is now permitted under FRCP for determining a "legal" claim,
|
a jury SHOULD TRY THE FACT ISSUES FIRST
|
|
RE fed jury trial where damages are claimed as part of an ac/n for injunction
|
a D cannot be denied a JURY ON THE DAMAGES issues on grounds they are "incidental" to the equitable relief.
|
|
Right to jury trial for civil cases in CA state courts exist for
|
1. types of cases at CL wh required a jury at time CA Con adopted in 1850
2. trials in which the gist of the ac/n is legal rather than equitable 3. If ac/n involves distinct legal & equitable issues, the court usually 1st decides the equitable issues (equity 1st rule) & followed by jury's consideration of legal. No jury trial exists if the legal issues are incidental (equitable clean up doc) |
|
Jury trials in fed diversity cases
|
Fed court must permit a jury in any diveristy "suit at common law" even if state law would deny it. State law is disregarded in determining the sufficiency of the evid to create a jury issue.
|
|
Objections to jury instructions must be given before
|
jury retires
|
|
3 Gen. types of jury verdicts
|
1. general verdict in wh jury finds for P or D
2. special verdict in wh jury makes findings of fact & court applies the law 3. gen verdict w/ special interrogatories--a combo of the 2 |
|
In both fed & CA systems, may court consolidate ac/ns?
|
yes. if common ? of law or fact
|
|
In both fed & CA systems, may court order sep trials?
|
yes of any claim, cross claim, counter-claim or cross complaint or other issues when separation will foster judicial ec.
|
|
Involuntary dismissals in fed court
|
On D's motion, court may order dismissal againast P who failed to prosecute or comply w/ a procedural rule or court order.
|
|
Invol dismissals in CA courts
|
--on motion of either party or court's own motion for failure to bring the matter to trial or to timely serve process. CA "diligent prosecution" stats & other rules apply to cases not subj to Fast Track.
|
|
vol dismissal by P in fed court
|
may do so w/o prejudice (dismissal that does not bar P from refiling w/in SoL) as a matter or right only before D files an ans or a summary judgemtn motion--or by stipulation of all parties. Otherwise, dismissal w/o prejudice can be taken only w/ leave of court.
|
|
vol dismissal in CA state courts
|
P may vol dismiss ac/n w/ or w/o prejudice before court make a dispositive ruling on an issue of law or fact or the actual start of the trial. After start of trial, P may dismiss ac/n only w/ prejudice unless parties agree otherwise or court orders dismissal w/o prejudice on showing of good cause.
|
|
Judgment as a Matter of Law (fed)
|
In fed court motion for judgment as a matter of law (JMOF)--formally known as motion for a directed verdict allows judgment to be granted for either party if the evid is such that reasonable persons could not disagree. Evid must be viewed in the light most favorable to the nonmoving party.
|
|
Equivalent of JMOL in CA
|
nonsuit motion
|
|
Renewed motion for JMOL
|
formally known in fed court as motion for judgment notwithstanding the verdict or JNOV--may be filed no later than 28 days after entry of judgment if a motion for JMOL made during the trial.
|
|
CA JNOV
|
judgment for one party even though verdict in favor of the other. No requirement that party had to have brought a directed verdict motion before moving for JNOV. Timing is the same as that for a motion for a new trial
|
|
Motion for a New Trial
|
Fed must be filed no later than 28 days after judgment entered.
CA--15 days |
|
Grounds for granting a new trial
|
1. misconduct on part of judge, adverse party, jury
2. newly discovered evid that moving party could not have had by reasonable diligence discovered earlier. 3. excessive or inadequate damages 4. insufficient evid to justify the verdict 5. unfair accident or surprise during trial 6. verdict is against the law 7. error in law during the trial |
|
Remittitur
|
P must accept either a less amt or submit to a new trial--available in both fed and CA courts.
|
|
Additur
|
D must agree to pay an amt that is greater than jury verdict or submit to a new trial. Available in CA state courts only.
|
|
In fed court, if a party fails to move for either a renewed judgment as a matter of law or for a new trial on the basis of insufficient of evid
|
that party is precluded from raising insufficiency of evid on appeal. CA does not have this requirement.
|
|
Summary judgment
|
Generally standard same for fed & CA. Summary judgemnt shall be granted if, from the pleadings, affidavits & discovery materials on file, it appears NO GENUINE DISPUTE OF MATERIAL FACT EXISTS & that the moving party is entitled to judgment as a matter of law.
|
|
Summary judgment--time
|
In FED court any party may move for summary judgment any time up to 30 days after close of discovery. If motion premature, court may defer to later date. In CA state court, party may bring summary judgment motion after 30 days have elapsed since the general appearance of a party against whom the motion is brought or earlier if good cause. Moving party must file & serve at least 75 days before hearing.
|
|
partial summary judgment
|
limited to certain issues in a case which disposes of only a portion of the whole case
|
|
Support required for summary judgment
|
Both fed & CA, motion must be supported or opposed w/ affidavits, discovery or admissions in pleadings. In CA moving party must file & serve a sep stmt of all material facts claimed to be undisputed w/ supporting evid. Nonmoving party must respond by indicating wh facts she believes are in dispute, along w/ supporting evid. Failure to include such a response is grounds for granting the motion.
|
|
Is denial of motion for summary judgment appealable?
|
Usu. not but writ of mandamus possible in CA state court
|
|
Reasons a trial court may relieve a party from final judgment include:
|
1. mistake, inadvertence, surprise or excusable neglect
2. newly discovered evid wh due diligence could not have found in time to move for a new trial 3. fraud, misrepresentation or other misconduct of adverse party |
|
A CA state court must set aside a judgment when
|
the attorney submits w/in 6 mos of judgment an affidavit attesting to his mistake, inadvertence, surprise or neglect. No similar fed court provision.
|
|
W/ motion for reconsid/n,
|
party asks for reconsid/n of prior court order when justified (i.e. new evid) both fed & CA state courts
|
|
Independent action in equity to set aside the judgment
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collateral attack on the judgment in wh aggrieved party seeks to have final judgment set aside by going to equity court. Possible grounds very narrow--e.g. aggrieved party enticed not to appear by fraud & must show likely to win. Not barred by SoL but must act promptly once party knows he has grounds for relief. both fed & CA state courts
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Final judgment rule
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In gen, only final judgments may be appealed. However certain interlocutory order are reviewable.
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Reviewable interlocutory (interim, temp) include
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1. interlocutory order as of right
2. Under Interlocutory Appeals Act 3. collateral order rule 4. certification of class ac/n 5. review of nonappealable orders by writ |
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Fed court interlocutory orders reviewable as of right include
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1. injunctions
2. appointments of receivers 3. certain admiralty 4. patent infringement 5. prop possession cases |
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CA state court: interloctory orders which can be immediately appealed include
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1. order granting motion to quash service of summons or granting a motion based on forum non conveniens
2. order granting a new trial 3. order denying a motion for JNOV 4. grant or refusal of injunction 5. order directing paymt of $ over $5000 |
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If final judgment issued on less than total number of parties, can ruling be appealed?
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Fed: not unless judgment expressly determines that it is a final order which can be appeal.
CA: judgment for one of several parties is considered a final judgment which may be immediately appealed. |
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Interlocutory Appeals Act
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Fed stat which grants discretion to a US court of appeals to review an interlocutory order in civil case if trial judge states in writing that the order involves a controlling ? of law on wh there is substantial grounds for diff of opinion & that an immediate appeal from the order may materially advance the termination of the litigation.
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Collateral Order Rule--Fed
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If claim or issue can be separated or is collateral to main suit, too important to require deferring appeal, it may be classified as a judgment in a sep proceeding & thus be appealable.
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CA--party may immediately appeal a collateral order if
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1. trial court renders a dispositive interlocutory order
2. on a matter that is collateral to the merits of the action & (some courts) 3. the order directs payment of $ or performance of an act. |
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Appeal of class ac/ns cert
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fed: order granting or denying cert of class ac/n may be immediately reviewed w/in 14 days,
CA: order denying cert of an entire class may be immediately appealled but NOT not an order certifying a class or partial class. |
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Rarely final order rule may be circumvented by
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writs of mandamus (compelling judge to act) of prohibition (prohibiting judge to act)
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SC has direct appeal juris/n from
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order granting or denying an injunction required to be heard by a 3 judge court
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SC may review any case in court of appeals by
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certiorari
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SC may hear appeal from the highest state court by certiorari when
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validity of fed law called or validity of state law based on Con or fed law violations is called into question.
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CA SC has original juris/n in
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1. proceedings for extraordinary relief in the form of mandamus, certiorari & prohibition & habeas corpus proceedings.
2. certain admin decisions such as attorney disciplinary matters |
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CA SC has appealate juris/n over
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CA Court of Appeal
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2 major concepts used to defend final judgments against future litigation
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Res judicata claim preclusion
Collateral estoppel issue preclusion |
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Requirements for res judicata to apply
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1. earlier judgment is valid, final & on the merits
2. cases brought by same claimant against the same D 3. same cause of action (or claim) is involved in the later law suit 4. cause of ac/n was actually litigated or could have been litigated in former suit. |
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In fed court, judgment considered final where
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rendered
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In CA state courts, judgment considered final
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only at conclusion of all possible appeals
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What constitutes cause of ac/n under res judicata?
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modern trend--all claims arising out of same transac/n or occurrence
CA takes MIN akes primary rights approach in wh cause of ac/n is defined as an invasion of a single primary right (ie. prop damages & personal injury in car accident 2 sep causes of ac/n |
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Collateral estoppel
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Judgment for P or D is conclusive in a subsequent ac/n on a diff cause of ac/n b/n them as to issues actually litigated & essential to the judgment int he first action.
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Persons bound by the judgment--res judicata
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same parties and their privies involved in both cases. A person is in privy if he is a successor in interest to the prop or right involved in the litigation or serving as a rep. 3rd parties not bound by res judicata.
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Persons bound by the judgment--collateral estoppel
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1. traditional rule, like res judicata, could not be used to bind 3rd parties who were stranger to 1st ac/n b/e of requirement of mutuality.
2. modern rule--CA one of states--mutuality relaxed & 3rd party may use collateral estoppel defensively & assertively. |
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Defensive use of collateral judgment by 3rd party: ?s which must be answered yes.
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1. Was issue in 1st case identical to that in 2nd?
2. Was there a final judgment on the merits? 3. Did the judgment against whom judgment is to be used have a fair opportunity to be heard on the critical issue? 4. Is the case such that it would not be unfair or unequitable to apply collateral estoppel? 5. CA adds was party against whom collateral estoppel being asserted a party or in privity w/ a party to the prior proceeding |
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Offensive use of collateral judgment by 3rd party?
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Most courts continue to prohibit but SC has allowed in cases in which the party against whom collateral estoppel is asserted has a full & fair opportunity to litigate the issue in the earlier proceedings.
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As to res judicate in CA
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CA still applies the PRIMARY RIGHTS DOCTRINE wh allows P to split a prop damage & personal injury cause of ac/n w/o risking that the claim will be barred by res judicata.
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As to collateral estoppel in CA
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be on the outlook--i.e. even though a claim may NOT BE BARRED BY RES JUDICATA, COLLATERAL ESTAOPPEL MAY PREVENT IT FROM BEING HEARD. e.g. in CA a state court came to a final judgment concluding D was not negligent in prop damage case, collateral estaoppel may prevent P from relitigating the issue of negligence in a subsequent personal injury claim. So prior finding that the D was not neg will prevent P from proving a prima facie case for neg.
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