Civil Procedure California And Federal

Front 1

RES JUDICATA
CLAIM PRECLUSION

Back 1

Once a judgment is entered on a particular claim, the parties are barred from relitigating that claim. Both the claims that were raised and could have been raised are precluded from being relitigated.

Front 2

ELEMENTS OF CLAIM PRECLUSION

Back 2

Claim preclusion requires:
1 the same parties or persons in privities with the parties
2. the same parties or persons in privities with the parties
3. same cause of action brought by plaintiff in both lawsuits
4. prior judgment by a court of competent jurisdiction
5. judgment is final and on the merits.

Front 3

SAME PARTIES OR PARTIES IN PRIVITY

Back 3

A party is in privity if the identity of interests between the party and non-party is so strong that it can be presumed that the party fully and adequately represented the non-party’s interests. Some parties in privity for RJ are trustee/beneficiary; guardian/ward; bankrupt/trustee; decedent, successors in interest; bailor/bailee; principal/agent; indemnsitor/indemnitee and third party contract beneficiaries.

Front 4

SAME CAUSE OF ACTION

Back 4

Federal courts use the transactional test for cause of action. Some states follow the same evidence test. California uses the primary rights test.

Front 5

VALID FINAL JUDGMENT

Back 5

Judgment valid except when court clearly lacked subject matter or personal jurisdiction or there were notice defects.

Front 6

ON THE MERITS

Back 6

A judgment on the merits includes a trial judgment, any adjudication after and including summary judgment; consent judgments and a default or summary judgment in favor of the plaintiff. A dismissal under 12 (b)(6) unless the court says it’s without prejudice is a judgment on the merits. Demurrer not usually on the merits unless the defect goes to the merits.

Front 7

ISSUE PRECLUSION

Back 7

Collateral estoppel is a doctrine that precludes relitigation of an issue if the parties have actually litigated it and the issue was essential to the judgment and it the party against whom preclusion is asserted had a full and fair opportunity to litigate in that first case. Collateral estoppel is modernly known as issue preclusion.

Front 8

MUTUALITY OF ESTOPPEL

Back 8

Formerly, under the mutuality of estoppel doctrine, courts held that a stranger to the action couldn’t benefit from an action if he wouldn’t have been bound by it. Modernly, courts have held that a stranger can benefit from the conclusions of an action without being bound by it if certain factors are met. A stranger to the suit, however, cannot be bound by it except in a class action. Defensive (defendant) non-mutual collateral estoppel is the shield; offensive (plaintiff) non-mutual collateral estoppel is the sword, and a higher threshold must be met to ensure Due Process.

Front 9

ACTUALLY LITIGATED

Back 9

According to the majority view, for an issue to be actually litigated, the evidence has to be subject to adversary presentation and consequent judgment. This can be through a trial, a motion for judgment on the pleadings, a motion for summary verdict or a motion for judgment as a matter of law.

Front 10

ESSENTIAL TO THE JUDGMENT

Back 10

The test for determining whether an issue is essential to the prior judgment and subject to issue preclusion is whether the result could have been reached without the issue being resolved.

Front 11

FULL AND FAIR OPPORTUNITY TO LITIGATE

Back 11

To determine if the first loser has a full and fair opportunity to litigate, consider his incentive and also whether he could reasonably foresee subsequent litigation.

Front 12

PARKLANE FACTORS

Back 12

If offensive non-mutual collateral estoppel is being asserted, the court will consider the additional safeguards to Due Process by considering
1. could the party have joined easily in the first suit
2. did the party have an incentive to litigate in the first suit (was it for a nominal amount)
3. was the judgment relied upon inconsisent with one or more previous verdicts
4. does the second action have procedural opportunities not available in the second lawsuit
JIPI – Joined; Incentive; Procedural; Inconsistent

Front 13

FULL FAITH AND CREDIT CLAUSE

Back 13

Article IV, section 1, of the U.S. Constitution says that each state must give “full faith and credit” to the judgments of other states. It also means that the preclusion rules of the state that decided the first case must be used.

Front 14

FULL FAITH AND CREDIT ACT

Back 14

Federal courts must give full faith and credit to the judgments of state courts.

Front 15

ELEMENTS OF FEDERAL CLASS ACTION

Back 15

threshold requirements are:
1. Numerosity --joinder is impracticable
2. Commonality -- common questions of law or fact
3. Typicality -- the claims or defenses of the representatives are typical of the class and
4. Representative -- the representatives will fairly and adequately protect the interests of the class.

Front 16

CLASS ACTION TYPES

Back 16

If the prerequisites are satisfied, then a class action may be maintained for injunctive or declaratory relief, or for damages.

Front 17

INJUNCTION OR DECLARATORY RELIEF

Back 17

Risk of prejudice by inconsistent verdicts or a risk to non-parties (impair/impede their interests). The risk of inconsistent verdicts is viewed from the defendant’s perspective – whether the D would be subjected to different standards of conduct. The risk to non-parties is usually a “limited fund” situation, where class treatment avoids problems where first claimants exhaust the assets of the defendant leaving nothing for subsequent claimants. The courts have held that fund must be truly limited (not just speculation) and will take all of the D’s assets and needs to be distributed equitably to all class mem

Front 18

DAMAGES CLASS ACTION

Back 18

If it is a damages class action, the court must consider whether the common issues of law or fact predominate, and whether the class action is superior. It will consider the balancing test of 1. individual’s interest in separate lawsuits
2. pending suits or verdicts that would be inconsistent
3. desirability of concentrating the lawsuits – consider judicial efficiency and whether the forum is fair and convenient and
4.difficulties of managing a class action.

Front 19

NOTICE FOR DAMAGES CLASS ACTION

Back 19

NOTICE: This type of class action requires heightened notice – individual notice to class members with the ability for them to opt out.

Front 20

CLASS ACTION SETTLEMENTS

Back 20

The court must approve a class action settlement and decide if it is fair, reasonable and adequate. In deciding if it is fair, the court will consider the complexity of the litigation; the amount of discovery conducted; the difficulties of maintaining the class through trial; and the reasonableness of the settlement compared ot the best possible recovery. Counsel must keep clients reasonably informed of settlement negotiations. Counsel must advise the court of client’s objections. Objecting class members may appear at a hearing with their own counsel, but the assent of all class members is not required.

Front 21

CY PRESS (FLUID RECOVERY)

Back 21

If the amount of the settlement exceeds the amount that has been paid to identified class members, the court may approve a cy pres or fluid recovery. Excess funds may be distributed through various ways:
1. rollback of defendant’s prices
2. escheat to a government agency for specific or general purposes
3. payment to a consumer trust fund
4. claimant sharing fund. Factors to be considered are
1. amount paid to individual class members
2. proportion of class members recovering money
3. size and effect of spillover to non-class members and
4. costs of administering the fund.

Front 22

CLASS ACTION FAIRNESS ACT OF 2005

Back 22

The act was aimed at making it easier for defendants to remove cases to federal court because state courts were seen as being too favorable to plaintiffs. The action can be removed to federal court if there is minimal diversity and the amount in controversy is more than $5 million.

Front 23

PRETRIAL CONFERENCE (FEDERAL)

Back 23

A scheduling conference must be held no later than 120 days after the complaint is filed. Discretionary with the judge, but once the judge orders one, the parties and attorneys must appear.

Front 24

INITIAL DISCLOSURE (FEDERAL)

Back 24

The initial discovery meeting must be no later than 14 days before the scheduling conference and the initial disclosure must be made within 10 days of the scheduling conference. The parties must voluntarily disclose the identities of persons with information that the parties will use to support a claim or defense; copies of potentially relevant documents, including electronically stored material, insurance agreements and computation of damages.

Front 25

DISCLOSURE OF EXPERTS (FEDERAL)

Back 25

At least 90 days before trial, the parties must disclose the following about testifying experts:
1. a written report of the expert’s opinions
2. data considered by the exper
4. expert’s qualifications and
5. compensation.

Front 26

NON-TESTIFYING EXPERTS (FEDERAL)

Back 26

Non-testifying experts can usually only be deposed if it is impracticable for the party seeking discovery to obtain the facts by any other means (i.e,"", there’s only one expert available.)

Front 27

PRETRIAL DISCLOSURE (FEDERAL)

Back 27

At least 30 days before trial, parties must disclose: 1) all witnesses expected to testify 2) all witnesses expected to testify by depo and 3) a list of exhibits

Front 28

SCOPE OF DISCOVERY (FEDERAL)

Back 28

Discovery is proper as to any matter, not privileged, related to a claim or defense of any party

Front 29

ELECTRONICALLY STORED INFORMATION (FEDERAL)

Back 29

Electronically stored information is subject to initial disclosure, can be the subject of a pretrial order, and must be supplied in a reasonably useful form. A party need not provide discovery of electronic information from sources that the party identifies as not easily accessible because of undue burden or cost.

Front 30

HARD-TO-ACCESS ELECTRONICALLY STORED MATERIAL (FEDERAL)

Back 30

If the material is not reasonably accessible, the burden is on the requesting party to show that the burdens and costs are justified by the circumstances of the case. The court will consider: whether the discovery sought is
1. unreasonably cumulative or duplicative
2. can be obtained more easily from another source
3. IF the party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought
4. the burden or expense of the proposed discovery outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues. Duplicative; Other; Resources; Benefits;; Amount; Importance; Needs

Front 31

PROTECTIVE ORDERS (FEDERAL)

Back 31

The court may issue a protective order for good cause in order to protect a party from oppression, annoyance, embarrassment or undue burden or expense. Such good causes include invasion of privacy, business or trade secrets, unnecessary inconvenience of place for deposition, unnecessary deposition or burdensome interrogatories.

Front 32

WORK PRODUCT DOCTRINE (FEDERAL)

Back 32

The qualified immunity of work product applies to materials produced in anticipation of litigation, either by lawyers, parties or their agents.
Discovery of attorney work product is allowed only upon a showing by the party seeking discovery that substantial need exists and the party is unable to obtain the material or its substantial equivalent without undue hardship. Adversary cannot have access to files (assembled information), and attorney’s mental impressions.

Front 33

WORK PRODUCT DOCTRINE (FEDERAL) Standard for attorney’s mental impressions

Back 33

A higher standard exists for attorney’s mental impressions, opinions, legal theories and conclusions (which are absolutely privileged under CCP) In considering whether the privilege applies, the court will consider the nature of the case; the relevance of the information; whether alternative sources of the information are available; the importance of maintaining confidentiality in a particular case.

Front 34

ATTORNEY CLIENT PRIVILEGE

Back 34

Attorney-client privilege applies to communications between an attorney and client that are confidential in nature. It survives the death of the client.

Front 35

ATTORNEY CLIENT PRIVILEGE (FEDERAL) Corporate client

Back 35

In a corporate situation, attorney-client privilege usually applies to members of the control group (corporate officers). The "no control group test" can be used to determine if attorney-client privilege applies. The test considers whether 1) the information was not available to management 2) the organization has directed lower-level employees to communicate with the attorney 3) matters were within the scope of the employees' employment 4) for the purposes of formulating legal advice to the organization and 5) the information is not more easily obtainable elsewhere.

Front 36

ORAL DEPOSITIONS (FEDERAL)

Back 36

Depositions may be taken of any person, including a party, without court permission. Attendance of witnesses may be compelled by subpoena. Court permission is needed to take depositions of prisoners or to conduct more than 10 depositions.

Front 37

USE OF DEPOSITIONS AT TRIAL (FEDERAL)

Back 37

Depositions of any party may be used for impeachment, or by any party for any purpose if the witness is dead; lives more than 100 mile from the place of trial; is out of the country or unable to attend because of age, infirmity, imprisonment or if the court decides that it is in the interests of justice.

Front 38

INTERROGATORIES (FEDERAL)

Back 38

Interrogatories are limited to 25 unless court permission is granted for more. They must be signed by the party under oath. Objections must be signed by the attorney. Answers are due in 30 days.

Front 39

REQUEST FOR PRODUCTION OR INSPECTION

Back 39

Parties may request documents, electronically stored information, including writings, drawings, audio recordings, etc.t ranslated, if necessary, by the respondent into reasonably usable form, or to inspect tangible things or to enter designated land. The request must be in writing and responses must be in writing within 30 days.

Front 40

DISCOVERY
Mental and physical exams (federal)

Back 40

The court may order a mental or physical examination of a party or a person in the custody of a party if
1. it can be shown that there is good cause and
2. the party’s mental or physical state is in controversy

Front 41

REQUESTS FOR ADMISSION (FEDERAL)

Back 41

A party can request admissions in writing, and unless the respondent denies them or explains why he or she lacks the knowledge to do so within 30 days, the matter is deemed admitted. Any matter admitted under this rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission.

Front 42

FAILURE TO MAKE DISCOVERY – SANCTIONS (FEDERAL)

Back 42

A party can seek a motion to compel disclosure and for sanctions if the party has tried in good faith to get the material and has been unsuccessful. If parties don’t obey, the court has many remedies, including ordering the attorney or party, or both of them, who caused the delay to pay the reasonable expenses of making the motion, striking all or part of the pleadings, or ordering that the matters regarding which the order was made shall be taken to established in accordance with the claim of the party making the motion, or finding the party in contempt of court. Sanctions don’t apply for failing to provide electronically stored information lost accidentally.

Front 43

PLEADINGS (FEDERAL)

Back 43

A short and plain statement of the facts showing that the plaintiff is entitled to relief; each allegation shall be “simple, concise and correct” stating a claim. There should also be a short and plain statement of jurisdiction and a demand for judgment for the relief to which the plaintiff deems himself entitled. The plaintiff may plead alternative and contradictory theories or versions of the facts.

Front 44

PLEADING FRAUD OR MISTAKE (FEDERAL)

Back 44

Fraud or mistake must be pleaded with particularity.

Front 45

SIGNING PLEADINGS (FEDERAL)

Back 45

Attorney’s signature shows that, based on personal knowledge formed after reasonable inquiry under the circumstances, the pleading is not frivolous or for an improper purpose. The purpose of sanctions is to deter improper conduct.

Front 46

SAFE HARBOR RULE

Back 46

If the opposing party seeks sanctions, the party can avoid them by withdrawing the offending pleading within 21 days after the service of the motion for sanctions

Front 47

FRCP 12 (b) MOTION TO DISMISS

Back 47

Can be dismissed for lack of 1. subject matter jurisdiction 2. personal jurisdication
3. improper venue
4.insufficiency of process
5. insufficiency of service of process
6. 12(b)(6) failure to state a claim upon which relief can be granted
7. failure to join an indispensable party.

Front 48

FRCP 12 (c) MOTION FOR JUDGMENT ON THE PLEADINGS

Back 48

This motion is treated like a motion for summary judgment if supporting affidavits are included – it tests the legal and factual sufficiency of the complaint. Matters are deemed admitted if not denied or controverted.

Front 49

FRCP 12 (e) MOTION FOR A MORE DEFINITE STATEMENT

Back 49

The court should grant a motion for a more definite statement if the pleading is so vague or ambiguous that the defendant cannot be reasonably required to frame a responsive pleading.

Front 50

AMENDMENTS TO PLEADINGS (FEDERAL)

Back 50

Amendments to pleadings are to be liberally granted unless they materially alter the nature of the action by injecting new issues or would otherwise prejudice parties.

Front 51

RELATION BACK (FEDERAL)

Back 51

An amendment to the complaint relates back to the date of the original filing for purposes of the Statute of Limitations if the new claim arises out of the same conduct, transaction or occurrence and if it changes or adds a party who had timely notice

Front 52

SUPPLEMENTAL PLEADINGS (FEDERAL)

Back 52

The court may allow supplemental pleadings at its discretion.

Front 53

REAL PARTY IN INTEREST (FEDERAL)

Back 53

Every action shall be prosecuted in the name of the real party in interest, which is the person whose rights have been invaded. An executor, administrator, guardian, bailee, trutee, a third-party beneficiary may sue in that person’s own name without joining the party for whom the action is brought.

Front 54

COMPULSORY COUNTERCLAIMS (FEDERAL)

Back 54

A defendant must bring all transactionally related counterclaims or he loses the right to do so later. Supplemental jurisdiction does apply.

Front 55

PERMISSIVE COUNTERCLAIMS (FEDERAL)

Back 55

A party may bring any claim it has against an opposing whether or not it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim. Supplemental jurisdiction does not apply.

Front 56

CROSS-CLAIMS (FEDERAL)

Back 56

A party may bring a cross-claim against a co-party if it arises out of the same transaction or occurrence that is the subject matter of the original claim or counterclaim. It also might be a claim that the co-party is liable for all or part of the claim asserted in the action against the cross-claimant. Once a proper cross-claim is asserted, unrelated claims can be added under Rule 18(a). Counterclaim rules apply to all opposing parties, not just the original plaintiff/defendant.

Front 57

IMPLEADER (FEDERAL)

Back 57

A defending party may bring a claim against any party who may owe him or her contribution or indemnity.

Front 58

JOINDER OF CLAIMS (FEDERAL)

Back 58

A person asserting a claim to relief, whether as an original claim, counterclaim, cross-claim or third-party claim, may join as many claims as the party has against an opposing party. However, supplemental jurisdiction does not apply.

Front 59

JOINDER OF NECESSARY PARTY

Back 59

A necessary party is one whose presence is needed for a fair and just adjudication. A party is necessary any one of the following factors is present:
1. the existing parties cannot get complete relief without joinder of the absent party
2. the absent party claims an interest in the subject matter and his rights will be impaired or impeded or
3. as a result of his absence, the existing parties may be subject to multiple lawsuits or inconsistent obligations.

Front 60

INDISPENSIBLE PARTY (FEDERAL)

Back 60

If a party who is a necessary party under 19(a) cannot be joined, the court must decide if in equity and good conscience the case must be dismissed in that party’s absence. The factors that the court will weigh will be the
1. extent a verdict rendered in that party’s absence would prejudice that party or existing parties
2. adequacy of a judgment without that party
3. extent to which the court can shape relief in the absence of that party and
4. is there an alternative available to the plaintiff if the action is dismissed

Front 61

PERMISSIVE JOINDER OF PARTIES

Back 61

All persons may join in one action as plaintiffs if they assert any right to relief jointly, severally or in the alternative in respect of the same transaction, occurrence or series of transactions and occurrences and there are common questions of law or fact.. All persons may be joined together as defendants if there is asserted against them jointly, severally or alternatively liability arising out of the same transaction or occurrence.

Front 62

INTERPLEADER

Back 62

Persons having claims against the plaintiff may be joined as defendants and required to interplead when their claims may subject the plaintiff to multiple liability.

Front 63

INTERVENTION AS OF RIGHT (FEDERAL)

Back 63

Intervention as of right requires 1) a timely motion 2) a claimed interest in the subject matter of the suit 3) the intervenor’s rights might be impaired or impeded by the action and 4) the intervenor’s interests are not already adequately represented

Front 64

PERMISSIVE INTERVENTION (FEDERAL)

Back 64

Permissive intervention requires
1. a timely motion
2. the intervenor’s claims and the existing lawsuit share common issue of law or fact and
3. should be permitted unless it will delay the suit or prejudice existing parties

Front 65

SUPPLEMENTAL JURISDICTION (FEDERAL)

Back 65

The district courts have supplemental jurisdiction over all claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the Constitution. Such supplemental jurisdiction shall include claims that involve the joinder or intervention of additional parties.

Front 66

WHEN SUPPLEMENTAL JURISDICTION DOES NOT APPLY (FEDERAL)

Back 66

Supplemental jurisdiction does not apply to parties joined under 1) impleader 2) necessary and indispensable parties 3) permissive joinder and intervention as of right IF JOINDER WOULD DESTROY DIVERSITY.

Front 67

COURT’S DISCRETION TO DECLINE SUPPLEMENTAL JURISDICTION (FEDERAL)

Back 67

The district courts may decline to exercise supplemental jurisdiction if 1) there are novel or complex state law issues 2) the claim substantially predominates over claims over which the court had original jurisdiction 3) the district court has dismissed all claims over which it has original jurisdiction or 4) compelling other reasons to decline.

Front 68

FRCP 38 JURY TRIAL OF RIGHT

Back 68

The right of trial by jury as declared by the Seventh Amendment or in a statute is inviolate. A jury trial on any issue triable of right by a jury may be demanded in at any time after the action starts and not later than 10 days after service of the last pleading.

Front 69

SEVENTH AMENDMENT

Back 69

In suits at common law … the right to trial by jury shall be preserved.

Front 70

RIGHT TO JURY TRIAL ANALYSIS (Beacon Theaters v. Westover)

Back 70

To determine if a jury trial is required, consider:
1. cause of action historically legal or equitable?
2. legal or equitable remedy being sought (note: restitution and back pay are equitable, not damages
3. has Congress delgated the function to an agency or specialized court? 4
4. in some cases, the abilities of juries v. judges

Front 71

TEST FOR RIGHT TO A JURY TRIAL WHEN STATUTE DOES NOT EXPRESSLY PROVIDE FOR ONE

Back 71

The test is whether
1. the action is brought in an Article III court
2. is the remedy one ?
3. is the statutory action analogous to a common law action?

Front 72

DISMISSAL OF ACTION (FEDERAL)

Back 72

A plaintiff may dismiss the action without order of the court before the answer or motion for summary judgment is filed, or by stipulation of all parties who have appeared. A second dismissal operates as an adjudication on the merits. A dismissal for failure to prosecute or to comply with the rules of the court is an involuntary dismissal that is on the merits. Not on the merits are dismissals for lack of jurisdiction, improper venue or failure to join a necessary party under Rule 19.

Front 73

CONSOLIDATION OR SEPARATE TRIALS (FEDERAL)

Back 73

If there are common questions, the court may consolidate trials, or it may sever them if more convenient or to avoid prejudice.

Front 74

JURORS (FEDERAL)

Back 74

The court may seat a jury of no fewer than six and not more than 12 members. Verdicts must be unanimous and no verdict is taken from a jury of fewer than six.

Front 75

FRCP 48 JURIES OF LESS THAN 12

Back 75

A majority verdict can be agreed to by stipulation of the parties.

Front 76

CHALLENGING THE JURY POOL (FEDERAL)

Back 76

Under Due Process and the Equal Protection clauses of the Constitution, the jury pool cannot systematically exclude a cognizable group. The jury must be impaneled from a fair cross-section of the community. A party challenging the jury pool must show the purposeful exclusion of an identifiable group and that the exclusion of the group is not fair or reasonable. Then the burden shifts to the other side to show that the exclusion is necessary or reasonable or that no disparity exists.

Front 77

COGNIZABLE GROUP

Back 77

Race and gender have been recognized as cognizable groups. A cognizable group can be defined by a quality that defines or limits the group has a cohesiveness and a community of interest not otherwise represented.

Front 78

PEREMPTORY CHALLENGES

Back 78

In federal court, each side gets three peremptory challenges. In California, six.

Front 79

WHEELER-BATSON MOTION

Back 79

If one side believes the other has used its peremptory challenges for an improper purpose, it can make Wheeler-Batson motion. The motion must be timely, there must be a complete record, the excluded juror must be from a cognizable group and there must be an inference that the juror was excluded because of his or her group. If that is met, there is a prima facie case of discrimination and the other side must show that it was not.

Front 80

JURY MISCONDUCT (FEDERAL)

Back 80

Under the Federal Rules of Evidence Section 606, jurors cannot testify about a jury’s deliberations or thought processes except about
1. extraneous prejudicial information or
2. improper outside influences.

Front 81

SPECIAL VERDICTS AND INTERROGATORIES (FEDERAL)

Back 81

A general verdict is one in which the jury just finds for one party. The court may require a jury to return a special verdict in the form of specific findings on each issue of fact. The judge will then apply the law to the facts. A general verdict with special interrogatories is a combination: the jury finds for one party and answers specific questions.

Front 82

FRCP 50 MOTION FOR A DIRECTED VERDICT AND FOR A JUDGMENT NOT WITHSTANDING THE VERDICT

Back 82

If there is no legally sufficient evidentiary basis for a reasonable jury to find for the party on an issue, the court may grant a motion for judgment as a matter of law. The JMOL may be made before the submission of the case to the jury. A renewed JMOL may be made not later than 10 days after entry of judgment and may alternatively request a new trial.

Front 83

DEFAULT JUDGMENT (FEDERAL)

Back 83

When a party against whom a judgment for affirmative relief is sought fails to plead or otherwise defend, the clerk can enter the party’s default. A judgment for default can be set aside for good cause.

Front 84

FRCP 56 SUMMARY JUDGMENT

Back 84

Summary judgment should be given if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Test: Moving party must point out absence of evidence in favor of the non-moving party.

Front 85

MOTION FOR A NEW TRIAL (FEDERAL)

Back 85

A motion for a new trial must be made within 10 days. A new trial may be granted for any of the reasons for which new trials have been previously granted in actions at law in the United States. Reasons include misconduct by the jury, judge or attorneys, newly discovered evidence, improper admission of evidence if not harmless error; errors in the verdict (excessive, inadequate or against the clear weight of evidence); surprise (must have had a material effect on trial outcome.)

Front 86

RELIEF FROM JUDGMENT OR ORDER (FEDERAL)

Back 86

Relief from a judgment can be had for clerical mistakes; mistakes, inadvertence or excusable neglect; newly discovered evidence (which could not have been discovered earlier with due diligence) or fraud or misrepresentation by an adverse party; the judgment is void or has been satisfied, released or discharged.

Front 87

FRCP 61 HARMLESS ERROR

Back 87

No error in the admission or exclusion of evidence or defect in any ruling or order is grounds for a new trial or setting aside a judgment or verdict unless refusal to take such action is inconsistent with substantial justice. An error is harmless if it does not affect the substantial rights of the parties.

Front 88

TEST FOR HARMLESS ERROR

Back 88

It must be probable that the jury would have reached a different verdict in the absence of the erroneous ruling.

Front 89

JURISDICTION
Components

Back 89

Jurisdiction is the power of the court to establish or alter the legal relationships of the parties. It has three components:
1. subject matter
2. notice
3. personal jurisdiction

Front 90

PERSONAL JURISDICTION
Bases

Back 90

The three bases of jurisdiction
1. domicle
2. consent
3. presence

Front 91

PERSONAL JURISDICTION
Domicile

Back 91

Domicile is one's fixed and permanent home and principal establishment to which one has the intention of returning whenever absent.

Front 92

PERSONAL JURISDICTION
Consent

Back 92

Consent is one's permission to allow the court to have jurisdiction. In California, an out-of-state defendant must make a special appearance to contet jurisdiction and not raise other issues. In federal court one may make a first appearance and contest jurisdiction as well as other issues.

Front 93

PERSONAL JURISDICTION
Presence

Back 93

One's physical presence in the state, even if it is brief, can establish jurisdiction if the person is properly served.

Front 94

IN PERSONAM JURISDICTION

Back 94

Jurisdiction of the personal of the defendant in regard to the individual's peraonal rights and duties.

Front 95

IN REM JURISDICTION

Back 95

Jurisdiction over the property of the defendant. Quasi in rem jurisdiction involves the rights of parties to specific property in disputes between the parties in regard to specific property or through attachment (property in one state being attached to secure a judgment in an unrelated matter). Quasi in rem jurisdiction requires minimum contacts.

Front 96

PERSONAL JURISDICTIONS
Three elements

Back 96

TUnder Internatrional Shoe, a court may have jurisdiction if the defendant has
1, minimum contacts with the state
2. the cause of action is forum-related and
3. asserting jurisdiction will not offend traditional notions of notions of substantial justice, fair play and reasonableness.

Front 97

PERSONAL JURISDICTION
Minumum contacts

Back 97

Minimum contacts are established if the defendant
has
1. systematic and continuous contacts with the state and
2. has purposefully availed himself of the benefits of the state

Look for TIPS -- Time, Intention, Purpose, Systematic when looking to see if there are minimum contacts.

Front 98

PERSONAL JURISDICTION
Reasonableness factors

Back 98

Whether the jurisdiciton would offend notices of fair play and reasonableness depends upon
1. whether the defendant would anticipate being haled inot the court in the forum state (but foreseeability alone is not enough)
2. burden on the defendant
3. plaintiff's interest in obtaining convenient and effective relief
4. interest of the forum state in adjudicating the claim
5. furthering substantive social policies of the state and
6. efficiency in dispute resolution

Front 99

PERSONAL JURISDICTION
When it is found

Back 99

Personal jurisdictio is found if there are substantial and systematic activities in the state and a forum-related cause of action

Front 100

PERSONAL JURISDICTION
When it is not found

Back 100

Personal jurisdiction might be found if
1. there are continuous and systematic contacts but the cause of action is not forum-related or
2. no continuous and systematic activities but a forum-related cause of action. This requires a showing that the out-of-state defendant purposefully established contacts with the forum state and the plaintiff's cause of action arises from those contacts, and finding juridictions would comport wiht substantial justice and fair play.

Front 101

PERSONAL JURISDICTION
When it is not found

Back 101

If there are only a few and sporadic contacts with the state and the cause of action is not forum-related, personal jurisdiction won't be established.

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PERSONAL JURISDICTION
Products liability cases

Back 102

Products liability cases have a forum-related cause of action but courts have been reluctant to say that the foreseeability that the product might wind up in the state is enough to find personal jurisdiction. Under Asahi, The prevailing view is that the company must have put the product in the stream of commerce plus have some additoinal conduct, such as advertising in the state or engaging a distributor to market thee product in the state.

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PERSONAL JURISDICTION
Contract cases

Back 103

When one of the contracting parties is in the forum state, a contractual designation of forum may be enough to establish jurisdiction. Factors in favor of jurisdiction are
1. no unfair surprise
2. no fraud or unfair influence in the bargaining or unequal bargaining
3. a sophisticated defendant
Factors against include 1. the opposite of the above factors plus whether the defendant would lose access to witnesses by trying it in the forum state

Front 104

LONG-ARM STATUES

Back 104

Long-arm statutes are those by whitch the state defines the circumstances under which it will find jurisdiction. If there is a long-armed statute it must be analyzed to see
1. does it apply to the defendant
2. would assertion of jurisdiction be constitutionally valid
California's long-arm statute asserts taht the state will take jurisdiction in all cases in which it is constitutionally able to do so.

Front 105

ERIE DOCTRINE

Back 105

Under the Erie doctrine, in diversity cases, the f3ederal court will use the state substantive law of the forum state and federal procedural law.

Front 106

SUBJECT MATTER JURISDICTION (FEDERAL)

Back 106

The federal court has subject matter jurisdiction in
1. diversity cases
2. federal question cases

Front 107

FEDERAL QUESTION

Back 107

Under the well-pled complaint rule, in order for there to be federal question jurisdiction, the plaintiff must state an issue arising under the U.S. Constitution, federal law or a federal treaty. The possibilit of a defense based in the Constitution or federal law will not count.

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FORUM NON CONVENIENS

Back 108

A change of venue for convenience. Under the Erie, doctrine, this requires the use of teh substantive law of the first state where it was filed, but a change of venue because the venue was imporper, requires use of the subtantive law of second state.

Front 109

SUBSTANTIVE v. PROCEDURAL LAW

Back 109

Substantive law regulates the conduct of hte parties ouside of court but procedural law applies to the conduct of the court case.

Front 110

ERIE DOCTRINE
Byrd balacing test

Back 110

Under the Byrd balancing test, a state procedural rule will apply in court only if
1. there is no conflicting or applicable federal rule
2. the choice is determinative (of the outcome) and
3. the balance of federal and state interests favors use of the rule

Front 111

VENUE

Back 111

The proper venue is where the defendant resides if all defendants are in teh same state or where the cause of action arose.

Front 112

VENUE
Diversity action

Back 112

In a diversity action, venue is proper in any state where personal jurisdiction can be found over the defendant.
In a federal question action, venue is proper in any state where the defendant can be found.