Civil Procedure (Short)

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In Personam Jxn: Statutory Limitations

Back 1

Each state may prescribe its own statutory bases for personal jxn, but must still satisfy constitutional requirements. Most states grant courts in personam jxn in 4 situations:

(i) where the D is PRESENT in the forum state and is personally served with process;

(ii) where the D is DOMICILED in the forum state;

(iii) where the D CONSENTS to jxn; and

(iv) where the D has committed acts bringing him within the forum state's LONG ARM STATUTES.

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PERSONAL JXN: Minimum Contacts

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International Shoe requires that the D have "such minimum contacts" with the forum that the exercise of jxn would be fair and reasonable. Look to 2 factors: purposeful availment and foreseeability.

There must be a relevant tie between ∆ and the forum state.

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PERSONAL JXN: Purposeful Availment

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D's contact with the forum must result from her purposeful availment with that forum. Contacts cannot be accidental. D must reach out to the forum in some way, such as to make $$ there or to use the roads there.

The court must find that through these contacts the D PURPOSEFULLY AVAILED himself "of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws."

ASK: Has the ∆ purposefully availed himself of the benefits of the State; aiming his behavior at the state?
• Look to shipping goods, whether the ∆ makes money from the transactions, etc.
• An interactive website CAN be purposeful availment.

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PERSONAL JXN: Stream of Commerce

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Asahi: four justices found that placing an item in the stream of commerce, with the knowledge that it would end up in a particular forum, constituted purposeful availment. Four other justices found that there would also have to be a showing that the D took some additional step to avail itself of the forum.

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PERSONAL JXN: Fairness

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International Shoe also requires that the exercise of jxn not offend "traditional notions of fair play and substantial justice." FACTORS:

--Relatedness of claim to contact
-claim arising from activity in the state
-systematic and continuous activity in the State

--Convenience

--Forum State's Interest (in providing redress for its citizens)

--Other factors: (i) the P's interest in obtaining convenient and effective relief; (ii) the interstate judicial system's interest in obtaining the most efficient resolution of controversies; and (iii) the shared interest of the states in furthering fundamental substantive social policies.

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NOTICE

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In addition to the requirement that the D have minimum contacts with the forum state to render the exercise of jxn fair and reasonable, due process also requires that a REASONABLE METHOD BE USED TO NOTIFY THE DEFENDANT OF A PENDING LAWSUIT so that she may have an opportunity to appear to be heard.

Due process requires that the notice be "reasonably calculated, under the circumstances, to apprise interested parties of the pendancy of the action and afford them an opportunity to present their objections."

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DIVERSITY among the parties

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Every P must be of diverse citizenship from every D. If one D and one P are co-citizens of the same state, there is no diversity jxn. This is the rule of "complete diversity"

BUT: interpleader exception.

Diversity must exist AT THE TIME THE SUIT IS INSTITUTED.

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Intervention of Right (RULE 24(a))

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where the intervenor claims an interest relating to the property or transaction that is the subject of the action and the disposition of the action may adversely affect the matter, the intervenor may claim a right of intervention.

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Permissive Intervention (RULE 24(b))

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permissive intervention may be permitted in the court's discretion when the intervenor's action and the main action have a claim or defense involving a COMMON QUESTION OF LAW OR FACT. Claim by a permissive intervenor must invoke either diversity of citizenship or federal question jxn.

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Impleader (RULE 14)

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A 3rd party claim under Rule 14 is the joinder by the D in the original action of another person not originally a party to the action. The impleader claim asserts that the 3rd party D is or may be liable to the D for all or part of the P's claim against the D.

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Cross-Claims (RULE 13(g))

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allows a party to assert a claim in a pending case against a co-party, but only if the claim arises from the SAME TRANSACTION OR OCCURRENCE as the underlying dispute.

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JURISDICTIONAL AMOUNT: In excess of $75k

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Actions brought in a federal court under the diversity statute must meet the jxnal amount requirement; matter in controversy must be IN EXCESS OF $75K, exclusive of interest and costs. Amount is determined from what is claimed in the complaint, disregarding potential defenses or counterclaims.

Usually, all that is necessary is a GOOD FAITH ALLEGATION that the amount of the damages or injuries in controversy EXCEEDS, exclusive of interest and costs, the sum of $75k. GF means that there must be a legally tenable possibility that the recovery will exceed the jxnal amount.

If punitive damages claims are permitted under state law, it MAY be used in making the dollar amount requirement.

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Erie Doctrine: TESTS

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When it is unclear whether the issue is substantive or procedural, the SC uses several tests:

--OUTCOME DETERMINATION, where the court holds that an issue is substantive if it substantially affects the outcome of the case;

--BALANCE OF INTERESTS, where ct weighs whether the state or federal judicial system has the greater interest in having its rule applied;

--FORUM SHOPPING DETERRENCE, which directs that the fed judge should follow state law on the issue if failing to do so would cause litigants to flock to federal court.

Front 14

FEDERAL QUESTION JXN (Section 1331)

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The district courts shall have original jxn of all civil actions ARISING UNDER THE CONSTITUTION, LAWS OR TREATIES OF THE UNITED STATES...

--fed Q must appear as part of the P's cause of action as set out in a well-pleaded complaint.

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FED Q JXN: Pendent Claims

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PENDANT JXN allows a π who has a jurisdictionally sufficient federal question claim to join, in the original complaint, related claims that otherwise would not have subject matter jxn.

In some cases, the P will have both fed and state claims against the D; although there may be no diversity, the fed court has DISCRETION to exercise pendent jxn over the claim based on state law if the 2 claims "derive from a common nucleus of operative fact" and are such that a P "would ordinarily be expected to try them all in one judicial proceeding."

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VENUE (Section 1391)

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Venue refers to the district in which a case is heard. In a diversity of citizenship case, venue is proper where any ∆ resides (so long as all ∆s reside in the same state) or where the cause of action arose.

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VENUE -- Section 1404 (Change of Venue)

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(a) For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division WHERE IT MIGHT HAVE BEEN BROUGHT.

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Transfer of VENUE

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A ∆ may move for a transfer of venue when venue is IMPROPER. The court also may transfer venue, on motion and even if original venue is proper, when:

(i) there is reason to believe that an impartial trial cannot be had in the original county;

(ii) the convenience of witnesses and the ends of justice would be promoted by the change; or

(iii) there is no judge of the court qualified to act.

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Forum Non Conveniens (FNC)

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The equitable doctrine of forum non conveniens (FNC) has been codified in CA. The statute permits a court to STAY OR DISMISS an action if it finds that the action should be heard, in the interest of substantial justice, in a different state or country. The moving party must establish that:

(i) the alternative forum is suitable (the ∆ is subject to personal jxn there, statute of limitations would not bar the action, and the alternative forum will provide due process and an impartial judiciary); and

(ii) private and public interest factor balance in favor of the alternative forum.

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Removal Jurisdiction (Federal Court)

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An action originally filed in a state court may be removed to federal court if:

(i) the case could have originally been filed in federal court; and

(ii) for cases removed on the basis of diversity, no ∆ is a citizen of the state where the action is filed.

--∆ cannot remove on the basis that he has a defense grounded in federal law, since the existence of a federal defense is insufficient to confer original FQJ.

--Only ∆s can exercise the right of removal.

PROCEDURE: ∆ must file a notice of removal in the federal district court in the district and division within which the action is pending; must be filed within 30 days after ∆ receives notice that the case has become removable.

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Remand

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A π can file a motion to have the case remanded (sent back) to the state court. A case will be remanded if there is no federal jurisdiction.

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Federal Intervention

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Federal intervention on constitutional grounds may occur if the federal π can demonstrate:

(i) great and immediate irreparable injury;

(ii) bad faith in the prosecution of state action; or

(iii) harassment or other unusual circumstances calling for federal equitable relief.

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CA Long-Arm Statute (§ 410.10)

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“A court of this state may exercise jurisdiction on any basis not inconsistent with the Constitution of this state or of the United States.”

o CA Statutory analysis: Easy to meet, because the statute reaches the constitutional limit.

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PERSONAL JXN: Foreseeability

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It must be foreseeable that the ∆ could get sued in this forum.

• Does the ∆ know or should know that its products could reach the forum state?

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PERSONAL JXN: Relatedness

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Relatedness between the contact and the π’s claim. Quality of D’s contact with the forum.

Ask: Does the π’s claim arise from the ∆’s contact with the forum?

--Where the claim is related to the ∆’s contact with the forum, it is called specific jurisdiction.

--If the claim does not arise from the ∆’s contact with the forum, then jurisdiction is ONLY OK if the court has general personal jurisdiction. To have this, ∆ must have CONTINUOUS AND SYSTEMATIC TIES with the forum state.

--Examples of systematic ties: domicile, incorporation, major facilities there, etc.

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PERSONAL JXN: Convenience

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Convenience: ∆ may complain that the forum makes it tough to litigate because it is far from the ∆’s home and it may be tough to get ∆’s witnesses and evidence to the forum.

Standard: the forum is OK unless it puts ∆ at a SEVERE DISADVANTAGE IN THE LITIGATION

• Relative wealth of the parties is not relevant.

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PERSONAL JXN: State's Interest

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State's interest is often to provide a forum for its citizens.

Ex: The forum state might have an interest in providing a courtroom for its people who are harmed by allegedly careless out-of-state manufacturers.

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PERSONAL JXN: Summary of Constitutional Test

Back 28

“My Parents Frequently Forgot to Read Children’s Stories”

• Minimum Contacts
o Purposeful Availment
o Foreseeability

• Fair Play & Substantial Justice
o Relatedness of contact and claim
o Convenience
o State’s Interest

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CA SMJ

Back 29

The Superior Court has GENERAL SMJ over civil matters not within the exclusive jurisdiction of another court. This means that the CA Superior Court can hear almost ANY civil case.

o Exception: for Limited Civil Cases -- $25k or LESS (In a limited civil case, no claimant can get more than $25k) OR Small Claims Cases – if π is an individual, $7500; if π is an entity, $5000 or less

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Pleadings (CA Distinction)

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CA uses “fact pleading” instead of “notice pleading,” meaning the state court requires more detail in pleadings than in federal court.

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COMPLAINT: ∆s Response

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∆ must respond in an appropriate way within 30 days after service of process is deemed complete.

TYPES:
o General Demurrer
o Special Demurrer
o Motion to Quash Service of Summons
o Motion to Dismiss or Stay for Inconvenient Forum
o Motion to Strike (and Anti-SLAPP Motions to strike)
o Answer

Front 32

Claims by a ∆

Back 32

As in federal court, ∆ can assert a claim (1) against the π, (2) against a co-defendant, or (3) against an impleaded 3rd party defendant. In federal court, these are called (1) counterclaim, (2) cross-claim, and (3) impleader.

CA Distinction: All 3 of these claims have THE SAME NAME. They are all called CROSS-COMPLAINT (no such thing as counterclaim, impleader, or cross-claim).

• The cross-complaint must be a separate document from the answer

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Cross-complaint against π

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Like federal counterclaim, except it is not part of the answer (it is a separate doc). This is to be filed before or at the same time as the answer

--It is against an opposing party
--It is COMPULSORY. It must be filed in this case.
--But if the cross-complaint by ∆ doesn’t arise from the same transaction or occurrence as the π’s cause of action, it is NOT compulsory—you may sue here or bring a separate case.

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Cross-Complaint against co-party

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Like the federal cross-claim; may be filed anytime before the court has set a trial date.

• It is a claim against a co-party, by a defending party

• It MUST arise from the same transaction or occurrence as the underlying dispute.

• It is NEVER compulsory. The party may assert it here as a cross-complaint or may sue in a separate case

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Cross-Complaint against a 3rd Party ∆

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Like federal impleader; may be filed anytime before the court has set a trial date. It is never compulsory – so you don’t have to file it.

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COMPLAINT

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Must include:

a) Statement of grounds for subject matter jurisdiction;

b) Short and plain statement of the claim, showing entitled to relief;

c) Demand for relief sought.

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MOTIONS (Rule 12)

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Issues of form:

(1) Motion for more definite statement -- pleading so vague ∆ can;t frame a response (rare)

(2) Motion to strike, which is aimed at immaterial things, e.g., demand for jury when no right exists; any party can bring.

RULE 12(b) Defenses:
(1) lack of SMJ
(2) lack of PJ
(3) improper venue
(4) insufficiency of process (problem with papers)
(5) insufficient service of process
(6) failure to state a claim
(7) failure to join indispensable party.

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The ANSWER

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Must be served within 21 days after service of process (but if ∆ made a rule 12 motion, and it is denied, she must serve her answer within 14 days after court rules on the motion).

What do you do?

(1) RESPOND TO ALLEGATIONS OF COMPLAINT:

(a) Admit
(b) Deny
(c) state that you lack sufficient information to admit or deny (which acts as a denial, but can't be used if the information is public knowledge or in ∆s control).

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The CLASS ACTION

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Representative(s) sues on behalf of class members. Must initially demonstrate ALL of these:

(1) NUMEROSITY: too many class members for practicable joinder;

(2) COMMONALITY: There are some question of law or fact in common to class;

(3) TYPICALITY: Rep's claims/defenses typical of those of the class; and

(4) REPRESENTATIVE IS ADEQUATE: Rep will fairly and adequately represent class.

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SUMMARY JUDGMENT

Back 40

Moving party must show:

(1) there's no genuine dispute as to material issue of fact; and

(2) that she is entitled to judgment as a matter of law.

Front 41

RES JUDICATA Mnemonic

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Rule: Res Judicata prevents re-assertion of the claimant's cause of action if there was a
final judgment, on the merits, same parties, same claims, and the claim was actually litigated or could have been litigated. In CA, remember the primary rights doctrine.

(Res Judicata somewhat rhymes with Water- VOSS Water)

Valid final judgment
On the merits
Same parties
Same claims

Was actually litigated or could have been litigated

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Collateral Estoppel (Issue Preclusion)

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Rule: Issues of fact actually litigated and essential to a judgment in a first action are
conclusive in a subsequent, although different, action between the plaintiff and
defendant or their privies.

• Default and consent judgments do not involve litigation of the merits and therefore do not give rise to collateral estoppels.

• Can be used as a sword (modernly) and as a shield (traditionally)

• Tip: Since California applies the primary rights doctrine with res judicata, which allows a
plaintiff to split a property damage and personal injury cause of action without the risk of
res judicata, you should still raise collateral estoppel. While it may not be res judicata,
collateral estoppel may prevent the issue from being heard in. For example: a
subsequent personal injury claim.

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SUPPLEMENTAL JXN

Back 43

Supplemental jxn refers to the court's authority to hear a claim that does not otherwise have an independent basis for SMJ but is joined in a single suit with a jurisdictionally sufficient claim. There are two types of supplemental JXN: ANCILLARY and PENDENT.

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ERIE Doctrine: CA Distinction

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A federal court in CA presiding over a diversity claim must apply CA's conflict of law rules in determining the applicable substantive law.

If there is a conflict, the court will assess whether CA has a MATERIALLY GREATER INTEREST than the chosen state in the determination of a specific issue.
See Torts and Contracts Cards

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ERIE Doctrine: Outcome determinative test

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The "outcome determinative" test provides that an issue is substantive where it directly affects the outcome of the case.

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ERIE Doctrine: Balancing of interests test

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The balance of interests test requires the court to weigh the interests of the state versus the federal system in having its own rule applied.

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ERIE Doctrine: Forum shopping deterrence

Back 47

Under the forum shopping deterrence test, the court must follow state law on the issue if failing to do so would cause litigants to flock to federal court.

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JOINDER

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There are two types of joinder: Compulsory and Permissive.

COMPULSORY JOINDER (Rule 19(a)) refers to the joining of a party into an existing lawsuit who MUST be brought in if feasible.

PERMISSIVE JOINDER refers to the joining of a party who MAY be brought in if feasible.

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JOINDER: Rule 19(a) -- Compulsory Joinder

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Under Rule 19(a), a party WILL BE ORDERED to join a lawsuit if the party is:

(1) NEEDED FOR JUST ADJUDICATION;

(2) amenable to SERVICE OF PROCESS; and

(3) JOINDER WILL NOT DESTROY DIVERSITY.

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PLEADINGS: Difference between Fed and CA

Back 50

Procedures in Fed and CA state courts are basically the same, except for timing and labeling differences.

In CA, counterclaims and cross-claims are all called CROSS-COMPLAINTS.

Front 51

Motion for Lack of Personal Jurisdiction: CA vs. Fed

Back 51

A federal court analyzes PJ as if it were a state court sitting in the jxn. Thus, the substantive legal analysis will be the same.

BUT, in CA, it must be raised by MOTION TO QUASH SERVICE OF SUMMONS or MOTION TO SET ASIDE DEFAULT JUDGMENT.

In Fed, it must be raised by a motion to dismiss or in an answer.

Front 52

Motion for Lack of Subject Matter Jurisdiction: CA vs. Fed

Back 52

IN CA: Raised by means of a GENERAL DEMURRER, motion for JUDGMENT ON THE PLEADINGS, or motion for RECLASSIFICATION.

In Fed: raised by a motion to dismiss or in an answer.

Front 53

Failure to state a claim (or plead sufficient facts to constitute a cause of action): CA vs. Fed

Back 53

CA: Raised by a GENERAL DEMURRER or motion for judgment on the pleadings.

FED: Raised in Rule 12(b) motion or in answer.

Front 54

Failure to join a required party: CA vs. Fed

Back 54

CA: Raised by a SPECIAL DEMURRER.

FED: Raised in Rule 12(b) motion or in answer.

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DISCOVERY: CA vs. Fed

Back 55

CA: No automatic disclosures. Material must be relevant to the SUBJECT MATTER of the litigation (broader); no limit on depos; limit of 35 specially drafted interrogatories w/o court order or stipulation.

FED: Initial automatic disclosures. Material must be RELEVANT to claim or defense of a party (narrower); limit of 10 depos or 25 interrogatories w/o court order or stipulation.

Front 56

Duty to Supplement Discovery: CA vs. Fed

Back 56

In CA, there is NO DUTY to supplement discovery unless opposing party asks for it.

FED court imposes DUTY TO UPDATE prior responses to discovery.

Front 57

Motion for New Trial: CA vs. Fed

Back 57

CA has remittitur and additur.

Fed has only remittitur.

REMITTITUR: where the π must accept either an amount that is less than the jury verdict or submit to a new trial.

ADDITUR: where the ∆ is required to either agree t pay an amount that is greater than the jury verdict or submit to a new trial.

Front 58

Preclusive Effect of Judgment: CA vs. Fed

Back 58

CA: COA is defined under primary rights theory.

FED: COA is defined under "same transaction or occurrence" test.

Front 59

RES JUDICATA: CA Distinction

"Primary Rights Doctrine"

Back 59

In FED court, a judgment is considered final when it is rendered, whereas in CA state courts, a judgment is not considered final until the conclusion of any possible appeals.

Modern approach to determining what constitutes the "same cause of action" (requirement for res judicata) is to require the assertion of all claims arising out of the same transaction or occurrence that is the subject matter of a claim asserted by the π.

CA, however, adheres to the minority "primary rights doctrine," under which a COA is defined as an invasion of a SINGLE primary right. Thus, e.g., a π injured by a ∆ in an accident may sue the ∆ in one action for personal injury and in a separate action for property damage, as each injury would be considered an invasion of a different primary right to be free from harm.

Front 60

12(b) CA Counterpart:

GENERAL Demurrer

Back 60

Instead of or in addition to filing an answer, the ∆ in an unlimited civil case may file a general or special demurrer to the entire complaint or any causes of action contained in it. No special demurrers may be filed in a limited case.

Grounds for a general demurrer are:
(i) that the pleading fails to state facts sufficient to constitute a COA; or
(ii) that the court lacks SMJ.

These grounds for a general demurrer are also the grounds for a later motion for judgment on the pleadings.

In ruling on a demurrer, the court considers only the material allegations pleaded in the complaint (which the court assumes to be true) and matters subject to judicial notice. A π may file a demurrer to ∆'s answer.

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12(b) CA Counterpart:

SPECIAL Demurrer

Back 61

Instead of or in addition to filing an answer, the ∆ in an unlimited civil case may file a general or special demurrer to the entire complaint or any causes of action contained in it. No special demurrers may be filed in a limited case.

Special demurrers include those based on:
(i) lack of legal capacity;
(ii) the existence of another pending action;
(iii) defect or misjoinder of parties;
(iv) uncertain pleading (similar to fed motion for a more definite statement);
(v) failure to plead whether a K is oral or written; and
(vi) failure to fie certain required certificates.

In ruling on a demurrer, the court considers only the material allegations pleaded in the complaint (which the court assumes to be true) and matters subject to judicial notice. A π may file a demurrer to ∆'s answer.

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Class Action Fairness Act (CAFA)

Back 62

Under CAFA, SMJ is established if:

(1) ANY class member (not just the representative, but anyone in the π class) is of diverse citizenship from ANY ∆;

(2) the amount in controversy IN THE AGGREGATE (i.e., adding all the class claims together) EXCEEDS $5m; and

(3) there are at least 100 MEMBERS in the proposed class or classes.

Additionally, ANY ∆, rather than ALL ∆s MAY REMOVE the case from state to federal court. Moreover, the case may be removed under the CAFA even if a ∆ is a citizen of the forum.

CAFA does not apply to claims under federal SECURITIES laws or against governmental agencies state officials, or where STATES are primary ∆s.

Also consider: LOCAL considerations may defeat federal jurisdiction in claims that are relatively local in nature.

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CLASS ACTIONS: CA

Back 63

In CA, a class action may be maintained when "the question is one of a common or general interest, of many persons, or when the parties are numerous, and it is impracticable to bring them all to court."

Ca courts often rely on the language of RULE 23 and the federal cases interpreting it.

The minimum requirements for certification of a class action are:

(i) an ascertainable class; and

(ii) a well-defined community of interest among class members.