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220 Cards in this Set
- Front
- Back
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PERSONAL JURISDICTION - OVERVIEW |
Personal jurisdiction refers to the ability of the court having subject matter jurisdiction (i.e., jurisdiction over the type of case) to exercise power over a particular defendant or item of property. |
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PERSONAL JURISDICTION - OVERVIEW - Limitations on Personal Jurisdiction |
An exercise of personal jurisdiction must not exceed the limitations of either state statutes or the United States Constitution. If no state statute grants the court the power over the parties before the court, then the court lacks personal jurisdiction. Under the Due Process Clause, parties directly affected by the court action must receive fair and adequate notice of the action. Furthermore, there must be minimum contacts between the defendant or property and the forum state so that the assumption of jurisdiction is fair and reasonable. Absent some special federal provision, each federal court must analyze personal jurisdiction as if it were a court of the state in which it is located. |
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PERSONAL JURISDICTION - OVERVIEW - Three Types of Jurisdiction |
In personam jurisdiction exists when the forum has power over the person of a particular defendant. An in personam judgment is entitled to full faith and credit in all other states. In rem jurisdiction exists when the court has power to adjudicate the rights of all persons in the world with respect to a particular item of property. Quasi in rem jurisdiction exists when the court has power to determine the rights of particular individuals with respect to specific property within the court's control. Unlike in rem jurisdiction, quasi in rem jurisdiction does not permit the court to determine the rights of all persons in the world. A quasi in rem judgment does not bind the defendant personally and cannot be enforced against any other property belonging to the defendant. |
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PERSONAL JURISDICTION - STATUTORY LIMITATIONS ON IN PERSONAM JURISDICTION
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Most states, including California (see 4. below), have statutes granting their courts in personam jurisdiction based on the following four situations:
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PERSONAL JURISDICTION - STATUTORY LIMITATIONS ON IN PERSONAM JURISDICTION - Physical Presence at Time of Personal Service
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Service plus even transitory presence may be a sufficient basis for in personam jurisdiction. Service by fraud or force is invalid. Most states grant immunity from personal jurisdiction to nonresidents who are parties or witnesses in a judicial proceeding, but California does not.
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PERSONAL JURISDICTION - STATUTORY LIMITATIONS ON IN PERSONAM JURISDICTION - Domicile
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Domicile refers to the place where a person maintains her permanent home. If a person lacks capacity, domicile is determined by law.
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PERSONAL JURISDICTION - STATUTORY LIMITATIONS ON IN PERSONAM JURISDICTION - Consent
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Consent may be express or implied, or through the making of a general appearance. A person also can give advance consent by contract or by appointment of an agent to accept service of process.
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PERSONAL JURISDICTION - STATUTORY LIMITATIONS ON IN PERSONAM JURISDICTION - Long Arm Statute |
Many states have long arm statutes that specify the circumstances under which a state court may exercise personal jurisdiction over a particular defendant. California's long arm statute, however, gives its courts power over any person or property over which the state can constitutionally exercise jurisdiction. |
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PERSONAL JURISDICTION - CONSTITUTIONAL LIMITATIONS ON IN PERSONAM JURISDICTION
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Even if a state statute arguably grants the state court the power to exercise personal jurisdiction over a particular defendant, such exercise still must be constitutional as outlined below.
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PERSONAL JURISDICTION - CONSTITUTIONAL LIMITATIONS ON IN PERSONAM JURISDICTION - Sufficient Contacts with the Forum - Traditional Rule: Physical Power
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Traditionally, jurisdiction was based on the power to arrest the person (based on presence, residence, or consent) to force compliance with a judgment.
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PERSONAL JURISDICTION - CONSTITUTIONAL LIMITATIONS ON IN PERSONAM JURISDICTION - Sufficient Contacts with the Forum - Modern Due Process Standard: Contact and Fairness |
The United States Supreme Court has listed several factors to use to assess the constitutionality of personal jurisdiction. In general, the factors fall under two headings: contact and fairness. |
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PERSONAL JURISDICTION - CONSTITUTIONAL LIMITATIONS ON IN PERSONAM JURISDICTION - Sufficient Contacts with the Forum - Modern Due Process Standard: Contact and Fairness - Contact |
In personam jurisdiction requires that the defendant have "such minimum contacts" with the forum such that the exercise of jurisdiction would be fair and reasonable. The contacts cannot be accidental; the court must find that, through these contacts, the defendant purposefully availed herself "of the privilege of conducting activities in the forum state, thus invoking the benefits and protections of its laws." The defendant also must know or reasonably anticipate that her activities in the forum render it foreseeable that she may be "haled into court" there. |
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PERSONAL JURISDICTION - CONSTITUTIONAL LIMITATIONS ON IN PERSONAM JURISDICTION - Sufficient Contacts with the Forum - Modern Due Process Standard: Contact and Fairness - Fairness |
The exercise of jurisdiction also must not offend the "traditional notions of fair play and substantial justice." The court has listed several factors relevant to fairness. One factor is whether the claim arises from the defendant's contacts with the forum. If the claim is related to the defendant's contacts with the forum, a court is more likely to find that jurisdiction as to that claim ("specific jurisdiction") is fair and reasonable. If the defendant engages in systematic and continuous activity in the forum state, the court could find this activity a sufficient basis for exercising in personam jurisdiction over any cause of action ("general jurisdiction"). Convenience to the defendant is another factor. A forum is constitutionally acceptable unless it is "so gravely difficult and inconvenient" that the defendant is put at a severe disadvantage. The forum state may also have a legitimate interest in providing redress for its resident. Other factors include the plaintiff 's interest in obtaining convenient and effective relief, the interstate judicial system's interest in efficiency, and the shared interest of the states in furthering social policies.
Exam Tip: Some authorities discuss the relationship of the contact to the claim as part of the "contact" assessment, while others consider it to be part of the "fairness and reasonableness" assessment. On your exam, the important point is that you address the issue, whether under the contact prong or fairness prong. |
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PERSONAL JURISDICTION - CONSTITUTIONAL LIMITATIONS ON IN PERSONAM JURISDICTION - Notice
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In addition to the contact and fairness requirement, there is also a due process requirement that a reasonable method be used to notify the defendant of a pending lawsuit so that she may have an opportunity to appear and be heard. If the plaintiff appointed the defendant's agent for the service of process under a contractual right for the plaintiff 's benefit or the appointment is by operation of law, the agent's failure to notify the defendant will prohibit jurisdiction. When there are multiple or unknown parties, the best practical means of notice available must be used, but if the plaintiff knows that the alternative method was unsuccessful, he cannot proceed in the face of such knowledge.
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PERSONAL JURISDICTION - IN REM JURISDICTION |
Most states have statutes providing for in rem jurisdiction in actions for condemnation, title registration, distribution of estate assets, grant of divorce when only the complaining spouse is present and subject to personal jurisdiction, etc. The presence of the property in the state is constitutionally sufficient for the exercise of jurisdiction over the property. A court has no in rem power over property outside the state or when property is brought into the state by fraud or force. Persons whose interests are affected and whose addresses are known must at least be notified by ordinary mail. |
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PERSONAL JURISDICTION - QUASI IN REM ACTIONS
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There are two types of quasi in rem jurisdiction. The first type involves disputes between parties over their rights in property within the state. The second type involves disputes unrelated to the property. The minimum contacts standard applies to both cases. In the first type of case, the close connection between the litigation and the contact provides the necessary minimum contacts.
In the second type of case, the mere presence of the property within the state is not a sufficient contact; there must be some other basis to exercise jurisdiction (e.g., such contacts exist so that in personam jurisdiction over the defendant would be proper). |
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FEDERAL SUBJECT MATTER JURISDICTION: DIVERSITY OF CITIZENSHIP - DIVERSITY AMONG THE PARTIES - Complete Diversity When Action Commenced
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Every plaintiff must be of diverse citizenship from every defendant. If one defendant and one plaintiff are co-citizens of the same state, there is no diversity jurisdiction. This is the rule of "complete diversity." The matter in controversy must also exceed the sum or value of$75,000, exclusive of interest and costs.
Exam tip: If the facts of a bar exam question describe in detail the citizenship of the parties and present an elaborate amount in controversy scenario, you should, of course, analyze whether the requirements for diversity jurisdiction are present. Do not be misled, however, into failing to also check for the presence of a federal question. Even if the court does not have diversity jurisdiction, it might have federal question jurisdiction ( see III., infra). |
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FEDERAL SUBJECT MATTER JURISDICTION: DIVERSITY OF CITIZENSHIP - DIVERSITY AMONG THE PARTIES - Complete Diversity When Action Commenced - Interpleader Exception
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There is a federal interpleader statute exception where "minimal diversity" and an amount in controversy of $500 or more are sufficient to confer jurisdiction.
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FEDERAL SUBJECT MATTER JURISDICTION: DIVERSITY OF CITIZENSHIP - DIVERSITY AMONG THE PARTIES - Complete Diversity When Action Commenced - Alienage Jurisdiction
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A federal court has subject matter jurisdiction over disputes between a citizen of a state and an alien, but not over two aliens.
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FEDERAL SUBJECT MATTER JURISDICTION: DIVERSITY OF CITIZENSHIP - DIVERSITY AMONG THE PARTIES - Complete Diversity When Action Commenced - Diversity When Action Commenced |
Diversity of citizenship must exist as of the time the suit is instituted. It need not exist at the time the cause of action arose, and it is not defeated if, after commencement of the action, a party later becomes a citizen of the same state as one of his opponents. |
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FEDERAL SUBJECT MATTER JURISDICTION: DIVERSITY OF CITIZENSHIP - DIVERSITY AMONG THE PARTIES - Questions of Citizenship - Individuals
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The determination of the state of citizenship of a natural person depends on the permanent home to which he intends to return or remain. The citizenship of a child is that of her parents.
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FEDERAL SUBJECT MATTER JURISDICTION: DIVERSITY OF CITIZENSHIP - DIVERSITY AMONG THE PARTIES - Questions of Citizenship - Corporations |
A corporation is deemed a citizen of every state in which it is incorporated and the one state in which it has its principal place of business, which is the place from which the corporation's high level officers direct, control, and coordinate the corporation's activities.
Exam Tip: Do not confuse the issue of the citizenship of a corporation for purposes of determining diversity with the issue of where a corporate defendant is deemed to reside for venue purposes, i.e., in any judicial district in which it is subject to personal jurisdiction at the time the action is commenced (discussed infra). · |
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FEDERAL SUBJECT MATTER JURISDICTION: DIVERSITY OF CITIZENSHIP - DIVERSITY AMONG THE PARTIES - Questions of Citizenship - Corporations - Corporations Chartered in Foreign Countries
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A corporation is deemed exclusively a citizen of the foreign country of incorpora tion and thus is an alien for diversity purposes. If the foreign corporation has its principal place of business in this country, it is also a citizen of the state in which that place is located.
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FEDERAL SUBJECT MATTER JURISDICTION: DIVERSITY OF CITIZENSHIP - DIVERSITY AMONG THE PARTIES - Questions of Citizenship - Unincorporated Associations
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For diversity purposes, an unincorporated association, such as a partnership or labor union, is considered a citizen of each state of which any member is a citizen.
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FEDERAL SUBJECT MATTER JURISDICTION: DIVERSITY OF CITIZENSHIP - DIVERSITY AMONG THE PARTIES - Questions of Citizenship - Limited Liability Companies
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A limited liability company is a citizen of all states of which its members are citizens.
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FEDERAL SUBJECT MATTER JURISDICTION: DIVERSITY OF CITIZENSHIP - DIVERSITY AMONG THE PARTIES - Questions of Citizenship - Legal Representatives
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The legal representative of the estate of a decedent, an infant, or an incompetent is deemed to have the same citizenship as the decedent, infant, or incompetent.
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FEDERAL SUBJECT MATTER JURISDICTION: DIVERSITY OF CITIZENSHIP - DIVERSITY AMONG THE PARTIES - Questions of Citizenship - Class Actions
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For class actions, diversity is determined on the basis of the citizenship of the named members of the class who are suing. |
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FEDERAL SUBJECT MATTER JURISDICTION: DIVERSITY OF CITIZENSHIP - DIVERSITY AMONG THE PARTIES - Questions of Citizenship - Nonresident United States Citizens and Aliens
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A United States citizen domiciled abroad is not a citizen of any state and is also not an alien. (Alienage depends on nationality, not domicile.) A permanent resident alien is deemed to be a citizen of the state in which he is domiciled.
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FEDERAL SUBJECT MATTER JURISDICTION: DIVERSITY OF CITIZENSHIP - DIVERSITY AMONG THE PARTIES - Collusion and Devices to Create or Defeat Diversity
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If a party attempts to create diversity by a sham transaction, such as assigning a claim for collection purposes only to create diversity, the courts look through the transaction and declare that diversity does not exist.
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FEDERAL SUBJECT MATTER JURISDICTION: DIVERSITY OF CITIZENSHIP - DIVERSITY AMONG THE PARTIES - Collusion and Devices to Create or Defeat Diversity - Class Actions and Voluntary Changes of Citizenship
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In class action suits, diversity may be created by properly selecting named plaintiffs to bring the action on behalf of others. A plaintiff can also create diversity by changing his state citizenship after the cause of action accrued but before suit is commenced; however, the change must be genuine and not temporary.
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FEDERAL SUBJECT MATTER JURISDICTION: DIVERSITY OF CITIZENSHIP - DIVERSITY AMONG THE PARTIES - Collusion and Devices to Create or Defeat Diversity - Defeating Diversity
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No rule exists to prevent assignment of a claim to defeat diversity. On the other hand, fraudulent joinder of an in-state defendant to defeat diversity is no bar to removal.
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FEDERAL SUBJECT MATTER JURISDICTION: DIVERSITY OF CITIZENSHIP - DIVERSITY AMONG THE PARTIES - Realignment According to Interest
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In determining whether diversity exists, the court will look beyond the nominal designa tion of the parties in the pleadings and realign them according to their true interests in the dispute. Thus, realignment may create diversity or destroy it.
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FEDERAL SUBJECT MATTER JURISDICTION: DIVERSITY OF CITIZENSHIP - DIVERSITY AMONG THE PARTIES - Realignment According to Interest - Shareholder Derivative Actions
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In shareholder derivative actions, the court will realign the corporation as a defendant to determine diversity.
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FEDERAL SUBJECT MATTER JURISDICTION: DIVERSITY OF CITIZENSHIP - DIVERSITY AMONG THE PARTIES - Ancillary (Supplemental) Jurisdiction
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Under the doctrine of ancillary jurisdiction (now codified under the rubric "supplemental jurisdiction" ), a court may entertain claims that could not, by themselves, invoke federal question jurisdiction or diversity jurisdiction if the claims arise from a common nucleus of operative fact as the claim that invoked federal subject matter jurisdiction.
Exam Tip: On your exam, sometimes how you get to an answer is as important as the answer itself. For example, on an essay question, it would be a huge omission to merely state that "the supplemental jurisdiction statute would allow the claim" without first addressing whether the claim has an independent basis for subject matter jurisdiction (i.e., federal question jurisdiction or diversity of citizenship jurisdiction). |
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FEDERAL SUBJECT MATTER JURISDICTION: DIVERSITY OF CITIZENSHIP - DIVERSITY AMONG THE PARTIES - Subsequent Addition of Parties
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A claim by or against an additional party, like any claim in federal court, must satisfy some basis of federal subject matter jurisdiction such as diversity or federal question jurisdiction. If the claim does not satisfy either of these, it might invoke supplemental jurisdiction.
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FEDERAL SUBJECT MATTER JURISDICTION: DIVERSITY OF CITIZENSHIP - DIVERSITY AMONG THE PARTIES - Subsequent Addition of Parties - Intervention of Right
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Traditionally, a person seeking to intervene in a case as of right did not have to show an independent basis for jurisdiction as long as the requirements for intervention were met. Under the supplemental jurisdiction statute, however, there is no ancillary jurisdiction for claims by or against intervenors, and such a claim can proceed only if an indepen dent basis for jurisdiction can be shown.
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FEDERAL SUBJECT MATTER JURISDICTION: DIVERSITY OF CITIZENSHIP - DIVERSITY AMONG THE PARTIES - Subsequent Addition of Parties - Substitution of Parties
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When a party is substituted, the citizenship of the substituted party is disregarded, and that of the original party controls; thus, diversity jurisdiction is not affected. Compare: Ifa party is replaced (e.g., because plaintiff sued the wrong party) rather than substi tuted, the citizenship of the replacement party controls, and diversity jurisdiction could be lost.
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FEDERAL SUBJECT MATTER JURISDICTION: DIVERSITY OF CITIZENSHIP - DIVERSITY AMONG THE PARTIES - Subsequent Addition of Parties - Third-Party Practice-Impleader
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Generally, no diversity is required in third-party practice between the third-party defen dant and the third-party plaintiff or the original plaintiff unless the plaintiff asserts a claim against the third-party defendant.
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FEDERAL SUBJECT MATTER JURISDICTION: DIVERSITY OF CITIZENSHIP - DIVERSITY AMONG THE PARTIES - Subsequent Addition of Parties - Cross-Claims |
A cross-claim is a claim by one co-party against another, and it may be asserted if the claim arises from the same transaction or occurrence as the underlying dispute. If the cross-claimant does not have an independent subject matter basis (i.e., diversity of citizenship or federal question jurisdiction), the cross-claim may nonetheless be asserted in federal court through the ancillary form of supplemental jurisdiction. |
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FEDERAL SUBJECT MATTER JURISDICTION: DIVERSITY OF CITIZENSHIP - JURISDICTIONAL AMOUNT-IN EXCESS OF $75,000
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Actions brought in federal court under the diversity statute must be in excess of $75,000, exclusive of interest and costs. The amount is determined from the plaintiff 's good faith allegation. The complaint can be dismissed only if it appears there is no legal possibility of a recovery exceeding the jurisdictional amount. Jurisdiction is not retroactively defeated by the fact that the amount actually recovered is less than the jurisdictional amount.
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FEDERAL SUBJECT MATTER JURISDICTION: DIVERSITY OF CITIZENSHIP - JURISDICTIONAL AMOUNT-IN EXCESS OF $75,000 - What Is "In Controversy"? |
Collateral consequences of the judgment (e.g., rights to payment of future installments on disability policy) may not be considered. Interest and costs are also excluded. However, attorneys' fees that are recoverable by contract or by statute are considered part of the matter in controversy. Interest that constitutes a part of the claim itself, as distinguished from interest payable by virtue of a delay in payment, is also part of the jurisdictional amount. A punitive damage claim permitted under state substantive law may be used in meeting the dollar amount requirement. |
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FEDERAL SUBJECT MATTER JURISDICTION: DIVERSITY OF CITIZENSHIP - JURISDICTIONAL AMOUNT-IN EXCESS OF $75,000 - Aggregation of Separate Claims
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For purposes of meeting the jurisdictional amount, a plaintiff may aggregate all her claims against a single defendant. A plaintiff who has an action against several defendants can aggregate her claims against them only if the defendants are jointly liable to the plaintiff. She cannot aggregate liabilities based on separate claims or concurrent liabilities. Several plaintiffs can aggregate their claims only if they are seeking "to enforce a single title or right in which they have a common or undivided interest . . . ."
Exam Tip: On your exam, it is important to understand the difference between aggrega- tion of claims to satisfy the amount in controversy requirement for diversity jurisdiction and whether supplemental jurisdiction exists over claims that do not meet the amount in controversy requirement. In the diversity jurisdiction context, aggregation deals with the question of whether the plaintiff 's separate claims can be added together to satisfy the amount in controversy requirement, whereas supplemental jurisdiction deals with whether a claim may be heard with a claim that has already satisfied either diversity or federal question jurisdiction (i.e., in a case that is already proper in federal court). |
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FEDERAL SUBJECT MATTER JURISDICTION: DIVERSITY OF CITIZENSHIP - JURISDICTIONAL AMOUNT-IN EXCESS OF $75,000 - Supplemental Jurisdiction over Claims Not Exceeding $75,000 in Diversity Cases
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Claims that do not meet the amount in controversy requirement may invoke supplemental jurisdiction if they arise from the same nucleus of operative fact as a claim that invoked diversity of citizenship jurisdiction. However, supplemental jurisdiction cannot be used to override the complete diversity requirement.
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FEDERAL SUBJECT MATTER JURISDICTION: DIVERSITY OF CITIZENSHIP - JURISDICTIONAL AMOUNT-IN EXCESS OF $75,000 - Counterclaims |
A defendant's counterclaim cannot be combined with the plaintiff 's claim to reach the jurisdictional amount. A compulsory counterclaim need not meet the jurisdictional amount requirement, as the court may hear it under its supplemental jurisdiction. However, a permissive counterclaim (one arising out of an unrelated transaction) must have an independent jurisdictional basis, and thus must meet the jurisdictional amount requirement. |
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FEDERAL SUBJECT MATTER JURISDICTION: DIVERSITY OF CITIZENSHIP - JURISDICTIONAL AMOUNT-IN EXCESS OF $75,000 - Counterclaims - Removal from State Courts
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A plaintiff who claims $75,000 or less in a state court action who is met with a counter claim for more than $75,000 may not remove the suit to federal court, regardless of whether the counterclaim is compulsory or permissive, because removal is permitted only by defendants. Also, a plaintiff with a small claim can require a defendant with a large claim to litigate it in state court simply by being the first to file. Even though this is the traditional rule, there is a trend allowing removal.
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FEDERAL SUBJECT MATTER JURISDICTION: DIVERSITY OF CITIZENSHIP - ERIE DOCTRINE
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Under the Erie doctrine, a federal court in a diversity case will apply its own procedural law, but must apply the substantive law and conflict of laws rules of the state in which it is sitting. When it is unclear whether a state law rule is substantive or procedural, courts use the "outcome determination" test-a state law rule that substantially determines "outcome" of the litigation must be applied. However, If a federal rule is "arguably procedural", it will be applied. Some state statutes may have both substantive and procedural elements.
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FEDERAL SUBJECT MATTER JURISDICTION: DIVERSITY OF CITIZENSHIP - ERIE DOCTRINE - California Conflict of Laws Rules
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A federal court in California sitting in diversity must apply California's conflict of laws rules in determining the applicable substantive law. California resolves conflict of laws issues using the following approaches:
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FEDERAL SUBJECT MATTER JURISDICTION: DIVERSITY OF CITIZENSHIP - ERIE DOCTRINE - California Conflict of Laws Rules - Tort Actions-Government Interest Approach
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The court first determines whether the laws of the two (or more) states are identical.If they are not, the court evaluates whether each state has an interest in the application of its law. If each state has such an interest, a true conflict exists and the court then analyzes the comparative impairment to each state's interest should the law of the other state be applied.
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FEDERAL SUBJECT MATTER JURISDICTION: DIVERSITY OF CITIZENSHIP - ERIE DOCTRINE - California Conflict of Laws Rules - Contract Actions-Choice-of-Law Clauses
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If the choice-of-law clause in a contract encompasses all causes of action, the court must determine whether the clause is enforceable by examining whether the chosen state's law has a substantial relationship to the parties or their transaction or any other reasonable basis exists for the parties' choice of law. If the clause is enforceable, the court then assesses whether the chosen state's law conflicts with a fundamental California policy.If such a conflict exists, the court must decide whether California has a materially greater interest than the chosen state in the determination of the specific issue. If the contract does not contain a choice-of-law clause, or if it is unenforceable, the governmental interest approach generally applies.
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FEDERAL SUBJECT MATTER JURISDICTION: DIVERSITY OF CITIZENSHIP - EXCEPTIONS TO DIVERSITY OF CITIZENSHIP JURISDICTION
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For historical reasons, federal courts generally will not exercise diversity jurisdiction over domestic relations or probate proceedings. To fall within the probate exception, the claim asserted must involve the actual probate or annulment of a will, or seek to reach property in the custody of a state probate court.
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FEDERAL SUBJECT MATTER JURISDICTION: DIVERSITY OF CITIZENSHIP - MULTIPARTY, MULTIFORUM TRIAL JURISDICTION ACT
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The Multiparty, Multiforum Trial Jurisdiction Act applies to accidents in which at least 75people have diedfrom a single accident at a discrete location. Minimal diversity is required; i.e., one plaintiff must be of diverse citizenship of one defendant. One of three other conditions must be met: (i) one defendant must reside in a different state from the place where a substantial part of the accident took place; (ii) any two defendants must reside in different states; or (iii) substantial parts of the accident must have taken place in different states. Finally, anyone with a claim arising from the accident is permitted to intervene as a plaintiff even if she could not have maintained an action in the district in which the case is pending, and nationwide service of process is allowed.
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FEDERAL SUBJECT MATTER JURISDICTION: FEDERAL QUESTION - FEDERAL QUESTION MUST APPEAR IN COMPLAINT
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The district courts have original jurisdiction over all civil actions arising under the Constitution, laws, or treaties of the United States. The federal question must appear as part of the plaintiff 's cause of action. The existence of a defense based on federal law will not create federal question jurisdiction. A complaint does not raise a federal question if it does so only in anticipation of some defense.
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FEDERAL SUBJECT MATTER JURISDICTION: FEDERAL QUESTION - IMPLIED FEDERAL RIGHT OF ACTION
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There can be an implied federal right of action-it is not essential that the federal statute expressly provide for a civil cause of action for a violation.
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FEDERAL SUBJECT MATTER JURISDICTION: FEDERAL QUESTION - FEDERAL CORPORATIONS
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Federal question jurisdiction does not arise merely from the fact that a corporate party was incorporated by an act of Congress unless the United States owns more than one-half of the corporation's capital stock.
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FEDERAL SUBJECT MATTER JURISDICTION: FEDERAL QUESTION - PENDENT (SUPPLEMENTAL) JURISDICTION - Pendent Claims
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If a plaintiff has both federal and state claims, the federal court has discretion to exercise pendent jurisdiction over the claim based on state law if the two claims "derive from a common nucleus of operative fact" and are such that a plaintiff "would ordinarily be expected to try them all in one judicial proceeding." Pendent jurisdiction, along with ancil lary jurisdiction, is now codified under the name "supplemental jurisdiction."
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FEDERAL SUBJECT MATTER JURISDICTION: FEDERAL QUESTION - PENDENT (SUPPLEMENTAL) JURISDICTION - Pendent Claims - Effect of Dismissal of Federal Claim on Pendent Claim
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The court may exercise pendent jurisdiction over the state claim even if the federal claim is dismissed on the merits. However, the state claim should probably also be dismissed if the federal claim is dismissed before trial.
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FEDERAL SUBJECT MATTER JURISDICTION: FEDERAL QUESTION - PENDENT (SUPPLEMENTAL) JURISDICTION - Pendent Parties
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Pendent parties jurisdiction can arise in cases in which (i) the plaintiff sues more than one defendant, (ii) there is federal jurisdiction over the claim against one defendant, and (iii) the claim against the second defendant does not invoke federal question or diversity of citizen ship jurisdiction. The claim against the second defendant might invoke supplemental juris diction if it arises from the same nucleus of common fact as the claim against the defendant.Pendent parties jurisdiction can also arise when multiple plaintiffs assert claims against one defendant. Here, assuming again the second plaintiff 's claim is derived from the same nucleus of fact, the second plaintiff might invoke supplemental jurisdiction to support a state law claim in a federal question case.
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FEDERAL SUBJECT MATTER JURISDICTION: FEDERAL QUESTION - SPECIFIC STATUTORY GRANTS
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There is no amount in controversy requirement in federal question cases (with the limited excep tion for cases brought against private parties under the Consumer Product Safety Act). Jurisdiction of the federal courts is exclusive of the state courts in: (i) bankruptcy proceedings; (ii) patent and copyright cases; (iii) many cases where the United States is involved; (iv) cases where consuls and vice-consuls are sued as defendants; (v) antitrust cases; (vi) actions against foreign states removed from state courts to federal court; (vii) postal matters; (viii) Internal Revenue Service cases; (ix) Securities Exchange Act cases; and (x) admiralty cases (only in limitation of liability proceedings and maritime actions in rem) .
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SUBJECT MATTER JURISDICTION IN CALIFORNIA STATE COURTS - JURISDICTIONAL CLASSIFICATIONS
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Under California's unified trial court system, all counties have one superior court that can exercise general subject matter jurisdiction over civil matters not within the exclusive jurisdiction of another court. The former distinctions between superior and municipal court cases, however, remain in the form of two jurisdictional classifications: limited civil cases and unlimited civil cases. Limited civil cases are actions in which the amount in controversy is $25,000 or less, and restrictions are placed on subject matter jurisdiction over equitable claims, declaratory relief actions, and requests for ancillary relief. Unlimited civil cases are civil actions in which the amount in controversy exceeds $25,000, and the full range of pleadings , motions, discovery, and equitable and declaratory relief is available in unlimited civil cases. The rules for aggregation are similar to the federal court rules (with class actions serving as a major exception). California superior courts have a small claims division for those limited civil cases in which the amount in controversy is $7,500 or less for an action brought by an individual ($5,000 or less for actions by other litigants).
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SUBJECT MATTER JURISDICTION IN CALIFORNIA STATE COURTS - RECLASSIFICATION
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If an action was originally misclassified, or if it was originally correctly classified but subsequent pleadings or proceedings indicate that the classification should be altered, the superior court does not lose subject matter jurisdiction. Instead, a party, or the court on its own motion, may request reclassification of the actiori. Notice and a hearing are required. In considering reclassification from an unlimited civil case to a limited civil case, the court must determine that a recovery greater than $25,000 must be "virtually unobtainable." The standard for reclassification from a limited civil case to an unlimited civil case is whether there is a ''possibility" that the verdict will exceed $25,000.
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SUBJECT MATTER JURISDICTION IN CALIFORNIA STATE COURTS - RECLASSIFICATION - Other Means of Reclassification
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If the plaintiff files an amended complaint that changes the jurisdictional classification of the case, the clerk simply reclassifies the action. If the demand of a cross-complaint filed in a limited civil case exceeds $25,000, or otherwise requests relief not authorized in a limited civil case, the entire action is reclassified as an unlimited civil case. If a cross-complaint is filed in an unlimited civil case, the entire action will retain that classification, even if the cross-complaint demands $25,000 or less.
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VENUE IN FEDERAL COURTS - SUBJECT MATTER JURISDICTION AND FORUM NON CONVENIENS DISTINGUISHED FROM VENUE
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Subject matterjurisdiction is the power of the court to adjudicate the matter before it. In federal court, venue relates to the proper district in which to bring the action. Subject matter jurisdiction is a question of power or authority; venue is a question of convenience. Subject matter jurisdiction cannot be conferred by agreement; venue can be. A court can have subject matter jurisdiction without having proper venue. Forum non conveniens is similar to venue in that it concerns where a case should be heard and does not affect subject matter jurisdiction. It is a common law doctrine that permits a district court to dismiss an action in favor of a more convenient forum outside thefederal judicial system. Forum non conveniens also has been codified to allow a district court to transfer an action to another federal district in which the action could have been brought.
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VENUE IN FEDERAL COURTS - GENERAL RULES
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Venue in civil actions in the federal courts is proper in:
A judicial district where any defendant resides, if all defendants reside in the same state; A judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated; or If there is no district anywhere in the United States that satisfies 1. or 2. For actions based solely on diversity, a judicial district in which any defendant is subject to personal jurisdiction at the time the action is commenced ; or For actions not based solely on diversity, a judicial district in which any defendant may be found . |
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VENUE IN FEDERAL COURTS - RESIDENCE
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Individuals
An individual's residence for federal venue purposes is determined by the person's domicile. Corporations For purposes of venue, a defendant corporation is deemed to reside in any jurisdiction in which it is subject to personal jurisdiction. Unincorporated Associations An unincorporated association is deemed to reside where it does business. |
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VENUE IN FEDERAL COURTS - VENUE IN "LOCAL ACTIONS"
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Local actions must be brought in a district where the property that is the subject matter of the action is located.
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VENUE IN FEDERAL COURTS - IMPROPER VENUE MAY BE WAIVED
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Unlike jurisdiction over the subject matter, venue may be waived by the parties. Venue is considered to be waived unless timely objection is made to the improper venue.
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VENUE IN FEDERAL COURTS - TRANSFER
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Even if venue is proper, the court may transfer the case for the convenience of the parties to any court where it could have originally been filed. If original venue is improper, transfer is more appropriate than dismissal except in extraordinary circumstances. The standard for transfer is "the interest of justice." The transferee forum must have subject matter jurisdiction and in personam jurisdiction over the defendant, and venue must be proper.
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VENUE IN FEDERAL COURTS - LAW APPLICABLE UPON TRANSFER
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If original venue was proper, apply the law of the state in which the transferor court sits.If original venue was improper, apply the law of the state in which the transferee court sits.
Exam Tip: Note that the law of the transferor court applies even where the plaintiff, having chosen an inconvenient (but proper) venue in the first place, later seeks a transfer for convenience. |
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VENUE IN CALIFORNIA STATE COURTS - PROPER COURT
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In California, venue refers to the county in which an action may be tried. Improper venue may be waived if no timely objection is made.
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VENUE IN CALIFORNIA STATE COURTS - PROPER COURT - Local Actions
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Venue in a local action is proper in the county in which the land, or some part of it, is located.
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VENUE IN CALIFORNIA STATE COURTS - PROPER COURT - Transitory Actions
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For transitory actions, the general rule is that venue is proper in the county in which any defendant resides at the commencement of the action. Ifno defendant resides in California, venue is proper in any county. In addition to the general rule, for contract actions, venue is also proper in the county in which the obligation is to be performed or the contract was entered, and, for personal injury or wrongful death actions, venue is also proper in the county in which the injury occurred.
Exam Tip: It's easy to get mixed up on your exam about subtle distinctions. For example, note the somewhat subtle difference in the venue rules as to individuals for state and federal courts. In California state courts, venue is proper in the California county in which any defendant resides. However, in federal court, for venue to be fixed on the basis of a defendant's residence, all defendants must reside in the same state. In other words, in California state court, the fact that all defendants don't reside in the same county would not, by itself, destroy venue, nor would the fact that one defendant is a nonresident of California, but in federal court, the fact that all defendants don't reside in the same state does destroy venue. |
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VENUE IN CALIFORNIA STATE COURTS - PROPER COURT - Main Relief Rule
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If a complaint contains one cause of action seeking more than one form of relief, venue is proper according to the rule governing the main type of relief sought.
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VENUE IN CALIFORNIA STATE COURTS - PROPER COURT - Mixed Actions |
In mixed actions-those actions in which the defendants or causes of action are subject to different venue rules-venue generally is proper in the county in which any defendant resides, unless policy, an overriding statute, or another compelling reason requires venue to be placed in a different county.
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VENUE IN CALIFORNIA STATE COURTS - PROPER COURT - Cases Against Corporations, Associations, and Partnerships
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Venue in an action against a corporation is proper in the county in which the contract is made or is to be performed, in which the obligation or liability arises, in which the breach occurs, or in which the corporation has its principal place of business. Venue in actions involving an unincorporated association or partnership is proper in the county of the entity's principal place of business if the entity's principal place of business is on file with the secre tary of state; if not on file, venue is proper in the county in which a member or partner resides.
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VENUE IN CALIFORNIA STATE COURTS - TRANSFER OF VENUE
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A defendant 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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VENUE IN CALIFORNIA STATE COURTS - FORUM AND VENUE SELECTION CLAUSES
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California courts enforce "reasonable" forum selection clauses that call for the action to be tried in another state. Venue selection clauses, however, are unenforceable in California.
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VENUE IN CALIFORNIA STATE COURTS - FORUM NON CONVENIENS
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The equitable doctrine of forum non conveniens ("FNC") has been codified in California. 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 defendant is subject to personal jurisdiction there, the 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 factors balance in favor of the alter native forum.
Timing of Motion A defendant may bring a FNC motion within the time to respond to the complaint if he has not previously generally appeared. A defendant who has filed a demurreror motion to strike is deemed to have made a general appearance unless he simultaneously files a FNC motion. However, a defendant who has already filed an answer may still bring a FNC motion. |
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REMOVAL JURISDICTION (FEDERAL COURT) - ORIGINAL JURISDICTION NECESSARY
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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 a federal court; and (ii) for cases removed on the basis of diversity, no defendant is a citizen of the state where the action is filed. The prevailing rule is that jurisdictionis tested as of the date of removal, but some courts have held that original jurisdiction must have existed both at the time the suit was instituted in the state court and at the time of removal.
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REMOVAL JURISDICTION (FEDERAL COURT) - ORIGINAL JURISDICTION NECESSARY - Federal Defense Insufficient
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A defendant 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 federal question jurisdiction.
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REMOVAL JURISDICTION (FEDERAL COURT) - ORIGINAL JURISDICTION NECESSARY - Federal Defense Insufficient - State Court Need Not Have Had Jurisdiction
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Even when the state court has no jurisdiction because the action is exclusively federal, the federal court may hear and decide the case under its removal jurisdiction.
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REMOVAL JURISDICTION (FEDERAL COURT) - ONLY DEFENDANTS MAY REMOVE
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Only defendants can exercise the right of removal. If there is more than one defendant, all defen dants must join in the petition for removal.
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REMOVAL JURISDICTION (FEDERAL COURT) - VENUE
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Venue lies in the federal district court "embracing the place where such [state] action is pending."
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REMOVAL JURISDICTION (FEDERAL COURT) - DEFENDANT MAY REMOVE SEPARATE AND INDEPENDENT CLAIM
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When there are multiple claims or multiple parties, a defendant may remove a whole case if it contains "a separate and independent claim or cause of action" within federal question jurisdiction.
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REMOVAL JURISDICTION (FEDERAL COURT) - DISMISSAL OF NONDIVERSE PARTY ALLOWS REMOVAL
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When no federal question is involved and diversity does not exist because a party is a co-citizen of an opposing party, removal will be permitted if the nondiverse parties are thereafter dismissed from the action and there is complete diversity between the remaining parties.
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REMOVAL JURISDICTION (FEDERAL COURT) - DISMISSAL OF NONDIVERSE PARTY ALLOWS REMOVAL - Limitations on Removal in Diversity of Citizenship Cases
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When jurisdiction of the federal court is based on diversity and one of the defendants is a citizen of the state in which the state action was brought, the action is not removable. Also, a case may not be removed on the basis of diversity jurisdiction more than one year after it was commenced in state court.
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REMOVAL JURISDICTION (FEDERAL COURT) - PROCEDURE FOR REMOVAL
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A defendant seeking removal must file a notice of removal in the federal district court in the district and division within which the action is pending. A copy of the notice should be sent to the other parties and to the state court. Once this is done, the state court can no longer deal with the case.
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REMOVAL JURISDICTION (FEDERAL COURT) - PROCEDURE FOR REMOVAL - Thirty Day Rule
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The notice of removal must be filed within 30 days after defendant receives notice, through service of a summons, pleading, amended pleading, etc., that the case is or has become removable.
Exam Tip: For your exam, remember that there are two time periods that must be met in order remove a diversity case from federal court to state court: The defendant has 30 days after removable, but in no event may the removal receiving a copy of the pleading that shows the case is occur more than one year after the case is filed.If the case contains a separate and independent claim based on a federal question,defendant may remove the whole case. |
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REMOVAL JURISDICTION (FEDERAL COURT) - PROCEDURE FOR REMOVAL - Remand
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The plaintiff 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. The federal court has discretion to remand a case to state court once all federal claims have been resolved, leaving only state claims over which there is no diversity jurisdiction.
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CONFLICT OF JURISDICTION BETWEEN STATE AND FEDERAL COURTS - FULL FAITH AND CREDIT EXTENDED TO FEDERAL COURTS
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The Constitution's Full Faith and Credit Clause is applicable only where a state court judgment is sought to be enforced in another state. However, an implementing federal statute provides that this clause is extended to the federal courts. Therefore, recognition of judgments is required between state and federal courts and between federal courts.
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CONFLICT OF JURISDICTION BETWEEN STATE AND FEDERAL COURTS - PRESUMPTION OF CONCURRENT JURISDICTION
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Concurrent jurisdiction between federal and state courts is presumed. The presumption will be defeated if Congress expressly deprives the state court of jurisdiction or if the state court declines jurisdiction because of a neutral state rule regarding the administration of the courts.
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CONFLICT OF JURISDICTION BETWEEN STATE AND FEDERAL COURTS - INJUNCTIONS AGAINST STATE COURT PROCEEDINGS - Pending State Proceedings
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A federal court generally is prohibited from enjoining a pending state court proceeding unless expressly authorized by statute or when necessary in aid of its jurisdiction, or to protect or effectuate its judgments. If a state action is not enjoined, the case corning to a final decision first will have preclusive effect on the other.
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CONFLICT OF JURISDICTION BETWEEN STATE AND FEDERAL COURTS - INJUNCTIONS AGAINST STATE COURT PROCEEDINGS - Threatened State Proceedings
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Federal courts may not enjoin a threatened state criminal proceeding unless irreparable harm is clear and imminent (usually limited to a showing of serious interference with First Amend ment rights) and the appellate remedy is clearly inadequate to provide relief.
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CONFLICT OF JURISDICTION BETWEEN STATE AND FEDERAL COURTS - ABSTENTION
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Unless the doctrine of abstention applies, nothing prohibits a federal court from hearing a case that is pending in state court.
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CONFLICT OF JURISDICTION BETWEEN STATE AND FEDERAL COURTS - ABSTENTION - Grounds
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A federal court will abstain and require a litigant to seek relief in a state court (while retaining jurisdiction):
If the state law is unclear and could be interpreted to avoid the federal constitutional question; or If there is a state administrative regulatory plan that would be disturbed by the federal court taking the case. |
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CONFLICT OF JURISDICTION BETWEEN STATE AND FEDERAL COURTS - ABSTENTION - Procedure
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After the federal court abstains, the litigants must present their issues to the state court in light of their federal contentions. The federal court will ordinarily stay the federal action rather than dismiss it.
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CONFLICT OF JURISDICTION BETWEEN STATE AND FEDERAL COURTS - ABSTENTION - Federal Intervention
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Federal intervention on constitutional grounds may occur if the federal plaintiff 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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PRETRIAL AND TRIAL PROCEDURES - COMMENCEMENT OF ACTION
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An action is commenced by filing a complaint with the court. This filing will satisfy the statute of limitations in both court systems.
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PRETRIAL AND TRIAL PROCEDURES - SERVICE OF PROCESS - How Service Is Made
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In federal court, any nonparty who is at least 18 years old may serve process. Personal service, service left at the defendant's usual place of abode, or service upon an authorized agent of the defendant is valid service of process. Alternatively, service may be made as · provided by state rules or by mail under the waiver of service provision under which the defendant will become liable for costs if he does not have good cause for waiving service. California statutes authorize service of process by nonparties over age 18 on defendants within California by: (i) personal delivery; (ii) substituted service (leaving copy of summons and complaint at authorized locations with specific individuals, followed by mailing); (iii) service by mail; and (iv) service by publication. California also has a service by mail provision under which the defendant will become liable for the costs of service if he does not acknowledge receipt of service.
Exam Tip: Here is another subtle distinction between the California rules and the federal rules for your exam: When "substituted" service at the defendant's home is made, California requires a follow-up mailing to the defendant, whereas there is no similar requirement in federal court. |
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PRETRIAL AND TRIAL PROCEDURES - SERVICE OF PROCESS - Parties Served Outside State, But Within United States
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A federal court will also acquire personal jurisdiction over parties served outside the state:under the state's statutes and rules for extraterritorial service; (ii) if they are third-party defendants or required to be joined for just adjudication, if served within 100 miles from the place where the action is pending; and (iii) when out-of-state service is permitted by federal statute (e.g., interpleader). As to a federal question claim, the court may exercise personal jurisdiction over a defendant who is not subject to the jurisdiction of a particular state, as long as the defendant's contacts with the United States would satisfy the constitutional standard for exercise of jurisdiction and jurisdiction is not precluded by statute. In California state courts, in addition to the methods authorized for service on in-state defendants, service of process on a person outside of California may be made by first-class mail, and postage prepaid, requiring a return receipt, but note that a proper statutory and constitutional basis for personal jurisdiction still must exist.
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PRETRIAL AND TRIAL PROCEDURES - SERVICE OF PROCESS - Parties Served in a Foreign Country
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In federal court, unless a federal law provides differently, a party may be served in a foreign country: (i) as provided in an international agreement; (ii) in absence of an agreement,as provided by the foreign country's law or as directed by a foreign official in response to a letter of request (but the method must be reasonably calculated to provide notice); (iii) unless it is prohibited by the foreign country's law, by personal service or by mail, signed return receipt requested (however, a corporation may not be served by personal service, and a minor or incompetent person may not be served by either of these methods); or (iv) any method the court orders (so long as the method is not prohibited by international agree ment). In California state court, in addition to any manner authorized for in-state service, service outside the United States may be made (i) as the court directs or (ii) if the court finds that the service is reasonably calculated to give actual notice, as directed by the law of the place where the person is served or by theforeign authority in response to a letter of request. An international agreement, such as the Hague Service Convention, may govern service in signatory countries.
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PRETRIAL AND TRIAL PROCEDURES - SERVICE OF PROCESS - Immunity from Process
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The federal courts recognize immunity from service of process of parties, witnesses, and attorneys who enter a state to appear in another action. In addition, if a party was induced by the plaintiff's fraud or deceit to enter a state so that he could be served, the service is invalid to confer personal jurisdiction. California state courts do not recognize immunity from service of process when the defendant is in California to participate in litigation.
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PRETRIAL AND TRIAL PROCEDURES - INTERLOCUTORY INJUNCTIONS - Preliminary Injunctions
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In both federal and California courts, a party may seek a preliminary injunction prior to trial to preserve the status quo. The adverse party must be given notice and an opportunity to be heard.
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PRETRIAL AND TRIAL PROCEDURES - INTERLOCUTORY INJUNCTIONS - Temporary Restraining Orders
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If irreparable injury will occur before the hearing on the preliminary injunction can be held, a party may seek a temporary restraining order ("TRO") to preserve the status quo until the hearing. Generally, the adverse party must be given notice of the hearing, but a TRO may be imposed without notice (for a maximum 14-day period in federal court) if three conditions are met:
The moving party states specific facts in an affidavit or verified complaint of the irreparable injury she will suffer if the TRO is not granted; The moving party certifies in writing the efforts she made to notify the adverse party and the reasons why notice should not be required; The moving party provides security to pay for any damages incurred by the adverse party if the court later finds he was wrongfully restrained. Note: Although a TRO may be issued ex parte, a person must have notice of the TRO before he can be bound by it. |
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PRETRIAL AND TRIAL PROCEDURES - INTERLOCUTORY INJUNCTIONS - Temporary Restraining Orders - California Distinctions
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California has similar requirements for the issuance of a TRO, with some important distinctions. In California, the TRO does not have a specific time limit; rather, it expires automatically when a preliminary injunction is either issued or denied. If no notice was provided to the opposing party, the court will set a hearing on the application for preliminary injunction within 15 days of the issuance of the TRO (or 22 days if good cause shown). In addition, the court has discretion to issue a TRO without a bond or undertaking. (In contrast, the court must require an undertaking for the issuance of a preliminary injunction.)
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PRETRIAL AND TRIAL PROCEDURES - PLEADINGS - Pleadings
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Federal courts generally follow notice rather than fact pleading. Although federal complaints generally require less specificity than state pleadings, the Supreme Court recently has required more detailed pleadings. California state courts use/act pleading (or code pleading). Both federal and California state courts require a heightened specificity for certain causes of action (e.g., fraud). In California, if damages are sought, the amount must be stated except in actions for recovery of punitive damages, or in personal injury or wrongful death actions seeking actual or punitive damages. (Instead, the defendant may request the plaintiff to serve a state ment describing the nature and amount of actual or punitive damages.)
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PRETRIAL AND TRIAL PROCEDURES - PLEADINGS - Pre-Answer Motion - Federal Rule 12(b)
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The defendant may file a motion and raise any or all of the following defenses:lack of subject matter jurisdiction; (ii) lack of personal jurisdiction; (iii) improper venue; (iv) insufficiency of process; (v) insufficiency of service of process; (vi) failure to state a claim upon which relief can be granted; or (vii) failure to join a required ("indispensable") party. The defendant must raise defenses (ii) through (v) the first time he files a motion or his answer-whichever is first. If he does not, the defendant waives these defenses. Defenses (vi) and (vii) can be made at any time prior to trial or at trial. Defense (i) can be raised at any time until all appeals have been exhausted.
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PRETRIAL AND TRIAL PROCEDURES - PLEADINGS - Pre-Answer Motion - California State Practice
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Instead of or in addition to filing an answer, the defendant 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. The grounds for a general demurrer are: (i) that the pleading fails to state facts sufficient to constitute a cause of action; or (ii) that the court lacks subject matter jurisdiction. These grounds for a general demurrer are also the grounds for a later motion for judgment on thepleadings. 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 a motion for a more definitive statement in federal practice);(v) failure to plead whether a contract is oral or written; and (vi) failure to file 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 plaintiff may file a demurrer to defendant's answer.
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PRETRIAL AND TRIAL PROCEDURES - PLEADINGS - Pre-Answer Motion - California State Practice - Motion to Quash Service of Summons
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A defendant objecting to the court's exercise of personal jurisdiction over him must raise the objection at the earliest opportunity, most commonly by a special appear ance via a motion to quash service of summons. Ifthe defendant files a motion to quash before or at the same time as filing an answer, demurrer, or motion to strike, the defendant will have preserved the jurisdictional objection. In contrast to federal procedure, a defendant in California state court may not object to personal juris diction in an affirmative defense in the answer, then proceed to litigate the action and raise the objection at or close to trial.
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PRETRIAL AND TRIAL PROCEDURES - PLEADINGS - Pre-Answer Motion - Motion for a More Definite Statement
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A party may move for a more definite statement before responding to a pleading that is vague. The California equivalent of the federal motion for more definite statement is a special demurrer on the ground that the pleading is "uncertain" (defined in part as "ambiguous" and "unintelligible").
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PRETRIAL AND TRIAL PROCEDURES - PLEADINGS - Pre-Answer Motion - Motion to Strike
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Before responding to a pleading, a party may move to have stricken any insufficient defense or any redundant, immaterial, or scandalous matter.
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PRETRIAL AND TRIAL PROCEDURES - PLEADINGS - Pre-Answer Motion - Anti-SLAPP Motion to Strike
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California has a second motion to strike when the plaintiff has filed a "strategic lawsuit against public participation" ("anti-SLAPP"). In such a motion, the defendant must make a threshold showing that the cause of action in the complaint arises from activity protected by the First Amendment. Ifthe defendant makes this showing, the burden shifts to the plaintiff to show a probability of prevailing on the merits. The California Legislature has created exemptions for actions brought solely in the public interest or on behalf of the general public, and for actions brought against sellers of goods or services who make representations about their business or a competitor's business. A defendant who prevails on an anti-SLAPP motion may bring a "SLAPP back" motion-basically a cause of action for malicious prosecution.
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PRETRIAL AND TRIAL PROCEDURES - PLEADINGS - Answer - In Federal Court
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The answer must contain a specific denial or admission of each averment of the complaint, or a general denial with specific admissions of the averments admitted may be made. If the defendant is without knowledge or information sufficient to form a belief, a statement to that effect constitutes a denial. A failure to deny constitutes an admission. The answer must also state any affirmative defenses the defendant may have. If no Rule 12 motion is made, a defendant who was formally served must present an answer within 21 days after service; a defendant to whom a complaint was mailed and who waives formal service must answer within 60 days after the request for waiver was mailed to her. If a Rule 12 motion is made and the court does not fix another time, the responsive pleading must be served within 14 days after the court's denial or postponement of the motion. The answer is due within 14 days after service of a more definite statement if the court grants a Rule 12(e) motion.
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PRETRIAL AND TRIAL PROCEDURES - PLEADINGS - Answer - In California State Court
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Usually, a defendant may file a general denial, which denies each and every material allegation of plaintiff 's complaint. The defendant also has the option of filing specific denials, which deny particular paragraphs or parts of the complaint and which permit defendant to deny allegations on the basis of information and belief (or lack thereof). Ifthe plaintiff has filed a verified complaint, the defendant usually must respond with a verified answer that contains specific denials. Any material allegations not denied by defendant 's answer are deemed admitted. Inpleading affirmative defenses, defendant must adhere to the same fact-pleading standards as plaintiffs. The defendant has 30 days from the date of service of process to file an answer. If defendant instead brings a demurrer or a motion to strike, and the court overrules the demurrer or motion, the defendant must file an answer within 10 days, unless the court orders otherwise. The time period begins to run as of the date of service of notice of the court's ruling.
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PRETRIAL AND TRIAL PROCEDURES - PLEADINGS - Effect of Failure to Answer-Default and Default Judgments
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If a party against whom a judgment for relief is sought has failed to plead or otherwise defend, and that fact is made to appear by affidavit or otherwise, the clerk must enter the default of that party. (However, a default generally may be entered against a minor or incom petent person only if she has a personal representative who has appeared in the case.) Once the default has been entered, the party may not proceed with the action until the default has been set aside by the court. In California state courts, a notice that a default may be entered must be mailed to the defaulting party. |
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PRETRIAL AND TRIAL PROCEDURES - PLEADINGS - Effect of Failure to Answer-Default and Default Judgments - Default Judgment
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Once a default has been entered, the amount of damages must still be determined before a default judgment may be entered. In federal court, the court clerk may enter judgment if: (i) the plaintiff's claim against the defaulted defendant is for a sum certain ; (ii) the default was entered because the defendant failed to appear; and (iii) the defaulted defendant is not an infant or incompetent person. In California state court, the clerk may enter a default judgment if: (i) the action arises out of a contract or judgment ; (ii) the action is for a sum certain; and (iii) the defendant was not served by publication.
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PRETRIAL AND TRIAL PROCEDURES - PLEADINGS - Effect of Failure to Answer-Default and Default Judgments - Notice After Default Required
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In federal court, the clerk or the party must give notice to all parties who have appeared and to the defaulted party after the entry of a default. In addition, if the defendant has "appeared," whether or not he has answered, he must be notified of the request for a default judgment by first-class mail at least three days before the hearing on the appli cation for a default judgment. In California state court, the defaulted defendant is not entitled to notice of the hearing and has no right to appear or present evidence.
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PRETRIAL AND TRIAL PROCEDURES - PLEADINGS - Counterclaims
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In California state court, a "counterclaim" is called a "cross-complaint."
Compulsory If the claim arises from the same transaction or occurrence as the plaintiff 's claim, it must be pleaded as a counterclaim or it will be thereafter barred. Permissive Any other claim the defendant has against the plaintiff may be asserted as a permissive counterclaim. In federal court, it must meet the jurisdictional requirements for filing a claim in federal court. |
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PRETRIAL AND TRIAL PROCEDURES - PLEADINGS - Pleading Factual Allegations
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A party generally may set out as many alternative claims or defenses as he may have, regard less of consistency. A verified complaint, however, may not contain inconsistent facts. Facts may be pleaded based on the plaintiff 's personal knowledge or information and belief, or they may be incorporated by reference.
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PRETRIAL AND TRIAL PROCEDURES - PLEADINGS - Reply
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A reply by the plaintiff to the defendant's answer is required only if the court orders the plaintiff to file one. In California, the plaintiff would file an "answer" to the defendant's ''cross-complaint.''
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PRETRIAL AND TRIAL PROCEDURES - PLEADINGS - Amendments and Supplemental Pleadings
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Amendments can occur at all stages of litigation. In federal court, a pleading may be amended once within 21 days of serving it, or, if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or pre-answer motion. In California state court, a party may amend once, as a matter of right, before an answer or demurrer to the complaint is filed, or, after demurrer but before the hearing on the issue raised by the demurrer. Thereafter, a pleading may be amended only by the written consent of the adverse party (in federal court) or by leave of court upon motion (both courts), which is liberally granted. Typos generally may be fixed at any stage.
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PRETRIAL AND TRIAL PROCEDURES - PLEADINGS - Amendments and Supplemental Pleadings - Amendment to Add a New Cause of Action Against a Defendant Already Named
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Relation back applies when an amended complaint adds a new cause of action. If the new cause of action is based on the same general set of facts as those in the original complaint, the amended complaint will relate back to the date of the filing of the original. Some courts, in addition to the "same general facts" requirement, have imposed two additional requirements for relation back: (i) the amended pleading must also involve the same accident and injuries; and (ii) the amended pleading must refer to the same offending instrumentality.
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PRETRIAL AND TRIAL PROCEDURES - PLEADINGS - Amendments and Supplemental Pleadings - Amendment to Add a Defendant to the Case
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Sometimes, through mistake or oversight, a plaintiff will fail, in the original complaint, to name a defendant against whom she has a cause of action. Thereafter, the question becomes whether plaintiff may add the defendant to the case by means of amendment.
If the statute of limitations has not yet run, the answer is generally "yes," provided that time for amendment has not yet run or the court has granted leave to amend. In such a case, there is no need for any type of relation back doctrine, because the plain tiff is still within the statute of limitations period. If the statute of limitations period has run, however, the answer is generally "no," with the exceptions listed below. |
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PRETRIAL AND TRIAL PROCEDURES - PLEADINGS - Amendments and Supplemental Pleadings - Amendment to Add a Defendant to the Case - Relation Back in Cases of Mistaken Identity in Federal Court
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An amendment changing the party or the naming of the party against whom a claim is asserted relates back to the date that the original complaint was filed if the amendment concerns the same conduct, transaction, or occurrence as the original pleading and, within 120 days after filing the complaint (and such additional time as the court may order upon a showing of good cause), the party to be brought in by amendment: (i) has received such notice of the action that she will not be prejudiced in maintaining her defense on the merits; and (ii) knew or should have known that, but for a mistake concerning the proper party's identity, the action would have been brought against her. It is the knowledge of the party to be brought in by amendment, not of the plaintiff, that is relevant.
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PRETRIAL AND TRIAL PROCEDURES - PLEADINGS - Amendments and Supplemental Pleadings - Amendment to Add a Defendant to the Case - Relation Back in Cases of "Mistake" in California State Court
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California allows a plaintiff to correct a "mistake" in naming the defendant in the complaint, even if the statute of limitations has already run (e.g., to correct typos in a party's name). However, under an equitable estoppel theory, the plaintiff will sometimes be allowed to correct a mistake in naming a closely related entity for the true defendant.
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PRETRIAL AND TRIAL PROCEDURES - PLEADINGS - Amendments and Supplemental Pleadings - Amendment to Add a Defendant to the Case - California "Doe" Amendments
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California sometimes permits a defendant to be sued under a fictitious "Doe" designation. The Doe procedure has several requirements: (i) the original complaint must be timelyfiled and must contain charging allegations against all defendants, including those designated as "Doe"; (ii) the plaintiff must be genuinely ignorant of the identity of the fictitiously named defendant, or of facts giving rise to- a cause of action against that defendant, or of the fact that the law provides a cause of action; and (iii) plaintiff's ignorance must bepleaded in the complaint. If these requirements are satisfied, the plaintiff generally has three years from the filing of the original complaint to discover the identity of the Doe defendants and serve them with an amended complaint. (Different time frames apply in "Fast Track" cases.)
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PRETRIAL AND TRIAL PROCEDURES - PLEADINGS - Presenting Papers to Court - Certification
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In federal civil cases, the attorney (or unrepresented party), by presenting to the court a pleading, written motion, or other paper, certifies that to the best of her knowledge, information, and belief formed after an inquiry reasonable under the circumstances: (i) the paper is not presented for any improper purpose (harassment, delay, etc.); (ii) the legal contentions therein are warranted by existing law or a nonfrivolous argument for the modification of existing law or the establishment of a new law; (iii) the allegations and factual contentions either have, or upon further investigation or discovery are likelyto have, evidentiary support; and (iv) denials of factual contentions are warranted on the evidence or, where specified, are reasonably based on a lack of information and belief.
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PRETRIAL AND TRIAL PROCEDURES - PLEADINGS - Presenting Papers to Court - Sanctions in Federal Court
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The court has discretion to impose sanctions against a party who presents a paper to the court in violation of the above requirements. The matter may be raised in either of two ways: (i) the court, on its own initiative, may enter an order describing the matter that appears to violate Rule 11 and direct the proponent to show cause why sanctions should not be imposed, or (ii) the opposing party may serve a motion for sanctions on the proponent, and if the proponent does not withdraw or correct the matter within 21 days, the opposing party may then file the motion for sanctions with the court. The sanctions may consist of either nonmonetary directives or monetary penalties, including payment of expenses or attorneys' fees incurred because of the improper paper.
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PRETRIAL AND TRIAL PROCEDURES - PLEADINGS - Presenting Papers to Court - California's Sanctions Statute
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California's sanctions statute is nearly identical to Rule 11. Some notable California distinctions include the following: (i) the court assesses whether the party seeking sanctions has exercised due diligence; (ii) the 21-day safe harbor provision applies to motions by a party and to the court's own motion; and (iii) a motion for sanctionsbrought by a party or a party's attorney primarily for an improper purpose will itself be subject to a motion for sanctions.
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PRETRIAL AND TRIAL PROCEDURES - JOINDER
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Federal court rules and California state rules pertaining to joinder are similar.
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PRETRIAL AND TRIAL PROCEDURES - JOINDER - Joinder of Parties - Compulsory Joinder
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A party should be joined if: (i) complete relief cannot be given to existing parties in his absence; (ii) disposition in his absence may impair his ability to protect his interest in the controversy; or (iii) his absence would expose existing parties to a substantial risk of double or inconsistent obligations. Ifa party needed for just adjudication is amenable to process and her joinder will not destroy diversity in federal court or venue, she must be joined.
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PRETRIAL AND TRIAL PROCEDURES - JOINDER - Joinder of Parties- Compulsory Joinder - Joinder Not Feasible
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If joinder is not feasible, the court must decide whether the action can proceed in the party's absence or must be dismissed. The court must consider the following: (i) whether the judgment in the party's absence would prejudice him or the existing parties; (ii) whether the prejudice can be reduced by shaping the judgment; (iii) whether a judgment in the party's absence would be adequate; and (iv) whether the plaintiff will be deprived of an adequate remedy if the action is dismissed.
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PRETRIAL AND TRIAL PROCEDURES - JOINDER- Joinder of Parties - Permissive Joinder
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Parties may join as plaintiffs or be joined as defendants whenever: (i) some claim is made by each plaintiff and against each defendant relating to or arising out of the same series of occurrences or transactions; and (ii) there is a question of fact or law common to all the parties. The rule permitting broad joinder, however, does not lessen jurisdic tional requirements.
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PRETRIAL AND TRIAL PROCEDURES - JOINDER - Joinder of Claims
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A plaintiff can join any number and type of claims against a defendant; when multiple plain tiffs or multiple defendants are involved, it is essential only that at least one of the claims arise out of a transaction in which all were involved.
In California, a common question of law or fact must be present.) A plaintiff may join two claims if success on the first is a prerequisite to the second. In federal court, when jurisdiction is based on diversity of citizen ship between the plaintiff and the defendant, the plaintiff may aggregate all claims that he has against the defendant to satisfy the jurisdictional amount. When jurisdiction is based on a federal question claim, a non federal claim can be joined only if it is regarded as part of the same case or controversy as the federal claim. |
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PRETRIAL AND TRIAL PROCEDURES - JOINDER - Joinder of Claims - Class Actions
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Requirements
Under Federal Rule 23, a class action is proper if: The class is so numerous that joinder of all members is impracticable; There are questions of law or fact common to the class; Named parties' interests are typical of the class; Named parties will adequately represent the interests of the absent members of the class; and One of the following three situations is present: Separate actions would create a risk of inconsistent results or impair the interests of unnamed parties; The defendant has acted or refused to act on grounds applicable to the class and injunctive or declaratory relief is appropriate for the class as a whole; or Common questions of law or fact predominate over individual issues and a class action is superior to alternate methods of adjudication. |
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PRETRIAL AND TRIAL PROCEDURES - JOINDER - Joinder of Claims - Considerations in Treating the Case as a Class Action
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The court should determine at an early practicable time whether to certify the class, but it can determine that a class action is not appropriate at any time.Considerations in determining whether to certify a class include: (i) the interest of individual control; (ii) the extent and nature of litigation elsewhere on the same subject; (iii) the desirability of a joint trial; and (iv) the difficulties in managinga class action. When certifying the class, the court must define the class and the class claims, issues, or defenses. The court must also appoint class counsel, who must fairly and adequately represent the interests of the class.
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PRETRIAL AND TRIAL PROCEDURES - JOINDER - Joinder of Claims - Effect of Judgment
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All members of a class will be bound by the judgment rendered in a class action except those in a common question class action who notify the court that they do not wish to be bound. Note that if the substantive claim of the individual representing the class is mooted, this does not render the class action moot.
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PRETRIAL AND TRIAL PROCEDURES - JOINDER - Joinder of Claims - Notice
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Notice to all members of the class is required only in common question suits so that class members can opt out. Notice to members of the class in other class suits is discretionary with the court. The notice must state: (i) the nature of the action;(ii) the definition of the class; (iii) the class claims, issues, or defenses; and (iv) the binding effect of a class judgment.
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PRETRIAL AND TRIAL PROCEDURES - JOINDER - Joinder of Claims - Jurisdiction
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In class actions founded on diversity, only the citizenship of the named representatives of the class is taken into account to establish diversity. One class representative's claim generally must exceed $75,000, as the amount in controversy may be aggregated only in the rare situation in which the claims of the parties are "joint" or "common." However, class members with claims not exceeding $75,000 might be able to invoke supplemental jurisdiction ( see II.B.3., supra) .
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PRETRIAL AND TRIAL PROCEDURES - JOINDER - Joinder of Claims - Court Approval
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The court must approve the dismissal or settlement of a class action. The class must satisfy the requirements of certification before a court can approve a settle ment. Notice of settlement also must be given. In a "common question" class action, the court may provide the parties with a second opportunity to opt out. A fairness hearing also must be held.
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PRETRIAL AND TRIAL PROCEDURES - JOINDER - Joinder of Claims - Class Action Fairness Act
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Under the Class Action Fairness Act ("CAFA''), subject matter jurisdiction is established if: (i) any class member (not just the representative, but anyone in the plaintiff class) is of diverse citizenship from any defendant; (ii) the amount in controversy in the aggregate (i.e., adding all the class claims together) exceeds $5 million ; and (iii)there are at least 100 members in the proposed class or classes. Additionally, any defendant, rather than all defendants, may remove the case from state to federal court. Moreover, the case may be removed under the CAFA even if a defendant is a citizen of the forum.
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PRETRIAL AND TRIAL PROCEDURES - JOINDER - Joinder of Claims - Class Action Fairness Act - Excluded Actions
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There is no federal court jurisdiction under the CAFA if the primary defendants are states, state officials, or other governmental entities against whom the court may be foreclosed from ordering relief, or over a class action that solely involves a claim under federal securities laws or that relates to the internal affairs of a corporation and is based on the laws of the state of incorporation.
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PRETRIAL AND TRIAL PROCEDURES - JOINDER - Joinder of Claims - Class Action Fairness Act - Local Considerations May Defeat Jurisdiction
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The CAFA has some provisions designed to defeat federal jurisdiction in class actions that are relatively local in nature.
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PRETRIAL AND TRIAL PROCEDURES - JOINDER - Joinder of Claims - Class Action Fairness Act - Local Considerations May Defeat Jurisdiction - Mandatory Decline of Jurisdiction
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A district court must decline jurisdiction provided by the CAFA if: (i) more than two-thirds of the members of the proposed plaintiff class are citizens of the state in which the action wasfiled ; (ii) a defendant from whom"significant relief" is sought is a citizen of that state ; and (iii) the "principal injuries" were incurred in the state in which the action was filed .
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PRETRIAL AND TRIAL PROCEDURES - JOINDER - Joinder of Claims - Class Action Fairness Act - Local Considerations May Defeat Jurisdiction - Discretionary Decline of Jurisdiction
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A district court may decline jurisdiction provided by the CAFA if more than one-third but less than two-thirds of the proposed plaintiff class are citizens of the state in which the action wasfiled and the "primary defendants" are also citizens of that state. In that case, the court considers whether (i) the claims involve matters of national interest; (ii) the claims will be governedby the law of the state in which it was filed; and (iii) the state has a "distinct nexus" with the class members, the alleged harm, or the defendants.
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PRETRIAL AND TRIAL PROCEDURES - JOINDER - Joinder of Claims - Shareholder Derivative Suits - Requirements
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Under Federal Rule 23.1, a shareholder can sue to enforce a right of the corporation that those in control of the corporation refuse to assert if she can allege and prove that:
She was a shareholder at the time of the transaction complained of (or received her shares thereafter by operation of law); The action is not a collusive effort to confer jurisdiction on the court that it would otherwise lack; and She made a demand on the directors and, if required by state law, on the shareholders; or the reasons why she did not make such demands. For this requirement, facts must be pleaded with particularity . Rule 23.1, like Rule 23, requires that the class representative be able to fairly and adequately represent the class. |
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PRETRIAL AND TRIAL PROCEDURES - JOINDER - Joinder of Claims - Shareholder Derivative Suits - Jurisdictional Amount and Venue
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A judgment in a derivative action runs to the corporation, and therefore the juris dictional amount looks to the damages allegedly suffered by the corporation.Venue is proper wherever the corporation could have sued the same defendants(i.e., usually in the state of its incorporation).
Exam Tip: Remember, when faced with a shareholder derivative suit under the federal court's diversity jurisdiction, the corporation is treated as a plaintiff for purposes of determining jurisdictional amount (i.e., the court will look to the corporation's damages), but generally is treated as a defendant for purposes of determining whether there is diversity among the parties. |
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PRETRIAL AND TRIAL PROCEDURES - JOINDER - Joinder of Claims - Class Actions in California State Court
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In California, 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 imprac ticable to bring them all before the court." Inruling on class action issues, California courts often rely on the language of Rule 23 and thefederal 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. The community of interest requirement involves analysis of several factors, including whether: (i) common questions of law or fact predominate; (ii) the class action device will result in substantial benefits to the parties and the court; and (iii) the class representative will adequately represent the class interests.
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PRETRIAL AND TRIAL PROCEDURES - JOINDER - Joinder of Claims - Interpleader
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California's interpleader proceedings are similar to those under the federal rule and statute, except that it is unclear under California law whether the stakeholder needs to be a disinterested party.
Nature An interpleader suit is instituted by a person in the position of a stakeholder to require the adverse claimants to determine which has the valid claim to the stake. It applies if separate actions might result in double liability against the stakeholder. Federal law has abolished the common law requirements that the stakeholder must admit liability to the proper claimant and that the claims have a common origin. Jurisdiction In federal court, there are two interpleader procedures: Rule 22 interpleader and section 1335 interpleader.Rule 22 interpleader requires (i) complete diversity between the stakeholder and all adverse claimants and in excess of $75,000 in issue, or (ii) a federal question claim. Normal service and venue rules apply. Section 1335 interpleader requires only minimum diversity between the claimants (one claimant must be diverse from one other) and $500 in issue. Service may be nationwide and venue is proper where any claimant resides.e)· Exam Tip: Mnemonic: Rule 22 interpleader must follow the Regular Rules; Statutory-interpleader has Special, Simpler Standards. |
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PRETRIAL AND TRIAL PROCEDURES - JOINDER - Joinder of Claims - Intervention
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Intervention may be granted to a party of right or permissively. Intervention of right is available whenever the applicant claims an interest in the property or transaction that is the subject matter of the action, and the disposition of the action without him may impair his ability to protect that interest. In federal court, there appears to be nosupplemental (ancillary) jurisdiction over claims by or against one seeking to intervene in a diversity action.
Permissive intervention is available when the applicant's claim or defense and the main action have a question of fact or law in common; no direct personal or pecuniary interest is required. Permissive intervention must be supported by its own jurisdictional ground. Note: In California, the principal issue that arises in permissive intervention is whether the potential intervenor 's interest is "direct and immediate,"which is required for permissive intervention , or is "indirect and consequential,"which would defeat intervention. |
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PRETRIAL AND TRIAL PROCEDURES - JOINDER - Joinder of Claims - Third-Party Practice
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A defending party may implead a nonparty who is or may be liable to him for any part of a judgment that the plaintiff may recover against him (e.g., claims based on indemnity). In federal court, if federal question or diversity jurisdiction is not available, supplemental jurisdiction will be available, because a claim for indemnity arises from the common nucleus of fact as the underlying claim. Additionally, venue need not be proper for the third-party defendant. The defending party may also join any other claims she has against the third-party defendant, and these claims would also need some jurisdictional basis. The third-party defendant may assert defenses to the plaintiff's original claim as well as defenses to the third-party liability asserted against him. The court may sever any third-party claim to be tried separately if that is just.
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PRETRIAL AND TRIAL PROCEDURES - JOINDER - Joinder of Claims - Third-Party Practice - California Practice
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The cause of action in a permissive cross-complaint adding a new party for any purpose (not only indemnity) must either arise out of the same transaction or occurrence as the original plaintiff 's cause of action against the third-party plain tiff, or it must assert a claim or interest in the subject of the plaintiff's action against the third-party plaintiff. The third-party plaintiff may then join any other new third-party defendant if it would not violate California's liberal joinder statutes, and may join any other cause of action he has against any of the third party defendants. In addition to filing an answer to the cross-complaint, a third party defendant may file a "special answer," asserting any affirmative defenses against the original plaintiff that the third-party plaintiff has.
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PRETRIAL AND TRIAL PROCEDURES - JOINDER - Joinder of Claims - Third-Party Practice - California Practice - Cross-Claims
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Co-parties may assert claims against each other that arise out of the same transactionor occurrence as the main action by filing cross-claims. Since a cross-claim is related to the existing action, it is commonly considered to come within the court's supplemental jurisdiction. In California state courts, a cross-complaint against a co-defendant is permissive, requiring a transactional relationship to the original complaint or a claim or interest in the subject of the original complaint.
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PRETRIAL AND TRIAL PROCEDURES - DUTY OF DISCLOSURE; DISCOVERY - Disclosure Requirements
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Federal Rule 26 requires parties to disclose, without being asked, information to other parties about their case. There are no automatic disclosure requirements in California state courts.
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PRETRIAL AND TRIAL PROCEDURES - DUTY OF DISCLOSURE; DISCOVERY - Disclosure Requirements - Types of Disclosure Required
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Before making her disclosures, a party has an obligation to make a reasonable inquiry into the facts of the case. Rule 26 requires parties to disclose all information "then reasonably available." A party is not relieved from her obligation of disclosure merely because she has failed to complete her investigation or because another party has not made his disclosures or has made inadequate disclosures. Rule 26 requires three types of disclosure: initial disclosures, disclosure of expert testimony, and pretrial disclosures.
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PRETRIAL AND TRIAL PROCEDURES - DUTY OF DISCLOSURE; DISCOVERY - Disclosure Requirements - Types of Disclosure Required - Initial Disclosures
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Without waiting for a discovery request, a party must provide to other parties:
The names, addresses, and telephone numbers of individuals likely to have discoverable information that the disclosing party may use to support its claims or defenses, unless solely for impeachment; Copies or descriptions of documents, electronically stored information, and tangible things that are in the disclosing party's possession or control that the disclosing party may use to support its claims or defenses, unless solely for impeachment; A computation of damages claimed by the disclosing party and copies of materials upon which the computation is based; and Copies of insurance agreements under which an insurer might be liable for all or part of any judgment that might be entered. These disclosures must be made within 14 days after the conference of the parties required by Rule 26(f), (discussed at G.l., infra), unless a different time is set by court order or by stipulation. |
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PRETRIAL AND TRIAL PROCEDURES - DUTY OF DISCLOSURE; DISCOVERY - Disclosure Requirements - Types of Disclosure Required - Initial Disclosures - Exemptions from Initial Disclosure Requirement
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Initial disclosures are not required in particular types of cases (e.g., actions to review an administrative record, actions to enforce an arbitration award, pro se litigation brought by prisoners, actions to quash or enforce subpoenas, or habeas corpus petitions).
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PRETRIAL AND TRIAL PROCEDURES - DUTY OF DISCLOSURE; DISCOVERY - Disclosure Requirements - Types of Disclosure Required - Disclosure of Expert Testimony
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A party must also disclose to other parties the identities of expert witnesses expected to be used at trial. This disclosure generally must be accompanied by a report prepared and signed by each expert witness stating her qualifications, the opinions to be expressed, and the basis for those opinions. This disclosure must be made at the time directed by the court or, in the absence of any directions or any stipulations among the parties, at least 90 days before trial. However, if the evidence is intended solely to rebut another party's disclosure of expert testimony, it must be made within 30 days after disclosure of the evidence being rebutted.
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PRETRIAL AND TRIAL PROCEDURES - DUTY OF DISCLOSURE; DISCOVERY - Disclosure Requirements - Types of Disclosure Required - Pretrial Disclosures
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At least 30 days before trial, a party must disclose the witnesses she expects to call at trial, the witnesses she will call if the need arises, the witnesses whose testimony will be presented by means of a deposition and a transcript of pertinent portions of the deposition, and a list of documents or exhibits she expects to offer or might offer if needed. Within 14 days after this disclosure, a party may serve objections to use of the depositions at trial and to the admissibility of disclosed documents and exhibits. Such objections are waived if not made at this point, except for objections that the evidence is irrelevant, prejudicial, or confusing under Federal Rules of Evidence 402 and 403.
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PRETRIAL AND TRIAL PROCEDURES - DUTY OF DISCLOSURE; DISCOVERY - Scope of Disclosure and Discovery
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In federal court, discovery generally may be had of any nonprivileged matter that is relevant to the claim or defense of any party, including the identity of persons having knowledge of relevant facts. As long as the information sought is reasonably calculated to lead to the discovery of admissible evidence or a claim or defense in the case, it is not required that the information itself be admissible at trial. The California standard is broader than the federal: The information must be "relevant to the subject matter involved in the pending action."
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PRETRIAL AND TRIAL PROCEDURES - DUTY OF DISCLOSURE; DISCOVERY - Scope of Disclosure and Discovery - Work Product Protection and Privilege
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In federal court, work product of a party or his representative (e.g., a lawyer) made in anticipation of litigation is discoverable only upon showing "substantial need" and to avoid "undue hardship" in obtaining materials in an alternative way, but the court must secure against disclosure of mental impressions, opinions, and conclusions.
However,a party may obtain, without a showing of need and hardship, a copy of any statement previously made by that party. Draft reports and disclosures of experts identified in required disclosures are work product. Confidential communications between such experts and counsel for the party are generally protected under the lawyer-client privilege, except communications relating to the expert's compensation or to facts or data the attorney provided to the expert. California provides an absolute work product protection to writings reflecting an attorney's impressions, conclusions, opinions, or legal research. In California, qualified work product is not discoverable except on a showing that denial of discovery will unfairly prejudice a party in preparing his claim or defense, or will result in an injustice. In addition to work product protection and statutory evidentiary privileges, the California Constitution provides for a right to privacy that may be exercised in the discovery context. The court balances the need for the discovery against the right to privacy. |
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PRETRIAL AND TRIAL PROCEDURES - DUTY OF DISCLOSURE; DISCOVERY - Scope of Disclosure and Discovery - Experts
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A party may depose testifying experts. In federal court, the opinions of consulting experts may be discovered through depositions or interrogatories only if the party seeking discovery shows that it is impracticable to obtain such facts or opinions by other means. In California state court, a party need not disclose consulting experts.
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PRETRIAL AND TRIAL PROCEDURES - DUTY OF DISCLOSURE; DISCOVERY - Scope of Disclosure and Discovery - Protective Orders
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In both courts, protective orders may be obtained to limit the nature and scope of examination or to terminate examination to protect against unwarranted annoyance, embarrassment, or undue burden and expense.
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PRETRIAL AND TRIAL PROCEDURES - DUTY OF DISCLOSURE; DISCOVERY - Scope of Disclosure and Discovery - Privileged Information
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When a party withholds information she believes is privileged, the party must make the claim expressly and describe the nature of the documents not disclosed in a manner that will enable other parties to assess the applicability of the privilege.
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PRETRIAL AND TRIAL PROCEDURES - DUTY OF DISCLOSURE; DISCOVERY - Scope of Disclosure and Discovery - Supplementation of Disclosures and Discovery Responses
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In federal court, a party has a duty to supplement required disclosures and discovery responses if she learns that the information disclosed was materially incomplete or incorrect and the new information has not been made known to the other party in discovery or in writing. In contrast to federal procedure, there is no general duty to supplement previous discovery responses in California state courts. (In limited circumstances, a party may request another party to supplement earlier discovery responses.)
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PRETRIAL AND TRIAL PROCEDURES - DUTY OF DISCLOSURE; DISCOVERY - Scope of Disclosure and Discovery - Methods of Discovery
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In both court systems, the following types of discovery are available: pre-action discovery (perpetuating one's own or another's testimony); oral deposition of a witness, including a party-witness; depositions of witnesses upon written questions; interrogatories to the parties; production of physical material; physical and mental examinations when the party's physical or mental condition is in controversy; and requests for admission as to the truth or genuine ness of any matter or document described in the request.
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PRETRIAL AND TRIAL PROCEDURES - DUTY OF DISCLOSURE; DISCOVERY - Scope of Disclosure and Discovery - Use of Depositions at Trial or Hearing
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Subject to the rules of evidence, a deposition may be used: (i) to impeach the testimony of the deponent as a witness; (ii) for any purpose if the court finds that the deponent is dead or at a distance greater than 100 miles (federal court) or 150 miles (California state court) from the place of trial, or that the deponent is unable to testify because of age, sickness, etc.; or(iii) for any purpose if the deponent is an adverse party.
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PRETRIAL AND TRIAL PROCEDURES - DUTY OF DISCLOSURE; DISCOVERY - Scope of Disclosure and Discovery - Enforcing Disclosure and Discovery - Motion to Compel and for Sanctions
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In both court systems, if a party fails to provide or provides incomplete disclosures or discovery, the other party may move to compel discovery or further discovery. If a party fails to comply with an order to provide discovery, the court may: (i) order the matters to be treated as admitted; (ii) prohibit the party from supporting or opposing designated claims or defenses; (iii) strike pleadings, stay or dismiss the action, or render defaultjudgment; or (iv) hold the delinquent party or witness in contempt.
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PRETRIAL AND TRIAL PROCEDURES - DUTY OF DISCLOSURE; DISCOVERY - Scope of Disclosure and Discovery - Enforcing Disclosure and Discovery - Discovery Sanctions in Federal Court - Immediate Sanction
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Ifa party fails to attend his own deposition or fails to provide any answers to inter rogatories, a party may move for immediate sanctions. The court may make such orders in regard to the failure as are "just," including (i), (ii), and (iii) above.
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PRETRIAL AND TRIAL PROCEDURES - DUTY OF DISCLOSURE; DISCOVERY - Scope of Disclosure and Discovery - Enforcing Disclosure and Discovery - Discovery Sanctions in Federal Court - Automatic Sanction
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The rules also provide for automatic sanctions against a party who "without substantial justification" fails to disclose information as required under Rule 26, or who fails to supplement or amend discovery responses under Rule 26(e)(l) or (2). The party who fails to make required disclosures will not be permitted to use the information withheld as evidence at trial, at a hearing, or on a motion, unless such failure was "harmless." Other appropriate sanctions may be imposed including (i), (ii), and (iii) above, as well as informing the jury of the failure to make the disclo sure. In addition to the above sanctions, the court may assess reasonable expenses incurred, including attorneys' fees.
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PRETRIAL AND TRIAL PROCEDURES - DUTY OF DISCLOSURE; DISCOVERY - Scope of Disclosure and Discovery - Enforcing Disclosure and Discovery - Discovery Sanctions in California State Courts
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The California discovery statutes authorize the court to impose sanctions for the failure to respond to discovery, making an unmeritorious objection to discovery, and disobeying a court order to provide discovery. Generally, initial misuse of the discovery process "shall" result in a monetary sanction unless the potentially sanctioned pattyacted with substantial justification or the sanction would be unjust. Subsequent instances of misuse could subject a party to escalating sanctions, including issue, evidence, and terminating sanctions, as well as more serious monetary sanctions.
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PRETRIAL AND TRIAL PROCEDURES - PRETRIAL CONFERENCES - Federal Rule 26(f) Conference of Parties-Planning for Discovery
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The parties must confer to consider their claims and defenses, the possibility of settlement, initial disclosures, and a discovery plan. The parties must submit to the court a proposed discovery plan addressing the timing and form of required disclosures, the subjects on which discovery may be needed, the timing of and limitations on discovery, and relevant orders that may be required of the court. Note that, in California state courts, parties are not specifically required to meet and confer regarding planning for discovery or to provide a proposed discovery plan.
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PRETRIAL AND TRIAL PROCEDURES - PRETRIAL CONFERENCES - Case Management in Federal Court
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The court must hold a scheduling conference among the parties or counsel. The court must enter a scheduling order limiting the time for joinder, motions, and discovery. The order may also include dates for pretrial conferences, a trial date, and any other appropriate matters.This schedule cannot be modified except by leave of court upon a showing of good cause. Additional conferences may be held to expedite trial and foster settlement. A final pretrial conference may be held to formulate a plan for the trial, including a program for the admission of evidence. An order entered pursuant to a final pretrial conference cannot be modified except to prevent manifest injustice. The court may use a broad range of sanctions against parties or counsel who fail to attend conferences, participate in good faith, or obey orders entered pursuant to a conference.
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PRETRIAL AND TRIAL PROCEDURES - PRETRIAL CONFERENCES - Case Management in California State Courts
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The court must hold an initial case management conference within 180 days of the filing of the complaint. The purpose is similar to that in federal court. Some cases may be governed by California's Trial Court Delay Reduction Act, also known as "Fast Track." Under "Fast Track," the trial court assigns a time goal for disposition. To achieve the disposition goal, "Fast Track" places an obligation on the courts to actively manage civil cases by, e.g., imposing short deadlines on various procedures and requiring the court to hold pretrial case management conferences to assess the progress of a case and to encourage diligence by the parties. A California state court may impose sanctions against a party who fails to comply with "Fast Track" rules or court orders.
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PRETRIAL AND TRIAL PROCEDURES - ALTERNATIVE DISPUTE RESOLUTION
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Alternative dispute resolution (''ADR") is a process in which a neutral person resolves a dispute or helps the parties to resolve their dispute. Examples of these processes include contractual arbitration, judicial arbitration, and mediation.
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PRETRIAL AND TRIAL PROCEDURES - ALTERNATIVE DISPUTE RESOLUTION - Contractual Arbitration
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A written agreement to arbitrate a dispute is valid and enforceable unless a contractual ground for revocation exists (e.g., illegality). The appointment of the arbitrator usually will be provided for in the arbitration agreement. The arbitrator can subpoena witnesses and require them to bring documentary evidence to the hearing. After the arbitrator renders the award, a party can move to have the court confirm the award, and the opposing party may move to vacate the arbitration award on the grounds below. If the award is confirmed, it is considered to be final and binding, and it is enforceable as a court judgment.
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PRETRIAL AND TRIAL PROCEDURES - ALTERNATIVE DISPUTE RESOLUTION - Contractual Arbitration - Judicial Review of Award
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In both the federal and California systems, an arbitration award may be vacated, even on appeal, on grounds such asfraud, evident partiality of the arbitrator, the arbitra tor's refusal to delay proceedings for sufficient cause, or notfollowing the arbitra tion agreement to such a degree as to affect the outcome. A party may also move to modify the awards that go beyond the scope of the arbitration agreement or to correct minor imperfections of form. In federal court only, an arbitration award also may be overturned when it represents a manifest disregard of the law, a judicially created and extremely deferential standard that requires the complaining party to show that the arbitrator knew the applicable law but chose to disregard it. California generally will not apply this test. An award may not be reviewed for errors of law or fact, even if those errors appear on the face of the award and cause substantial injustice, except when the parties have included a clear and express provision in the agreement authorizing review of legal errors.
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PRETRIAL AND TRIAL PROCEDURES - ALTERNATIVE DISPUTE RESOLUTION - Judicial Arbitration
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"Judicial arbitration" is a dispute-resolution process conducted by a neutral person under the auspices of the court in an attempt to resolve the action without trial. In federal court, judicial arbitration is voluntary. In California state courts, the court may require judicial arbitration for unlimited civil cases in which the amount in controversy is $50,000 or less for each plaintiff. The parties also may stipulate to judicial arbitration.
Actions that request equitable relief generally are exempt from judicial arbitration. The parties to judicial arbitration possess full discovery rights, and the proceedings are conducted according to the rules of evidence and procedure. Within 30 days of the award, the parties may request a trial de novo; otherwise, the award has the same effect as a court judgment. |
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PRETRIAL AND TRIAL PROCEDURES - ALTERNATIVE DISPUTE RESOLUTION - Mediation
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Mediation involves the use of a neutral person to help parties to a dispute reach a mutually acceptable agreement. The mediator does not have decision making power; his role is to facilitate the process by which the parties reach their own voluntary agreement. Unless an express statutory exception exists, confidentiality rules prohibit parties and mediators from disclosing any written or oral communications made during mediation. In federal court, mediation is accomplished by local district rule. By local rule, mediation may be made mandatory for certain cases. California has enacted the Civil Action Mediation Program. If the county participates in this program, the court may order cases into mediation when the amount in controversy does not exceed $50,000 for each plaintiff, except that a case that was referred to judicial arbitration may not be ordered into mediation.
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TRIAL - Jury Trial
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A peremptory challenge of a juror may not be exercised to exclude a juror for a constitution ally impermissible reason (e.g., race, gender). |
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TRIAL - Jury Trial - Right to Jury Trial in Federal Court
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The Seventh Amendment preserves the right to a jury trial in federal courts in all "suits of common law" when the amount in controversy exceeds $20. A party who desires a jury trial must file a written demand with the court and serve it on the parties. Failure to make a demand within 14 days after the filing of the pleading in which the jury-triable issue arose constitutes a waiver by that party of any right to trial by jury. Note the following:
Where legal and equitable claims are joined in one action involving common fact issues, the legal claim should be tried first to the jury, and then the equitable claim to the court. Where a procedure formerly available only in equity, such as a class suit or inter pleader, is now permitted under the Federal Rules for determining a "legal" claim, a jury should try the fact issues. Where damages are claimed as part of an action seeking an injunction, the defendant cannot be denied a jury on the damages issues on grounds that they are "incidental" to the equitable relief . |
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TRIAL - Jury Trial - Right to a Jury Trial in California State Court
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In California state courts, the right to a jury exists for: (i) actions at law that are identical or similar to those that existed at common law for which a jury was required at the time the California Constitution was adopted in 1850; and (ii) trials in which the "gist" of the action is legal rather than equitable, even if incidental equitable principles and issues are involved. If an action involves distinct legal and equitable issues, the court usually first decides the equitable issues ("equity first" rule), followed by the jury's consideration of the legal issues. No jury trial right exists if the legal issues are merely incidental to the equitable issues ("equitable cleanup doctrine"). A party must "announce" his demand for a jury trial at the time the case is first set for trial or within five days after notice of setting. In addition to a timely demand, a party requesting a jury trial must make a timely deposit of jury fees and expenses. The right to a jury trial may be waived only by oral or written consent, failing to deposit advance jury fees, or failing to make a timely demand for a jury trial, but the court has discretion to relieve a party from the waiver.
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TRIAL - Jury Trial - Jury Trials in Diversity Cases
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The federal court must permit a jury trial in any diversity "suit at common law" even though the state court would deny a jury. In addition, a federal court will generally follow the federal practice of submitting issues of fact to the jury even though the state law assigns the issue to the court. State law is disregarded in determining the suffi ciency of the evidence to create a jury issue.
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TRIAL - Jury Trial - Jury Instructions
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In both court systems, objections to giving or failing to give instructions must be made before the jury retires to consider the verdict.
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TRIAL - Jury Trial -Jury Verdicts
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The court may instruct the jury to decide by general verdict (in which the jury finds for the plaintiff or defendant), by special verdict (in which the jury makes findings of fact and the court applies the law), or by general verdict with special interrogatories (a combination of the first two).
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TRIAL - Jury Trial - Consolidation and Separate Trials
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In both court systems, the court may consolidate actions then before it when the actions have a common question of law or fact, or order separate trials of any claim, cross-claim, counter claim or cross-complaint, or other issues when separation will foster judicial economy.
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TRIAL - Jury Trial - Involuntary Dismissals
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A federal court, on the defendant's motion, may order an involuntary dismissal against a plaintiff for failure to prosecute or to comply with the Federal Rules or a court order. A California state court, either on motion by a party or on the court's own motion, also may involuntarily dismiss an action for failure to bring the matter to trial or to timely serve process. California statutes also authorize dismissal as a sanction in some circumstances. California's "diligent prosecution" statutes and accompanying statewide rules of court apply to cases not subject to Fast Track.
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TRIAL - Jury Trial - Voluntary Dismissal by Plaintiff
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In federal court, a plaintiff may dismiss his action without prejudice as a matter of right only before the defendant files an answer or a summary judgment motion, or by stipulation of all parties. Otherwise, a dismissal without prejudice can be taken only with leave of the court. In California state courts, a plaintiff generally may voluntarily dismiss her action, with or without prejudice, before the court makes a dispositive ruling on an issue of law or fact or the actual start of the trial. After commencement of trial, a plaintiff may dismiss the action only with prejudice, unless the parties agree otherwise or the court orders dismissal without prejudice based on a showing of good cause.
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TRIAL - Jury Trial - Judgment as a Matter of Law (Directed Verdict)/Nonsuits
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In federal court, a motion for judgment as a matter of law ("JMOL"), formerly known as a motion for a directed verdict, allows judgment to be granted for either party if the evidence is such that reasonable persons could not disagree. The evidence must be viewed in thelight most favorable to the nonmoving party. In California state court, a defendant brings a "nonsuit motion"-based on the same standard as that for a directed verdict-after the plaintiff 's presentation of evidence or plaintiff 's opening statement. In either case, the motion may be partial-i.e., it may address only certain issues, leaving others to be tried. Any party may move for a directed verdict after the presentation of all evidence in the trial.
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TRIAL - Jury Trial - Renewed Motion for JMOL (Judgment Notwithstanding the Verdict)
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A renewed motion for JMOL, formerly known in federal court as a motion for judgment notwithstanding the verdict ("JNOV"), may be filed no later than 28 days after entry of judgment if a motion for judgment as a matter of law was made at some point during the trial. In theory, a party may raise only those issues raised in a motion for a JMOL. The most significant distinction in California state court is that there is no requirement that a party bring a directed verdict motion before moving for a JNOV; the timing is the same as that for a motion for a new trial.
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TRIAL - Jury Trial - Motion for New Trial
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A motion for a new trial must be filed no later than 28 days after the judgment is entered in federal court or 15 days after notice of entry of judgment in California state court. Thegrounds for granting a new trial in federal court are very similar to those in a California state court and include: (i) misconduct on the part of the judge, adverse party, or jury; (ii) newly discovered evidence that moving party could not have, by reasonable diligence, discovered earlier; (iii) unfair accident or surprise during trial; (iv) excessive or inadequate damages ;(v) insufficient evidence to justify the verdict; (vi) the verdict is against the law; and (vii) an error in law during the trial. If the motion is untimely, the court is without jurisdiction to consider it.
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TRIAL - Jury Trial - Motion for New Trial - Remittitur and Additur
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Remittitur, whereby the plaintiff must accept either an amount that is less than the jury verdict or submit to a new trial, is recognized in both federal and California state courts. Additur, whereby the defendant must either agree to pay an amount that is greater than the jury verdict or submit to a new trial, is available in California state courts only.
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TRIAL - Jury Trial - Effect of Failure to Move for a Renewed Judgment as a Matter of Law or for a New Trial
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Infederal 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 insufficiency of the evidence, that party is precluded from raising on appeal the question of evidentiary sufficiency to support either a judgment as a matter of law or a new trial. California does not have this requirement.
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TRIAL - Jury Trial - Judgment on Partial Findings
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Ina nonjury trial, once there is sufficient evidence to make dispositive findings, the judge may rule on an issue as a matter of law, provided all parties have been fully heard. Alterna tively, the judge may wait until all evidence is presented before ruling. In federal court, the ruling must be supported by findings of fact and conclusions of law; in California, the court may issue a statement of decision.
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TRIAL - Jury Trial - Summary Judgment
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Generally, the standard for summary judgment in federal court is nearly identical to that in California state court. Summary judgment shall be granted if, from the pleadings, affidavits, and discovery materials on file, it appears that no genuine dispute of materialfact exists and that the moving party is entitled to judgment as a matter of law.
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TRIAL - Jury Trial - Summary Judgment - Time
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In federal court, any party may move for a summary judgment at any time, up until 30 days after the close of discovery. If a motion for summary judgment is premature, the court may defer the motion to a later date. In California state court, a party may bring a summary judgment motion after 60 days have elapsed since the general appearance of the party against whom the motion is brought, or at an earlier time that the court may direct upon a showing of good cause. The moving party must file and serve the motion at least 75 days before the hearing.
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TRIAL - Jury Trial - Summary Judgment - Partial
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In federal court, judgment may be partial. California allows for "summary adjudication" on less than the complete action.
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TRIAL - Jury Trial - Summary Judgment - Support
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In both court systems, the motion for summary judgment must be supported or opposed with affidavits, discovery, or admissions in pleadings. In California state court, the moving party must also file and serve a separate statement of all material facts claimed to be undisputed, with the supporting evidence for each fact. Failure to provide the separate statement is grounds for denial of the motion. Once the moving party has met its burden, the nonmoving party must respond to the moving party's statement of facts by indicating which facts she believes are in dispute, along with supporting evidence for each fact. The failure to include such a response is grounds for granting the motion.
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TRIAL - Jury Trial - Summary Judgment - Nonappealability
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Denial of the motion for summary judgment usually is not appealable, except that a review by writ of mandamus is possible in California state court.
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ATTACK ON THE JUDGMENT AT THE TRIAL COURT LEVEL - RELIEF FROM JUDGMENT OR ORDER - Clerical Mistakes
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In both court systems, a clerical error may be corrected at any time on motion of the court or any party.
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ATTACK ON THE JUDGMENT AT THE TRIAL COURT LEVEL - RELIEF FROM JUDGMENT OR ORDER - Other Grounds for Relief from Judgment in Federal Court
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On motion and just terms, the court may relieve a party from a final judgment or order on the grounds of (i) mistake, inadvertence, surprise, or excusable neglect; (ii) newly discov ered evidence that by due diligence could not have been discovered in time to move fora new trial; (iii) fraud, misrepresentation, or other misconduct of an adverse party; (iv) the judgment being void; (v) the judgment being satisfied, released, or discharged; a prior judgment on which it is based having been reversed or otherwise vacated; or the fact that it is no longer equitable that the judgment should have prospective application; or (vi) any other reason justifying relief from the operation of the judgment. For grounds (i), (ii), and (iii), the motion must be made within one year; for the other grounds, the motion must bemade within a reasonable time. Ground (iv) does not apply simply because the judgment was erroneous; such errors are to be remedied on appeal. Ground (iv) applies only if there was a fundamental flaw such as lack of jurisdiction or deprivation of due process by failure to give notice or opportunity to be heard.
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ATTACK ON THE JUDGMENT AT THE TRIAL COURT LEVEL - RELIEF FROM JUDGMENT OR ORDER - Other Grounds for Relief from Judgment in California State Court
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In California state court, a court may relieve a party from a judgment that was the result of mistake, inadvertence, surprise, or excusable neglect. Application must be made within a reasonable time, not to exceed six months. A court must set aside a judgment on a party's application made within six months of entry of judgment when it is accompanied by an affidavit of an attorney attesting to his mistake, inadvertence, surprise, or neglect (even if inexcusable). A party may also move to set aside a void judgment..
Exam Tip: For your exam, remember that, in addition to different timing requirements, a California state court must set aside a judgment when the attorney submits an affidavit attesting to his mistake, inadvertence, surprise, or neglect (even "inexcusable" neglect).There is no similar federal court provision. |
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ATTACK ON THE JUDGMENT AT THE TRIAL COURT LEVEL - RELIEF FROM JUDGMENT OR ORDER - Motion for Reconsideration
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In both court systems, a party can move for reconsideration of a prior court order when circumstances justify (e.g., new evidence was discovered).
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ATTACK ON THE JUDGMENT AT THE TRIAL COURT LEVEL - INDEPENDENT ACTION IN EQUITY TO SET ASIDE THE JUDGMENT
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In both court systems, a court, in its discretion, may entertain an independent action to relieve a party from a judgment or order, to grant relief to a defendant not actually personally notified of the action, or to set aside a judgment for fraud on the court. The plaintiff must show that he is likely to win if a new action is allowed. The only advantage of an independent action is that it will not be barred by the specific time limits outlined above. However, the aggrieved party must act promptly once he knows or should know of the ground for relief. An independent action will be rejected if a motion to set aside the judgment has been rejected on the merits.
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FINAL JUDGMENT AND APPELLATE REVIEW - JUDGMENT - Relief that May Be Given
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Except in default cases, the court is not limited to the demand for relief in the pleadings and may give any relief that is appropriate based on the evidence. In California state court, in a limited civil case, relief is also restricted to the jurisdictional limitations of the court, and no declaratory judgment may bRelief that May Be Givene issued.
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FINAL JUDGMENT AND APPELLATE REVIEW - JUDGMENT - Judgment on Multiple Claims or Parties
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In federal court, when multiple claims or multiple parties are involved in an action, the court may enter a final judgment as to fewer than all of the claims or parties only upon (i) an express determination that there is no just reason for delay; and (ii) an express direction for the entry of judgment. Unless the trial judge makes such an express determination, the order determining the merits of fewer than all of the claims or dismissing fewer than all ofthe parties is not a final judgment and is not appealable. In California state court, if the trial court enters a judgment against one of several parties, and the judgment leaves no further issue for resolution as to that party, it is considered a final judgment and may immediately be appealed-no express determination, in contrast to federal procedure, is required. But no appeal can be taken from a judgment entered on fewer than all causes of action.
Exam Tip: Here is yet another distinction between California state and federal practice that may be important to remember: In federal court, when a judge expressly enters an order that is final to fewer than all parties, the judge must expressly determine that the order may be appealed, whereas California state practice would allow the appeal. |
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FINAL JUDGMENT AND APPELLATE REVIEW - JUDGMENT - Final Decision on Merits May Be Valid Despite Lack of Subject Matter Jurisdiction
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Occasionally, lack of subject matter jurisdiction is not raised until the decision is final and all appeals are completed. The question then is whether the decision may be collaterally attacked-i.e., be set aside in an independent proceeding or treated as invalid in a later case. The factors that must be balanced in making this determination are: (i) lack of jurisdiction is clear; (ii) jurisdiction depends on a question of law, not fact; (iii) the court is of limited, not general, jurisdiction; (iv) the question of jurisdiction was not litigated; and (v) strong policy exists against the court acting beyond its jurisdiction.
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FINAL JUDGMENT AND APPELLATE REVIEW - TIME FOR APPEALS
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In federal court, an appeal may be taken by filing a notice of appeal with the district court within 30 days from the entry of the judgment appealed from. However, if a timely renewed motion for judgment as a matter of law, for new trial, or to set aside or amend the judgment is made, the running of the 30 days is terminated. Upon the entry of an order based on such post-trial motions, a new 30-day period begins to run. However, notice of appeal filed during the pendency of apost-trial motion will become effective on final disposition of the motion by the trial court. In California state court, the notice of appeal generally must be filed within 60 days after service by the court clerk or a party of the notice of entry of judgment, or 180 days after entry of judgment if no notice was served. These time limits are strictly applied.
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FINAL JUDGMENT AND APPELLATE REVIEW - REVIEWABLE ORDERS AND JUDGMENTS
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Generally, only final orders and judgments are reviewable. However, certain interlocutory orders are also reviewable.
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FINAL JUDGMENT AND APPELLATE REVIEW - REVIEWABLE ORDERS AND JUDGMENTS - Interlocutory Orders as of Right |
In federal court, interlocutory orders reviewable as of right include: injunctions; appoint ments of receivers; and certain admiralty, patent infringement, and property possession cases. In California state court, a party may immediately appeal an order made after an appealable judgment, an order granting a motion to quash service of summons or granting a motion based on forum non conveniens, an order granting a new trial or denying a motion for judgment notwithstanding the verdict, an order granting or dissolving (or refusing togrant or dissolve) an injunction, and an interlocutory judgment or order directing payment of monetary sanctions if the amount exceeds $5,000.
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FINAL JUDGMENT AND APPELLATE REVIEW - REVIEWABLE ORDERS AND JUDGMENTS - Interlocutory Appeals Act
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In federal court, under the Interlocutory Appeals Act, review is discretionary when: (i) the trial judge certifies that the interlocutory order involves a controlling question of law, as to which there is substantial ground for difference of opinion, and immediate appeal from the order may materially advance the ultimate termination of the litigation; and (ii) the court of appeals then agrees to allow the appeal. Interlocutory orders with respect to less than all claims or parties may be reviewable.
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FINAL JUDGMENT AND APPELLATE REVIEW - REVIEWABLE ORDERS AND JUDGMENTS - Collateral Order Rule
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In federal court, if the claim or issue is separable from and collateral to the main suit, and is a claim too important to require deferring appellate review, it may be classified as a judgment in a separate proceeding and thus be appealable. In California state court, a party may immediately appeal a collateral order if: (i) the trial court renders a dispositive interlocutory order; (ii) on a matter that is collateral to the merits of the action; and (in some courts) (iii) the order directs the payment of money or performance of an act.
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FINAL JUDGMENT AND APPELLATE REVIEW - REVIEWABLE ORDERS AND JUDGMENTS - Certification of Class Actions
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In federal court, an order granting or denying the certification of a class action may be reviewed at the court's discretion within 14 days after entry of the order. In California state court, an order denying certification of an entire class may be immediately appealed; however, an order certifying a class or a partial class may not be immediately appealed.
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FINAL JUDGMENT AND APPELLATE REVIEW - REVIEWABLE ORDERS AND JUDGMENTS - Review of Nonappealable Orders by Writ
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In exceptional cases, the final order rule may be circumvented through the appellate writs of mandamus (compelling a judge to act) and prohibition (prohibiting a judge from acting).
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FINAL JUDGMENT AND APPELLATE REVIEW - ENFORCEABILITY AND STAYS PENDING APPEAL
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In federal court, judgments are generally enforceable while post-trial motions are pending unless the court orders otherwise. Thereafter, if the judgment is appealed, a federal court will stay execu tion if a bond is posted, unless the order was for an injunction or receivership. In California state court, subject to numerous exceptions, enforcement of the trial court judgment is automatically stayed with the timely filing of a notice of appeal. However, enforcement of certain judgments (e.g., for money, sale of real or personal property, appointment of a receiver) will be stayed onlyif a trial court so orders or if an undertaking is provided. The California appellate court may also issue a stay.
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FINAL JUDGMENT AND APPELLATE REVIEW - UNITED STATES SUPREME COURT JURISDICTION
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The Supreme Court has direct appeal jurisdiction from any order granting or denying an injunc tion in any proceeding required to be heard by a three-judge court. The Supreme Court may review any case in the court of appeals by certiorari. The Supreme Court may review cases from the highest state court having jurisdiction over the case by certiorari when the validity of federal law is called into question or the validity of state law is called into question on the ground that it violates the Constitution or federal law.
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FINAL JUDGMENT AND APPELLATE REVIEW - JURISDICTION OF CALIFORNIA SUPREME COURT
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The California Constitution gives the California Supreme Court original jurisdiction in proceed ings for extraordinary relief in the form of mandamus, certiorari, and prohibition, and in habeas corpus proceedings. The California Supreme Court also has appellate jurisdiction over decisions of the California Court of Appeal. Inaddition, the Supreme Court has original jurisdiction to review certain administrative decisions and attorney and judicial disciplinary matters. Typically, the appellant files a petition for review with the California Supreme Court, which is granted only in approximately 5% of civil cases. In rare instances, the California Supreme Court may also grant review on its own motion after the court of appeal has rendered its decision, or may transfer to itself an appeal currently pending in the court of appeal.
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EFFECTS OF JUDGMENT ON FUTURE CASES - RES JUDICATA (CLAIM PRECLUSION)
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For res judicata (claim preclusion) to apply, it must be shown that (i) the earlier judgment is valid, final, and on the merits; (ii) the cases are brought by the same claimant against the same defen dant ; (iii) the same cause of action (or claim) is involved in the later lawsuit; and (iv) the cause of action was actually litigated or could have been litigated in the prior action. In federal court,a judgment is considered final when it is rendered, whereas in California state courts, a judgment is not considered final until the conclusion of any possible appeals.
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EFFECTS OF JUDGMENT ON FUTURE CASES - RES JUDICATA (CLAIM PRECLUSION) - "Cause of Action"
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The modern approach in defining what constitutes a "cause of action" 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 plaintiff. California state courts, however, have steadfastly adhered to the minority "primary rights doctrine," under which a cause of action is defined as an invasion of a single primary right. Thus, e.g., a plaintiff injured by a defendant in an accident may sue the defendant 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.
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EFFECTS OF JUDGMENT ON FUTURE CASES - COLLATERAL ESTOPPEL (ISSUE PRECLUSION)
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Under the doctrine of collateral estoppel, judgment for the plaintiff or defendant is conclusive in a subsequent action on a different cause of action between them, as to issues actually litigated and essential to the judgment in the first action.
Exam Tip: For your exam, remember that, as to res judicata, California still applies the primaryrights doctrine, which allows a plaintiff to split a property damage and personal injury cause ofaction without risking that the claim will be barred by res judicata. That said, be on the lookout for the possible application of collateral estoppel-even though a claim may not be barred by resjudicata, collateral estoppel may prevent itfrom being heard. For example, if a California state court came to a final judgment concluding that a defendant was not negligent in a property damage case, collateral estoppel may prevent the plaintiff from relitigating the issue of negligence in a subsequent personal injury claim, thereby effectively preventing the plaintiff from bringing the subsequent claim. The prior finding that the defendant was not negligent will prevent the plaintiff from proving a prima facie case for negligence. |
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EFFECTS OF JUDGMENT ON FUTURE CASES - WHICH PERSONS ARE BOUND BY A JUDGMENT?
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Parties, privies to parties, and persons whose interests are represented are bound by a judgment. Nonparties are normally not bound. In jurisdictions where the mutuality principle has been eroded (which includes California), the following tests are usually applied to determine whether a stranger may rely on a prior judgment: (i) Was the issue decided in the first case identical to that in the second? (ii) Was there a final judgment on the merits? (iii) Did the party against whom the judgment is to be used have a fair opportunity to be heard on the critical issue? and (iv) Is the posture of the case such that it would not be unfair or inequitable to a party to apply collateral estoppel? California has added a related inquiry: Was the party against whom collateral estoppel is being asserted a party or in privity with a party to the prior proceeding? If these questions are answered affirmatively, collateral estoppel will normally be upheld.
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