Legal Analysis - Civil Procedure

Front 1

civ pro federal:

1. Domicile: domiciled in state.
2. Presence in State When Served: present and personally served with process in the state. (not trickery or force).
3. Consent: consent to suit in the state.

Back 1

traditional personal jurisdictoin

Front 2

civ pro federal:

1. State Long Arm Statute, and
2. Minimum Contacts
a. Systematic and Continuous Activities
b. Cause of Action Arising From Activity in State
c. Foreseeability: that can get sued in the forum state.
d. Purposeful Availment

Back 2

jurisidction over non residents

Front 3

civ pro federal:

A. State courts are generally courts of unlimited jurisdiction. The only limits are statutory.
B. Federal Courts Only Have Jurisdiction Over Two Types of Claims:
1. Federal Questions: plaintiff’s claim arises under federal law.
2. Diversity Actions
a. Total Diversity: need complete diversity
b. Good Faith Allegation of Damages over 75k

Back 3

subject matter jurisdictoin

Front 4

civ pro federal:

allows defendants to have a case filed in sate court removed to federal court. May be removed if:
1. Invokes federal question or diversity of citizenship jurisdiction (could have originally been filed in fed. Ct.)
2. All Defendants Agree
3. Removal is made within 30 days of service of the first document that makes the case removable.

Back 4

removal

Front 5

civ pro federal:

A. Documents setting forth the claims and defenses.
B. Notice Pleading: pleadings must convey enough contentions to put others on notice and allow a meaningful response.
C. Rule 11: Requires attorneys to sign all pleadings, written motions, and papers certifying that the paper is not for an improper purpose; the legal contentions are warranted by law; and the factual contentions and denials of factual contentions have evidentiary support.

Back 5

pleading

Front 6

civ pro federal:

1. Necessary parties should be joined if feasible.
2. Indispensable parties must be joined. A party is indispensable if her absence would prevent the court from rendering an effective judgment or would prejudice any party before the court. Courts are reluctant to find a party indispensable.

Back 6

joinder of parties

Front 7

civ pro federal:

A. Class is so numerous that joinder of all members is impracticable.
B. There are questions of law or fact common to the class.
C. The claims of the representative parties are typical of the class.
D. The representative parties will fairly and adequately protect the interest of the class.

Back 7

class action

Front 8

civ pro federal:

summary judgment must be granted if: from the evidence there is no genuine issue of material fact: and the moving party is entitled to judgment as a matter of law. (Partial Summary judgment can be granted).

Back 8

motion for summary judgment

Front 9

civ pro federal:

: a motion to take the case away from the jury. Brought when other side has been heard. Standard court will grant the motion when reasonable people could not disagree on the result.

Back 9

judgment as a matter of law

Front 10

civ pro federal:

If a judgment has been entered, but errors committed at trial require a new trail, a party can move for a new trail no later than 10 days after entry of judgment. Grounds for a New Trial:
A. Prejudicial error at trial makes the judgment unfair.
B. New evidence surfaces that could not have been obtained with due diligence for the original trial.
C. Prejudicial misconduct of a party, attorney, third party, or juror
D. Judgment is against the weight of the evidence .
E. Inadequate or excessive verdict.

Back 10

new trial

Front 11

civ pro federal:

if a party made a motion for judgment as a matter of law at the close of all of the evidence, and then loses at trial, that party can file a renewed motion for judgment as a matter of law no later than 10 days after entry of judgment. Court will grant the motion when reasonable people could not disagree on the result. Generally viewed the evidence in light most favorable to the nonmoving party.

Back 11

JNOV

Front 12

civ pro federal:

: requires a final judgment of the entire case before an appeal may be taken.
A. Exceptions:
1. Pretrial orders involving temporary remedies
2. Final Judgment on Collateral Matters
3. Interlocutory orders of great importance that may be determinative of the ultimate decision
4. Rulings on motions for judgment NOV.

Back 12

final judgment rule

Front 13

civ pro federal:

claim preclusion, when there is a final judgment on the merits, res judicata prevents re-litigation of the plaintiff’s cause of action.

Back 13

res judicata

Front 14

civ pro federal:

A. issue preclusion, issue of act actually litigated and essential to a judgment in a first action are conclusive in a subsequent, although different, action between the plaintiff and defendant or their privies.
B. Default and consent judgments do not involve litigation of the merits and therefore do not give rise to collateral estoppel.

Back 14

collateral estoppel

Front 15

civ pro CA:

1. Superior
2. Limited civil matter (Less than $25,000)
a. Limits relief – no declaratory relief
3. Unlimited civil matter (More than $25,000)

Back 15

county

Front 16

civ pro CA:

1. You can file in county where any defendant resides at commencement of action
2. If no defendant in CA, then you can file in any county
3. For personal injury/wrongful death, you can file in county where injury arose.
4. If K case, you can file in county where K was entered or performed.

Back 16

vanue

Front 17

civ pro ca:

1. A federal court sitting in diversity has to apply federal procedure and state substantive and state choice of law rules.
2. Is the case governed under the constitution laws of the U.S.? Courts can apply federal law. If diversity, federal court deciding state law claim, then ask federal directive on point. (Federal directive and state law in conflict)
3. General rule: when conflict exists, then apply federal procedure with state substantive and state choice of law. If no conflict, then no Erie problem.
4. Is it outcome determinative?

Back 17

choice of law

Front 18

civ pro Ca:

1. For torts, are the two state laws identical?
a. If no, does the state have an interest in application of its law?
b. If both states have interest, then conflict arises and you have to “analyze the comparative impairment to each state if the law of the other state is applied.”
4. For K, does K have choice of law provision? Is that choice of law provision enforceable?
a. To determine if enforceable, does the law that’s going to be applied have a substantial relationship to parties or claims? If yes, or any other reasonable basis then choice of law provision is enforceable.
b. Does the chosen state law conflict with CA policy?
c. If so, then does CA have a materially greater interest in protecting its citizens.

Back 18

ca conflict of law

Front 19

civ pro ca:

1. Federal courts have notice pleading
a. Requirements: Jurisdiction, statement of facts, demand for relief
2. CA has code/fact pleading
a. Requirements: Statement of facts, written in ordinary and concise language, constituting a cause of action, demand for relief, specifying amount of damages unless PI or wrongful death case.

Back 19

pleadings

Front 20

civ pro ca:

1. All must be raised in first motion or its waived
a. lack of subject matter jurisdiction
b. Venue
c. Process
d. Service of process
2. Can be raised at/before trial
a. Failure to state claim
b. Join a party

Back 20

FR 12 (b)

Front 21

civ pro ca:

a. In CA, raise in demurer
a. Special demurer – lacks capacity, failure to state whether K is oral or written
b. General demurer – fails to state COA and lacks sub-matter jx
c. Motion to quash service
d. Lack of personal jx – can raise before or at time of answer, demurer or motion to strike

Back 21

pleading

Front 22

civ pro ca:

b. Things CA allows that FE doesn’t
a. Motion to strike – you can file where there is redundant, immaterial or scandalous matter in complaint.
b. DOE amendments – you have to determine 1) was the original complaint timely filed; 2) did it contain charging allegations against all defendants; 3) was plaintiff genuinely ignorant of the a) identity of the fictitiously named defendant, or of facts giving rise to a cause of action, or were they genuinely ignorant that the law provides COA; b) have more than three years passed since original complaint was filed. (All must answer no, except last must be yes)

Back 22

pleading

Front 23

civ pro ca:

1. California standards
a. Discovery must be relevant to the subject matter involved in the pending action.
b. CA has a right to privacy objection
c. Work product protects attorney’s impressions, opinion and conclusions in legal research and does not allow disclosure if 1) results in injustice, or 2) unfairly prejudice party.
d. Not required to raise directed verdict before JNOV.
e. Directed verdict – Plaintiff puts their case, and Δ moves for directed verdict and doesn’t put on defense (or vice versa). Once verdict is entered can move for JNOV.

Back 23

discovery

Front 24

civ pro ca:

1. State
a. Only defendant’s can remove.
2. Requirements
a. Must do within 30 days
b. Court must have subject matter and personal jurisdiction
3. Only state courts can remove to federal
4. Only federal courts can remand to state

Back 24

removal

Front 25

civ pro ca:

1. Federal rules
a. Compulsory
b. Permissive
c. Should defendant motion to dismiss for failure to join be granted? (This is compulsory)
d. Should plaintiff motion to add d be granted (permissive)

Back 25

joinder

Front 26

civ pro ca:

a. Necessary - It is necessary if complete relief cannot be afforded without that parties presence – that makes the party necessary to be joined.
b. Indispensable - They are indispensable if failure to join would cause extreme prejudice.
1) You must bring them in and remand suit because court no longer has subject matter jurisdiction
c. Need personal jurisdiction
d. Court needs subject matter jurisdiction over claims
3. Same transaction and occurrence
4. Interpleader

Back 26

defendant

Front 27

civ pro ca:

1. Numerous
2. Commonality
3. Typical of claims
4. Adequacy of representation
5. Risk of inconsistent results or injunctive or declaratory relief is appropriate or common questions predominate

Back 27

class actions

Front 28

civ pro ca:

1. Federal
a. Articulate standard
b. Know types and limits
1) Interrogatories
2) Deposition
3) Request for admissions
4) STD – sent to nonparty for request

Back 28

disccoery

Front 29

civ pro ca:

1. Federal - Substantial need or can’t obtain evidence from other source without undue hardship

Back 29

work product

Front 30

civ pro ca:

1. Entitled where there is no genuine issue of material fact and entitled to judgment as matter of law.
2. Who is bringing motion?
3. View facts in light most favorable to non-moving party.
4. For plaintiff, must show COA and you can refute all of defenses. Must accept facts as defendant sees them.
5. For defendant, knocking out element, or whole COA, or show valid, affirmative defense (SOL run). Defendant must accept facts as plaintiff sees them.
6. In CA, motion for summary adjudication of issues

Back 30

msj

Front 31

civ pro ca:

1. Standard - There is not substantial evidence to support verdict, and no reasonable person could determine otherwise.

Back 31

jml

Front 32

civ pro ca:

1. Jury misconduct – compromise verdict

Back 32

new trial motion

Front 33

civ pro ca:

judge telling defendant to add money on top of verdict or dismiss (CA does both ad and rem)

Back 33

adittur

Front 34

civ pro ca:

plaintiff can take money for less amount or do trial again (Federal court only)

Back 34

remittur

Front 35

civ pro ca:

claim preclusion (Frequently tested)
1. Must show
a. Valid final judgment
b. On the merits
c. Between same plaintiff and defendant
d. On same COA or claim
e. Actually litigated or could have been
f. And can be used to bar claim

Back 35

res judicata

Front 36

civ pro ca:

2. Federal rules
a. It is final when rendered at trial court level
3. In CA
a. It is final when all appeals have concluded
b. COA encompasses all claims from the same transaction and occurrence that are the subject matter of the claim asserted by plaintiff.
c. Primary rights theory – (minority and CA rule) In CA, COA is an invasion of a single primary right. Ex. Party injured in auto and file suit for personal injury and then they file separate suit for property, CA says those are different rights. Second claim is not barred.

Back 36

res judicatta

Front 37

civ pro ca:

Issue preclusion (Frequently tested)
1. Prohibits re-litigation of issues that have been actually litigated
2. Look to figure out who is bound by prior judgment
a. Parties, privies and other persons whose interest was represented.
3. Stranger will try to use judgment.
a. Originally, stranger could not use.
b. Mutuality doctrine (CA doctrine) – stranger can use where 1) it is an identical issue; 2) final judgment on merits; 3) party it is used against had a fair opportunity to be heard on the critical issue; 4) party who it is used against was a party or in privity with the party to the original proceeding; and 5) it has to be fair and equitable to apply it.

Back 37

collateral estoppel