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Civil Procedure
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115
Law
Graduate
07/02/2013
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Term
What are the five most common congressional grants of SMJ
 Definition
1. Federal question jx
2. Diversity jx
3. Supplemental jx
4. Removal Jx
5. Legislative Jx
Term
Can SMJ be waived or agreed upon by the parties?
 Definition
No.
Term
When can SMJ be objected to?
 Definition
At any stage of the proceeding, including appeal.
Term
When may a federal court abstain from hearing a case or stay the matter pending state ct resolution when it has SMJ?
 Definition
1. Resolution of a state lawissue would eliminate the need for the ct to decide a constitutional issue
2. Avoidance of fed involvement with a complex regulatory scheme
3. The state action involves criminal activity, contempt of court, or civil fine, and the federal court is asked to enjoin that activity.
4. Parallel proceedings that go beyond mere waste of judicial resources
Term
What is federal question jx? Can a state court adjudicate a federal question?
 Definition
It's cases arising under the constitution, U.S. laws, or treaties. Plaintiff must plead the federal cause of action. In determining Fed question, only the cause of action is considered NOT DEFENSES! A state court has concurrent jx unless congress has specifically provided exclusive fed court jx. e.g. bankruptcy
Term
Is there an amount in controversy requirement for federal question jx?
 Definition
No.
Term
What are the three California classifications of subject matter jx?
 Definition
Limited civil cases: actions in which the amount in controversy is 25k or less
Unlimited civil cases: Actions where the amount in controversy exceeds 25k
Small claims cases: Civil actions in which the amount in controversy is 10k or less.
Term
In California, are attorney's fees, interests, and costs included in the calculation of amount in controversy?
 Definition
No. But the court must determine if the verdict will necessarily fall below an amount, and all plaintiff's claims against all defendants are aggregated.
Term
What are the three types of personal jurisdiction?
 Definition
In personam-JX over a particular defendant
In rem-Jx over a piece of property determining the rights of all persons over a piece of property
Quasi-in-rem- Determining the rights of specific persons over specific property.
Term
What are the four situations in which a person may be subject to personal jx?
 Definition
1. Physical presence in the forum and service while in the forum. (most states grant immunity to people in the forum for judicial proceedings but not CA)
2. Domicile (where a person maintains their home)
3. Consent-express or implied or through making a general appearance
4. Long arm statutes- CA provides it can exercise jx over anyone it can constitutionally exercise jx over.
Term
How do you establish jx by minimum contacts?
 Definition
1. A defendant must have minnimum contacts with the forum.
2. The court must find that through those contacts, the defendant purposefully availed himself of the privilege of conducting activities with the forum state (Is it foreseeable that the contacts would lead to being hailed into court in the jx?)
3. Does the claim arise from the defendant's contacts with the forum?
4. Does subjecting them to jx offend traditional notions of fair play and substantial justice. (Is it difficult and inconvenient for the defendant? Does the forum have a legitimate interest in adjudicating the claim there? What is the plaintiff's interest? Policy?)
5. Does the D have notice?

1. Minimum contacts
2. Purposeful availment
3. Contacts related to claim
4. Fairness
5. Notice
Term
To establish diversity jx, what must there be?
 Definition
1. Complete diversity (no one plaintiff and one defendant co-citizens of the same state)
2. Amount in controversy to exceed 75,000 which includes claims, not interest and costs.
Term
When does diversity jx need to exist?
 Definition
At the time suit is filed.
Term
Where is a person a citizen?
 Definition
At the state of domicile (where the person intends to remain or return permanently)
Term
Where is a corporation a citizen?
 Definition
State of incorporation and principal place of business
Term
If a corporation is incorporated in another country and sues another corporation incorporated in another country, but the first corp has its ppb in the USA, does that defeat jx in the USA?
 Definition
Yes
Term
Where is an unincorporated association subject to jx?
 Definition
A citizen of each state of which any member is a citizen.
Term
Can a party create or defeat diversity by making a sham transaction?
 Definition
No.
Term
How is diversity claimed in a class action?
 Definition
By selecting named plaintiffs to bring claims on behalf of others OR genuinely changing state citizenship after the cause of action accrued but before suit commenced
Term
When can a court exercise supplemental jurisdiction?
 Definition
When the claim arises from the same common nucleus of operative fact as the claim that invoked federal subject matter jx.
Term
If an addition of a party in federal court does not satisfy subject matter jx, what may the court do?
 Definition
Invoke supplemental jx if it arises out of a common nucleus of operative fact.
Term
When a party is substituted, does that defeat SMJ? What about when a party is replaced?
 Definition
No, when a party is substituted, his citizenship is disregarded. When a party is replaced (because plaintiff sued the wrong party) the citizenship of the replacement party controls.
Term
When a 3rd party impleader joins a lawsuit and is not diverse, does that destroy SMJ?
 Definition
Only if the plaintiff is suing the 3rd party defendant.
Term
What is a cross-claim?
 Definition
A claim by one co-party against another. A cross-claim may be asserted if it arises out of the same transaction or occurrence.
Term
What is an impleader?
 Definition
Impleader is a procedural device before trial in which one party joins a third party into a lawsuit because that third party is liable to an original defendant.  The claim must relate too the same transaction or occurrence.
Term
Does a cross-claim need to satisfy diversity jx?
 Definition
Yes, but the court may always exercise supplemental jx.
Term
What is the difference between aggregation to meet the amount in controversy, and exercising supplemental jx?
 Definition
Aggregating claims is where all the plaintiff's separate claims can be added against all defendants to satisfy the amount in controversy.

Supplemental is where the amount in controversy is already satisfied and the court determines whether the COA arises out of the same transaction or occurrence.
Term
What is the Erie doctrine?
 Definition
A federal court in a diversity case applies its own procedural law, but must apply the substantive law and conflict of laws rules of the state in which it's sitting.
If there is a conflict between a state and federal law, the court asks whether the matter is "arguably procedural".
Term
What types of cases will federal courts generally not exercise jx over?
 Definition
Probate and domestic relations.
Term
If a plaintiff has both federal and state law claims, may a federal court exercise pendent jx over both of them?
 Definition
Yes, if they derive from the same common nucleus of operative fact.
Term
Name some statutorily granted claims that must be taken to federal court.
 Definition
1. Bankruptcy 2. Copyright/patent 3. Where U.S. is a party 4. Antitrust 5. Postal matters 6. Admiralty cases 7. IRS 8. SEC
Term
What is venue?
 Definition
The power of the court to adjudicate the matter before it. In federal court, it relates to the proper district to bring an action.
Term
What is forum non conveniens
 Definition
Where a district court may dismiss an action in favor of a more convenient forum outside the federal judicial system or another district where an action could have been brought.
Term
In general where is venue proper?
 Definition
1. A judicial district where any defendant resides.
2. 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.
3. If there is no district in the U.S. that satisfies 1/2 a district in which any D is subject to personal JX.
Term
Where is venue proper in an individual? A business? A non-resident of the U.S.?
 Definition
Person-any judicial district in which he is domiciled
Business entity-Any district in which it is subject to personal jx
Nonresident-Any judicial district
Term
Can improper venue be waived?
 Definition
yes
Term
When will a court transfer venue even when venue is proper?
 Definition
When there is a more convenient court that the suit could have been filed.
Term
What does venue refer to in CA?
 Definition
Which county the action may be tried.
Term
When is venue waived?
 Definition
When no timely objection is filed.
Term
Where is venue proper in CA?
Contract actions?
P.I. actions?
 Definition
In any county in which ANY defendant resides in CA. If no defendant resides in CA, any county in CA.
In a contract action-the county in which the obligation was to be performed or where the contract was entered.
In personal injury, where the injury occurred.
Term
Actions involving land must be brought in which county in CA?
 Definition
Where the land is located!
Term
In CA, If a defendant in a mixed action is entitled to transfer of venue on one cause of action, the court must...
 Definition
Order a transfer of venue on all causes of action
Term
In CA, Venue is proper against a corporation...a non-incorporated partnership
 Definition
Corporation-In the county in which the K was made or to be performed, obligation or liability arises, PPB, or breach occurs.
Unincorporated- County of the entity's PPB if the entity's PPB is on file with the secretary of state, if not where any member/partner resides.
Term
When can a court transfer venue even though venue is proper in CA?
 Definition
1. When there is reason to believe that an impartial trial cannot be had in the original county
2. The convenience of witnesses and the ends of justice would be promoted by the change
3. There is no judge of the court qualified to act.
Term
When is forum non conveniens proper in california
 Definition
1. When the alternative forum is suitable
2. The private and public interest factors balance in favor of another state/county's forum.
Term
What is removal?
 Definition
Removing the case from state court to federal court.
Term
What are the requirements for removal?
 Definition
1. The case could have originally been filed in a federal court.
2. For cases removed on the basis of diversity, no defendant is a citizen of the state where the action is filed.
Term
Can a plaintiff remove a case to federal court?
 Definition
No, only a defendant.
Term
When a case involving state and federal question claims is removed to federal court, what must the federal court do?
 Definition
Sever the federal claims and remand the state claims back to state court.
Term
After a non-diverse defendant is severed from the case, can the case be removed?
 Definition
Yes.
Unless
1. One of the citizens was a state in which the state action was brought
2. With no bad faith on the plaintiff's behalf, one year has elapsed from when the case was commenced in state court.
Term
How long after a defendant receives notice of the suit must he file a notice of removal?
 Definition
30 days.
Term
What is remand and who can file it?
 Definition
Remand is a motion by the plaintiff to have the case sent back to the state court after it has been removed.
Term
Does full faith and credit apply to state and federal courts?
 Definition
Yes.
Term
Can a federal court enjoin a pending state court proceeding?
 Definition
Only if authorized by statute to do so.
Term
When may a federal court enjoin a pending state court criminal proceeding?
 Definition
When irreparable harm is imminent and the appellate remedy is clearly inadequate.
Term
When will a federal court abstain and require a litigant to seek relief in state court?
 Definition
When
1. The state law is unclear and could be interpreted to avoid the federal constitutional question
2. When there is a state administrative regulatory plan that would be disturbed by the feds taking the case.
Term
In federal court, who can serve process?
 Definition
A non-party who is at least 18 years old.
Term
What are ways to effectuate service in CA?
 Definition
1. Personal delivery
2. Substituted service (pre-authorized)
3. Service by mail
4. Service by publication
Term
How can proper service be effectuated by a CA litigant serving someone outside the state?
 Definition
By first class mail, postage prepaid requiring return receipt. (PJ must be met).
Term
Is there immunity from service under any circumstance in CA?
 Definition
No.
Term
How does a party obtain a TRO?
 Definition
1. 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.
2. The moving party certifies in writing the efforts she made to notify the adverse party and the reasons why notice should not be required.
3. The moving party provides security to pay for any damages incurred by the adverse party if the court finds he was wrongfully restrained.

Can only be ordered for a maximum of 14-day period.
Term
Do federal court follow notice or fact pleading? California courts?
 Definition
Federal courts-notice pleading less specific, must put D on notice.
California-fact plading, must be more specific.
In Ca, damage amount must be stated with the exception of punitives or PI or wrongful death cases.

Fraud must be pled with specificity.
Term
On what bases may a party file a 12(b)motion?
 Definition
1. Lack of SMJ
2. Lack of PJ
3. Improper venue
4. Insufficiency of process
5. Insufficient service of process
6. Failure to state a claim upon which relief may be granted
7. Failure to join an indespensible party
Term
In Ca, what is the alternative to a 12(b) motion?
 Definition
IN Ca, must file a demurrer
General demurrer:
1. Pleading fails to state facts sufficient to constitute a cause of action
2. The court lacks SMJ
Special demurrer:
1. Lack of legal capacity
2. The existence of another pending action
3. Defect or misjoinder of parties
4. Uncertain pleading (need a more definitive statement)
Term
When must the 12(b) motions be raised?
 Definition
SMJ-any time
Failure to state a claim or failure to join, any time before trial.
All the rest are waived unless brought by the first motion or answer.
Term
What is a motion for a more definite statement?
 Definition
In Ca, a motion for a more definite statement is a special demurrer on the grounds that the pleading is uncertain.
Term
What is a motion to strike?
 Definition
Before responding to a pleading, a party may move to have stricken any insufficient defense or any redundant, immaterial, or scandalous matter.
Term
What must the answer contain in federal court?
 Definition
A specific denial or admission of each averment of the complaint. Failure to deny constitutes an admission.
Term
When must an answer be served after service of the complaint?
 Definition
Within 21 days if personal service, 60 days if service by mail.
Term
In Ca, how long does a defendant have to file his answer? If he files a demurrer, how long until the answer is filed.
 Definition
The defendant must bring up any demurrable issues in a demurrer. If he answers and brings them up there, he waives them. He has 30 days from service to file an answer or demurrer. If he files a demurrer and it's denied, he gets 10 days.
Term
If someone fails to file an answer, what happens?
 Definition
The court enters a default.
Term
When entering a default, what does the court need to know?
 Definition
1. The claim to a "sum certain"
2. The default was entered due to failure to appear
3. The defaulted infant cannot be an infant or incompetent/
Term
In Ca court, the clerk may enter default if:
 Definition
1. The action arises out of a contract or judhment
2. The action is for a "sum certain"
3. The defendant was NOT served by publication.
Term
Is notice required to be given to the defaulted party in federal or state court?
 Definition
Federal court only at least three days before the hearing on the default.
Term
In California, what is a counterclaim called?
 Definition
A cross-complaint.
Term
What is a compulsory counterclaim (cross-complaint in CA) Permissive?
 Definition
A claim that arises from the same transaction or occurrence. It must be pleaded as a counterclaim or it will be thereafter barred.

A permissive counterclaim is any claim not arising from the same transaction or occurrence. It will not be barred by not raising it in the original litigation.
Term
What is a response to an answer called in federal court? CA?
 Definition
A reply in federal court, an answer in CA.
Term
When can an amendment of a responsive pleading occur?
 Definition
Once within 21 days of serving it.
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 Ca state court, once as a matter of right before an answer or demurrer to the complaint is filed or after the demurrer is filed but before hearing on the issue raised by the demurrer.
Term
When does amendment relate back to the time of the filing of the original complaint?
 Definition
When 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 filing of the original complaint
Term
May the amendment to a complaint add a defendant?
 Definition
If the statute of limitations has not run, generally yes.
If the SOL has run, generally not:
1. Mistaken identity in federal court
2. Correcting a mistake in naming a defendant in California state court
3. California sometimes permits a defendant to be sued under a fictitious "Doe".
Term
What are the three questions that must be asked to determine whether joinder is proper?
 Definition
1. Should the absentee be joined?
Does the absentee have an interest in the subject matter? Is he necessary for complete relief to be accorded?
2. Can the party be joined?
If the court has PJ over the absentee and the absentee's presence would not destroy diversity, the party can and must be joined.
3. Should the action proceed without the absentee?
If the absentee cannot be joined, the court looks to prejudice to the absentee or available parties and the extent to which such prejudice can be reduced or avoided.
Term
What is the requirement for a class action under federal law?
 Definition
1. Numerous number of the class
2. Questions of law or fact common to the class
3. Names parties interests are typical of the class
4. Named parties will adequately represent the interests of the absent members of the class.
5. EITHER separate actions will have inconsistent results
OR
Defendant has acted or refused to act on grounds applicable to the class
OR
Common questions of law or fact predominate over individual issues and a class action is superior to alternate methods of adjudication.
Term
Who will be bound by a class action?
 Definition
All members of the class except those who opt out by notifying the court.
Term
When is SMJ established in a class action?
 Definition
1. If any class member is diverse from any defendant.
2. If the amount in controversy in the aggregate exceeds 5 million.
3. If there are at least 100 memebers of the class.
Term
When can a shareholder sue to enforce a right of the corporation?
 Definition
When
1. He/She was a shareholder at the time of the transaction complained of
2. The action is not a collusive effort to confer jx on the court that it would otherwise lack
3. She made a demand on the directors and if required by state law, on the shareholders.
Term
What are the requirements of a class action in CA??
 Definition
1. An ascertainable class
2. A well-defined community of interest among class members
a. Common questions of law or fact
b. The class action device will result in substantial benefits to the parties and the court.
c. The class representative will adequately respresent the class interests.
Term
What is a California interpleader action?
 Definition
It is instituted by a person in the positioon of a stakeholder to require the adverse claimants to determine which has the valid claim to the stake.
Term
When is intervention proper as of right?
 Definition
When 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.
Term
What are the initial disclosures required in discovery?
 Definition
1. Names, addresses, telephone numbers likely to have discoverable information.
2. Copies or descriptions of documents, electronically stored information and tangible items
3. A computation of dmages and copies of materials upon which the computation is based
4. Copies of insurance agreements under which an insurer might be liable for all or part of any judgment that might be entered.
Term
What is the scope of discovery in Ca? In fed?
 Definition
Ca-non-privileged info that is relevant to the subject matter involved in the litigation.
Fed- Non-privileged matter that is relevant to the claim or defense of any party.
Term
How can a party obtain work product material in discovery under CA? Under Fed?
 Definition
Ca-The party seeking discovery must show that he would be unfairly prejudiced in preparing his claim or defense or that injustice would result
Fed-Party seeking discovery must show substantial need or undue hardship.
Term
To protect witnesses from annoyance, embarrassment, or exposure, what must be obtained
 Definition
A protective order.
Term
What are the factors for determining whether to issue a preliminary injunction?
 Definition
1. Whether the plaintiff is likely to succeed on the merits.
2. Whether the plaintiff will suffer irreparable harm
3. The balance of equities in his favor
4. Injunction is in the public interest.
Term
With regard to expert witness communications, what may be discovered? In Ca?
 Definition
Fed- Party may depose expert witness, but expert reports, drafts, and disclosure are protected, as well as any communications between the party's attorney and expert witness unless they relate to compensation.
CA- Party can request all parties disclose expert witness lists, details of trial testimony, and all writings/reports.
Term
What is the plan for pre-trial discovery conferences? UNDER CA?
 Definition
Fed- Parties must meet and confer 21 days before scheduling a conference to consider basis of claims/defenses.
CA- Court must hold an initial case management conference within 180 days of filing complaint, but no specific meet and confer reqquirement.
Term
How are oral depositions dealt with in fed? CA?
 Definition
Fed-Oral depos can take place anytime after mandatory initial disclosure and limited to 10 per party
CA-20 day time limit on notice of deposition and no limitation on number.
Term
How are interrogatories dealt with under Fed? Under CA?
 Definition
25 written interrogatories per party relating to anything that's non-privileged and relevant to a party's claim/defense.
CA: Unlimited form interrogatories and 35 specially drafted.
Term
How long does a party have to produce documents after a request for production?
 Definition
30 days.
Term
When may a person be ordered to submit to a physical or mental exam?
 Definition
When the physical/mental condition is in controversy.
Term
What is a request for admission?
 Definition
A request the other party admits a ccertain fact or opinion of fact
Term
WHat must a party do before making a motion to compel discovery?
 Definition
Fed-The other party must have been acting like a dick
Ca-must first make a reasonable and good faith effort to formally resolve issues.
Term
What are the sanction rules for CA? Feds?
 Definition
Fed-If a party fails to obey a court order, sanctions may be appropriate.
Ca- Initial misuse of the discovery process requires monetary sanction,

All subject to abuse of discretion review.
Term
What warrants a voluntary or involuntary dismissal? What are the effects?
 Definition
Voluntary dismissal can be filed by the party without prejudice generally.
CA-If it's filed after trial begins, it must be with prejudice.
Involuntary
Fed-When P fails to prosecute or comply with the rules of civil procedure or a court order, D can move to dismiss. If granted, it operates as an adjudication on the merits.
CA-Court must dismiss action after 5 years from the complaint being filed, may dismiss after 2 OR 3 years if complaint has not been served.
Term
What is the standard for summary judgment
 Definition
No genuine issue as to any material fact exists and the movant is entitled to judgment as a matter of law. The court construes all evidence in the light most favorable to the non-moving party.
The burden is on the moving party to show a prima facie case, and then burden shifts to opposing party to set forth specific evidence showing existence of a genuine issue of fact.
Term
When must a summary judgment motion be filed?
 Definition
Fed- Any time until 30 days after the close of all discovery
Ca- 75 days before hearing date.
Term
What is a declaratory judgment?
 Definition
Court tells parties their rights and responsibilities without awarding damages or ordering parties to do anything.
Term
How many jurors must there be? Ca? fed?
 Definition
Fed-at least 6 no more than 12.
CA-12 unless parties agree to fewer.
Term
How many peremptories does each party get in a civil case? For cause?
 Definition
3, unlimited for cause
Term
How does a party get a directed verdict?
 Definition
At the end of a jury trial, before deliberations, a court views all evidence in favor of non-moving party and determines whether the evidence was sufficient to support a finding/ whether judgment is warranted as a matter of law.
Term
WHat is a JNOV?
 Definition
If a directed verdict is not granted, movant can file a JNOV Judgment as a matter of law no later than 28 days after entry of trial judgment.
Ca- In CA, party does not need to move for directed verdict at trial to use this procedural device.
Term
What will trigger the grant of a motion for a new trial?
 Definition
1. Error at trial that renders judgment unfair
2. Newly discovered evidence that existed at the time of trial but was excusably overlooked and would have altered the verdict.
3. Prejudicial misconduct of counsel, a party, a judge, or juror.
4. A verdict that is against the clear weight of the evidence.
5. A verdict that is excessive or inadequate.
6. False evidence.
Term
How long after judgment can a party be relieved of a final judgment on the court's own motion?
 Definition
One year in Fed. Ca has no time limit if it was caused by negligence or mistake of the aggrieved party's attorney.
Term
What is res judicata?
 Definition
A final judgment on the merits of an action prevents the parties from successive litigation of an identical claim in a subsequent action.
Term
What is collateral estoppel?
 Definition
Precludes the relitigation of issues of fact or law that have already been necessarily determined by judge or jury as part of an earlier claim. In CA, default, consent judgments are considered to have been actually litigated so as to preclude under this doctrine.
Term
WHat are the four requirements for Removal?
 Definition
1. The case could have originally been filed in federal court.
2. All defendants consent
3. Defendant is not a resident of the firum state in which the case was originally filed
4.Removal is sought within 30 days of service of process.
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