Term
| Two elements necessary to satisfy personal jurisdiction... |
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Definition
| Satisfy a state long-arm statute, and satisfy the constitution's due process requirement. |
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Term
| In order for a state to exercise IN PERSONAM personal jurisdiction over a person, what must be true? |
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Definition
The forum state (this is true in CA) must have “such minimum contacts with the forum so that exercise of jurisdiction does not offend traditional notions of fair play and substantial justice.”
This requires the following:
i. Contact—There must be a PURPOSEFUL AVAILMENT [D must reach out to the forum].
ii. Foreseeability—It must be foreseeable that D could get sued in the target forum.
iii. Relatedness—Between this contact and the forum. Does P’s claim arise from D’s contact w/ forum? If yes, the court might uphold jurisdiction even though the defendant does not have a great deal of contact with the forum. (Specific Personal Jurisdiction – just over the cause of action arising from the contact.) If not, the D must have continuous and systematic ties with the forum so that D is essentially at home in the forums (General Personal Jurisdiction- Jurisdiction as to any cause of action, no matter how it arose.)
iv. Fairness—Would it be fair or reasonable to subject D to PJ in the forum? Consider: Convenience (The forum is OK unless it puts D at a severe disadvantage in the litigation. Relative wealth is not determinative. Very, very difficult standard to meet.); States Interest; Plaintiff’s Interest. |
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Term
| Clear-cut examples of when a court can exercise in personam jurisdiction over someone... |
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Definition
a. D is domiciled in the forum,
b. D consents to jurisdiction,
c. D is present in the forum when served with process (unless he was tricked or forced to be there). |
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Term
| What are "In Rem" and "Quasi In Rem Jurisdiction?" |
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Definition
| Jurisdiction is not over the D herself, but over her property in the forum. The statutory basis is an attachment statute (allowing the court to attach property claim by the non-resident). Still the court cannot exercise jdx over the D’s property unless the D herself satisfies the requirements of in personam jdx. |
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Term
| When can a website rise to the level of purposeful availment for purposes of establishing jurisdiction over a defendant? |
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Definition
| An interactive website, not one that simply gives information, can be found to be purposeful availment. |
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Term
| Where is a human always “essentially at home?” A business? |
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Definition
| Human = In forum of his/her domicile. Business = Where formed and in the forum of its principal place of business, may be other places, but simple sales or purchases in a forum are not enough. |
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Term
| Federal courts can only hear certain types of cases: |
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Definition
| Diversity of Citizenship & Federal Question |
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Term
| What is a diversity of citizenship case? |
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Definition
a. The case is either between citizens of different states, OR between a citizen of a state and a citizen of a foreign country AND
b. Amount in controversy must be OVER $75,000 (Exclusive of costs or interest). |
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Term
| What is the complete diversity rule? |
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Definition
| Complete Diversity Rule: There is no diversity if ANY P and ANY D are citizens of the same state. |
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Term
| What is a "citizen" for purposes of diversity jurisdiction? |
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Definition
Natural person:
1. State of domicile. (Domicile = Presence in state AND intent to make it her permanent home (e.g. paying in-state tuition).)
2. Corporation: State of incorporation AND the one state where the corporation has its principal place of business. (Principal Place of Business = The nerve center of the corporation, where managers direct, control, and coordinate corporate activity.)
3. Unincorporated Business: Citizen of all of the members of the entity.
4. Decedents, minors, or incompetents: Use the citizenship of the person, not the representative.
* In each of the above case, citizenship is tested at the TIME CASE IS FILED. |
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Term
| What happens if a Plaintiff wins less than $75,000 in a diversity case? |
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Definition
| iWhatever the plaintiff claims is ok, as long as it is pleaded in good faith, and it is not clear to a legal certainty that P is not entitled to over $75,000. But, a P who wins less than $75,000, may have to PAY THE D’S LITIGATION COSTS. |
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Term
| When is aggregation of claims allowed for purposes of meeting the amount in controversy requirement of diversity jurisdiction? |
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Definition
Ok if:
i. There is one plaintiff vs. one defendant, and plaintiff has more than one claim, even if the claims are unrelated, they still aggregate.
*If P sues JOINT TORTFEASORS. Joint claim is just measured by the value P's claim against the tortfeasors.
*If 2 P's sue a single defendant, they cannot aggregate. |
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Term
| When will equitable relief exceed the amount in controversy requirement of the diversity jurisdiction? |
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Definition
Two tests, if either is met, then amount exceeds $75,000:
a. Plaintiff’s viewpoint: Is P’s property value decreased by more than $75,000, if so then the requirement is met.
b. Defendant’s viewpoint: Would it cost more than $75,000 for D to remedy, if so, then the requirement is met. |
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Term
| Even if a case meets the requirements of personal and subject matter jurisdiction, the court will not here the case if it falls within this exclusion... |
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Definition
| Federal courts will not hear actions involving issuance of divorce, alimony or child custody decree or to probate an estate. |
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Term
| What does it mean for a claim to "arise under" a federal? |
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Definition
| Complaint shows a right or interest founded substantially on a federal law. Well Pleaded Complaint – It is not enough that some federal issue is raised by the complaint. the P’s claim itself must “arise under” federal law. Ask: "Is the P enforcing a federal right?" |
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Term
| A federal court must have Diversity for FQ jurisdiction over _____________________ in a case, unless supplemental jurisdiction applies. |
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Definition
| every single claim in a case |
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Term
| What is "Supplemental Jurisdiction" and what is the test for a claim to be admitted under supplemental jurisdiction? |
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Definition
After the case is already in federal court, we have an additional claim in the case that does not meet diversity or FQ. The court can still exercise jurisdiction under the doctrine of supplemental jurisdiction.
Test—
1. The claim we want to get into federal court must share a common nucleus of operative fact with the claim that invoked federal subject matter jurisdiction. (Same transaction or occurrence is always same nucleus of operative fact.) |
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Term
| Exceptions to the general rule that a court can exercise supplemental jurisdiction over any claim which shares a common nucleus of operative fact with a claim over which it has jurisdiction... |
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Definition
| 1. In a DIVERSITY CASE, the P CANNOT use supplemental if its exercise would CREATE A LACK OF DIVERSITY. (But, supplemental will overcome a lack of a federal question and supplemental will overcome a lack of an amount in controversy.) |
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Term
| When does a federal court have discretion to not hear a case? |
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Definition
Court has discretion NOT to hear the supplemental case if:
a. The federal question is dismissed early in the proceedings;
b. The state law claim is complex; OR
c. State law issues predominate the case. |
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Term
| A case is ________________ to federal court and ________________ to state court. |
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Definition
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Term
| Who can remove a case to federal court? |
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Definition
| Only a defendant. (Requires unanimity amongst all D’s.) Removal must occur within 30 days after the last D is served with papers that would make the case removable. |
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Term
| What kind of cases can be removed? |
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Definition
| Only one that meets the requirements of diversity or FQ. |
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Term
| Exceptions to the general rule that a case that meets either the requirements of diversity or federal question can be removed to federal court.... |
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Definition
1. Instate Defendant Rule: If jurisdiction is based on diversity and any D is a citizen of the forum state, then no removal.
2. If more than one year has passed since the case was filed in state court, then no removal. |
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Term
| Where can a case be removed? |
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Definition
| ONLY the federal district court embracing the state court. |
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Term
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Definition
| D files notice of removal in federal court, stating ground of removal—signed, attaches all documents served on adverse parties, and gives a copy to the adverse parties and to the court. |
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Term
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Definition
In diversity cases, the federal court must apply state substantive law.
Steps:
1. Is there a federal law on point, that directly conflicts with state law? Apply the federal law, if it is valid. (Supremacy clause.) It’s valid if it is at least arguably procedural.
2. If there is no federal law on point, then state substantive law will be applied.
E.g.'s
i. Elements of a claim or defense,
ii. SOL,
iii. Rules for tolling SOL, AND
iv. Conflict of law rules.
3. When is a state law substantive, if it is not one of the ones above?
a. If it is outcome determinative.
b. If the state has a strong interest in having it applied and that interest is stronger than the governments interest in not applying.
c. If the federal court were to ignore the state’s law on this issue, would it cause future P’s to forum shop? If so, it is probably substantive. |
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Term
| When is a case remanded from state to federal court? |
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Definition
Procedurally improper = motion to remand must be made within 30 days after removal.
Lack of subject matter jurisdiction = motion can be made anytime after removal. |
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Term
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Definition
i. Where ALL D’s reside. (In cases where all defendants reside in different districts OF THE SAME STATE, P can lay venue in the district in which any of them reside.) OR
ii. A substantial part of the claim arose. |
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Term
| For purposes of venue, what does "reside" mean? |
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Definition
a. Natural Person – District where domiciled.
b. Business – In all districts where subject to PJX. |
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Term
| What requirement must be met in order for a court to transfer venue? |
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Definition
| A federal district court may transfer the case to another federal district court where the case could have been filed originally (that is, to a proper venue that has PJX over the D). |
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Term
| Exception to the general rule that a court can only transfer to a venue which would have personal jurisdiction over a case... |
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Definition
1. Exception – If all parties agree to transfer to a different forum, then it does not matter that the new court would not have had PJX.
2. Exception – Discretion
a. Court where original venue is proper has discretion to transfer to another district, based on convenience for the parties and witnesses and “the interest of justice.”
i. Factors Considered:
ii. What law applies,
iii. What community should be burdened with jury service,
iv. Keeping local controversy in the local court,
v. Where the witness and evidence are located. |
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Term
| What is forum non conviens and when is it applicable? |
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Definition
1. There is a more sensible court, thus the court dismisses or stays.
2. Factors Considered:
i. What law applies,
ii. What community should be burdened with jury service,
iii. Keeping local controversy in the local court,
iv. Where the witness and evidence are located.3.
Usually forum non conviens is used instead of transfer because transfer to the appropriate court is impossible.
In order for forum non conviens to be appropriate, the other court where the case should be heard must allow the P to get fair procedure. |
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Term
| What are the different types of service? |
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Definition
1. Personal Service (Papers are personally given to the D. This can be effected anywhere.)
2. Substituted Service (Process left at defendant’s usual abode, AND someone of suitable age and discretion who resides there receives process.)
3. Service on D’s Agent. (Ok if receiving service is part of the agent’s job.)
4. Service by State Law (Any method permitted by the applicable state law is acceptable in the federal court.) |
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Term
| Federal court can serve process outside the state in which it sits ONLY if... |
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Definition
| The applicable state long-arm statute would allow the service. (That is, the state in which the court sits.) |
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Term
| When is a party immune from service of process? |
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Definition
| If she is only in the state to be a witness or party in another civil case. |
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Term
| What does Rule 11 provide? |
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Definition
1. Requires an attorney or pro se Defendant to sign all papers, certifying that to the best of his knowledge, and after reasonable inquiry:
i. The paper is not for an improper purpose.
ii. Legal contentions are warranted by law, AND
iii. All factual contentions and denials have evidentiary support.
(The paper is deemed re-certified every time it is relied upon by the party from that point on.) |
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Term
| Who may sanction be levied against under rule 11? |
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Definition
| Sanctions are discretionary, and may be levied against the attorney, the party , or the firm. |
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Term
| When (in terms of time) are sanctions available? |
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Definition
e. Sanction will only be available 21 days after the party delivers a motion for sanctions to the other party.
i. However, the court can order sanctions immediately if it does so sua sponte. |
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Term
| Requirements of a complaint in federal court: |
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Definition
i. State of grounds for SMJ;
ii. Short and plain statement of grounds for relief;
(Notice Pleading is used in federal court)
iii. Demand for relief sought.
iv. If Fraud, Mistake, or Special Damages are involved, they must be pleaded with particularity and specificity. |
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Term
| Possible forms of a defendant's response to a complaint... |
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Definition
| Response can only take two forms: Motion or Answer. |
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Term
| Motions re: Issues of form of complaint... |
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Definition
i. Motion for More Definite Statement;
ii. Motion to strike – aimed at immaterial things. |
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Term
| What are the 12(b) defenses and what forms can they take? |
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Definition
(Can take the form of a motion, or an answer.)
i. Lack of SMJ;
ii. Lack of PJX;
iii. Improper Venue;
iv. Insufficiency of Process (problem with the papers);
v. Insufficiency of Service of Process;
vi. Failure to state a claim upon which relief can be granted;
vii. Failure to Join an Indispensable Party.
*2-5 are waived if not pleaded in the first responsive pleading. |
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Term
| What information must a defendant's answer include? |
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Definition
1. Must admit, deny, or state lack of sufficient information in answer. Failure to deny constitutes an admission any any matter except damages.
AND
2. Must raise affirmative defenses, if any, in the answer.
3. Must raise counterclaims that you have against the opposing party in your answer.
Crossclaims (claims against co-parties) which arise from the same transaction or occurrence may be pleaded in the answer, but they do not have to be. |
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Term
| When is a counterclaim compulsory? |
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Definition
i. If a claim arises in the same transaction or occurrence as P’s claim and is against P, then it must be pleaded in the answer, or else it is waived in future litigation.
IF NO ANSWER WAS EVER REQUIRED, THEN NO COUNTERCLAIM WOULD EVER BE HAVE BEEN COMPULSORY. |
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Term
| When is a counterclaim permissive. |
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Definition
| Does not arise from the same transaction or occurrence and thus does not have to be pleaded in the answer. |
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Term
| When is amendment of a complaint or answer appropriate? |
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Definition
There is a right to amend if:
a. Within 21 days after D serves their first responsive pleading, P may amend once.
b. D has the right to amend his answer within 21 days after serving it.
If there is no right to amend, the court may grant leave “if justice so requires.” |
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Term
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Definition
| a. Where there is evidence at trial that does not match the pleadings, and the opposing party does not object, the pleading may be amended to account for the new evidence at trial. |
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Term
| What is relation back and when does it apply? |
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Definition
Relation Back – Treat the amended pleading as though it was filed when the original was filed, so it can avoid a statute of limitations problem.
In general amended pleadings relate back if they concern the same conduct, transaction, or occurrence as the original pleading.
However, if the P is hanging D after the statute of limitations has run, the change will only relate back if:
1) The amendment concerns the same conduct, transaction, or occurrence as the original; 2) The new party knew of THIS case within 120 days of its filing; AND 3) She also knew that, but for a mistake, she would have been named originally. |
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Term
| What are the required disclosures in discovery? |
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Definition
1. Material that must be produced even though no one asks for it.
a. Initial Disclosures--Parties must identify person and give copies (or descriptions) of documents or electronically stored info “likely to have discoverable information that the disclosing party may use to support its claims or defenses, computation of damages, and insurance for any judgment.
b. Experts--The parties must identify experts to be used at court, and give written reports containing opinions, data used, qualification, compensation, etc.
c. Pretrial--No later than 30 days before trial, parties must give detailed information about trial evidence, including documents and identity of witnesses to testify live or by deposition. |
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Term
| When (in time) can the discovery tools be used? |
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Definition
| Cannot be used until after the Rule 26(f) Conference. |
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Term
| What is the "duty to supplement?" |
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Definition
| 3. Duty to Supplement – After your response, things change, so no you know your response to a discovery request is incomplete or incorrect, you must supplement your response. |
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Term
| Limitations on depositions in federal court: |
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Definition
i. Recorded somehow (audio, video, stenographer…)
ii. Requires a subpoena to compel attendance by a non-party. (Subpoena Duces Tecum requires the deponent to bring materials (i.e. documents) with her.) A party to the litigation need not be subpoenaed, notice of deposition, properly served, is sufficient.
iii. Can’t take more than 10 depositions without court approval.
iv. Can’t depose the same person twice without court approval. AND
v. Unless she agrees, non-party cannot be required to travel more than 100 miles from her residence or place of business for the depo. |
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Term
| How are depositions and interrogatories used at trial? |
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Definition
1. Impeachment on any party;
2. Any purpose if the deponent is an adverse party; AND
3. Any purpose if the deponent is unavailable for trial, unless the absence was procured by the party seeking to introduce the evidence. |
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Term
| Limitations on interrogatories... |
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Definition
i. May only be propounded on another party.
ii. Limited to 25, unless court order.
vi. Only an opposing party’s answers only, not your own. |
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Term
| Proper responses to an interrogatory... |
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Definition
Due within 30 days:
a. Can be an answer, an objection, a statement that the party is not sure (provided they have done a reasonable investigation), or by giving the opposing party access to business records in order for the party to conduct a search of their own. |
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Term
| When can a party order a physical or mental examination via discovery? |
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Definition
i. Can be used on opposing party, or third party.
ii. Used only when a person’s health is at issue.
iii. ONLY AVAILABLE THROUGH COURT ORDER.
iv. Party seeking the order chooses a licensed professional to perform the examination. |
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Term
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Definition
Anything non-privileged information relevant to a claim or defense.
1. Relevant = Anything that is “reasonably calculated to lead to the discovery of admissible evidence. |
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Term
| When is an attorney's work product discoverable? |
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Definition
Only discoverable if party attempting to discover can show:
i. Substantial need, AND
ii. Information in the item is not otherwise available.
(Mental impressions, opinions, conclusions, and legal theories are given absolute protection, and thus are never discoverable.)
*Work product does not have to be generated by a lawyer, but by any rep of a party to litigation. |
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Term
| What is a "privilege log?" |
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Definition
| If you withhold discovery or seek a protective order based on privilege or work product, you must claim the protection expressly and particularly describe the materials in a "privilege log." You can do so in a document that lists the documents protected by date, author, recipient, privilege, etc. This document is called a “privilege log.” |
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Term
| Is the work product of an expert hired in association with a case discoverable? |
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Definition
If the expert is retained in anticipation of litigation but will not testify at trial…no discovery absent “exceptional need.”
If the expert is just a regular expert witness, then the regular work product exception applies. |
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Term
| What are the different tools for enforcing the discovery rules? |
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Definition
a. Protective Orders (Protects the responding party from having to produce a particular document because its production would be overburdensome.)
b. Sanctions |
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Term
| When are sanctions appropriate with respect to discovery violations? |
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Definition
If the violation is a Partial Violation (Receiving party answers some and objects to others, but the objections are not sustained) sanction appropriate if:
a. Propounding party gets an order to compel, AND
b. Opposing party continues to not respond.
If the violation is a Total Violation (Receiving party fails completely to attend a deposition, or respond to discovery.) sanctions are appropriate.
*In either case, require a showing by the party seeking sanctions that they attempted in good faith to get the info they seek without the use of the court. |
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Term
| Sanctions can include the following: |
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Definition
ii. Sanctions can include:
1. Establishment Orders,
2. Striking of pleadings (as to issues re discovery),
3. Disallowing evidence from the disobedient party (as to issues re discovery),
4. Dismissing P’s case (if bad faith),
5. Entering default against D (if bad faith) |
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Term
| Who may Plaintiff join as co-parties (either with him as a Plaintiff or against him as Defendant)? |
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Definition
1. Anyone with a claim that arises out of the same transaction or occurrence as his own, AND
2. Whose claim raises at least one common question. AND
3. Feasibility of joinder is met. |
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Term
| When is a co-party indispensable? |
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Definition
1. Without him, the court cannot accord complete relief among existing parties,
2. Without him present, his interest may be harmed, OR
3. He claims an interest which subjects another party to the litigation to multiple obligations. AND
4. Feasibility of joinder is met. |
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Term
| When is feasibility of joinder met? |
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Definition
1. Joinder is feasible if:
a. The court has personal jurisdiction over the party to be joined, AND
b. Joining the Plaintiff will not destroy diversity (if relevant). |
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Term
| What will the court do if joinder of a not feasible? |
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Definition
a. Court will proceed without the party, or dismiss the case.
i. How does the court decide which to do?
1. Considers:
a. Is there an alternative forum available?
b. What is the actual likelihood of harm to the non-joined party?
c. Can relief be shaped to avoid harm to the non-joined party? |
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Term
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Definition
| 1. Defendant brings in some other party as a co-defendant. Typically, this takes the form of indemnity or contribution. A party can implead within 14 days after his/her answer, after that court approval is necessary. |
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Term
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Definition
| Absentee wants to join a pending suit. She can come in as either a P or a D. Court will realign the party if necessary. However, the application to intervene must be timely. |
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Term
| What is "intervention of right?" |
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Definition
| Intervener’s interest or right may be injured if he/she is not joined. |
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Term
| When intervention permissive? |
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Definition
| a. Intervener’s claim or defense and the underlying claim or defense have at least one common question—Court’s discretion. Will not be allowed if the intervention would cause an undue delay or prejudice. |
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Term
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Definition
One holding property forces all potential claimants into a single lawsuit to avoid multiple litigation and inconsistency.
a. Person with the property is called the "stakeholder."
b. Folks who want it are called "the claimants." |
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Term
| Statutory v. Rule interpleader (Diversity) |
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Definition
a. Rule interpleader has the same diversity requirements as any other case.
b. Statutory interpleader only requires that ONE claimant be diverse from ANY OTHER CLAIMANT, also only requires amount in controversy to be $500. |
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Term
| Requirements for class certification: |
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Definition
In order to have a class certified, representative must show:
i. (Numerosity) – Too many class members for practicable joinder.
ii. (Commonality) – There is some question of law or fact in common to the class.
iii. (Typicality) – Rep’s claims/defenses are typical of those of the class. AND
iv. (Representative is Adequate) – Rep will fairly and adequately represent the class.
Next, class certification will only be appropriate if the case falls within one of three case types:
i. Prejudice Cases – Class treatment is necessary to avoid harm either to the class members or to the party opposing the class.
1. Example – When there are many claimants to a fund. Individual suits might deplete the fund, leaving some without a remedy.
ii. Injunction or declaratory judgment is sought because all of the member of a class were treated alike. OR
iii. Mass Tort – Common questions predominate over all individual questions, AND class action is the superior method to hand the dispute. |
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Term
| Class actions and diversity jurisdiction... |
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Definition
| For purposes of diversity jurisdiction, only the citizenship of the rep is considered. His claim alone must also exceed $75,000. |
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Term
| Class Action Fairness Act (CAFA) |
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Definition
a. Grants subject matter jurisdiction to federal district courts if:
i. Aggregate claims of the entire class total over $5 million AND
ii. If ANY class member is diverse from ANY defendant. |
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Term
| How does a party get a default judgment? |
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Definition
| A claimant gets a default from the clerk by showing that the D has failed to respond within 21 days after being served with process. D can respond anytime before default is entered. Getting a default does not entitle a person to collect, the must first obtain a judgment to enforce. |
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Term
| Requirements for the COURT CLERK to enter a default judgment: |
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Definition
Requirements for a default judgment BY THE COURT CLERK:
i. D made no response at all.
ii. The claim is for a sum certain.
iii. Claimant gives an affidavit of the sum owed. AND
iv. D is not a minor or incompetent.
*Otherwise there has to be a hearing in which the judge has discretion whether or not to enter a default judgment. |
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Term
| How can a default judgment be set aside? |
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Definition
| Default judgments can be set aside upon a showing of good cause for the default, and a viable defense. |
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Term
| What is a "motion for judgment on the pleading?" |
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Definition
| Court ignores legal conclusions and looks at the facts of the allegation. The court asks, “If all the facts alleged were true, would P win a judgment?” If not, the case is dismissed. This motion is called a “motion for judgment on the pleadings” if it is made after D has already answered. |
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Term
| When will a motion for summary judgment be granted? |
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Definition
1. Moving party must show 1) There’s no genuine dispute as to a material fact, AND 2) he/she is entitled to judgment as a matter of law. Motion must be made within 30 days after the close of discovery. Motion can be made as to single claims, or as to the whole case.
Also, if an affidavit or declaration is directly contradicted by concrete evidence (i.e. a videotape) it will not rise to the level of a material dispute. |
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Term
| Exception to the general rule that pleadings are not considered evidence for purposes of a motion for summary judgment... |
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Definition
| “Verified” pleadings are made under oath, and are considered part of the evidence. But, these are very rare. |
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Term
| What is a Rule 26(f) Conference? |
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Definition
| Unless court order otherwise, at least 21 days before the scheduling conference, the parties must meet and discuss claims, defenses, and settlement. They must also for discovery plans, including plans for transmittal of electronically stored info. They must present this plan to the court within 14 days after the meeting. |
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Term
| Does one have a right to a jury trial in federal court? |
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Definition
| Applies only to claims for legal damages, not claims in equity. (If a case involves both, the jury hears the claim for damages, and the judge decides the claim for equitable relief.) |
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Term
| How many challenges does a party get in voir dire? |
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Definition
1. Parties get an unlimited number of challenges for cause.
2. Each side only gets three peremptory challenges. (These challenges cannot be used to remove a person based on race or gender.)
*At least 6 jurors must be selected, there are no alternates. |
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Term
| What is a motion for judgment as a matter of law? |
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Definition
After the other side has been heard at trial, a party may motion for a judgment as a matter of law directing a verdict in their favor.
Standard: Reasonable people could not disagree on the result. (Court will view all evidence in a light most favorable to the nonmoving party.) |
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Term
| What is a renewed judgment as a matter of law? |
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Definition
Just a judgment notwithstanding the verdict.
*IF A PARTY DID NOT MOVE FOR A JMOL, THEY CANNOT LATER BRING A RJMOL. |
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Term
| What is a motion for a new trial? |
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Definition
Judgment is entered, but errors at trial require a new trial.
*Grounds could be any, non-harmless, error.
E.g.:
1. Clerical error = Anytime after judgment is entered.
2. Mistake, Excusable Neglect = Reasonable Time (Within a year.)
3. New evidence that could not have been discovered with due diligence = Reasonable Time (Within a year.)
4. Judgment is void for some reason (i.e. no jdx) = Any reasonable time. |
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Term
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Definition
V. APPELLATE REVIEW
a. FINAL JUDGMENT RULE
i. Only final judgments are appealable.
1. Appeal will require the filing of a Notice of Appeal in the trial court within 30 days after entry of final judgment.
2. Standard: After making this order, does the trial judge have anything left to do on the merits of the case? If so, it is not a final judgment.
ii. When is an interlocutory appeal (not a final judgment) allowed?
1. When the decision of the judge implicates a right (i.e. denial of an injunction).
2. Interlocutory Appeals Act
a. Allows appeal if trial judge certifies that it involves a controlling issue of law as to which there is substantial ground for difference of opinion AND the court of appeals agrees to hear it.
3. Collateral Order Exception
a. Appellate court can hear an issue if it:
i. Is distinct form the merits of the case,
ii. Involves an important legal question, AND
iii. Is essentially unreviewable if parties must await a final judgment (e.g. claim of immunity from suit).
4. If a case involves more than one claim, the court may make final judgments on some of the claims, making them appealable, while others are not.
5. Court of appeals can review an order GRANTING OR DENYING CLASS ACTION CERTIFICATION.
a. Request for review must be made within 14 days of order.
b. Appeal does not automatically stay proceedings in state court. |
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Term
| What is a final judgment for purposes of the final judgment rule? |
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Definition
| After making this order, does the trial judge have anything left to do on the merits of the case? If so, it is not a final judgment. |
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Term
| When is an interlocutory appeal (not a final judgment) allowed? |
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Definition
1. When the decision of the judge implicates a right (i.e. denial of an injunction),
2. Under the Interlocutory Appeals Act,
3. Collateral Order Exception
4. If a case involves more than one claim, the court may make final judgments on some of the claims, making them appealable, while others are not, AND
5. Court of appeals can review an order GRANTING OR DENYING CLASS ACTION CERTIFICATION. |
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Term
| Interlocutory Appeals Act |
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Definition
| Allows appeal if trial judge certifies that the matter involves a controlling issue of law as to which there is substantial ground for difference of opinion AND the court of appeals agrees to hear it. |
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Term
| Collateral Order Exception to final judgment rule: |
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Definition
a. Appellate court can hear an issue on interlocutory appeal if it:
i. Is distinct form the merits of the case,
ii. Involves an important legal question, AND
iii. Is essentially unreviewable if parties must await a final judgment (e.g. claim of immunity from suit). |
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Term
| Classifications within the superior courts of CA: |
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Definition
1. Limited Civil – Amount in controversy is $25,000 or less. In a limited civil case, you get limited discovery, cannot get a permanent injunction or declaratory judgment to determine title to land. Biggest limitation = NO CLAIMANT can recover more than $25K.
2. Unlimited Civil – Includes cases in which the plaintiff seeks equitable relief and cases in which the amount in controversy is in excess of $25K. ANY CLAIMANT can recover ANY AMOUNT in damages.
3. Small Claims – These cases are heard in the small claims division. Amount in controversy for an individual must be no more than $7,500 (for an entity this amount is $5000 or less).
*“Amount in controversy” = Looks to the amount of the demand, the recovery sought, the value of property, or the amount of the lien in controversy.
*The entire case is either limited or unlimited. Just aggregate the P’s or D’s claims if it is 1 on 1. If it’s not 1 on 1, then if ANY CLAIM is unlimited, it is ALL UNLIMITED. |
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Term
| What if all the defendants are non-residents of California? |
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Definition
| Venue is proper in any county. |
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Term
| In California, If the original venue is proper, a court may, on motion, transfer if: |
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Definition
1. There is reason to believe impartial trial cannot be had in the original venue;
2. Convenience of witnesses and ends of justice would be better promoted in a different county; OR
3. No judge in the original venue is qualified to act.
4. If the court grants this motion, the case is transferred to a count on which the parties agree, unless they do not agree on a county, in which case the court just chooses one. |
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Term
| California substituted service: |
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Definition
a. Can only use if personal service cannot be had with reasonable diligence.
i. Must be made at D’s usual abode.
ii. Left with competent member of household over 18.
iii. Person must be informed of the contents, AND
iv. Process must also be mailed to D.
c. Substituted service is deemed effective 10 days AFTER THE MAILING. |
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Term
| California Rule 11 mirror and its exception... |
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Definition
1. CA has a statute that mirrors Rule 11.
a. Exception – 21-day safe harbor to cure applies to both motions by opposing parties and by the court.
However, if the sanction is for a frivolous lawsuit, there is no safe harbor. |
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Term
| Immunity from service of process in California... |
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Definition
| There is no such immunity (unlike federal law). |
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Term
| California's fact pleading of a complaint requires the complaint to: |
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Definition
i. Complaint must contain a statement of facts constituting a cause of action, stated in ordinary and concise language (they want the “ultimate facts”), AND
ii. Demand for judgment for relief to which the pleader claims to be entitled. (Generally, amount sought must be stated.)
iii. Must plead fraud with particularity.
iv. If P is unaware of the identity of a D, she may name the D as a “Doe” defendant. She must also allege that she is unaware of the D’s true identity and must state the cause of action against the “Doe” defendant. (Doe defendants are called “fictitious defendants”--thereby avoiding a SOL defense.) |
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Term
| Exceptions to the general rule that the amount of damages sought must be stated in a complaint in CA... |
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Definition
i. CANNOT state damages figure in personal injury or wrongful death cases.
ii. CANNOT state amount of punitives requested. |
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Term
| What is a statement of damages? |
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Definition
| Statement of Damages: Used in Personal Injury and wrongful death cases to put D on notice of the amount of damages they may be facing if they lose the case. When D request a SOD from P, P must provide it within 15 days. Additionally, if P seeks a default judgment against D, he must first provide D with an SOD EVEN IF D DID NOT REQUEST IT. |
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Term
| What is a general demurrer, special demurrer, and motion to quash? And which defenses can be raised in each? |
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Definition
These only exist under state law.
General Demurrer: Can be used to raise a variety of defense, most importantly Failure to State Facts Sufficient to Constitute a Cause of Action.
ii. Special Demurrer: Can be used to dismiss for more definite state, lack of legal capacity, existence of another case, and several other.
iii. Motion to Quash Service of Summons: Can be used to assert the following defenses--Lack of personal jurisdiction; Improper process; AND Improper service of process. |
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Term
| What is an Anti-Slapp Motion to Strike? |
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Definition
1. Designed to prevent suits that are brought to chill the valid exercise of First Amendment Rights. D must make a showing that P’s cause of action arises from protected activity. If successful in this showing, burden shifts to the P to show the probability of winning on the merits.
*If D wins Anti-Slapp Motion, then he can sue the P for malicious prosecution (called a “slappback motion”). |
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Term
| In California, cross-claims, counterclaims, and impleaders, are all called... |
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Definition
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Term
| How does an amended pleading relate back with respect to a fictitious defendant? |
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Definition
| If the complaint was filed before the statute of limitations ran and contained allegations against the fictitious defendant. |
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Term
| When does D have a right to demand a physical examination of P in California court? |
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Definition
| Personal injury cases. (This is a right, it does not have to take the form of a motion, like it does in federal court.) |
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Term
| Duty to supplement discovery in California unlimited civil cases... |
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Definition
1. No duty to supplement, instead the requesting party can propound a supplemental interrogatory or request for production.
a. Supplemental discovery can be propounded twice before trial date is set, and once after the date is set. |
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Term
| What evidence is discoverable under California law? |
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Definition
| Anything relevant to the subject matter involved in the pending action. |
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Term
| Difference in work product between California and federal. |
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Definition
Fed = Can be generated by the party or any representative of a party, not just by attorneys.
Cal = Must be generated by the attorney, or her agent. |
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Term
| Requirements for certification as a class under CA law... |
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Definition
i. P must show an ascertainable class.
ii. P must show a well-defined community of interest.
In considering whether this is met court will look to whether:
a. Common question predominate;
b. Representative is adequate; AND
c. The class will result in substantial benefit to the parties and the court. |
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Term
| What if case 1 and case 2 are in different courts, which systems’ law applies to preclusion? |
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Definition
| The system in which case 1 was decided. If case 2 would have been precluded in the case 1 system, then it is precluded in the case 2 system. |
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Term
| Preclusive effect of cases pending appeal, or that are still appealable: (CA vs. Fed) |
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Definition
Federal Law:
1. Given full preclusive effect.
California Law:
1. Given no preclusive effect. |
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Term
| What is Claim Preclusion (Res Judicata)? |
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Definition
Proposition that you only get to sue on a cause of action/claim once.
Reqs for claim to be precluded:
1. Both claims have to be brought by the same P against the same D,
2. Case 1 ended in a valid final judgment on the merits.
(“On the merits” = unless the court said otherwise, it is on the merits.)
3. Case 1 and Case 2 asserted the same cause of action or claim. |
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Term
| What is a cause of action and what is a claim? |
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Definition
Federal law uses the word "claim" to refer to a cause of action, CA uses the words "cause of action."
Claim = Transaction or occurrence. (Thus there is claim preclusion if case 1 and case 2 arise from the same transaction or occurrence.)
Cause of Action = Each right invaded. (Thus if case 1 and case 2 arise from the same right invaded, there can be claim preclusion.) |
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Term
| Issue Preclusion (Collateral Estoppel) |
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Definition
Precludes relitigation of a particular issue litigated and determined before.
Requires
1. Case 1 ended in a valid, final judgment on the merits.
2. The same issue was actually litigated and determined in Case 1.
3. The issue was essential to the judgment in Case 1.
4. Only party against whom Case 1 was filed can be subject to issue preclusion.
5. Traditionally, issue preclusion could only be used by someone who was a party to Case 1. |
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Term
| Exceptions to the general rule that issue preclusion can only be used by someone who was a party to Case 1. |
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Definition
i. Nonmutual defensive issue preclusion (used by one who was not a party in Case 1, and who is D in Case 2)
ii. Nonmutual offensive issue preclusion (used by one who was not a party in Case 1, and who is a P in Case 2) (Allowed only if Fair- Fair = Joey had a full and fair opportunity to litigate Case 1; Joey could foresee multiple suits; Becky could not have joined easily in Case 1; AND There are no inconsistent judgment on record. If there had been multiple litigation, and sometimes Joey was found negligent and sometimes not, it would be unfair to let Becky get issue preclusion on a negligence finding.) |
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