CAB Civ Pro

  1. Personal Jurisdiction
    • Does the court have the authority over D and can P sue D in this state/federal court?
    • State and Constitutional requirements
  2. Pers Juris. via State Long Arm Statute
    • Must allow for pers juris for specific type of suite (service, domicile, contracts, etc.)
    • Pers juris - imposing jurisdiction over individual
    • In rem juris- apply MC/F but property in jx should satisfy
    • CA Long Arm Statute is unlimited
  3. Personal jurisdiction - constitutional analysis (due process standard)
    Does D have such minimal contacts with the forum so that exercise of jurisdiction does not offend traditional notions of fair play and substantial justice?
  4. Personal jurisdiction - constitutional analysis (3 due process considerations)
    • Minimal contacts - purposeful availment or foreseeability
    • Relatedness- does P's claim arise from D's contacts with the forum?
    • Fairness- convenience (D at a disadvantage?)/State's interest / Plaintiff's interest
  5. Personal jurisdiction - constitutional analysis - minimal contacts
    • PURPOSEFUL AVAILMENT – D’s voluntary act reaching out to the forum, availing benefits & protections
    • EX: establishing office in state, trying to make $, directing activities to the forum, roads, causing an effect in state, interactive website
    • FORESEEABILITY – based on D’s contacts, could D reasonably anticipate being required to defend in forum
    • TRADITIONAL BASES OF JX: domicile, consent, presence in the forum when served process
  6. Personal jurisdiction - constitutional analysis - Relatedness
    • Does P's claim arise from D's contact with the forum
    • SPECIFIC JX: minimal contacts will be sufficient if claim arose out of D’s contact w/ forum
    • GENERAL JX: w/o specific jx, D’s continuous and systematic ties with the forum
    •  - Continuous and systematic: domicile, incorporation, doing continuous business
  7. Personal jurisdiction - constitutional analysis - Fairness
    • CONVENIENCE – would forum put D at a severe disadvantage in litigation? 
    • STATE’S INTEREST – to provide a forum for its citizens for this type of claim
    • PLAINTIFF’S INTEREST – maybe injured and wants to sue at home
    • CONSENT – appearing in action, by contract, appointed agent, implied consent
    • DOMICILE – living in state
    • PRESENCE – in state when served
  9. CLASSIFICATION of CA state court claims
    • P determines classification by amount of demand, recovery sought, value – w/o atty’s fees, costs, interest
    •  - ONLY ONE UNLIMITED CLAIM: and entire case is unlimited
    •  - AGGREGATE: Aggregate 1P-1D claims & class actions (not fed)
    • LIMITED CIVIL – $25,000 and less in controversy
    •  - Each claim is capped at $25k, limited pleadings and discovery
    •  - Note limited civil in caption
    • UNLIMITED CIVIL – more than $25,000 Claimant can recover any amount
    • SMALL CLAIMS – for individual P, $7,500 or less. For entity P $5,000 or less
  10. RECLASSIFICATION of CA state court claims
    • If misclassified, or later events make clear that original jx should be changed, SMJ is still retained
    • AUTOMATIC RECLASSIFICATION: P amends complaint, then clerk automatically reclassifies
    • BY MOTION: by party or by court sua sponte – Court must give notice to parties, hold hearing to find $.
    •  - Do not look at merits of the claim, but can look beyond pleadings (judicial arb awards, settlement conf)
    •  - Reclassify unlimited à limited: $25k or less is virtually unobtainable
    •  - Reclassify limited à unlimited: possibility that recovery >$25k
    • Federal courts are courts of limited jurisdiction – only have authority to hear cases that federal law permits
    • Federal question or Diversity jurisdiction (complete diversity and amount in controversy $75K)
  12. Fed Subject Matter Jurisdiction - Federal question
    • P MUST ALLEGE: Well-pleaded complaint arising under federal law (US Const, fed laws)
    • TEST: P must be enforcing a federal right
  13. Fed Subject Matter Jurisdiction - Diversity Jurisdiction
    • CITIZENSHIP – suits between citizens of different states or foreign citizens
    •  -  COMPLETE DIVERSITY: req at time of filing – no diversity if any P is a citizen of the same state as any D
    • AMOUNT IN CONTROVERSY – must exceed $75,000, exclusive of interest and costs
  14. Fed Subject Matter Jurisdiction - Diversity Jurisdiction - Citizenship breakdown by type of individual
    • Persons: domicile = presence in state & subjective intent to be permanent home (on all relevant info)
    • Corporations: 1) state of incorporation AND 2) principal place of business (nerve center > muscle center)
    • Unincorporated associations: each member’s citizenship
    • Decedents, minors, incompetents: their citizenship, not representative
  15. Fed Subject Matter Jurisdiction - Diversity Jurisdiction - amount in controversy considerations
    • must exceed $75,000, exclusive of interest and costs
    • CERTAINTY: requires a good faith allegation – only a legally tenable possibility required Ultimate recovery – irrelevant, though if ≤$75, losing P may have to pay D’s litigation costs
    • AGGREGATION: allowed for same-P+D. Not for diff D. No aggregation for joint tortfeasors.
    • INJUNCTION VALUE: two tests – decrease in P’s value w/o inj, D’s cost to comply w/ inj
  16. Fed Subject Matter Jurisdiction - Diversity Jurisdiction - amount in controversy - injunction value
    INJUNCTION VALUE: two tests – decrease in P’s value w/o inj, D’s cost to comply w/ inj
  17. Questions to raise for PJ issues on essays
    • Traditional basis for PJ (domicile, presence, consent)
    • Long Arm Statute
    • Constitutionality of Long Arm Statute (minimum contacts/purposeful availment & foreseeability)
    • Relatedness of contacts to lawsuit (specific or general jurisdiction)
    • Fairness (convenience of Parties, state's interest, etc.)
  18. When can a case be removed to federal crt?
    • A case can be removed if it would have been proper in Fed Crt
    • If SMJ is based on DJ, no D may be of the state where the case is removed to
    • NOTE: does not matter if state had jurisdiction prior to removal
  19. Erie Doctrine steps (and 4 "substantive" issues)
    • Is there federal law (FRCP/Evidence) on point that directly conflicts with state law?
    • If there is NO fed law on point, fed crt must apply state law if the issue to be determined is substantive
    • Note: Always Substantive Issues:
    • - elements of claim or defense
    • - SOL
    • - Rules for tolling SOL
    • - ***Conflict or choice of law rules***
  20. Factors for determining "substantive issues" under Erie Doctrine
    • Outcome Determinative
    • Balance of interests
    • Avoid forum shopping
  21. Where may P lay venue?
    • In any district where all D's reside
    • - If all D's live in different districts of same state, can be any district w/in that state
    • In any district where a substantial part of the claim arose
  22. How is process served?
    • With summons and copy of complaint
    • By non-party over 18
    • Via:
    • - Personal service
    • - Substituted service: service at D's usual abode w/ someone of suitable age and discretion who resides there
    • On D's agent
    • - As permitted by state law of where crt sits or where D resides
    • - Waiver by mail
  23. Procedure for Waiver by Mail
    • P mails D a copy of complaint and 2 copies of waiver form w/ prepaid means of returning form
    • D has 30 days to execute and mail form
    • P files the waiver in crt (failure does not affect validity of service)
    • D then has 60 days to respond (by motion or answer)
  24. Required elements of complaint
    • Statement of grounds of SMJ
    • Short and plain statement of the claim, showing entitlement to relief, including facts supporting a plausible claim
    • Demand for relief sought
  25. Which Rule 12 responses are waivable and when must they be asserted?
    • Lack of PJ
    • Improper venue
    • Improper process
    • Must be asserted in first rule 12 response (either motion or answer)
  26. What must be included in Response?
    • Response to allegations in complaint
    • - admit, deny, or state a lack of sufficient information to admit or deny
    • Raise affirmative defenses (otherwise waived)
  27. When is a counterclaim compulsory?
    Arrises from same T/O as P's claim
  28. When is a counterclaim permissive?
    • Does not arise from same t/o
    • Must look for SMJ or try supplemental jurisdiction
  29. When are crossclaims permitted?
    • When arising from same t/o
    • Never compulsory
    • If by P, cannot invoke supplemental jurisdiction
  30. 4 chances to amend a complaint
    • By right: w/in 21 days of service of 1st Rule 12 response
    • By leave of crt: "if justice so requires"
    • Variance: where evidence at trial does not match what was pleaded
    • After SOL has run: joining a new claim "relates back" if concerns the same conduct, transaction, or occurrence as the original pleading
  31. Rule 11 - what is being certified?
    • Lawyer/pro se party signs doc's, he certifies that
    • - not for improper purposes
    • - legal contentions are warranted by law
    • - factual contentions and denials have evidentiary support or are likely to after further investigation
  32. Discovery - Required initial disclosures
    • W/in 14 days of scheduling conference
    • ID's of people who have discoverable information in support of your claims/defense
    • Documents and things you may use to support your claims or defenses (may produce copies or descriptions)
    • Computation of monetary relief and documents supporting it
    • Insurance coverage
  33. Scope of discovery
    • Relevant to a claim or defense: reasonably calculated to lead to admissible evidence
    • Proportional to the needs of the case
  34. Discovery- How is a medical exam obtained?
    • Must get a court order by showing:
    • - person's health is in actual controversy
    • - "good cause"
    • Only a party or someone in P's custody can be ordered to undergo a medical exam
    • Party seeking the order chooses the licensed person to perform the exam
  35. What constitutes absolute work product
    • Cannot be discovered:
    • mental impressions
    • opinions
    • conclusions
    • legal theories
  36. What constitutes qualified work product
    • Work product that is only discoverable if:
    • - substantial need
    • - not otherwise available (ex. PI interviews only witness who later dies)
  37. What must party assert if seeking a protective order?
    • Certify to good faith attempt to get info without crt involvement
    • asked the other side to met and confer
  38. Who is a necessary and indispensable party?
    • Without A, the court cannot accord complete relief among existing parties
    • A's interests may be harmed if A is not joined
    • A claims and interest that subjects a party to risk of multiple obligations
    • Note: Then look to whether joinder is feasible (PJ, wether DJ is messed up)
  39. Steps for impleading a TPD
    • D filed a third-party complaint naming TPD
    • Serves process on TPD (must have PJ)
    • Right to implead w/in 14 days of serving answer - afterwards w/ crt permission
    • TPD may then assert claims arising form same T/O against P and D
  40. 4 initial requirements for class action
    • Numerosity: too many class members for practicable joinder
    • Commonality: some issue in common to all class members
    • Typicality: Rep's claims are typical of those of the class
    • Representative adequate: class reps fairly and adequately represent the class
  41. 3 types of class action cases
    • Damages: requires both
    •  - common questions predominate over individual questions
    •  - class action is the superior method
    • Injunction/declaratory relief: sought b/c D treated class members alike
    • Prejudice: class treatment necessary to avoid harm either to class members or non-class party
  42. Diversity and notice requirements for class action suits
    • All representatives must be diverse from all defendants
    • At least one rep's claim must exceed $75K (others by SJ)
    • Notice must be provided to all members of class in common questions suit
  43. What is required for an ex parte TRO
    • Applicant files under oath clearly showing he will suffer immediate and irreparable harm if other side has an opportunity to be heard
    • Applicant's attorney certifies his attempt to provide notice to D/D's attorney
    • TRO must state w/ specificity what D must do/refrain; why TRO was issued; and why threatened injury was irreparable
    • Applicant must post bond (for damages)
  44. What must applicant show to obtain a preliminary injunction (4 things)
    • Likely to suffer irreparable harm w/out PI
    • Likely to win on the merits
    • Balance of hardship favors him
    • Injunction is in the public interest
  45. Steps of obtaining default/default judgment
    • D failed to respond w/in 21 days
    • P motions clerk to enter default
    • P motions clerk for default judgment (if D made no response/sum certain/claimant affidavit re. sum owed/D is competent)
    • P applies to crt for default judgment
    • - w/ notice and hearing for D
    • D may motion to set aside default/default judgment by showing:
    • - good cause, or
    • - a viable defense
  46. What must be shown to obtain summary judgement & deadline
    • There is no genuine dispute on a material fact, and
    • That movant is entitled to judgement as a matter of law
    • Deadline: w/in 30 days after close of discovery
  47. What evidence can the court look at during hearing for summary judgement
    • Affidavits
    • declarations
    • deposition testimony
    • interrogatory answers
    • Note: all are under oath
  48. Considerations for Right for jury & striking jurors
    • Under 7th amendment - right to jury in civil actions at law (not equity)
    • Must be demanded w/in 14 days after service of last pleading raising jury triable issue
    • Unlimited "for cause" strikings
    • Limit of 3 "peremptory" striking
    • between 6 and 12 jurors
    • Unanimity is required unless parties agree otherwise
  49. When is a motion for JMOL filed and what standard is used to grant it
    • When: after the other side has been heard
    • Based upon: evidence presented at trial
    • Standard: Reasonable people cannot disagree with the result
  50. When is a motion for RJMOL filed and what standard is used to grant it
    • When: after trial w/in 28 days of entry of judgment
    • Prerequisite: must have motioned for JMOL during trial
    • Standard: same as JMOL
  51. When is a Motion for New Trial filed and what standard is used (and examples)
    • When: w/in 28 days of judgement
    • Standard: error at trial requires a do-over
    • Ex: erroneous jury instruction, new evidence, misconduct, serious error in judgment, inadequate/excessive damages)
    • Note: may be used if RJMOL cannot be used b/c waived by not filing JMOL
  52. "Collateral order" exception to interlocutory appellate review
    • Appellate crt has discretion to review ruling on an issue if:
    • - is distinct from the merits of the case
    • - involves an important legal question
    • - is essentially unreviewable if parties must await final judgment
  53. Appellate standard of review: questions of law
    de novo
  54. Appellate standard of review: questions of fact
    • Non-jury case: clearly erroneous
    • Jury case: "could a reasonable jury have reached the same conclusion?"
  55. Appellate standard of review: discretionary matters
    Abuse of discretion
  56. Appellate standard of review: mixed questions of fact and law
    De novo
  57. Supreme Court appellate jurisdiction
    • any order granting/denying an injunction in any proceeding requiring hearing before 3-judge panel
    • Any case in a court of appeals by certiorari
    • Decisions of highest state court if
    • - validity of federal law is called into question
    • - validity of state law is called into question based on ground that it violates Constitution/federal law
  58. Requirements for Claim Preclusion (res judicata)
    • Same claimant against same defendant
    • Ended in a final judgment on the merits
    • both cases assert the same claim
  59. Requirements for Issue Preclusion (Collateral Estoppel)
    • Case 1 ended in a valid, final judgment on the merits
    • Same issue was litigated and determined in case 1
    • The issue was essential to the judgment in case 1
  60. By whom/against whom can it be asserted
    • By whom: By a party in case 1
    • Against whom: against a party in case 1/someone in privity and
    • *nonmutual defensive issue preclusion: D in case 2 was not in case 1
    • *nonmutual offensive issue preclusion: P in case 2 was not in case 1
  61. nonmutual defensive issue preclusion & requirements
    • Def: D in case 2 was not in case 1
    • Case 1 ended in valid, final judgment on the merits
    • Same issue was litigated and determined
    • Issue was essential to judgment in case 1
    • Being asserted against party to case 1/someone in privity
  62. nonmutual offensive issue preclusion
    • P in case 2 was not in case 1
    • Case 1 ended in valid, final judgment on the merits
    • Same issue was litigated and determined
    • Issue was essential to judgment in case 1
    • Being asserted against party to case 1/someone in privity
    • Must not be "unfair"
    • "unfair" factors: full opportunity to litigate case 1, incentive to do so, no inconsistent findings on the issue
Card Set
CAB Civ Pro
CAB Civ Pro