Civil Procedure

Card Set Information

Civil Procedure
2012-07-11 20:58:38
Civil Procedure

Civil Procedure
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  1. Personal Jurisdiction
    Must be authorized by statute and constitional

    • By Statute:
    • (1) General Jurisdiction - non-resident who has transacted substantial and contiunous business ("doing business") in Washington at the time the cause accrued
    • (2) Specific Jurisdiction (from long arm statute) - any non resident defendant who transacts any business in WA or commits a tort in WA

    • Constitutional - In addition to statutory
    • Must have minimum contacts; requires that (1) D purposelly directed activities toward the forum and (2) assertion of jurisidiction over a nonresident would not offent the traditional notions of fair play and substantial justice.
  2. Subject Matter Jurisidiction
    Superior Court has general jurisidiction over any claim, subject to an amount in controversy.

    The amount is $300, except for many types of civil cases. (Pg. CP 69 WAT.) 
  3. Venue (Generally)
    Against Resident - venue is proper in county in which any defend resides

    Corporation - where corp resides (has an office, ransactes business, or where person who may be served lives.) Also Where K was made, tort committed, or work performed.

    Out of state D? P's residence, where service was made, or where the act occured.
  4. Venue (transfer)
    • May transfer if:
    • (1) action commenced in wrong county
    • (2) impartial trail cannot be had in the county
    • (3) for the convenieve of witnesses and the interests of justic
    • (4) the judge is discqualified.

    Venue objects are waived if not made by pre-answer motion or by answer.  
  5. Service of Process - General Rule
    Entitled to service of process that is reasonably calculated under all circumstances to give him actual notice of the lawsuit.
  6. Service of Process - Individual Defendant in state
    • (1) Served Directly
    • (2) Left at usual abode with someone of suitable age and discretion who resides there

    • If that doesn't work, with reasonable diligence
    • (3) leaving a copy of summons and complaint at usual mailing adress with a person of suitable age and disgration. Must then mail copies by first class mail

    • Then
    • (4) After affidavit, constuctive service in newspaper of general circulation, 6 consecutive weeks (alternative - registered mail if that will work better)
  7. Service of Process (out of state)
    Personal service outside WA must be in the same manner as service inside the state.

    Must be made by a sherrif, deputy, or person over 18 not a party to the action.

    May be made to registered agent of the corporation. If no registered agent has been appointed, or if the agent cannot be found, service may be made on the secretary of state, who must mail the process to the corporations registered agent.
  8. Service of Process (Washington Corporation)
    • (1) Registered Agent
    • (2) President or other head of company
    • (3) Secretary, Cashier, or managing agent
    • (4) Sectretary or office assistant of the president or other head of the company
  9. Proper Pleading
    State a claim upon which relief can be granted. 

    • (1) legal or equitable right
    • (2) corresponding duty that D breached or threatened to breach
    • (3) entitled to some relief

    WA = Notice pleading state. Short, plain statement showing P entitled to relief is usually enough.
  10. Amendment (To Complaint, Civil Procedure)
    A P may amend a complaint once without leave of the court, provided the amendment is brough prior to recieving defendant's answer.

    Assuming Joinder is permitted, the claims may be severed by the court for purposes of seperate trials if doing so would be conducive to expedition and economy.
  11. Timely Answer?
    Generally 20 days after proper service of complaint

    • Out of state = 60 days
    • Service by publications = 60 days
    • Service by mail = 90 days.

    No Answer? default judgment may be entered against a D who failed to answer, defend, or appear.
  12. CR 12(b) Motions
    • (1) lack of jurisidiction over the subject matter
    • (2) lack of jurisidiction over the person
    • (3) improper venue
    • (4) insufficiency of process
    • (5) Insufficiency of service of process
    • (6) Failure to state a claim upon which relief can be granted
    • (7) Failure to join a necessary party.
  13. Necessary Party? (Necessary Joinder, Civil Procedure)
    • Would be desirable to
    • (1) enable the court to grant complete relief regarding the transaction or occurance at issue.
    • (2)  prevent an impairment of the absentee's interests related to the subject of the action OR
    • (3) avoid a substantial risk that one of the parties would incure double liability, gave inconsistent obliations, or otherwise be prejudiced.

    P is normally entitled to decided number of potential defendants to sue; all do not need to be joined

    Indespensible party: one whose absence will prevent the court from rendering effective judgment between the parties, or would seriously prejudice the existing party or the absentee. 

    Balancing test: render an effective judgment in the absence of a party v. cost of suit that can only give partial relief

    May dismiss. 
  14. Depositions
    Entitled to written notice. Subpoena is required to compel attendance of a nonparty at a deposition (also applies to subpoena duces tecum)
  15. Interrogatories/Requests for Admission (Time for answer)
    30 days to answer.

    May be served with complaint, but 40 days to answer if it is.

    If RFA no answered timey, all requests are admitted and considered established unless trial court permits an amendment or withdrawl of admissions.
  16. Mental Exam Ordered?
    When a physical or mental condition of a party is in controversy and a showing of good cause is made, the court may order an appropriate exam.
  17. Defense to Responding to Discovery
    Failure to respond in a timely manner may be excused on the gound that the discovery sought is objectionable AND the party has applied for a protective order.
  18. Discovery Objection - Protection Order
    May issue order for trade secret, other confidential research, development, or commercial information.

    Weigh need for info v. harm of disclosure.

    May order disclosure in a limited manner.
  19. Work Product
    Includes anything prepared by a party or the party's representative in anctipation of litigation. May be discoverable if the requesting party shows a substnail need for the materials and cannot obtain them by any other means.

    Subtantial need includes when a witness is no longer available (and the requesting party had no opportunity to interview the witness) an an opposing party has a recorded statement by the witness 
  20. Remedies/Sanctions for Discovery Violations
    • Wide discretion for failure to respond.
    • May order:
    • (1) To respond
    • (2) Dismissal of actions or defenses, preclusion of evidence, entry of judgment
    • (3) Attorney's fees unless failure to respond was justified.

    No contempt, unless violation of court order.

    • Guidelines
    • (1) penalty should relate to purpose of sanction (deter, punish, educate)
    • (2)  Party's excuse for failure must be judged by objective standard, although lack of intent can be considered.
    • (3) All circumstances, including important of evidence, must be weighed
    • (4) statewide standard used, not local custom
    • (5) least severe sanction as needed should be used, but not so minimal as to undermine purpose of sanction.
  21. Preserving Objections
    Objections must ne asserted at the earliest possible time, or they are waived, unless the subject invovles jurisidiction, failure to establish facts to support a claim, or a manifest error affecting a constitutional right.
  22. Joinder
    • Proper if:
    • (1) claim asserted arises our of same transaction or occurece
    • AND (2) common question of law or fact between the defendants

    Must be a logical relationship among the claims, such as an overlap of evidence or rights
  23. Class Action (Proper class action and court decision)
    • Proper Class action?
    • (1) Class so large joinder of all members is impracticable
    • (2) Common questions of law or fact
    • (3) the claims or defense of the rep parties must be typical
    • (4) the rep parties must fairly and adequately protect class interests.

    • Pre-trial decision; balancing:
    • (1) convienience of a class suit over individual actions
    • (2) considering such matters as the need for individuals to control their own suits
    • (3) the desirability of concentrating the action in the particular forum
    • (4) difficulties in managing a class suit.
  24. Summary Judgment
    • May be when:
    • (1) there is no genuine issue of material fact and moving party is entitled to judgment as a matter of law
    • (2) expiration of period which D is supposed to appear, which is 20 days when summon is served in the state
    • (3) Partial summary judgment on fact or claim.
  25. Challanges for cause (Civil Jury Trial)
    Wide discretion for just whether juror is capable of deliberating fairly.

    Failure to use a peremptory may be considered as showing a lack of prejudice

    Just knowing about a case is not enough if juror agrees to listen to record only.
  26. Misconduct by counsel
    Trial court has broad discretion to determine appropriate measure for correting mistake.

    Corrective Instruction through Mistrial 
  27. Jury Instructions
    Require proper instructions be submitted at the time the case is called.

    Additional proposed instructions that have been developed by evidence at the trial, were not anticipated, may be submitted at any time before the court has instructed the jury.

    Waiver will result if the party fails to request an omitted instruction or object to an instruction.
  28. Verdict (too high or too low)
    Amount of a verdict will not be set aside if it is supported by substantial evidence. 

    Excessive - So high as to indicate unmistakable that the verdict was the result of passion or prejudice

    Must be objected to or it is waived
  29. Motion for a new trial
    • Grounds
    • (1) irregularity in the proceedings
    • (2) Jury misconduct
    • (3) ineffeciency of evidence to justify verdict
    • (4) error in law at trial
  30. Motion for new trial/Objection to jury conduct (Objection timing)
    May be brough no later than 10 days after entry of judgment. (Middle of trial OK)
  31. Motion for Judment as a matter of law
    May grant a motion is there is no sufficient basis for a reasonable jury to find or to have found for that party with respect to that issue.
  32. Temporary Restraining Order
    May be granted upon a clear showing by the applicant, based on specific facts, that he will suffer irreperable injury if order it no granted, applicant is likely to pervail on the merits, and the applicant lacks an adequate remedy at law. 

    • May be granted without notice to the adverse party only if it
    • (1) clearly appears from specific facts shown by affidavit or by verified complaint that immediate and irreperable injury, loss, or damage will result to the applicant before the adverse party can be heard in opposition AND
    • (2) the applicant's attorney certifies to the court in writing the efforts, if any, which have been made to give notice and the reasons supporting the claim that notice should not be required. 

    • Procedural Requirements:
    • (1) Must have a bond for payment of costs and damages for party who was wrongfully restrained. (determined by court) 
    • (2) Must be no greater than 14 days unless opposing party directly consents or there is good cause
  33. Attorney's Fees (Civil Procedure, Rule 11)
    • (1) pleads or interposes a matter not well grounded in fact or law
    • (2) Lack of intent can be considered, and Rule 11 violations are judged by an objective reasonableness standard
    • (3) Trial court has wide discretion in ascertaining the reaosonablness of sanctions, including attorneys fees
    • (4) Nonresident served outside the state under long arm stautte who prevails may be awarded atty's fees to compensate for the additional burden caused by having to litigate in WA
  34. Relief of Default Judgement
    Upon Rule 60, a trial court that entered a default judgment may set aside the jdugment on the ground that (1) the court lacked personal jurisidiction over the D or (2) the judgment was obtained through mistake, suprise, inadvertence, or excusable negligence.
  35. Res Judicata (Claim Preclusion)
    Once a final judgment on the merits has been given on a particular cause of action, the P is barred from trying the came claim in another lawsuit.

    • (1) Was final
    • (2) on the merits
    • (3) was valid
    • (4) involved the same parties
    • and (5) decided the same claim being tried in the later lawsuit
  36. Statute of Limitations (Tolling, Civil Procedure)
    Action is commenced when filing complaint or service of summons. Both steps (filing and service) must be within 90 days to preserve tolling.