Civ Pro

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Civ Pro
2012-07-19 11:07:41
civ pro

civ pro
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  1. 12 b motions to dismiss
    lack of SMJ, lack of PJ, improper venue, insufficiency of process, insufficiency service of process, failure to state a claim upon which relief can be granted, and failure to join necessary party. 

    can be in preanwer motion or in the answer. Def waives if doesnt bring up, except SMJ. 
  2. SMJ
    Superior court has gen jurisdiction over any claim, subject to amount in controversy. Has to be 300 except for equity, cases regarding real prop, actions of entry and detainer, legality of any tax, impost, assessment, toll, or municipal fin, probate, and divorce. 
  3. Venue
    Which cty? against non resident, venue proper in ct where pltf lives, where service is made, or where act creating long arm J occurred.

    over WA resident, venue proper anywhere nay of the defs live. or in cty where injury occurred. Def can challenge in preanswer motion or my answer only. Otherwise, waive. 
  4. PJ
    must be stat and federal. Gen J is authorized over non resident who has continuous and substantial biz here at the time cause accrued (think boing). Long arm authorizes specific J when any biz or when commit tort in WA. 

    must be const - def must have minimum contacts with WA. requires def purposefulyl directed activities toward the forum and that assertion of jurisdiction would not offend traditional notions of fair play and substantial justice. 
  5. Proper service of process
    reasonably calculated under all circumstances to give him actual notice of lawsuit. 

    IN WA, can be served personalyl with copy of summpons and complaint or by leaving at defs usual place of abode with someone of suitable age and discretion who lives tehre. 

    If after reasonably diligence that doesnt work, can leave copy at usual mailing address other than PO box or place of employment with person of suitable age and discretion. Must then mail copies, too. 

    • If certain conditions, like def hiding, and pltf submits affadavit showing one condictions is met, def can be constructively served meaning service by publication for 6 weeks in newspaper of gen circulation in cty where action is pending. Or, can be accomplished by registered mail if, by facts stated in affidavit in ct, pltf shows that service by mail isjust as likely to notify def as service by publication. 
  6. Non resident motorist
    By statute, non resident motorist can be sued arising out of vehicle use even though person left the state. Service of Proccess made on WA sec of state, couple with return receipt registered mail to def or personal service out of state. 
  7. How long to answer?
    20 days after service to answer, def served out of state has 60 days to respond to summons and complaint, and summons must so indicate. Can aslo get atty fees maybe
  8. Statute of limitations?
    tort claims is three years. For tolling, action is commenced by filing the complaint or srevice or summons whichever occurs first. pltf must complete filing and service within 90 days to preserve tolling. 
  9. Forum selection clause to determine venue
    is valud in WA just subject to typical K defenses such as unconscionability. 
  10. Forum non conveniens.
    a ct that has jurisdiction may dimsiss based on factors of convenience. Has to do with witness availability, etc. 
  11. what must be plead?
    WA is notice pleading state and the complaint must contain the real parties in interest and special damanges must be pled with particularity. Amounts for gen damages being sought cannot be pled. To recover for prop loss, must specifically plead damages in complaint. 
  12. ROGs
    must be answered within 30 days after served except that def need not answer less than 40 days after service of summons adn complaint. 
  13. Affadavit of prejudice
    party can disqualify judge by filing this alleging judge is prejudiced against party or party's counsel. Must be files prior to any discretionary rulings by judge.
  14. Filing a Motion to Compel
    Must hold conference with opposing counsel to discuss problems before filing motion to compel. FISONS case. Sanctioons may be imposed for discovery abuses even though motions to compel have not been made. Grounds include bad faith, blanket denials, undue delay in case. 
  15. Jury Selection
    unlimited number of challenges for cause. 3 preemptory challenges. Can't be for race/gender Batson. Bias/ familiar relationship is grounds to challenge for cause, so witnesses dauther should ahve been dismissed. 
  16. Experts
    must be qualified through training/experience, be helpful to tghe jury, and have substantial support for their opinions. Scientific experiments must use theories generally accepted in community (FRYE). 
  17. Closing arguments
    atty cant comment on facts not in evdience in closing. A timely and specific objection is rqeuired or evidence is allowed. 
  18. Motion to reopen
    judge can if new evidence???
  19. Jury instructions
    submitted by parties at beginning. additional proposed instructions upon questions developed by evidence, which could not be anticipated, may be submitted bf read to jury. Erroneous or insufficient instruction,e vne if properly challenged, will not reverese unless  prejudicial error. 

    failure to object or request instruction = waiver unless manifest error regarding const rt, then you can appeal.  
  20. Juror misconduct
    grounds for new trial. It is error for juror, in jury room, to state facts not in evidence
  21. motion for new trial
    must be made in 10 days after judgement enetered.
  22. Additur
    WA cts can order new trial, conditioned on whether def agrees to a verdict larger than one given by jury. 
  23. notice of appeal?
    must be filed within 30 days of judgment. 
  24. Default Judgment
    defs have 20 days after service of complaint to answer. A def served out of state has 60 days and summons must indicate. On motion under rule 60, TC that entered default can set aside judgemtn on ground that ct lacks PJ or that jdugment obtained through mistake, surprise, inadvertence, or excusable neglect. If party against whome defailt is sought appears, five days notice to that party is required. Pary who has appeared may answer any time prior to defaul thearing. 
  25. Amending complaint
    WA is liberal if other party not prejudiced. Matter of right before trial or within 20 days after answer was served. Leave of court and given if justice so requires. 
  26. Class Action certification
    Four requirements: class must be so large that joinder of all is impracticable, there must be question of law and fact in common, claims/defenses must be typical, and rep must fairely protect class interests. 

    Balance convenience of class considering need for individual control over own suits, the desirability of concnetrating actioni n one forum, and difficulties in managing a class action suit. 
  27. Permissive joinder
    joinder of pltfs - if each have claim arising from singe set of transactions or occurences that is asserted jointly servarlly or in alterantive. Defs cab be joined if arise from single set of transactions.