civ pro.txt

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civ pro.txt
2013-07-22 14:04:43
ca bar civ pro

ca bar civ pro
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  1. personal jurisdiction - broad standard?
    • 1) sufficient contacts
    • 2) offend traditional notions of fair play and substantial justice
  2. traditional basis for PJ?
    • 1) residence
    • 2) service in person
    • 3) consent
  3. detailed constitutional test for personal jurisdiction?
    • 1) Minimum contacts: a) personal availment; b) foreseeability
    • 2) Relatedness: a) specific jurisdiction; b) general jurisdiction
    • 3) Fairness: a) Convenience; b) forum state's interests
  4. specific jurisdiction
    claim arises from activity in the state
  5. general jurisdiction
    • "essentially at home" in the state
    • systematic and continuous contact
  6. venue
    • venue is proper in
    • 1) district in which any defendant resides, if all defendants are residents of the forum state
    • 2) district where substantial part of the T/O arose
    • 3) any defendant is subject to personal jurisdiction
  7. where is a corporation deemed to reside for purposes of venue?
    • 1) any district where it is subject to PJ
    • 2) [if multiple districts] any district where the corporation's contacts would be sufficient to subject the corporation to PJ if the district were a state
  8. res judicata applies when?
    • plaintiff is barred by res judicata when:
    • 1) a final judgment on the merits has been rendered on a particular cause of action
  9. mandatory bringing all claims?
    Fed: required to assert all claims arising out of the same transaction or occurrance
  10. what is federal question jurisdiction?
    • plaintiff's claim arises under federal law
    • plaintiff is trying to enforce a federal right
  11. supplemental jurisdiction
    • SUBJECT TO DISCRETION, there is supplemental jurisdiction if the supplemental claim arises from the same nucleus of operative facts (same transaction/occurrance)
    • exception:
    • 1) the claim is asserted by P
    • 2) in a diversity case (no FQ), and
    • 3) the claim would violate complete diversity
  12. when does the court exercise its discretion NOT to hear a supplemental Jx claim?
    • 1) federal question is dismissed early in the proceedings
    • 2) state law claim is complex
    • 3) state law issues would predominate
  13. counterclaims
    • 1) must be filed with D's answer
    • 2) must have proper subject matter jurisdiction for them
  14. compulory counterclaim?
    • 1) D's claim arises from the same transaction/occurrance as P's claim
    • 2) always proper subject matter jurisdiction under supplemental jurisdiction
    • must be filed, or it's waived in future cases
  15. permissive counterclaim?
    • does not arise from same T/O
    • can sue in a separate action
    • must check for subject matter jurisdiction (independent of supplemental jurisdiction!)
  16. crossclaim
    • claims between co-parties (e.g., D1 sues D2)
    • 1) must be from same T/o
    • 2) must have subject matter jurisdiction (typically, supplemental jurisdiction will work)
    • 3) not compulsory
  17. removal
    • 1) P can never remove
    • 2) for diversity cases, no removal if one of the defendants is an in-state resident
    • 3) if case later becomes removable, you get 30 days to remove
    • 4) all defendants must agree on removal
    • 5) diversity case cannot be removed more than 1 year after it was filed (unless bad faith by P)
  18. relation back - adding a claim?
    • as long as it's the same T/o as original pleading, relates back
    • treat the amended claim as though it was filed when the original pleading was filed
  19. relation back - changing a defendant?
    • relates back if
    • 1) same T/O
    • 2) new party knew of this case within 120 days of its filing
    • 3) new party knew that, but for a mistake, he would have been named originally
  20. scope of discovery?
    any nonprivileged matter that is reasonably calculated to lead to admissible evidence (basically, relevance!)
  21. permissive joinder of co-def or co-plaintiffs?
    • 1) arise from the same T/O
    • 2) raise at least 1 common question (fact or law)
    • think T/O test!
    • -> check PJ and SMJ
  22. for a non-party, who is a necessary party?
    • 1) complete relief cannot be accorded without T
    • 2) T's interest may be harmed if he is not joined
    • 3) failure to join T could subject another party to multiple or inconsistent obligations
    • -> joint tortfeasors are never necessary
    • If a party is necessary, see if his joinder is feasible
  23. When is joinder of a non-party feasible?
    • 1) there is PJ over him
    • 2) joining him will not destroy diversity
  24. What if joinder of a non-party is not feasible?
    • 1) proceed without him
    • 2) dismiss the entire case
  25. how does a court decide how to proceed without a non-party?
    • 1) alternative forums available?
    • 2) likelihood of harm to T?
    • 3) can the court shape relief to avoid harming T?
  26. 3rd party impleader
    • 1) must be same T/O
    • 2) PJ over 3rd party
    • 3) SMJ
  27. intervention of right
    • 1) must be a necessary party (interests will be harmed if not joined)
    • 2) must be timely
    • 3) must be SMJ (most courts will not allow supplemental if intervenor is not diverse from the party on the other side)
  28. permissive intervention
    • 1) T's claim or defense and the pending case have at least 1 common question
    • 2) discretionary with court
    • 3) must be SMJ (most courts will not allow supplemental if intervenor is not diverse from the party on the other side)
  29. class action must satisfy what initial requirements?
    • class action - CANT
    • 1) numerosity - class is so numerous that joinder is impracticable
    • 2) commonality - questions of law or fact in common to the class
    • 3) typicality - class rep's claims or defenses are typical to the class
    • 4) adequate representation - rep will fairly and adequately represent the class
  30. what are the 3 types of class actions?
    • 1) Prejudice: class action is necessary to avoid harm either to class members or to adverse party of class (claimants to a fund)
    • 2) injunction/declaratory judgment: sought because the class was treated alike by the adverse party
    • 3) common question predominates: plus damages, and class action is the superior method to handle the case
  31. how does the court certify a class to allow it to proceed as a class action?
    • 1) define the class
    • 2) define class claims, issues, or defenses
    • 3) appoint class counsel (fair/adequate representation)
    • 4) Type 3, only: individual notice to class members (opt-out, binding)
  32. who is bound by a class action?
    all class members, except if they opted out of type 3. no opt-out for type 1/2.
  33. class action, dismiss or settle, do you need the court's approval?
  34. class action, what requirements for diversity jx?
    • 1) look at the rep for diversity and AIC
    • 2) CAFA: grants SMJ if any class member is diverse from any defendant, and aggregate claims of the class > $5MM
  35. res judicata
    • if a final judgment on the merits has been rendered,
    • 1) plaintiff (and privies) is barred by res judicata from trying the same cause of action in a later suit
    • FRE: cause of action = T/O
    • CA: primary rights doctrine, COA may be split into multiple law suits as long as that COA does not give rise to an invasion of a single primary right
    • primary right = right to be free from a particular harm
  36. collateral estoppel
    • judgment is conclusive in a subsequent action on a different cause of action between a party (and their privies) if
    • 1) issue was actually litigated (evidence presented at trial, decision rendered)
    • 2) issue was essential to the judgment
    • 3) final judgment on the merits
    • 4) asserted against someone who was a party in case 1
  37. who can assert collateral estoppel?
    • 1) traditional rule requires mutuality: party asserting collateral estoppel must have been a party to case 1
    • 2) nonmutual DEFENSIVE issue preclusion: permissible to bar P's claim if P had a full chance to litigate case 1
    • 3) nonmutual OFFENSIVE issue preclusion: permissible to bar D's defense if not "unfair"
  38. fairness factors, for nonmutual offensive issue preclusion?
    • 1) full and fair opportunity to litigate case 1
    • 2) foreseeability of multiple suits
    • 3) P could not easily have joined case 1
    • 4) no inconsistent judgments on record
  39. forum non conveniens
    • 1) A court may transfer a case to another district where it might have been brought, or to dismiss it if transfer is not possible, if there is another forum that is better suited to hear the case.
    • 2) the court must consider public and private factors.
    • 3) public: availability of the alternate forum, plaintiff's choice of forum, forum state's interest in providing a forum for its residents
    • 4) private: convenience of parties, location of evidence, and where the T/O arose
  40. when can a party compel an independent physical or mental examination of a party? how to do it?
    • when that party's physical or mental condition is in controversy.
    • if not in controversy, cannot compel (i.e., physical injuries cannot compel a mental examination)
    • procedure:
    • 1) motion to the court to have a physician perform an exam
    • 2) show good cause (relevant and necessary to the action)