Bar 8

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Bar 8
2011-07-05 01:18:28
Civil Procedure

Civil Procedure
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  1. Specific Personal Jurisdiction
    The court has Specific Personal Juridiction if Plaintiff's claim is related to Defendant's contact with the forum, even if Defendant has limited contact with the forum.
  2. General Personal Jurisdiction
    • The court has General Personal Jurisdiction if Defendant has continuous and systematic ties with the forum, even for claims arising from anywhere.
    • Eg, domicile, incorporation, presence of major facility
  3. In Personam Jurisdiction
    • Personal jurisdiction over a defendant req's satisfaction of:
    • 1) Statute, AND
    • 2) Constitution.
  4. Federal Subject Matter Jurisdiction
    • Federal courts may only hear 2 types of suits:
    • 1) Diversity of Citizenship Cases
    • 2) Federal Question Cases

    • Diversity Req's:
    • 1) Action is between "citizens of different states" AND
    • 2) Amount in controversy is $75k or more (can be based on good faith, unless clear to a legal certainty)

    Federal Questions Req's that the claim "arises under" federal law, ie a right or interest founded substantially on federal law.

    Additional Claims are subject to Supplemental Jurisdiction.
  5. Complete Diversity Rule
    For Federal diversity cases, there is no diversity if any plaintiff is a citizen of the same state as any defendant.
  6. State Citizenship of Natural Person
    • A natural person's state citzenship is the state of domicile.
    • Test for diveristy when case is filed.
  7. Domicile
    • Established by:
    • 1) Presence in state, AND
    • 2) Intent to make state permanent home.
  8. State Citizenship of a Corporation
    • A Corporation's state citizenship is:
    • 1) State shere incorporated, OR
    • 2) The one state where the coporation has its principal place of business.
    • Corporations can give 2 citizenships.

    A Unincorporated association's state citizenship is the citizenship of all members.
  9. Aggregation
    • Adding mulitple claims to meet the requirement for amount in controversy is allowed IF:
    • 1) There is one plaintiff against one defendant OR
    • 2) The claim is against multiple Joint Tortfeasors.
    • Can aggregate totally unrelated claims
  10. Measure of Value of Equitable Relief for Amount in Controversy
    • Equitable relief can be measured by:
    • 1) Plaintiff's decrease in value w/o relief, OR
    • 2) Defendant's cost to comply w/ relief.
  11. Supplemental Jurisdiction
    • Additional claims that do not meet the diversity or federal question requirements for subject matter jurisdiction may be added with supplemental jurisdiction.
    • Supplemental jurisdiction allows the claim if it shares a 'common nucleus of operative fact' with the claim that invokes subject matter jurisdiction.
    • Exception: CANNOT be used for plaintiffs in diversity cases to overcome lack of diversity, though can overcome lack of amount in controversy.
    • Court Discretion: Court has discretion to NOT hear the supplemental claim if :
    • 1) The federal question is dismissed early in the proceedings,
    • 2) The state law claim is complex, OR
    • 3) The state law issues would predominate.
  12. Removal
    • Defendant in state court might beable to 'remove' the case to federal court, if case would invoke diversity or federal question.
    • For multiple defendants, all defendants must agree,
    • For diversity cases, no removal if any defendant is a citizen of the forum.
  13. Erie Doctrine
    • In diversity cases, federal courts must apply state substantive law ("outcome determinative") and federal procedural law ("arguably procedural").
    • Apply state law for:
    • 1) Elements of a claim or defense,
    • 2) Statute of Limitations,
    • 3) Tolling of Statute of Limitations,
    • 4) Conflict of law rules.
    • If not sure that law is substantive or procedural, test:
    • 1) Outcome determinative,
    • 2) Balance of Interests, AND
    • 3) Avoid Forum Shopping
  14. Venue
    • The venue is the federal court in the proper district for the case or the state court in the proper county.
    • In Federal, venue is proper where:
    • 1) All defendant resides if all in same state (in any district a defendant resides if they reside in different districts of the same state),
    • 2) A substantial part of the events occurred or property situated, OR
    • 3) For cases solely based on diversity, where any defendant is subject to personal jurisdiction; OR
    • 3) For not solely based on diversity, where defendant may be found.
    • In CA, venue is proper where:
    • 1) Any defendant resides,
    • 2) If none reside in CA, any county.
    • Local Action - actions about land must be filed in the district where the land lies
    • Transitory Actions - all other actions not local
  15. Federal Rules for Transfer of Venue
    • A federal court may transfer the case to another federal district court that has personal jurisdiction over Defendant.
    • If original venue is proper, the court has discretion to transfer based on convenience for the parties and witnesses and the interests of justice, weighing factors:
    • 1) Public factors, eg applicable law, burden of jury service, local controversy
    • 2) Private factors, eg location of witnesses and evidence
    • If the original venue is improper, the court may
    • 1) Transfer in the interests of justice, OR
    • 2) Dismiss.
  16. Forum Non Conveniens
    • The court will dismiss or stay the case if:
    • 1) there is another court that is far more convenient, AND
    • 2) transfer is impossible.
    • Eg, court in foreign country
  17. Process
    • 1) Summons, AND
    • 2) A copy of Complaint.
  18. Personal Jurisdiction
    • California can exericise jurisdiction to the extent of the Constitution.
    • The Constitution requires:
    • 1) Minimum Contact AND
    • 2) Fairness.

    • Contact factors:
    • 1) Purposeful availment AND
    • 2) Foreseeability.

    • Fairness factors:
    • 1) Relatedness,
    • 2) Convenience, AND
    • 3) State's Interest.
  19. Methods of Service
    • For Federal law,
    • 1) Personal Service;
    • 2) Substituted Service;
    • 3) Service on Defendant's agent;
    • 4) Methods permitted by State Law;
    • 5) Waiver by Mail.
    • For California,
    • 1) Personal Service; (Req'd before substitute service)
    • 2) Substituted Service;
    • 3) Registered Agent;
    • 4) Service by Mail;
    • 5) Service by Publication.
  20. Substituted Service
    • Process may be left with...
    • Federal Req's:
    • 1) At Defendant's usual abode,
    • 2) Serve someone of suitable age and discretion, AND
    • 3) Who resides there.
    • CA Req's:
    • 1) Try Personal Service First,
    • 2) At Defendant's usual abode or mailing address,
    • 3) Left w/ a competent member of the household at least 18 y/o,
    • 4) Person must be informed of contents, AND
    • 5) Process must also be mailed by first-class mail, postage prepaid, to Defendant.
  21. Waiver by Mail
    • Plaintiff may mail to Defendant:
    • 1) A copy of the complaint,
    • 2) 2 copies of a waiver form, AND
    • 3) A prepaid means of returning the form.
    • Defendant may waive formal service if returns to Plaintiff w/i 30 days.
  22. Immunity of Service
    Defendant may not be served for a federal civil case while instate to be a witness or party in another civil case.
  23. Rule 11
    • Attorney or Pro Se party must sign all papers.
    • Signature indicates that signer is certifying that to the best of his knowledge and belief, and after reasonable inquiry:
    • 1) The paper is not for an improper purpose,
    • 2) Legal contentions are warranted by law, AND
    • 3) Factual contentions have evidentiary support.
  24. Violation of Rule 11
    Non-violating party cannot move for sanctions immediately because of the safe harbor of 21 days of opportunity to fiz the problem.
  25. Requirements for the Complaint
    • Req'ts:
    • 1) Statement of grounds for Subject Matter Jurisdiction,
    • 2) Short and plain statement of the claim,
    • 3) Demand relief sought.
  26. Standard for Pleadings
    • Federal: Notice Pleading with facts supporting a plausible claim
    • CA: Fact Pleading, req'ing ultimate facts constituting the cause of action
    • For Fraud, Mistake, and Special Damages: must be plead with particularity. (CA+ civil conspiracy, tortious breach of K, unfair business practices, and product liability claims among multiple defendants resulting from exposure to toxins)
  27. Ficticious Defendants
    • If Plaintiff is genuinely unaware of the identity of Defendant, Plaintiff may name a "Doe" defendant and allege:
    • 1) Plaintiff is unaware of Defendant's true identity,
    • 2) A Cause of Action against the "Doe" defendant.
  28. Verified Pleadings
    • Pleadings signed under oath and treated as affidavits.
    • Verified answers are required for a Verified complaint.
  29. Rule 12
    • Defendant is required to respond by:
    • 1) Motion, or
    • 2) Answer.
    • Fed: w/i 21 days after service of process, or 60 days if service waived, or answer 14 days after motion denied
    • CA: w/i 30 days after service of process is deemed complete.
  30. Motions
    • Motions are request for court orders.
    • In response to the complaint, Defendant may:
    • Motion for More Definite Statement,
    • Motion to Strike,
    • Raise Rule 12(b) Defenses:
    • 1) Lack of Subject Matter Jurisdiction,
    • 2) Lack of Personal Jurisdiction, (waivable)
    • 3) Improper Venue, (waivable)
    • 4) Insufficiency of Process, (waivable)
    • 5) Insufficient Service of Process, (waivable)
    • 6) Failure to State a Claim,
    • 7) Failure to Join Indispensable party.
    • Waivable - waived if not in first Rule 12 response
  31. Answer
    • The answer may contain:
    • 1) Responses, admit or deny, to allegations of complaint, AND
    • 2) Raise affirmative defenses, ie statute of limitations, statute of frauds, res judicata, self-defenses
    • Must be served w/i 21 days after service of process or 14 days after motion denied.
  32. Counterclaim
    • In Federal court, counterclaims are claims against the opposing party.
    • Types:
    • 1) Compulsory - Defendant's claim arises from same transaction or occurrence as Plaintiff's claim; waived if not filed
    • 2) Permissive - Defendant's claim doesn't arise from the same transaction or occurence as Plaintiff's claim
  33. Crossclaim
    • In Federal court, crossclaims are claims against a co-party and must arise from the same transaction or occurence.
    • BUT is not waived if not filed in pending case.
  34. Cross-Complaint
    In California court, cross-complaints are claims against opposing party, or a third-party.
  35. Right to Amend
    • Plaintiff has a right to amend once w/i 21 days after Defendant serves a first Rule 12 response.
    • Defendant has a right to amend once w/i 21 days of serving his answer.
    • After, must seek leave of court and right to amend will be granted if 'justice so requires.'
  36. Variance
    Amending a complaint to conform to the evidence, at or after trial.
  37. Relation Back
    • Treat amended pleading as though it was filed when the original was filed, to avoid stataute of limitations problems.
    • Applies:
    • To join a new claim, IF concerns same conduct, transaction, or occurrence as the original pleading
    • To change a Defendant, IF:
    • 1) Concerns same conduct, transaction, or occurrence as the original pleading,
    • 2) The new party knew of the action w/i 120 days of its filing, AND
    • 3) The new party knew that, but for a mistake, he would have been named originally.
  38. Impleader
    In Federal court, impleaders are claims against a third-party.
  39. Relatedness
    • Relatedness exists if Plaintiff's claim arise from Defendant's contact with the forum, and is satisfied by:
    • 1) Specific Personal Jurisdiction, OR
    • 2) General Personal Jurisdiction.
    • A requirement for Fairness under the Constitutional limitations on Personal Jurisdiction.
  40. Purposeful Availment
    Defendant 'purposely availed' himself of the privilege of conducting activities in the forum, invoking the benefits and protections of its laws.
  41. Convenience
    • Forum will be convenient UNLESS Defendant is put at a severe advantage in the litigation.
    • A requirement for Fairness under the Constitutional limitations on Personal Jurisdiction.
  42. Reclassification
    • Unlimited to Limited req's: >$25k is virtually impossible
    • Limited to Unlimited req's: >$25 is a possibility
  43. California Rules for Transfer of Venue
    • If original venue is improper, Defendant can move to transfer before or with answer, demurrer, or motion to strike.
    • If original venue is proper, court may tansfer if:
    • 1) Reason to believe an impartial trial can't be held,
    • 2) Convenience of witnesses and ends of justice would be promoted, OR
    • 3) No qualified judge.
  44. Forum Non Conveniens
    • Courts may dismiss or stay an action if it should be heard in another state or country.
    • Fed courts may dismiss or stay action after weighing public and private factors.
    • CA courts may dismiss or stay action in the interest of substantial justice, and may move case to another state if:
    • 1) Alternative forum is suitable (Personal Jrdx, S/L, DP and impartial jud), AND
    • 2) Private and Public interest factors balance in favor of alterative forum.
  45. Discovery may be made...
    • ... of any non-privileged matter that is relevant to any claim or defense.
    • Fed: Relevant means reasonably calculated to lead to discovery of admissible evidence.
    • CA: Relevant means relevant to the subject matter involved in the pending action.
  46. Discovery Tools
    • 1) Deposition (nonparties should be subp'd ducem tecum, lmt 10)
    • 2) Interrogatory (party only, lmt 25)
    • 3) Requests to produce (nonparties should be subp'd)
    • 4) Physical or Mental Exam (court order only, req's health be actual controversey or good cause)
    • 5) Request for Admission (party only, esp authentication)
  47. Summary Judgment
    SJ should be granted if: from the pleadings, there is no genuine issue of material fact and entitled to judgment as a matter of law.
  48. Motion to Dismiss for Failure to State a Claim
    • On the face of the complaint, if all facts alleged were true, Plaintiff would not win a judgment.
    • Called "Motion for Judgment on the Pleadings" after answer
    • CA: Demurrer
  49. Motion for Judgment on the Pleadings
    • Same as Motion to Dismiss for Failure to State a Claim except it is done after answer.
    • Motion to Dismiss for Failure to State a Claim is granted if Plaintiff would not win a judgment even if all facts alleged on the face of the complaint were true.
  50. Motion for Judgement as a Matter of Law
    • Grant motion if reasonable people could not disagree on the result.
    • May bring motion after the other side is heard. (D 2x, P 1x)
    • Like "Summary Judgment" but during trial.
    • May bring renewed motion after trial.
  51. Joinder of Parties
    • Permissive Joinder of a party if:
    • 1) Claim arises out of same transaction or occurrences, AND
    • 2) Common question of fact or law to all parties.
    • Compulsory Joinder of a party if:
    • 1) Complete relief cannot be given to existng parties in his absence,
    • 2) Disposition in his absence may impair his ability to protect his interest in the controversy, OR
    • 3) His absence would expose existing parties to a substantial risk of double or inconsistent obligations.
    • Joinder is Feasible if:
    • 1) Personal Jurisdiction exists, AND
    • 2) Joining will not destroy diversity.
    • If not Feasible, proceed without, OR dismiss case, considering factors:
    • 1) Alternative forum available,
    • 2) Likelihood of actual harm, AND
    • 3) Whether court can shape relief to avoid harm.
    • Dismiss if party is indispensible.
  52. Joinder of Claims
    • Claims may be joined:
    • 1) If success of first is required for second,
    • 2) In Diversity Cases, Plaintiff may aggregate all claims that he has against Defendant.
    • 3) For Federal Questions Cases, nonfederal claims must be part of the same case or contoversy as the federal claim.
  53. Class Action
    • Req's:
    • 1) Commonality - some q's of law and fact in common to class
    • 2) Adequate Representation
    • 3) Numerosity - too many class members for practicable joinder
    • 4) Typicality - rep's claims/defemses are typical of those in the class
    • If class action is for damages: then must individually notify all reasonably identifiable class members to allow for opt-out.
    • For Diversity citizenship considerations: use rep's citizenship
    • To dismiss or settle: court approval req'd
  54. Class Action Fairness Act
    • Subject Matter Jurisdiction is granted if:
    • 1) Aggregated claims >$5mil AND
    • 2) Any class member is of diverse citizenship from any defendant