Civ Pro

Card Set Information

Civ Pro
2011-07-13 04:33:19
Washington Bar Exam Civ Pro

Civ Pro
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  1. Personal Jurisdiction
    WA has PJ over all persons domiciled in WA.

    Exercise of PJ must satisfy DP. D must have sufficient minimum contract with WA such that maintainence of suit doesn't offend traditional notions of fair play and substantial justice. Through these contacts, D must purposely avail self of benefits, protections, and privileges of WA and reasonably foresee being haled into WA. Assertion must be fair, considering burden on D of litigating in WA, interests of P and state. For WA to assert PJ over nonresident, actions must fall w/i and arise out of one of the categories enumerated in long arm statute.
  2. Long Arm statute
    Operates to limit PJ over foreign corps and nonresident Ds served outside WA. Exclusive list: business transactions, commission of tort, ownership of real property, contracts to ensure property/person, making babies, marital relationship in WA
  3. Notice
    Notice must be reasonably calculated, under circumstances to apprise interested parties of pendency of action.
  4. Service of Process in WA
    Signed S&C, served by someone over 18, not a party, may be attorney, may be sheriff, deputy
  5. Personal Service for Individuals
    • In hand (or spouse)
    • D's house of usual abose (with someone of suitable age and discretion, resident there)
    • D's usual mailing address (only available when D cannot be served with reasonable diligence though other methods. Leave copy at usual mailing address and send copy by 1st class mail to usual mailing address)
  6. Corporate Service
    • WA Corp: president, registered agent, secretary, treasurer, managing agent, SoS
    • Foreign Corp dbi WA: agent, treasurer, secretary, SoS
  7. Constructive Notice by Publication
    When D not findable with reasonable diligence. Affidavit must allege that D is WA resident who's left state or is hiding. Notice must be published once/week for 6 consecutive weeks in newspaper of general circulation in county where lawsuit brough and mail copy to D's last known address.
  8. Constructive Notice by Mail
    Must be authorized by court. Same reqs as notice by publication. Person authorized to serve must mail 2 copies to D's last known address (1 by registered mail, 1 by first class).
  9. Personal Service Outside WA
    Long arm statute applies. P must file affidavit why service impossible in WA. If D personally served outside WA and prevails, may be awarded atty fees for burden of litigating in WA.
  10. Non-resident motorist statute
    service of process (2 copies) on WA SoS plus copy by registered mail to D's last known address or personal service outside WA, along with affidavit of inability to personally serve.
  11. Subject Matter Jurisdiction in District Court
    Amount in controversy cant exceed $75k. Cannot hear cases re: title to real property, foreclosures, false imprisonment, defamation.
  12. Subject Matter Jurisdiction in Superior Court
    Amount in controversy greater than $300. Can always hear: equity, title/possession of real property, nuisance, probate, divorce, validity of taxes, fees...
  13. Local Action Venue
    actions involving title or possession to real/personal property property in county where property located.
  14. Transitory Actions
    Appropriate in county where D resides.

    • Resident D: If 1 D, where D resides. If multiple, where any 1 D resides. In PI, where any part of claim.
    • Nonresident D: county where P resides or where D was served, where D committed act under long arm statutes, or where part of claim arose.
    • Corporate D: WART, work done in county, agreement entered into county, residence of county, tort commission
  15. Change of Venue
    If original venue improper, impartial trial unavailable in original, convenience, judge DQ, stipulation of parties.
  16. Forum non conveniens
    WA court with PJ, SMJ and proper venue may still dismiss if another venue substantially more convenient or appropriate.
  17. SOL
    tolled by either filing or service. Action tentatively commenced. P then has 90 days to effect the other.
  18. Tort action against city/county
    P must present and file claim administratively with city or county and then wait 60 days before filing with court. SOL tolled during 60 day period
  19. Temporary Restraining Order
    • When P commences action by filing and service, can seek TRO against adverse party to preserve status quo.
    • Must give oral/written notice to adverse party unless P asserts by affidavit that it cannot gie notice and will suffer immediate and irreparable loss.
    • Must expire w/i 14 days except for good cause, & no TRO granted w/o security unless provided by statute to pay party wrongfully restrained.
  20. Complaint
    • Notice pleading: short plain statement of claim showing that pleader entitled to relief
    • Particularity: fraud, special damages (or waived)
  21. Answer
    • 20 days (personal service in WA)
    • 60 days (personal service outwide WA)
    • 90 days (mail service)

    Admit, deny, affirmative defenses (must be raised or waived)
  22. 12(b) defenses
    • lack of SMJ
    • lack of PJ
    • improper venue
    • insufficiency of process
    • insufficiency of service of process
    • failure to state a claim upon which relief can be granted
    • failure to join necessary party
  23. Certification
    Certifies that to best of signer's knowledge and belief after unreasonable inquiry that pleading is grounded in fact, good faith argument
  24. Sanctions
    judge has broad discretion as to whether sanction, type and extent.
  25. Motion for judgment on pleadings
    challenges the legal sufficiency of claim, but timing is diff in that D brings this motion after answering, and court looks to both S and answer in ruling on motion.
  26. Motion for more definite statement
    pleading so vague or ambiguous that D can't respond.
  27. Amendments
    Liberal policy. Not allowed if prejudice.

    • Amendment allowed before trial as matter of right (complaint before answered, answer w/i 20 after served)
    • With leave of court also available.
  28. SOL Relation back
    • Relation back needed when P wishes to add claim or change party after SOL has run. If requirements met, amended complaint will “relate back” to time of filing of original complaint.
    • New claim against existing parties: must arise from same transaction/occurrence
    • New Party: must arise from same t/o, must have notice of action and known that but for mistake, would have had claim brought against them
  29. Joinder of Claims
    • Original claims: P may assert as many claims, even unrelated, in 1 suit
    • Counterclaims: compulsory if arising out of same t/o as P's claim (waived if not asserted). Permissive if not same t/o.
    • Cross-claims: permissive, must arise from same t/o
    • Severance: judge can do it.
  30. Joinder of parties
    • Permissive: persons to be joined as P/Ds assert right to relief arising from same t/o and there are common questions of fact/law.
    • Compulsory:
    • Necessary if complete relief can’t be
    • afforded those already parties, or person to be joined claims an interest that will be impaired or impeded if person not joined, or existing party will be subject to multiple/inconsistent obligations if not joined.
    • Indispensible: person necessary party, and person can’t by joined due to lack of PJ, and existing or potential parties unavoidably prejudiced if court proceeds in person’s absence, and alternate forum exists in which all parties could be joined.
  31. Intervention
    as right or permissive
  32. Class action
    • lawsuit brought by representative parties on behalf of group of similarly situated individuals all of whom are bound by decision of case.
    • CANT: commonality (of claim), adequacy (representative of interest of class), numerousity (more than 40), typicality (of claim)
  33. Discovery
    To discover facts, allow parties to prep for settlement/trial. Parties must comply with letter & spirit of law.

    May obtain discovery regarding any matter not privileged, which is relevant, admissible or reasonably calculated to lead to discovery of admissible evidence.
  34. Work Product
    Prepared in anticipation of litigation, not discoverable.

    Exception: requesting party can show substantial need and unable to obtain substantial equivalent without undue hardship.
  35. Protective orders
    Court has broad discretion to enter PO if justice requires to protect party from annoyance, embarrassment, oppression, undue burden, revelation of trade secrets.
  36. Depositions
    • taking of sworn testimony w/ atty asking questions. Available for parties and non parties.
    • Can notice (5 days) parties, but non parties require subpoena.
    • Cannot happen within 30 days of service w/o court order.
  37. Interrogatories
    • Written questions between parties, answered under oath.
    • Duty to reasonably investigate answer, and respond w/i 30 or 40 (if served w S&C).
    • Objections: overbroad, vague, seeking priv...
  38. Request for production
    Written request between parties to produce things, must be described with particularity.

    To obtain from 3rd party- subpoena duces tecum.

    30/40 days
  39. Request for Admission
    written requests for admission of truth of statements, only for parties. Usually binding at trial. Failure to respond treated as binding admission.

    30/40 day
  40. Mental/Physical Exam
    may be court ordered if condition in controversy and good cause shown. Party has duty to report, by waives privilege to other med report on same condition. Must produce on request.
  41. Sanctions in Discovery
    only after party fails to respond. Confer, motion to compel, then sanctions if no compliance.
  42. Pretrial conference and order
    Judge has discretion whether to order. Purpose to shorten trial, promote settlement. Virutally anything can be discussed. If ordered, judge must issue pretrial order to memorialize decisions made and actions taken. Order controls course of subsequent litigation and takes precedence over pleadings. Can be modified to prevent manifest injustice.
  43. Disposition w/o trial
    • Motion attacking pleadings (12b6)
    • Voluntary dismissal (right to it once w/o prejudice)
    • Involuntary dismissal (failure to comply with rules, no action for 12 months, failure of proof at bench trial)
    • SJ
  44. Summary judgment
    moving party entitled as matter of law if no genuine issue of material fact when evidence viewed in light most favorable to nonmoving party.
  45. Default judgment
    If D fails to plead or otherwise defend, D entitled to 5 days written notice prior to entry of default hearing. D not entitled if no appearance. D is deemed to have admitted all allegations as to liability leaving only determination of remedy and entry of judgment.
  46. Right to jury trial
    Either party may demand before cause called to be set. Waived if no demand. Right to jury in tort/K.
  47. Jury selection
    • 6 unless party demands 12
    • Concurrence of 5 or 10 required
  48. Jury Challenges
    • Unlimited for cause (bias, interest in outcome, felons)
    • 3 peremptory: can be used for any cause (not gender/race). Harmless error if court refuses to remove for cause by removed w/ peremptory, or if not refused for cause and party fails to excuse with peremptory.
  49. Jury instructions
    Submitted when case called. Must be objected to before given to jury. Erroneous or insufficient will not lead to reversal unless prejudicial error.
  50. Arugments to jury
    Improper to argue from evidence not presented at trial, mistating law, appealing to emotions.
  51. Motion for judgment as matter of law
    made at close of opponents case, at close of evidence, or after jury verdict but must be w/i 10 days of entry of judgment.

    Test: whether there is no legally sufficient evidentiary basis for reasonable jury to find for nonmovant, viewed in light most favorable to nonmovant.
  52. Motion for new trial
    Motion must be served w/i 10 days after entry of judgment. Judge has broad discretion to grant/deny, but not granted for harmless error.

    Grounds: juror misconduct, insufficient evidence to justify verdict, irregularity in proceedings, errors of law, newly discovered evidence that could not have been reasonably discovered in time for trial.

    Remittitur/Additur: award too high/low
  53. Motion to Vacate
    made to trial judge if appeal time missed and D wants to vacate default.

    Grounds: mistake, inadvertance, surprise, excusable neglect w/i 1 year of judgment, fraud.

    Abuse of discretion standard
  54. Time for Appeal
    30 days from final judgment and objections must have been proper, except for SMJ or constitutionality.

    Notice of appeal filed with trial court.
  55. Full faith and credit
    valid judgment from another state or federal court entitled to FF&C in WA courts. Valid judgment must be final, on merits, and proper J.
  56. Claim preclusion (res judicata)
    • D can use CP as defense in second action as to claims that were or should have been litigated in first action between parties.
    • First judgment valid, both suits between same parties or privity, and both involve same claim.
  57. Issue preclusion (issue preclusion)
    prevents relitigation of issues that were decided.

    First judgment valud, both suits involve identical issue of fact that was actually litigated, actually decided, and essential to judgment.
  58. Judge Disqualification
    A party may DQ a judge by filing an affidavit of prejudice alleging judge is prejudiced against the party or counsel. Affidavit must be filed prior to any discretionary rulings by judge