CA Bar Prep - CivPro
|What are the six major topics I should know in Civil Procedure?|| 1. Personal Jx|
2. Subject Matter Jx
3. Erie doctrine
|Personal Jurisdiction - order of analysis|| Question will ask "if the Court can exercise JX over a particular nonresident defendant"|
1. Traditional bases - presence, consent, in rem
2. Long arm statute
3. Due Process consistency - minimum contacts + fair play
|Explain the "minimum contacts + fair play" test|| International Shoe case laid out the test, go through it as follows:|
first: are the contacts continuous and systematic (general pjx)
second: did the cause of action arise out of the contact with the state... (specific personal jx -- requires purposeful availment + foreseeability)
Third: discuss fairness requirement (grave difficulty, state's interest, convenient relief)
|What is subject matter jx based on federal question?||Federal question jx is for a claim that arises under federal law, treaty, or Constitution. This must be shown on the face of a well-pleaded complaint.|
|What is subject matter jx based on diversity? (and how is "citizenship" defined?)|| This requires complete diversity between plaintiffs and defendants and more than $75,000 in controversy as set out in a well-pleaded good faith complaint.|
Citizenship is "presence in state and intent to remain permanently" for people, and "state of incorporation" + PPB (so two) for corporations.
|Can multiple plaintiffs aggregate claims against a single defendant? Can one plaintiff aggregate claims against multiple defendants? Can one plaintiff aggregate claims against a single defendant?||Question 1 - No.|
Question 2 - Only jointly and severally liable defendants
Question 3 - Yes.
A plaintiff can aggregate claims against a single defendant, or jointly and severally liable defendants. but NOT separate claims against separate defendants, or different plaintiffs against the same defendant.
|Explain supplemental jurisdiction||If the claim arises from the same common nucleus of operative fact and the plaintiff would be expected to try them all in one proceeding, the plaintiff can tack a state law claim onto a federal question case.|
In a diversity case, a defendant may implead a third party, regardless of whether he is diverse from the third party.
Cross- and Counter-claimaints can always invoke supplemental jx if their claims arise out of the same T/O.
|Federal Venue||Venue is proper in federal court in a judicial district where any defendant resides, if all defendants reside in the same state.|
In a district where a substantial part of the events occurred
if neither one applies, then venue is proper in any district in which any defendant is subject to PJX when the claim was filed (FOR DIVERSITY)
OR where any defendant may be found (FOR FED Q)
|Transfer of venue (choice of law)||Venue can be transferred in the interest of convenience, but you apply the law of the original venue if it was proper.|
|California Venue||Venue in CA refers to the proper county. A local action is one involving title to property. Venue is appropriate in the county in which the property is located. All other actions are transitory, and venue is proper in any county in which any defendant resides at the beginning of the action|
in a tort case, where the injury occurred
in a contracts case, where the obligation was entered into or was to be performed.
|California Venue for corporations||Where the corp has its place of business, where the contract was entered into, or where the breach occurs.|
|Transfer of venue in CA||Court may transfer if there is reason to believe an impartial trial may not be held in the original venue, or for convenience, or if you can't find a judge.|
|Erie Question||A federal court in a diversity case applies federal procedural law, but must apply substantive (includes choice-of-law + statute of limitations) rules of the state in which it sits.|
If there is a federal law unrelated to the cause of action that is not a federal rule of civil procedure, ask if the "federal law" is "on point?" (note that ALL FRCPs are "on point")
If so, apply federal law.
If not, figure out if the law is procedural or substantive... Courts look at "outcome determinative, balance of interests, and forum shopping". If any of those is likely to happen, apply the state law. If not, apply the federal law.
|Removal||Removal requires federal jurisdiction, so removal is only proper when a federal court has SMjx but the case is in state court. Defendants must all agree to remove - 30 days from service of complaint.|
|What type of pleading is used in Federal Courts, and what must a complaint contain?|| "Notice pleading"|
A pleading must contain
- a short and plain statement of jurisdiction
- a short and plain statement showing entitlement to relief
- a demand for relief
|What type of pleading is used in California Courts, and what must the complaint contain?|| "Code pleading" or "Fact pleading"|
Complaints must contain "statement of ultimate facts constituting the cause of action."
Not evidentiary facts (things that tend prove ultimate facts) or legal conclusions. If you fail to do this, you're subject to demurrer.
|What are Doe Amendments?||California courts allow you to name Doe defendants - specific defendants you don't know the identity of, as long as:|
1. original complaint contains all allegations against all defendants
2. you truly don't know the defendant
3. you plead your ignorance in the complaint.
Once you find out, you can amend the complaint to name the defendant and the filing relates back to the original filing, so you don't have to worry about the SOL.
|What are the state and federal pre-answer motions?||In federal court, you file a 12(b) motion. Those will be tested later in the flashcards.|
The California equivalent of a 12b6 motion is a demurrer. The demurrer is an actual pleading, and it tests the sufficiency of a complaint or answer.
A special demurrer arises in several cases, but I only know:
- misjoinder or failure to join
- uncertain pleading
You can assert all these defenses in the answer also.
|Joinder||Joinder comes in two kinds - compulsory and permissive.|
Compulsory joinder of a party if
1. without that party, complete relief cannot be accorded
2. that party claims an interest in the subject matter of case and leaving them out would subject them to multiple obligations or impair their ability to protect interest
if party cannot be joined without destroying diversity, court must determine in equity if that party is indispensable - adequate relief / remedy / absence of prejudice.
|Discovery|| Types of discovery|
- Requests for Admission
- Requests for production
- depositions (non-parties require subpoenas)
In federal court, you're looking for non privileged matter relevant to a claim or defense.
in California, you're looking for information relevant to the subject matter of the lawsuit.
|Summary Judgment|| No genuine issue of material fact, and as a matter of law, movant prevails.|
In CA, burden shifts to opposing party to produce evidence showing a material fact.
|7th Amendment|| You have to demand a jury trial in federal court if you want one - you have to put it in your COMPLAINT.|
In California, you have to post jury fees before trial.
|Class Actions - the four things||Numerosity|
Adequacy of Representation
Then you also need
- risk of inconsistent results or prejudice (type 1) OR
- appropriate equitable relief (type 2)
- common questions of class predominate over other claims (type 3) and class action is superior way to resolve dispute.
In a type 3 class action suit, you have to notify all members of the class and give them an opportunity to opt out of the suit, and the class representative bears this cost.
|Class Action - jurisdiction||If any class member is diverse from any defendant, the amount is 5 million or more, and there are 100 or more class members, you get certified and can go to federal court.|
however, you can't aggregate to reach the amount requirement - somebody's got to meet diversity on their own. secondly, if 2/3rds of plaintiffs are from same state as defendant, principal injuries, and state action was filed, court must decline jx.
|Claim preclusion||This bars an entire case - you must show:|
1. the earlier judgment is a valid final judgment on the merits (In CA: final means "done appealing")
2. it's same P against same D.
3. same cause of action is involved in later lawsuit
4. could have been litigated in the prior action
In CA, we follow the primary rights doctrine, the right to be free from a particular harm. so you don't have the same limitation under #4 - a suit for property damage "could not have been litigated" in an earlier suit for personal injury.
|Issue preclusion||Binds the plaintiff or defendant in subsequent actions or different causes of action between them as to issues litigated and essential to the judgment of the first action.|
1. valid, final judgment
2. issue was actually litigated in the first action (in CA, a default judgment works)
3. issue was essential to the judgment (part of the cause of action - does not work if there were two ground for a judgment)
Can only be asserted AGAINST one who was a party in the first case.
|Who can assert issue preclusion?||Can be ASSERTED by one who was not a party to the first action - if person is defendant, it's "defensive issue preclusion"|
Joey sues DJ, Dj wins, because Joey was negligent. Now Joey sues Becky. If Joey had a full and fair opportunity to litigate, then Becky can assert issue preclusion against Joey.
Or if person is plaintiff "offensive issue preclusion"
Becky sues Joey and says "you're negligent." Only if it's "fair," which means could Joey foresee multiple suits, could Becky have joined the earlier case, are there inconsistent judgments.
|12(b) motions - what are they?|| 1 - SMjx|
2 - pJx
3 - venue
4 - process
5 - service
6 - state a claim
2-5 are waived if you don't assert them in your first responsive pleading.
|When do you have to file an answer?||Within 21 days of being served with process, or 14 days after your unsuccessful 12(b) motion.|