CIVIL PROCEDURE

REVIEW

SMJ

Federal Courts are courts of limited juridication and can only hear cases where there is SMJ. SMJ exists if there is a federal question, if there is diversity of citizenship, or in the case of suulemental jurisdic or in the case of supplemental juristicatioe it has SMJ. SMJ exists if there is a federal quesrtion, if there is din.

SMJ - California

California divides Subject Matter Jurisdiction into three defined categoris

1. Unlimited Civil Cases - Requires greater than $35K amount in controversy and includes the full range of motion

2. Limited Civil Cases - Requires less than or equal to $35K amount in controversy and limited to claims requiring monetary remedies

3. Small Claims Cases - Requires a claim less than or equal to $12.5 or $5 if business entity, no attorneys allowed, pro se only

Federal Question

A federal question arises under Federal law, the US Constituion or the US treaties. Raising a federal defense is not sufficient

Diversity Jurisdication

Diversity jurisdiction exits when there is a complete diversity of citizenship between litgants and the amount of controvery is greater than $75 K

Citizenship

Citizenship for a person depends upon their domicile. A domicile is where a person resides, with untent to to make the state their permanent home of record. Corporations may have two states of citizenship, determined by the corporation Principal Place of Business or the state in which incorporated.

Amount in Controversy

In federal courts, the AIC must be greater than $75K and alleged in goof faith. A plaintiff can aggregate claims to get to $75K if making multiple claims against one defendant.

Pleadings

A pleading is an intitial filing that states a claim for relief. It must contain a short and plain statement that lists the grounds for jurisdiction, that the pleader is entitled to relief and a demand for the relief sought.

Good Faith Claims

A claim must be make in good faith, and in the case of fraud, must include specificity regarding the details of the case. A claim that concludes in a trial where less than the required AIC is awarded does not invalidate the claim, as long as the AIC was greater than $75K and plead in good faith

Supplemental Jurisdiction

A federalcourt with SMJ may exercise SIC over state claims when they arise from a common nucleus of operative facts. A federal court may decline SIX over state claims when the claims raises a noval or complex issue of State Law, it substaintially predominates over the original federa claims, or if the federal claims are dismissed the claim which had original jurisdiction. Loof for the situation where SMJ is invalid, if so the court will not be able to exercise SIX either

Removal to Federal Court

Only a DEFENDANT may remove a case to federal court. This requires that the federal court has SMJ no defendant is domiciled in the forum state, and removal is sought within 30 days. A PLAINTIFF my never remove a case to Federal Court- they authored their complaint and chose to bring the case in the forum they selected.

Remand to State Court

A remand occurs when a case is sent from Federal Court to State Court, this typically occurs when there is invalid SMJ. A federal court may remand a case that originally had SMJ, but once the federal claims have been decided the court may remand at their discretion

State v Federal Jurisdiction

State courts can try federal questoins cases, as long as there is no implied restriction by Crongress. State s may not discriminate because a case is based on strictly on federal law.

In Personam Jurisdiction

IPJ is requied for a clurt to exercise judgment and normally falls into two categories, the traditional bases of jurisdiction and the modern bases of jurisdiction

Foreign Corporation (Consent to jurisdiction)

Requires the foregin corporation be “at home” in the forum state through continous and systematic contracts. In 2023 the US Supreme Court ruled in Mallory v. Norfolk Southern that registering to do business in a state suffices for consent to jurisdiction

Traditional Bases of Jurisdicton

The traditional bases of jurisdiction include domicile presence when severed, a consent and waiver.

Modern Bases of Jurisdiction

The modern bases of jurisdiction are the long arm stattue and Constitutionally

Long Arm Statue

Many states have adopted long arm statutes which allow personal jurisdiction over non residents. While long arm statutes can differ by state, jurisdiction undre long are statatue must satisfy the constitutional requirements for the exersie of jurisdiction

May states, like Californ ahve adoped the Long arm statatue which extend personal jurisdictionto the limit of the Constitution

If you dont have a traditional bases or a long arm statatue you can’t exercise jurisdiction out of state - so expect you will have a long arm statatute . If not, assume you do and analyze minimum contacts as necessary

Constitutionality (Personal Jurisdiction)

To satisfy the constitutional requirements for person jurisdiction , the

1. defendant must have such minimum contracts with the forum state as to not offend traditional notions of fair play and substantial justice.

2. In determining whether such minium contacts are present, a. courts look to three things the extent of contracts, their relatedness cause of a action

   b. and whether the exercise of jurisdiction would be fair.

Contacts

In determining minimum contacts, the court looks at whether the defendant

1. purposefully availed himself of the forum state,

2. and whether the exercise of jurisdiction by the forum state would be foreseeable

Purposeful

The contacts were purposeful if the DEFENDANT availed themselves of the benefits and protections of the forum state’s laws.

1. Knowledge that your product is being sold in another state is not enough, you need to advertise, send goods, activate a two way website, et. Also, if you drive on another states’s roads, you availed yourself ot he protections of their traffic laws - purposeful availed.

Foreseeable

The contacts were foreseeable if the defendant could foresee being hauled into court based on contacts in the forum state.

Relatedness

The relatedness of a contact to the controversy determines if the court will exert general or special jurisdiction

General Jurisdiction

Exits if contacts are so systematic and continuous that the defendant is essentially at home in the forum state.

Specific Jurisdiction

May exits if general jurisdiction does not exist. The court looks to see whether contacts relate to or give rise to the cause of the action.

Fair Play and Substantial Justice

Requires courts to consider the burden on defendant, the state’s interest, plaintiff’s relief interest, interstate judicial system’s interrest in efficiency and shared social polic interests. (The Burger King Factos, you won’t get many facts, will need to so some tap dancing here)

Judgment on the Pleadings

Can be motioned for when material facts are not in dispute and the pleadings reveal merit of the claim for either party. These are filed only after an answer has been filed and pleadings are closed.

Venue

Venue is proper in any district where any defendant is resident, where a substational portionof the claim occurred or when a substantial party of property is located. Otherwise venue is proper in any judicial district where any defendant is subject to personal jurisdiction.

1. Venue may be transferred for party convenience or in the interests of justice, if the action could have been brought in the receiving court.

2. In CA, if the suit is consdered a local action (involves real property) then the venue will be set in the same county as the real property. Otherwise the venue will be considered a transitory action, and venue will be considered property in the county where any defendant resides.

Forum Non Conveniens

Allows a court to decline jurisdction and dismiss an action if the court where the action was brought would be serioiusly inconvenient forum, and an adequate alternative forum exists in a foreign country.

Service

Must be made within 90 days but uupon showing a good cause, the court must extend aqnd additional appropriate period. Requires a Summons and Complaint. Failure to serve in time results in a dismissal without prejudice.

Service of Process

Process may be served by anyone 18 years or older who is no9t a party to the case. Federal methods of service upon individiuals are delivery to the defendant personally, leave the se4rve at the defendants dwelling with someon of suitable age and discretion who resides there, or delivery to the defendant’s agent. If the defendant has waived the right to personal service, process can be served by sending a copy of the summons and complaint by first cvlass mail

Service Upon Corporations

Process may be served upon corporations by had delivery to an officer or designated agent of corporation. Otherwise, process may be served by any method authorixed by state law in the state where the actin is pending or in the state where service occurs.

Service Foreign Corporations

Servie upon a foreign corproation can be made by any means proper i the corporations home county. IN CA service upon a foreign corproation can also be made to the local subsidary general manager of a foreigh parent corporation.

Waiver of Service

Provided a defendant additional time to respond to complaint. The defendant must be mailed two copies of the summons and complaint and a Request for Waiver Form along with a pre-paid addressed return envelope. The waiver must be returned within 30 days in the continental US or 60 days outside the US. This allws the defendant 60 days to anser or 90 days if out the US. CA waiver of process does not allow additional time to answer

Answering

A pleading must be answered within 21 days or receipt of service. In CA pleading must be answered within 30 days.

12(6) Motions

Motion mandate dismissal of the case if

1. Lack subject Matter Jusidiction

2. Lack of Personal Jurisdiction

3. Venue is improper

4. Insufficient process

5. Insufficient service of process.

6. Failure to state a claim which relief can be granted and

7. Failure to join a required party per Rul 19.

Unless heard at a special hearing they subjec the movant tothe personal juridiction of the court

Demurrer

In CA a demurrer functions similar to a 12(b)(6) motion in federal court whereas a motion to quash is used to claim a lack of personal jurisdiction insuffient process or service of process. A general Demurrer is used to claim a failure to state a claim for which relief can be granted and a special demurrer for other technical reasons.

Scope of Discovery

Discovery shall include all information relevant to the party’s case that is not privileged. This discovery must be proportional to the needs of the case , cost of compiling the discovery cannot greatly exceed that of the origial claim. In CA a party may obtain discovery of all non-privileged information that is relevant to the subjec matter of the case. - Work product, stategies and mental observation which typically are not shared.

Motion to Compel Discovery

A party may move for an order compelling disclosure of discovery. The motion must include a certication that movant has in good gaith conferred or attempted to confer with the person or party failing to make a disclosure or discovery in an effort to obtain it without court action.

Discovery Intitial Disclosure

A party to a case must without waiting a discovery request provide other parties with

1. name, inforrmation of each person that may have discoverable information (witnesses)

2. A copy or a discription of all documents, electronci media or tangible things within the party’s control that can support their claim

3. .computation of damages and

4. any insurance policies that culd potentially satisfy a judgment

Physical or Mental Exams

When a person’s physical or mental conditio is in controversy, a physical or mental exam of the person may be requested. Physical and mental examinations are the only discovery took for which advance court approval is required

1. The court requires a showing of good cause for the examaination.

Disclosure of persons with knowledge

A party has no obligation to include in their intial disclosure information concerning individuals who have discoverable information, but whom the party does not intent to call to testify. This includes expert witnesses that provide a service but their reports will not be admitted and they will not be called to testify

26(f) Conference

This is a meet and confer to plan discovery. This conference whoudl be held as soon as possible and must take place 21 days pror the schduling conference. Intital discovery must be exchanged 14 days after the 26(f) conference unless the court stipulates otherwise

Interrogatories

A interrogatory is a formal written question submitted to opposing counsel. A party may intitally request 25 interrogatories. If more are needed, address this issue at the 26(f) conference. Parties have 30 days to respon to interrogatories

Deposition

A deposition is a formal interview under oath. A party is intitaly limited to 10 depositions, but the parties may stipulate a different number. Depositions are nomally limisted to one day and at the most seven hours in duration

Expert Witness Disclosure

Parties at a trial are required to present Expert Witness list to oppoing counsel. Additionally parties must include a report stating the expert’s opinions, facts they considered, exhibits, and the expert’s quailifications at least 90 days before trial or 30 days if in rebuttle of opposing experts, unless stipulated otherwise.

Work Product Doctrine

Material a lawyer prepares for litigation is immune from discovery unless the opposition shows a subtantial need and inabilty to gather the material without undue hardship. Absolute privilege applies to mental impressions, legal stategies, notes or opinions. Quaified privilege applies to other materials that can be discovrabl;e upon showing of substantial need and an inability to acqure the materials elsewhere

Res Judicata

CLAIM PRECLUSION

1. Prohibes parties from re-litigating claims.

2. Requires that the litigants be IDENTICAL (or in privity did the original litigant pass away)

3. A final judgment on the merus of the original case ‘

4. and it must be the same claim based on some transaction or occurance as that previously litigated.

CA all appeals mut be exhausted. A dismissal wtih prejudice equals a final judgment on the merits. If the plaintiff wins, then the new claim in merged, if the defendant wins then the case is barred.

1 Three requirements (same parties, final judgment, same transaction or occurance.

Collateral Estoppel

ISSUE PRECLUSION. Prohibits parties from re-litigation claims. a specific issue.

1. Final judgment on the merits of

2. the issue is identical to the issue previously decided

3. The issue was actually litigated

4. and essential to the case prior case

5. opposing party had an opportunity to litigaate the issue in the orginal case. If one state intitally issues a judgment, that forum stat’s laws determine if it can be used non mutually in another state

Res Judicata/Collateral Estoppel Example

Res Judicata: Two guys A and B on a bus, bus crashes into a median while the driver is checking facebook on this phone. Guy A sues and wins his case and it is determined that the bus company is negligent

1. Guy A can’t later sue the bus company again for more money.

Collateral Estoppel - But Guy B can sue for damages and since the bus company was already found Negligent, Guy B doesn’t need to prove the bus company was negligent, that issue was alreadt determined during Guy A’ trial.

The Erie Doctrine

In federal case court under diversity, the court will apply is OWN federal procedural las but must apply STATE substantive law.

1. The forum state’s law will be used to determine whic state rules will apply.

2. The goal of the Erie docrine is to discourage forum shopping where a plaintiff will fie in a federal court when faced with unfavorable state laws, and to ensure justice is evernly applied.

3. Federal PROCEDURAL ncludes things such as court procedures, federal rules of evidence and civil procedure. deadlines etec.

   1. SUBSTANTIVE LAW law ncluded things that affect legal rights and responsibities such as the elements of the claim the statute of limitations etc, In general aply federal rules if on point and do not violate substatial right. If if does, sue statse law to dwetermine the outcome.

Statute of Limitations

Limits the amount of time plaintff may bring a claim. These statutes encourage resolution of claims with a reasonable time before evidence has been lost or facts have become unclear through the 1.

1.passege of time,

2. Defect of memory

3. death or disapperance of witnesses

Relation Back

An amendment to a pleading overcomes the statue of limitations when the claim arises from the same transaction or occurrence as the origianl claim, the new party received notice of the lawsuit and knew or should have known the action should have been filed against them.

Statue of Limitation

Limites the amount of time a plaintff may bring a claim. These statutes encourage resolutiin of claims with a reasonable time befor evidence has been lost or facts have become unclar through the passage of time, defect of memory, death of disappearance of witness.

Class Action Certification

A class action lawsuit is one where a large number of plaintiff’s file suit. In order to receive class status

1. a judge must determine that the case must be so large that joinder of all parties is impractical.

2. there is common questions of law or fact shared by the class the claim or named representative are typical of the class

3. and representative fairly and adequately protect the interests of the class

CAFA

Allows federal court to preside over class actions cases when the amuont f controversy exceed $5M,

1. the class is at least 100 persons

2. where minimal diversity exits

3. at least one plaintiff and one defendent are diverse

Law of Situs

The law of situs states that the choice of law regarding real property controversies will be decided based on the law of the state where the property is location

Summary Judgment

Should be granted if the pleadings, discovery and affidavit bear no genuine issue of material fact and the movant is entitled to a judgment as a matter of law. Either party can file until 30 days after the close of discovery.

Judge or Jury

Under the 7th amendment, if a case contains both legal and equitable claims arising from a common nucleus or operative facts, 1. then the legal claim should be tried by the jury first.

2. equitable claims would be tried by the court afterward. This works in the Opposite ay in CA

Judgment as a Matter of Law

Can be motioned for if a party has been fully heard and no reasonabe jury could find in their favor. The movant must make this mortion PRIOR to sending the case to the jury.

• If they make the motion and the verdict is against them they can move for a revewed JMOL

Direct Verdict

This is a JMOL in California CCP 630

Renewed Motion for Judgment as Matter of Law

A renewed motion for JMOL may be filed no later than 28 days (IN CA 15 daya) after entry of the judgment and is limited to those issues rasised n the JMOL. If the party did not file a motion prior to assignment of the case to the jury, they have not preserved the right to file a renewed JMOL

Insufficieny of Evidence

In situations where a party fails to raise the issue of insufficiency of evidence in a Motion for JMOL or RJMOL or a new trial, you have failed to preserve and can’t raise the issue on appeal.

Judical Order for New Trial

A judge can order a new trial for any reason that a party could motion for one. (This is in regard to the common MBE scenario where a judge overhears jurors mention they caon’t understand the jury instruction, in this case the judge may order a new trial sua sponte -on their own accord.Joinder if C

Joinder of claims

A plaintiff can join any number or trypes of claims against a defendnt. These can include state sthe federal claims and they are no required to be related. However, all claims mus be betwed the same litigants and one of the cases must meet the requirments under SMJ

Joinder of Parties (COMPULSORY JOINDER)

A plantiff must join ALL interesed parties or face dismissal of the lawsuit. The court must ask:

1. should the absentee be joined

2. can the absentee be joined

3. if plaintiff or be joined as a defendant whenever

4. some claim is made by each plaintiff and against each defendant relating to or arising out of the same series of occurrences or transaction

5. there is a question of fact of law common to all parties

6. simply being jointly or serverally liable does not deem a party a necessary party.

Jury Misccellaneous

If an acton is not one where a jury might be demanded, a court can’s grant a jury without both parties consent. The court may try any jury issue with an adversory jury. If both parties content, the court may allow a jury trial or non jury trial issue and the effect is binding

1791 Rule

IF a party would have been entiitied to jury in 1791 before common law/equity split than that party is enttield to a jury trial today.

Right to Jury in Civil Case

The right to a jury trial in civil cases is only guarenteed in federal courts for legal issues, but not equitable issues. State law determins jury rights in state court.

Motion to Dismiss

A court may dismiss a civil claim withuot legal merit by determing if sufficient facts are plead to sustain a prima facie case for the alleged cause of action.

If not, the court will not evaluate the merits of the ase. If the motion is based on insuffient process, proper preocdure would be a filea motion to dismiss not with an answer stating affirmative defene per FCP 12(b)

Jury Misconduct

testimony that a juror used extraneus,. prejudicial information for improper outside influence is grounds for a new trial.

Misunderstanding of the standard of proof , mental state and relying on evidence that was directed to be disregarded are not grounds for a new trial.

Final Judgment Exceptions

A claim or issue may be immediately appealable (INTERLOCUTORY) if it is too important to wait until a final judgment.

These cases require that the lower court must have conclusively * determined the dispute in question, the issue must be separate from and collateral to the merits of the case, and the issue must be effectively unreviewable on appeal from the final judgment. (Extreme cases only immunity, double jeopardy or some right that would negate the need for standing trial)

Appeals

Must be filed within 30 days untill the party is the US Government or an agent thereof, then the appeal must be filed withint 60 days. IN CA ALSO 60 DAYS .

However if applied to a timel RJMOL for a new trial, or to set aside or amend the judgment of the day, the running of the 30 days is terminated. Upon ruling of the post trial motions a new 30 days will commence.

Issue Eligable for Review on Appeal

Requires the losing party to preserve the issue during the trial.

Typically be making and objection, then raise the issue on appeal. If the issue is of fact the appellate court will give great deference to the trial court’s handling as well as the jury determinsation . The appellate court will not reverse if they find the error was HARMLESS

Harmless Error

An error that does not affect substantial rights of the parties.

Default Entry

If a party has made a appearance yet later defaults, they must be given a 7 day notice of the default entry hearing. If they never appeaered, they are not afforded a 7 day notice and dproceed straight to default. If party files a motin for lack of personal jurisction still an appearance and a 7 dau notice is required.

Default Amount in Controversy MBE Jeopardy Quesion

A party sues for $80K and the oppossing party fails to appear at trial

1. If during the trail the plaintiff can show $200K in damages and the opposing party didn’t appear the plaintiff will get ther $200K in degault judgment

2. despite intially suing for only $80K

3. Additionally sue for $90K and get awarded $1,997 AS LONG AS THE $90k WAS PLEADED IN GOOD FAITH, IT STATIFIES A/C REQUIREMENT.

Amended a Complaint

A pleading must be amended once within 21 days of servicing

1. 21 days after being served a responsible pleading or pleading or after seeking leave of the courtor writtend consent of the adverse party.l

If the party moves to dismiss a claim twice without leave of the court, it acts as a adjudication of merits

dismissed with prejudice.

For statatue of limintations purposes and amendment to a pleading that arises from the same transaction or occurance set forth in the original pleading is generally deemded filed on the date the original pleading was filed.

Additur and Remittiur

In cases where jury awards are deemed insuffient, a court may invoke additur (providing the losing party the option of adding to their judgment or face a new trial)

or when excessive REMITTUR (offering the winning party the option of lowing their award or face a new trial.

Federal courts do not permit additur by may invoke remittur.

Remittitur Example

A man spills scalding hot coffee on his lap after existing a fast food drive thru and the jury awards him $3 trillion. The court can invoke remittitur, requiring the man to accept $20K .

here the court detemines the jury award is simply too much and offers the man what the court considers reasonable damages. If the man still thinks this is insuffiicent he can try his luck at a new trial,

Clearly Erronesous

Applies to bad fact finding

De Novo

If the error is due to pure matter of law, ther appellae court may order judgment in the place of original verdict. Mixed questions of law and facts are typically de novoAbuse of Dis

Abuse of Discretion

When the court makes a bad decison that is plainly wrong or without an appropriate bases.

Sanctions

The court has discretion to impose sanctions sufficient to deter repetition of conduct. The court will not file the litigating party becaue of the lawyer’s misconduct nor will they dismiss a case with prejudice. Sanction can include monetary penalites orin extreme cases retaking the MPRE, bar exam

Rule 11 Sanctions

Every pleading written motion or other paper filed with the court must be signed by the attorney of record, certifying that the best of the attorneys knowledge inforamation and belief after a reasonable inquiry.

1. the document is not being submitted for an improper purpose

2. the legal contentions are warranted by existing law

3. factual contentions and denial have evidentiary support A court may order sanctions on its own initiative.

4. if an opposing party motions for sanctions for sanctions they must give notice to their intention to do to the opposing counsel and allow them 21 days to withdraw or correct the matter before the opposing party may file the motion. Sanctions may be for monetary penalities or more frequently non monetary directives.

Writ of Mandamus

An order directing a judge to act/enjoin form action when its been determined that an appeal would be insufficient to correct the problem at hand,

and that the court’s action constitue a serious abuse of power in need of immediate rectifcation.

Finding and Conclusion

This is a formal report that is required to be provided by a cuort when there is no jury and the cases is trial soley on facts and there is no need to assess the credibilty of the witness

COMMUNITY PROPERTY

REVIEW