My Bar Prep Sets - Civil Procedure

Subject Matter Jurisdiction - General Definitions

Subject Matter Jurisdiction is required for federal courts to hear a case, having to do with the subject matter of the case. This is never waiveable.

Federal Subject Matter - Types

Federal Question, Diversity of Citizenship, and Supplemental.

California Subject Matter Jurisdiction - Types

Unlimited, Limited, and Small Claims

California Subject Matter Jurisdiction - Unlimited

Amount in Controversy over $35k

California Subject Matter Jurisdiction - Limited

Amount in Controversy under $35k

California Subject Matter Jurisdiction - Small Claims

Limited Civi Action under $12,500 (natural person) or $6,250 (other parties)

Federal Question Jurisdiction

Actions Arising Under Federal Law

Well-Pleaded Complaint Rule

A claim’s federal question jurisdiction must come for the actual claim itself, not from a defense.

Diversity of Citizenship Jurisdiction

There must be complete diversity of citizenship, and the amount in controversy must be over $75k.

Complete Diversity

All plaintiffs must have citizenship different to all defendants, at time the suit is filed.

Citizenship - Natural Person

Where they are domiciled

Domiciled

Physically present in state, with an intent to remain indefinitely

Citizenship - Corporation

State of Incorporation and Principal Place of Business

Citizenship - Incorporated incorporation

State(s) where each member is domiciled

Citizenship - Legal Representative

State where third party resides (minor, decedent, incapacitated)

Amount in Controversy

The AIC is assumed to be over $75k unless the moving party can show there is a legal certainty that plaintiff will not receive that amount

Amount in Controversy - Aggregation of Claims

Permitted if there is 1 P and 1 D, 1 P against multiple jointly liable Ds, or multiple plaintiffs against 1 D if there is a common and undivided interest

Supplemental Jurisdiction

Federal Courts may hear additional claims as long as they arise from the same case or controversy/common nucleus of operative fact, but do not have to.

Supplemental Jurisdiction - Exception

For Diversity Jurisdiction claims, the supplemental claim must not destroy complete diversity, and cannot be made against joined/intervening/impleaded parties, or by plaintiffs seeking compulsory joinder or intervention

Removal Jurisdiction

Allows for a defendant to “remove” a claim to federal court so long as it could have been brought there originally (SMJ) AND all defendants consent

Removal Jurisdiction - Diversity Exception

An action may not be removed to federal court based on diversity if any of the defendants are citizens of the forum state

Removal - Timing

A motion for removal must be made within 30 days of receiving/being served the initial pleading, not the exceed more than 1 year if based off diversity jurisdiction

Remand

A plaintiff may make a motion to “remand” an action to state court if the original removal was improper.

Remand - Timing

A motion for removal must be made within 30 days of receiving/being served the initial pleading; however, if due to lack of SMJ, then there is no time limit imposed.

Personal Jurisdiction

Personal Jurisdiction allows for the court to have authority over a particular party or piece of property

Personal Jurisdiction - Types (In Personam)

Traditional Bases and Modern Basis

Personal Jurisdiction - In-Personam - Traditional Bases

Consent/Waiver, Domicile, Voluntarily Present

Personal Jurisdiction - Traditional Bases (Voluntary Presence)

Defendant who is voluntarily present in forum state while served with process EXCEPT if cooerced into being there or brought to state to answer summons (NO protection in California for this one.)

Personal Jurisdiction - Traditional Bases (Consent/Waiver)

A defendant consent to PJ if he does so expressly by contract, impliedly through conduct such as failing to object at appropriate time, or by voluntarily appearing in court unless there to object. CA allows for a special appearance to challenge jurisdiction.

Personal Jurisdiction - Traditional Bases (Domicile)

Domicile is the state where the defendant resides with an intent to indefinitely remain.

Personal Jurisdiction - In-Personam - Modern Basis

Long-Arm Statute + Minimum Contacts + Notions of Fair Play and Substantial Justice

Personal Jurisdiction - Modern Basis - Long Arm Statute

State Statute that gives courts PJ over out of state defendants.

Personal Jurisdiction - Long Arm Statute (Types)

Specific Acts (defendant does a specific act, or a statute specifically calls out a certain activity) and Due Process (extent permissible under the Due Process Clause)

Personal Jurisdiction - Long Arm Statute (California’s)

Allows a state court to exercise jurisdiction on any basis that is in accord with the California or U.S. constitution.

Personal Jurisdiction - Modern Basis - Due Process Requirements

Met when in personam jurisdiction exists, or if there are minimum contacts not offending FP and SJ, and defendant has received notice and an opportuntiy to be heard.

Personal Jurisdiction - Modern Basis - Minimum Contracts

Purposeful availment of the benefits and protections of the forum state, such that it is reasonable to anticipate he would be haled into court.

Personal Jurisdiction - Minimum Contracts (Types)

Specific Jurisdiction and General Jurisdiction

Personal Jurisdiction - Minimum Contracts (Specific Jurisdiction)

Cause of action that arises out of/closely relates to a defendant’s contact with the forum state, even if that is the only contact

Personal Jurisdiction - Minimum Contracts (General Jurisdiction)

Even if the cause has no relationship with the defendant’s contact with the forum state, that the party has continuous, substantial and systematic that they are domiciled or “essentially” at home.

Personal Jurisdiction - Modern Basis - Fair Play and Substantial Justice

Must be fair and reasonable to exercise, considering the factors.

Personal Jurisdiction - Fair Play and Substantial Justice - Factors

Burden on D, Interest of Forum State, Plaintiff’s Interest in Obtaining Relief, Interest of Judicial System, and Shared Policy Interests of States.

Personal Jurisdiction - In Rem Jurisdiction

Court has authority to determine issues regarding property, so long as due process is satisfied, and the property is present within forum state.

Personal Jurisdiction - Quasi In Rem Jurisdiction

Determines parties’ interests regarding a property in the state. Defendant who owns property must have minimum contracts with forum state.

Personal Jurisdiction - Due Process Requirement - Notice

Notice must be reasonably calculated under the circumstances ro provide actual notice of the pending action.

Personal Jurisdiction - Due Process Requirement - Opportunity to be Heard

Anytime there is a state-sponsored interference with a property interest, a defendant must be given an opportunity to be heard.

Venue

Determines which court location is the appropriate place to hear the case

Federal Venue Requirements

Either in any district where a defendant lives if all live in the same state, OR where a substantial part of the transaction, event, or omissions occurred/where the property is located. If neither can establish a proper venue, then any judicial district where a defendant would be subject to PJ as if they were a state.

Federal Venue Requirements - Residency for Venue Purposes - Business Entity

Plaintiff corporations reside in the federal district where their principal place of business is, while defendant corporations are deemed to reside in all districts where they are subject to personal jurisdiction.

California Venue - General Rules

Venue = County. If the claim arose elsewhere, then venue is proper in any county where a defendant resides; if none reside in California, then any county will be appropriate.

California Venue - Specific Rules

Contract Actions = Where it was executed or performed

Personal Injury/Wrongful Death = Where injury occurred

Mixed Action = Where any defendant resides

Against Corps/Associations/Partnerships = Wherever K executed/performed, or obligation/liability arose, or breach occurred, or the principal place of business.

Federal Venue - Change of Venue

A case may be transferred to any venue where it might have originally been brought or where all parties consent to it being brought. Depends on whether the original venue is proper.

Federal Venue - Change of Venue - Proper Venue (Definition)

Venue is proper where the court has SMJ, PJ, and valid service of process, while balancing the interests of justice.

Federal Venue - Change of Venue - Proper Venue (Interests of Justice)

Public Factors = Admin dificulties, interest in having cases decided locally, familiarity with the forum law, and avoidance of conflict of laws.

Private Factors = Access to evidence, ability to compel attendance of witnesses, and cost of attendance for witnesses.

Federal Venue - Change of Venue - Improper Venue

A case may transfer to any district or division where it could have been originally brought, but objection to it MUST be timely.

Federal Venue - Change of Venue (Choice of Law)

For diversity cases, transferee court shall apply substantive law that transferring court would have applied UNLESS venue is improper, which then the law of the receiving court will be used. For federal question, transferees use the law that they would have applied had the case been filed there originally.

California Venue - Change of Venue

Venue can be transferred when the court designated is incorrect. Venue may be transferred even when improper, court may transfer venue if: a fair trial cannot be held in original, the convenience of the witnesses and ends of justice so require, or there is no judge qualifed to act.

Forum Non Conveniens

Allows a federal court to dismiss an action if the court finds that the forum is too inconvenient for the parties and witnesses, and another more convenient venue in a state/foreign court is available.

CA can stay/dismiss action if interest of substantial justice finds that the actions should be heard in different state or country.

Choice of Law/Erie Doctrine

Determining in a federal court whether state or federal law controls a matter.

Choice of Law/Erie Doctrine - Federal Question Jurisdiction

A federal court shall apply federal substantive law and federal procedural law.

Choice of Law/Erie Doctrine - Diversity Jurisdiction

A federal court shall apply state substantive law and federal procedural law.

Choice of Law/Erie Doctrine - Test for Determining Substance or Procedure

If it is unclear whether the issue is substantive or procedural, one must first see if there is federal law that directly applies to the issue. If there is, then the federal law must be arguably procedural and does not modify a substantive right. If there is not, then Erie test applies.

Choice of Law/Erie Doctrine - Erie Doctrine

In order for state law to be applied, it must be outcome determinative, and there is no countervailing federal policy interest

California Conflict of Law

For real property dispute = California law unless title held by US

Tort Claim = Government interest approach when a conflict exists (looking at each state’s law and the impairment of applying the other states law on that.)

Contract Claims = Apply choice of law provision so long as it is enforceable and does not conflict with public policy.

Pleadings - Service of Process

Process = summons and copy of complaint

Must be served within 90 days of complaint being filed.

Pleadings - Service of Process - Federal Methods of Service (Individuals)

Serving individual personally, leaving process at the individual’s usual place of abode with a person of suitable age, delivering it to an appointed agent, or following the rules in the forum state.

Pleadings - Service of Process - California Methods of Service (Individuals)

Same at the federal, but requires after usual place of abode service, they must mail the defendant the summons and complaint.

By publication is allowed if service can’t be done by reasonable dilligence.

Service by first class mail/return receipt is permissible for out of state defendants where there is personal jurisdiction.

Notice of Process - Waiver

Party may request a waiver of service of process from opposing party, giving the party 30 days to respond. If they do, the time to serve an initial answer is 60 days after waiver was sent (FOR FED ONLY!)

Pretrial Proceeding - Pleadings

A pleading is a document that sets forth the claims and defenses to a case, and to communicate with the opposing party.

Federal = Noice Pleading (must provide opposing party with reasonable notice of the nature and scope of claims being asserted and facts showing a plausible claim BUT specific things like fraud or mistake must be specficially plead

California = Fact pleading (Must plead ultimate facts to support each element of the cause of action.)

Pleadings - Requirements (Rule 11)

Attorneys or party must sign all pleadings that they were made in good faith, warranted by law, and factual contentions have evidentiary backing.

Pleadings - Sanctions

For violating Rule 11, sanctions may be imposed by court, or by party BUT must serve the motion on opposing party and give them 21 days to respond or amend before filing with court.

Pleadings - Complaint

Used by plaintiff to raise issue.

Requirements

1. Identification of Parties (CA = May name Doe)

2. Statement of SMJ

3. Statement of Claim

4. Demand for relief/judgement

5. Signature of plaintiff or attorney

Pleadings - Response

Defendants response either via answer or pre-answer motion. Must respond within 21 days (or 60 if SOP waived), or 30 if in CA.

Pleadings - Response (Pre-answer Motion)

Types

1. Motion for More Definite Statement

2. Motion to Strike

3. Federal Rule 12(b) Motion to Dismiss

Pre-Answer Motion - Federal 12(b) Motions

1. Lack of Subject Matter Jurisdiction - Anytime

2. Lack of Personal Jurisdiction - In Answer or Pretrial Motion

3. Improper Venue - In Answer or Pretrial Motion

4. Insufficient Process - In Answer or Pretrial Motion

5. Insufficient Service of Process - In Answer or Pretrial Motion

6. Failure to State - Anytime until trial concluded

7. Failure to Join an Indispensable Party - Anytime until trial concluded

Pre-Answer Motion - California

Special Demurrer and General Demurrer

General Demurrer (All cases)

1. Lacks sufficient facts to constitute a cause of action

2. Lack of SMJ

Special Demurrer (Unlimited only)

1. Uncertain/ambigious pleading

2. Unclear which legal theories

3. Lack of legal capacity

4. Existence of another cause for same cause of action

5. Defect/misjoinder

Must meet and confer to try to resolve these issues before pleading filed.

Pleadings - Answer

Response to complaint, filed within 21 days or 30 in CA.

Must respond to all allegations AND must assert any affirmative defenses and compulsory counterclaims

Pleadings - Amendment

Parties have a right to amend once within 21 days of service, or within 21 days after service of response pleading. In CA, right to amend once before responsive pleading to complaint is filed, or after demurrer but before hearing. After that, leave of court required, or agreement between parties.

Amendment - Relation-Back Doctrine

Applies when the statute of limitations has run and a party wants to amend the pleading.

Relation-Back Doctrine - New Claim (Federal)

In order for new claim to relate back, it must concern the same conduct, transaction or occurrence as the original pleading.

Relation-Back Doctrine - New Claim (California)

In order for new claim to relate back, it must concern same general facts, same injury, and same offending instrumentality

Relation-Back Doctrine - New Party (Federal)

In order for the amendment relate backs to the originally pleading if the amendment arises out of the same transaction or occurrence, and that the new party know of the original action within 90 days of the filling, would not be prejudiced in maintaining a defense, and they knew or should have known about the action but for the mistake in identity.

Relation-Back Doctrine - New Party (California)

May sue a defendant using “Doe” and will be permitted to change the designation so long as the originaly complaint was timely filed and included allegations against the Doe, the plaintiff was genuinely ignorant of the defendant’s identity/facts giving rise to the cause of action/the allows a cause of action, and the ignorance is plead with specificity. Must do so within three years

Joinder of Parties and Claims - Joinder of Parties (Types)

Permissive Joinder, Required Joinder, Impleader, Intervention, and Interpleader

Joinder of Parties - Permissive Joinder

Plaintiff or Defendant may be joined to a cause of action if their claim arise from the same transaction or occurrence, and there is one common question of law or fact.

Must have independent subject matter jurisdiction if asserting for defendant, but plaintiffs may be added via supplemental jurisdiction.

Joinder of Parties - Compulsory Joinder (Necessary Party)

A necessary party must be joined if the court can’t grant complete relief to the existing parties, the absent party’s interest will be harmed if not joined, or the existing parties may be subject to multiple or inconsistent obligations.

Joinder of Parties - Compulsory Joinder (Feasibility of Joinder)

A necessary party may be joined if the court has personal jurisdiction, and joining them would not destroy diversity.

Joinder of Parties - Compulsory Joinder (Unable to join)

If a necessary party can’t be joined, then a court will determine if they are indispensable. If they are, the court may dismiss or proceed.

A court, in determining whether a party is indispensable, weighs the factors:

1. Extent to which judgement in party’s absence would prejudice parties

2. Extent to which prejudice could be reduced

3. Whether adequate judgement could be rendered

4. Whether plaintiff will have adequate remedy

Joinder of Parties - Intervention

Occurs when a non-party claims an interest in the property/transaction that the subject of the pending law suit. Either mandatory or permissive.

Intervention - Mandatory/Of Right

Intervention must be permitted if the unconditional right to intervene by federal statute, or claims interest that is subject matter of lawsuit, the disposition of which without third party would impair ability to protect interest , and the existing parties do not adequately represent the non-party’s interest

Intervention - Permissive Intervention (Federal)

A nonparty may intervene on an ongoing action if the nonparty has a claim or defense that shares a common question of law or fact with the original claim, or there is a conditional right under federal statute.

Intervention - Permissive Intervention (California)

Allowed if the intervener’s interest is direct and immediate.

Joinder of Parties - Interpleader

Action where a party holding a property (the stakeholder) forces all potential claimants to a property interest(s) into a single lawsuit. Two types: statutory and Rule 22.

Interpleader - Rule 22

Requires that stakeholder is diverse from every claimant and the AIC exceeds $75k

Interpleader - Statutory

Requires only one claimant is diverse from another claimant, AIC is $500 or more, and a bond is deposited with court. Nationwide SOP and venue proper in any district where a claimant resides.

Joinder of Parties - Impleader/Cross-Complaint

Allows a defending party to add a third-party defendant to seek contribution, indemnity, or suborgation for all or part of the plaintiff’s claims.

Joinder of Claims - Types

Counterclaims, Cross Claims, Cross Complaint (CA)

Joinder of Claims - Counterclaim

Offensive claim made against an opposing party. Two types: compulsory and permissive.

Counterclaim - Permissive Counterclaim

Claims that do not arise out of the same transactions or occurrence. No supplemental jurisdiction, need independent source. However, Plaintiff may aggregate all claims they have against a defendant in reaching the AIC.

Counterclaim - Compulsory Counterclaim

Claims that arise out of the same transaction or occurrence as the original claim, and does not require adding another party that court does not have jurisdiction over. Must be raised or will be deemed waived. No need for independent SMJ.

Joinder of Claims - Crossclaims

May state claims against one party by other party if they relate to the same transaction or occurrence, or relate to the property that is subject to the original action. Called cross complaint in California.