Civil Procedure

Front 1

PJ: Statutory

Back 1

Physical presence at time of serivce
Domicile
Consent
Long-Arm Statute

Front 2

PJ: C Limitations

Back 2

Sufficient contacts with forum + Notice:

1. Minimum contacts (purposeful availment and foreseeability)

2. Relatedness of claim to contact

3. Fairness (TNFPSJ) (Balance: convenience of parties, legit interest in providing redress, P's interest in convenient/effective relief)

Front 3

In rem J

Back 3

Presence of property in state

(No in rem power over property brought into state by fraud/force)

Interested persons notified by ordinary mail

Front 4

Quasi in rem J

Back 4

Power over rights of particular individuals wrt specific property (minimum contacts required)

Dispute over property rights of property in state --> min contacts established

Disputes unrelated to property --> insufficient

Front 5

CA conflict of interest laws

Back 5

Tort --> govt'l interest (comparative impairment)

Contracts --> Choice of law clauses (does chosen state have substantial relationship to parties/transaction or other reasonable basis?)

Front 6

Multiparty, Multiforum Trial Jurisdiction Act

Back 6

1. Accidents where at least 75 people have died from a single accident at discrete location
2. Minimal diveristy required: one P must be of diverse citizenship from one D
3. One of these must also be met:
a. D resides in diff state from where substantial part of accident occurred;
b. Any two Ds must reside in different states; or
c. Substantial parts of accident must have taken place in different states

Front 7

CA Limited civil cases

Back 7

Amt-in-controversy $25K or less and restrictions placed on SMJ over equitable claims, declaratory relief actions and requests for ancillary relief

Front 8

CA Unlimited civil cases

Back 8

Amt-in-controversy exceeds $25K and full range of pleadings, motions, discovery and equitable and declaratiory relief is available.

Front 9

CA Small Claims

Back 9

Civil cases where amt-in-controversy $10K or less if brought by an individual ($5K or less for actions by other litigants)

Front 10

CA Reclassification of claims

Back 10

i. Party motion; notice and hearing required

ii. Unlimited to limited → Recovery over $25K must be “virtually unobtainable”.

iii. Limited to unlimited → Recovery over $25K a “possibility”

Front 11

Proper venue in civil actions (fed)

Back 11

i. District where any D resides, if all Ds reside in same state;
ii. District where substantial part of events or omissions giving rise to claim occurred, or substantial part of property subject to the action is situated; or
iii. If no district in the U.S. that satisfies (i) or (ii), district in which any D is subject to PJ

Front 12

Venue Transfer (feds)

Back 12

i. Convenience of the parties (even if venue proper)
ii. Transfer ato any ct where it could have originally been filed
iii. Consent
iv. “In the interests of justice”
v. If original venue proper, law of state in which transferor ct sits; if improper, transferee (even where P seeks transfer)

Front 13

Proper venue in civil actions (CA)

Back 13

b. Local actions → county where land, or some part of it, located
c. Transitory actions → county in which any D resides at commencement of action
i. If no D resides in CA, venue proper in any county
ii. Contractual actions → where obligation to be performed or contract entered
iii. Personal injury/wrongful death → county where injury occurred
iv. Multiple claims → main relief sought

Front 14

Venue Transfer (CA)

Back 14

i. Impartial trial compromised
ii. Convenience of witnesses and promotes ends of justice
iii. No judge qualified to act

Front 15

Removal Jurisdiction

Back 15

a. Original J required (J doesn’t have to have been proper in state ct)
b. Only Ds may remove
i. May not be citizens of state where filed
ii. All Ds must joinKM:
c. Ds may remove fed q claim (whole claim and fed ct kicks back state claims)
d. One year limit unless bad faith

Front 16

Abstention

Back 16

i. Fed cts can hear cases pending in state ct unless abstention applies:
1. State law unclear and could be interpreted to avoid fed C question; or
2. Administrative regulatory plan that would be disturbed by fed ct taking case.
ii. Usually stayed, not dismissed
iii. Fed intervention → P demonstrates:
1. Great and irreparable injury;
2. Bad faith in prosecution of state action; or
3. Harassment or other unusual circumstances

Front 17

TRO (feds)

Back 17

1. Notice & hr’g but can be imposed w/o notice for 14 days (max) if:
a. Affidavit/verified complaint with specific fact about injury;
b. Certification re: efforts to notify and why waiver appropriate; and
c. Security to pay for damages if later finding wrongfully restrained.
d. [Notice req’d before adverse party can be bound]

Front 18

TRO (CA)

Back 18

No time limit; automatically expires when prelim granted/denied
a. If no notice, hr’g on application for prelim set within 15 days of TRO (or 22 days with good cause)
b. No bond/undertaking required
c. Undertaking required for prelim

Front 19

Federal Defenses

Back 19

a. Lack of SMJ
b. Lack of PJ
c. Improper venue
d. Insufficiency of process
e. Insufficient service of process
f. Failure to state a claim
g. Failure to join a party
h. [b-e must be raised or waived; a → any time; g-h → at or before trial)

Front 20

CA Defenses

Back 20

General demurrer
Special demurrer
Motion to quash service of summons
Anti-SLAPP Motion to Strike

Front 21

General demurrer

Back 21

(Unlimited cases only)

Pleading fails to state facts sufficient to constitute COA or court lacks SMJ

Front 22

Special demurrer

Back 22

(Unlimited cases only)

i. Lack of legal capacity;
ii. Existence of another pending action;
iii. Defect/misjoinder of parties;
iv. Uncertain pleading (similar to mot for more definitive stmt);
1. Fed/state → filed before answer
v. Failure to plead whether K oral or written; and
vi. Failure to file certain required certificates

Front 23

Motion to strike (CA)

Back 23

Before answer, may move to strike insufficient defense or redundant, immaterial or scandalous matter

Front 24

Anti-SLAPP

Back 24

Strategic lawsuit against public participation

D must make threshold showing that COA arises from 1A protected activity, then P must show probability of prevailing on merits

If D prevails, can bring anti-SLAPP motion

Front 25

Answer (feds)

Back 25

Admission/denial for each averment or general denial w/ specific admissions & affirmative defenses
a. Failure to deny → admission
b. Insufficient knowledge/info → denial

Front 26

Answer (CA)

Back 26

General denial or specific denials (allow denials on basis of info/belief or lack thereof); if P files verified complaint, D responds with verified answer w/ specific denials

Front 27

Answer Timing (feds)

Back 27

Timing → within 21 days after service (60 days if service waived)
i. If Rule 12 motion, 14 days after ruling
ii. If more definite statement, answer due 14 days after stm

Front 28

Answer Timing (CA)

Back 28

30 days after service

If demurrer/motion to strike and overruled, 10 days to answer from service of notice of ruling

Front 29

Failure to Answer

Back 29

default judgment; cannot proceed until set aside (CA requires notice that default may be entered mailed to party)

Front 30

Default judgment (feds)

Back 30

1. Claim is for sum certain;
2. Default resulted from failure to appear; and
3. D not infant/incompetent

Everyone must be notified

If D appeared, must be notified of request for default by 1st class mail at least 3 days before hearing on application for default

Front 31

Default judgment (CA)

Back 31

1. Action arises from K or judgmentl
2. Action is for sum certain; and
3. D not served by publication
4. [Defaulted D not entitled to notice of hearing and has no right to appear or present evidence]

Front 32

Amendments/supplemental pleadings (feds)

Back 32

21 days after service or response/pre-answer motion

Front 33

Amendments/supplemental pleadings (CA)

Back 33

one amendment before answer/demurrer filed (or after demurrer but before hearing)

Front 34

Amendment to add party/COA

Back 34

i. Relation back if new COA added if based on same general set of facts; some cts also require: COA to involve same accident & injuries and same offending instrumentality
ii. New D can usually be added if SOL has not yet run

Front 35

Amendment to add new party if SOL has run (fed)

Back 35

Mistaken identity
a. Same conduct, transaction or occurrence and, within 120 days after filing complaint, new D:
i. Has notice such that no prejudice in maintaining defense on merits;
ii. Knew/should have known that but for a mistake in identity, action would have been brought against him/her

Front 36

Amendment to add new party if SOL has run (CA)

Back 36

Doe”
a. Original complaint timely filed and contains charging allegations against all Ds;
b. P must be genuinely ignorant of identity, facts giving rise to COA against D or fact that law provides COA; and
c. P’s ignorance must be pleaded in complaint
d. [If satisfied, 3 years to discover identity]

Under equitable estoppel theory, P will sometimes be permitted to correct mistake in naming a closely related entity for true D

Front 37

Certification (fed)

Back 37

a. No improper purpose
b. Legal contentions warranted
c. Allegations likely to have evidentiary support
d. Denials of factual contentions are warranted

Front 38

Sanctions (fed)

Back 38

a. Ct may sua sponte issue show cause order for Rule 11 sanctions
b. Opposing party may serve motion for sanctions on proponent and, if not withdrawn/corrected within 21 days, may file motion for sanctions (incl. atty fees)

Front 39

Sanctions (CA)

Back 39

a. Ct assesses whether party seeking sanctions exercised due diligence
b. 21 day safe-harbor provision (sua sponte and party motion)
c. Motion for sanctions brought for improper purpose is subject to motion for sanctions

Front 40

Compulsory Joinder Factors

Back 40

1. Should absentee be joined?
2. Can absentee be joined?
3. If not, should action proceed?

Front 41

1. Should absentee be joined?

Back 41

i. Compete relief cannot be accorded in absence; or
ii. absentee has such an interest in the subject matter than decision would impair/impede his ability to protect the interest or leave other parties subject to substantial risk of incurring multiple/inconsistent obligations

Front 42

2. Can absentee be joined?

Back 42

i. PJ & no destruction of diversity → must be joined
ii. If no PJ or destruction of SMJ/venue, ask if action should proceed

Front 43

3. If not, should action proceed?

Back 43

i. Extent of prejudice to absentee/parties;
ii. Extent prejudce can be reduced/avoided (shaping relief);
iii. Adequacy of judgent rendered without absent party;
iv. Whether party will have adequate remedy to determine if case is dismissed for nonjoinder

Front 44

Permissive Joinder of parties

Back 44

a. Claim by each P/against each D arises out of same ToO; and
b. Question of fact/law common to all parties (J must be met)

Front 45

Joinder of claims

Back 45

Multiple Ps or Ds → at least one claim must arise out of transaction in which all were involved (CA → common question of law/fact)

Front 46

Class Action Requirements

Back 46

i. Class so numerous that joinder of all members impracticable;
ii. Common questions of law/fact;
iii. Named parties’ interests typical of class
iv. Named parties will adequately represent interests of absent members; and (one of):
1. Separate actions would create risk of inconsistent results/impair interests of unnamed parties;
2. D has acted/refused to act on grounds applicable to class and injunctive/declaratory relief appropriate; or
3. Common questions of law/fact predominate over individual issues and class action superior to other methods

Front 47

Class Certification

Back 47

i. Interests of individual control;
ii. Extent and nature of litigation elsewhere on same subject;
iii. Desirability of joint trial; and
iv. Difficulties in managing class action
v. [Ct must define class and claims, issues or defenses & appoint counsel]

Front 48

Notice in class actions

Back 48

Only required in common question suits so members can opt out:

i. Nature of action
ii. Definition of class
iii. Claims, issues or defenses
iv. Binding effect

Front 49

Class Action Fairness Act

Back 49

i. SMJ if:
1. Any class member is diverse from any defendant;
2. Amt in aggregate exceeds $5 mil; and
3. At least 100 members
4. [Any D may remove to fed ct even if D citizen of forum]
ii. No J if primary Ds states/state officials/govt entities or a case that solely involved fed securities laws or internal affairs of a corp based on state law

Front 50

Court must decline SMJ over diversity-based class action if:

Back 50

1. Over 2/3 proposed class citizens of state where filed;
2. A D from whom “significant relief” sought is citizen of state;
3. “Prinicpal injuries” incurred in state where filed; and
4. No similar class has been filed within prior 3 years.

Front 51

Court may decline SMJ over diversity-based class action if:

Back 51

1. More than 1/3 but less than 2/3 of class are citizens where action filed; and
2. Primary Ds citizens of that state.
3. Considerations:
a. National interest
b. Governing law
c. State ‘s distinct nexus with class members, harm, D

Front 52

Requirements for SH derivative suits

Back 52

i. P sharehold at time of transaction (or received shares thereafter by operation of law);
ii. Not collusive effort to give ct J;
iii. P made demand on directors and, if required by state law, on shareholders; or reasons why no demand made (must be pleaded with particularity)

Front 53

Proper Venue in SH derivative suits

Back 53

Venue proper where corporation could have sued defendants (usually state of incorporation)

Front 54

CA Class Actions

Back 54

Question one of common or general interest, of amny persons, or when parties are numerous and it is impracticable to bring them all before the court

Front 55

CA Class Action Certification

Back 55

i. Ascertainable class; and
ii. Well-defined community of interest among class members
1. Common questions of law/fact predominate;
2. Class action device will result in substantial benefits to parties and ct;
3. Class rep will adequately represent class interests

Front 56

Interpleader

Back 56

a. Suit instituted by stakeholder to determine who has valid claim to stake
b. Applies where separate actions might result in double liability
c. Stakeholder need not admit liability

Front 57

Rule 22 interpleader

Back 57

Complete diversity btwn staekholder and all adverse claimants and > $75K; or FQ
i. (Rule 22 → regular rules)

Front 58

Section 1335 interpleader

Back 58

Minimum diversity btwn claimants (one must be diverse from one other) and $500 in issue
i. Service may be nationwide and venue proper where any claimant resides
ii. (Statutory → special, simpler standards)

Front 59

Intervention as a matter of right

Back 59

Applicant claims interest in property/trxn that is subject matter of action and disposition may impair ability to protect interest

Fed → no SJ over claims by/against one seeking to intervene in diversity action

Front 60

Permissive intervention

Back 60

Applicant’s claim/defense and main action have question of fact or law in common; no direct personal/pecuniary interest required (J req’d)

CA → Is interest direct and immediate or indirect and consequential?

Front 61

Third party practice (fed)

Back 61

SJ available bc common nucleus of fact
i. Venue need not be proper for TPD
ii. Defending party may join claims against TPD but need some J basis; ct may sever TP claims

Front 62

Third party practice (CA)

Back 62

COA in permissible cross-complaint adding new party for any purpose must arise out of same ToO as original P’s COA or it must assert claim or interest in subject of P’s action against TPP.

Front 63

Cross-Claims (fed)

Back 63

Usually falls under SJ

Front 64

Cross-Complaints (CA)

Back 64

Cross-complaint against co-D is permissive and requires transactional relationship to original complaint or claim or interest in subject of original complaint

Front 65

Disclosure Duty (fed)

Back 65

Obligation to make reasonable inquiry into facts of case and disclose all info reasonably available

Initial disclosures

Disclosure of expert testimony

Pretrial disclosures

Front 66

Initial Disclosures (fed)

Back 66

i. Names, addresses and phone nos of individuals likely to have discoverable information that disclosing party may use to support claims/defenses (unless solely for impeachment);
ii. Copies or descriptions of docs, electronically stored info and tangible things that are in disclosing party’s possession or control that disclosing party may use to support claims/defenses (unless solely for impeachment)
iii. Computation of damages claimed by disclosing party and copies of materials upon which based; and
iv. Copies of insurance agmts under which insurer might be liable.
1. Exemptions: Not required in some cases (e.g., review admin record, enforce arbitration, pro se litigation by prisoners, actions to quash/enforce subpoenas, habeas corpus)

Front 67

Disclosure of Expert Testimony (feds)

Back 67

At least 90 days before trial; 30 rebut:

i. Identities
ii. Reports (qualifications, opinions, bases)

Front 68

Pretrial Disclosures (feds)

Back 68

At least 30 days before trial; objections 14 days:

i. Witnesses
ii. Documents/exhibits

Front 69

Discovery scope (feds)

Back 69

Substantial need or undue hardship in obtaining elsewhere

Front 70

Discovery scope (CA)

Back 70

Relevant to subject matter and admissible or reasonably calculated to lead to discovery of admissible evid (nonpriv) (broader)

Front 71

Work product protection (fed)

Back 71

Substantial need or undue hardship in obtaining elsewhere

Front 72

Work product protection (CA)

Back 72

Unfairly prejudiced or injustice would result (CA C rt to privacy)

Front 73

Consulting experts discovery (fed)

Back 73

Opinions/facts if impracticable to obtain by other means

Front 74

Consulting experts discovery (CA)

Back 74

No disclosure

Front 75

Duty to supplement discovery

Back 75

Fed → Duty

CA → No duty absent request

Front 76

Judicial Arbitration

Back 76

Fed → Voluntary

CA → Ct may require in unlimited civil cases where amt $50K or less for each P.

Full discovery rights, rules of evidence, procedure apply

Within 30 days, parties may request trial de novo

Front 77

Right to Jury Trial (fed)

Back 77

7A where amt exceeds $20

Written demand and service within 14 days of pleading

Where legal and equitable claims joined, legal claim tried first to jury and then equitable claim to ct

Where damages part of action seeking injunction, D cannot be denied jury on damages

Must permit jury trial in any diversity suit at common law, even if state would deny jury

Front 78

Right to Jury Trial (CA)

Back 78

Actions similar/same as CL cases where jury required when state C adopted in 1850 or trials where “gist” of action legal rather than equitable
a. Ct usually decides equitable issues folowed by jury’s consideration of legal issues
b. Demand when case set for trial or within 5 days after notice of setting and timely deposit of jury fees & expenses
c. Waiver only by written/oral consent, failure to deposit fees or make demand, but ct can relieve

Front 79

General verdict

Back 79

P v. D

Front 80

Special verdict

Back 80

Findings of fact and ct applies law

Front 81

JMOL

Back 81

1. Fed → Evidence is such that reasonable persons could not disagree (light most favorable to non-moving party)
a. Renewed JMOL → no later than 28 days after entry of judgment (only in JMOL made at trial)

Front 82

Nonsuit Motion

Back 82

2. CA → “Nonsuit motion”
a. No requirement that directed verdict motion be made before judgment notwithstanding verdict motion made
b. Timing same as motion for new trial

Front 83

Motion for new trial timing

Back 83

1. Fed → No later than 28 days after entry of judgment
2. CA → 15 days after notice of entry of judgment

No J to consider if untimely

Front 84

Grounds for new trial

Back 84

a. Misconduct on part of judge, adverse party, jury;
b. Newly discovered evid (reasonable diligence not uncovered);
c. Unfair accident or surprise during trial;
d. Excessive/inadequate damages;
e. Insufficient evidence to justify verdict;
i. Fed → must raise as JMOL or waive appeal
f. Verdict against the law; or
g. Error in law during trial

Front 85

Remittitur

Back 85

P must accept less or new trial → fed & CA

Front 86

Additur

Back 86

D must pay more or new trial → CA only

Front 87

Timing of SJ Motion

Back 87

Fed → Any time up until 30 days after close of discovery

CA → At least 75 days before hearing (60 days after appearance)

Front 88

CA SJ Motion

Back 88

Moving party must file & serve statement of all material facts claimed to be undisputed w/ supporting evidence for each fact (nonmoving party must respond in kind); failure to file/respond grounds for granting motion

Denial may be reviewed by writ of mandamus

Front 89

Grounds for relief from judgment (feds)

Back 89

1. Mistake, inadvertence, surprise or excusable neglect;
2. Newly discovered evid;
3. Fraud, misrep, other misconduct of adverse party;
4. Judgment void (fundamental like lack of J or no notice & oppty to be heard)
5. Judgment satisfied, released, discharged;
6. Any other reason

Front 90

Grounds for relief from judgment (CA)

Back 90

1. Mistake, inadvertence, surprise or excusable neglect (within 6 mos)
a. Ct must set aside if accompanied by affidavit of atty attesting to his/her mistake, inadvertence, surprise or (in)excusable neglect

Front 91

Timing for relief from judgment (fed)

Back 91

Within one year for:

1. Mistake, inadvertence, surprise or excusable neglect;
2. Newly discovered evid;
3. Fraud, misrep, other misconduct of adverse party

Otherwise, within a "reasonable time"

Front 92

Timing for relief from judgment (CA)

Back 92

Within 6 months

Front 93

Appellate review for judgment on multiple claims/parties

Back 93

Fed → Express order final to fewer than all parties, judge must express appealable

CA → Appealable

Front 94

Factors affecting validity of final judgment despite lack of SMJ

Back 94

i. Lack of J is clear;
ii. J depends on question of law, not fact;
iii. Ct is of limited J;
iv. J was not litigated;
v. Strong policy exists against ct acting beyond J

Front 95

Timing of Appeals (fed)

Back 95

Within 30 days of entry of judgment (or from order based on post-trial motion)

Front 96

Timing of Appeals (CA)

Back 96

Within 60 days after service of notice of judgment or 180 days after entry of judgment if no notice served (strict)

Front 97

Interlocutory Orders as of Right (fed)

Back 97

1. Injunctions
2. Appointment of receivers
3. Certain admiralty, patent infringement and property possession cases

Front 98

Interlocutory Orders as of Right (CA)

Back 98

1. Appealable judgment
2. Order granting motion to/for
a. Quash service of summons
b. Forum Non Conveniens
c. New Trial
3. Order denying JNV
4. Injunction order (granting/dissolving/denying)
5. Order directing payment of monetary sanctions over $5K

Front 99

Interlocutory Appeals Act

Back 99

a. Trial judge certifies that interlocutory order involves controlling question of law, as to which there is substantial ground for difference of opinion, and immediate appeal may materially advance the ultimate termination of the litigation; and
b. Court of appeals agrees to allow the appeal.

Front 100

Discretionary interlocutory appeals (fed)

Back 100

Class certification (within 14 days of entry)

Front 101

Discretionary interlocutory appeals (CA)

Back 101

Order denying cert immediately appealable; order certifying class/partial class is not immediately appealable

Front 102

Enforceability and Stays Pending Appeal (fed)

Back 102

Judgments generally enforceable while post-trial motions pending unless ct orders otherwise

Front 103

Enforceability and Stays Pending Appeal (CA)

Back 103

Enforcement of trial ct judgment automatically stayed with timely filing of motion to appeal (many exceptions)
a. Certain judgments stayed only if trial ct orders or undertaking provided (e.g, money, sale of real/personal property, appointment of receiver)

Front 104

CA Supreme Court J

Back 104

Original J in proceedings for extraordinary relief (e.g., mandamus, cert, prohibition, habeas corpus) and certain administratieve decisions and atty/judicial disciplinary matters.

Front 105

Res Judicata Requirements

Back 105

1. Earlier judgment is valid, final and on the merits;
2. Cases are brought by same claimant against same defendant;
3. Same COA involved in later suit; and
4. COA litigated or could have been litigated in prior action

Front 106

When Res Judicata attaches (fed)

Back 106

Judgment final when rendered

COA --> Claims arising out of same ToO

Front 107

When Res Judicata attaches (CA)

Back 107

Judgment final at the conclusion of appeals

Front 108

CA Res Judicata COA

Back 108

“Primary rights doctrine” → invasion of single primary right (min)

P injured may sue D in one action for personal injury and a separate action for property damage (each considered invasion of different primary right to be free from harm)

Collateral estoppel may bar second action (e.g., negligence in accident not found)

Front 109

Collateral Estoppel

Back 109

Judgment for P or D conclusive in subsequent action on different COA between them, as to issues actually litigated and essential to judgment in first action.

Front 110

Persons bound by judgment under collateral estoppel

Back 110

i. Was issue decided in first case identical to second?
ii. Was there a final judgment on the merits?
iii. Did party against whom judgment is to be used have fair opp’ty to be heard on critical issue?
iv. Is posture of ase such that it would not be unfair/inqeiuable to a party to apply collateral estoppel?
v. CA adds: Was the party against whom collateral estoppel is being asserted a party or in privity with a party to the prior proceeding?
vi. If yes, collateral estoppel will normally be upheld