Civil Procedure California Bar Exam Short Outline

Civil Procedure

1. Does the court have authority to decide the dispute?

   1. Personal jurisdiction – exists where the forum has power over a particular D

      1. In personam jx.: exists where

         1. D is present and personally served with process,

         2. D is domiciled in the forum,

         3. D is a citizen of the forum;

         4. D consents to jx.; or

         5. D satisfies the state long-arm statute.

      2. State long-arm statute: generally jx. is proper so long as it is constitutional

      3. Constitutional:

         1. Minimum contacts: balancing test – looks to

            1. Nature and quality of D’s contacts;

            2. Purposeful availment

            3. Whether it was foreseeable that D would be sued in the forum.

         2. Fairness: looks to

            1. Relatedness

            2. Burden on D

            3. State’s interest in protecting its citizens.

   2. Subject matter jurisdiction

      1. Diversity (complete + more than $75K alleged in good faith)

      2. Federal question (on face of a well pleaded complaint)

   3. Supplemental jx.:

      1. Common nucleus of operative facts – P would normally be expected to try in one case

      2. Must be same transaction or occurrence.

      3. Limitation: no supp jx. for a claim asserted by P which lacks diversity.

   4. Venue: where ALL defendant’s reside OR where A substantial part of the claim arose OR fall back-provision (diversity: where any D is subject to personal jx.; FQ: where any D can be found)

      1. Transfer: may transfer venue to a district where a case could have been filed. That means to (1) a proper venue which (2) has personal jurisdiction over D. Must be true w/out waiver

      2. Forum non conveniens: If there is a far more appropriate court elsewhere, a court may dismiss (usually w/out prejudice). Occurs where transfer is impossible.

      3. Removal: A D may remove an action to federal court that could have originally been brought by P in the federal court. Can be based on diversity jx. or federal question jx.

2. What law governs? – Erie Doctrine

   1. Federal courts are required to apply state substantive law in diversity cases.

   2. The Necessary & Proper clause allows federal courts to apply federal procedural rules.

      1. Federal rule on point → arguably procedural → apply federal rule

      2. No federal rule on point → if outcome determinative → apply state rule

      3. Note: statute of limitations → substantive → apply state law

3. Are the pleadings proper?

   1. Notice pleadings – the pleading must put the opposing side on notice of the claim

   2. Complaint: (1) statement of subject matter jx.; (2) statement of the claim; (3) demand for relief

   3. Defendant’s response: answer OR rule 12 motion (watch waivable defenses – personal jx., venue, service of process)

   4. Counterclaim: compulsory or permissive

   5. Cross-claim: must be same transaction or occurrence

   6. Amendments to pleadings – right to amend; variance; SoL and the “relates back” doctrine

   7. Rule 11: requires an attorney or pro se party to sign all pleadings certifying that to the best of her knowledge, after reasonable inquiry, the paper is not for an improper purpose, its legal contentions are warranted by law, and the factual contentions have evidentiary support.

      1. Rule 11 motions → served on opposing party → 21 day safe harbor to correct or withdraw

4. Are the proper parties and claims before the court?

   1. Joinder of parties(still need s.m. jx.)

      1. Compulsory: a party is necessary to the litigation, and thus must be joined, where the party’s absence prevents the court from rendering an effective judgment, or would seriously prejudice the other parties.

         1. It is feasible to join if the court has personal jx. over the party, and joinder will not destroy diversity.

         2. If not feasible, the court must either proceed w/out her, or dismiss the case

      2. Permissive: Parties may be joined when (1) same T/O and (2) there is a question of law or fact common to all parties.

   2. Joinder of claims(still need s.m. jx.)

      1. Cross claims – Rule 13(g) allows a co-party to claim against another party on his side if the claim relates to the same transaction or property involved in the original action.

      2. Counter claims:

         1. Compulsory – same T/O – must be pleaded or it will be barred.

         2. Permissive – not same T/O – may be joined if fed. q. or diversity

      3. Class action:

         1. Initial requirements:

            1. Numerosity: too many class members for practicable joinder

            2. Commonality: some questions of law or fact common to the class

            3. Typicality: representatives claims/defenses are typical of the class

            4. Adequacy of representation: class rep will fairly and adequately represent the interests of the class

         2. Type:

            1. Class treatment is necessary to avoid harm to the class or the D,

            2. Final injunctive relief would be appropriate for the whole class

            3. $ Common questions of law or fact predominate over any question affecting only individual members → requires notice and opt out

         3. For both diversity of citizenship and amt in controversy → look only to the class rep

      4. Impleader (3^rd party practice): D may bring in a 3^rd party where the 3^rd party may owe indemnity or contribution to the D (as of right w/in 10 days, after need ct permission)

      5. Intervention: where 3^rd party seeks to intervene.

         1. Of right if (1) claims interest in the s.m. of the action, and (2) disposition of the action w/out the 3^rd party could impair his ability to protect that interest.

         2. Permissive if common question of law or fact w/ main claim, and joinder would not destroy complete diversity.

      6. Interpleader: joinder where several parties have the same claim to the same assets.

5. Have the parties properly propounded and relied on discovery?

   1. Required disclosure – (1) initial – identify persons and docs likely to have discoverable information, and damages, (2) experts, (3) pre-trial – detailed information about trial evidence.

   2. Types of discovery – depos., rogs., requests to produce, exams, requests for admissions

   3. Scope of discovery – anything reasonably calculated to lead to admissible evidence

      1. Not privileged matters

      2. Not work product

   4. Enforcement of discovery rules – sanctions – total or partial?

      1. Award costs and attorney fees

      2. Disallow evidence on the an issue

      3. Establish the issue adverse to the party who violated discovery rules

      4. Dismiss the cause of action or the entire action

      5. Enter a default judgment

      6. Hold the party in contempt (only if there is a violation of a prior discovery order)

6. Can the dispute be resolved without a trial?

   1. 12(b)(6) – failure to state a claim upon which relief can be granted – may be raised at any time

   2. Voluntary dismissal – P may dismiss w/out prejudice anytime before answer. After answer, it’s w/in the court’s discretion to dismiss w/ or w/out prejudice.

   3. Summary judgment – must be granted if, from the pleadings, etc, there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Evidence viewed in a light most favorable to the non-moving party.

7. If there is a trial, who decides?

   1. 7^th Am right to a jury trial – legal matters only, not equitable relief. If both, legal claim should be tried to the jury first and then the equitable claim to the court.

   2. If there is a jury, can the jury be disregarded?

      1. Nonsuit – Judgment against P for failure to prosecute the case/intro sufficient evidence

      2. Judgment as a Matter of Law (Directed Verdict) – reasonable people could not differ

      3. Renewed Motion for Judgment as a Matter of Law(JNOV)

         1. A motion for a judgment as a matter of law is a prerequisite to a JNOV

         2. Evidence is considered in the light most favorable to the party opposing the motion. Reasonable persons could not differ as to which party ought to prevail.

      4. Motions for New Trial– must be filed w/in 10 days of entry of judgment. Verdict is against the weight of the evidence of excessive. Or remmittitur if damage award “shocks the conscious.” (P gets to choose lower award or new trial).

8. Can the decision be appealed?

   1. Final Judgment rule: A party can appeal only from final judgments, which means an ultimate decision by the trial court on the merits of the entire case.

   2. Interlocutory review: In limited circumstances, a party may appeal to an adverse ruling prior to final judgment. As of right: injunctions, class cert.; D.C. may certify an issue for interlocutory review according to its own discretion, CoA has discretion to accept the appeal.

9. Is the decision binding on future cases?

   1. Res Judicata: bars the same parties from raising the same claim in a subsequent action where the claim previously went to final judgment on the merits in an earlier action.

      1. Split re same claim:transaction theory v. primary rights theory

   2. Collateral estoppel: A judgment is conclusive in a subsequent action as to issues actually litigated and essential to judgment in the first action.

      1. Traditionally, CE only applied where the same parties were involved in both cases

      2. However, modern rules of mutuality apply collateral estoppel to a nonparty when

         1. The identical issue was decided in the first case,

         2. There was a final judgment on the merits,

         3. The party to whom collateral estoppel is applied had a full and fair opportunity to be heard in the earlier case, and

         4. It would not be unfair or inequitable to apply collateral estoppel.

   3. Full Faith and Credit Clause: The FF&C clause requires full faith and credit be given to public acts, records and judicial proceedings of sister states. Federal statutes compel recognition of federal court judgments.

      1. Only required when the court had personal jurisdiction over the parties and

      2. Court issues a final judgment on the merits

      3. Not required for foreign country judgments