FRCP + CACP

Question 1

Forum Non Conveniens (FRCP)

Answer 1

Fed: Ct dismiss or stay the case because case should heard in different Judicial system (foreign country)

CA Inconvenient Forum: Ct dismiss or stay the case because case should be heard in different Judicial system (other state)
- On motion party or Ct stays/dismiss case if Ct finds the current venue is NOT convenient for parties, W, AND in the interest of justice

Question 2

Necessary Party (Compulsory Joinder)

Answer 2

Absentee (A) is necessary if:
1) W/o A Ct cannot accord complete relief among existing parties (Joint tortfeasor is NEVER necessary)
OR
2) A’s interest may be harmed if not joined
OR
3) A claims an interest that subjects a party in the claim to risk of multiple obligations

• MUST meat Pjx and Div (if claim is DivSMJ)
• If A is necessary and Jx then Ct ORDERS A to join
• If A cannot be joined: Ct proceeds w/o A or dismisses ENTIRE case
• If Ct dismisses after A is necessary but cant be joined: A becomes Indispensable (Defense: 12(b)(7))
• Joint tortfeasors are NEVER Necessary
• MUST meet Pjx (TPD not a party yet), SMJ (FQ or Div) if not SuppJx

Question 3

Domicile (diversity smj)

Answer 3

Citz of a State (human): MUST be domiciled in a State
Establish domicile:
1) Physical presence AND
2) Intent to remain for an indefinite period of time (intent to make forum home)

Citz of Corps: where incorporated OR PPB (managers direct, coordinate, control Corp activity = nerve center)

Citz of unincorp assoc (PS, LLC): citz of ALL its members including Gen or Lim partners
(e.g. LLC w/members from GA, CA, TX = Citz of GA, CA, TX)

Citz of decedents, minors, incompetents: executor/representative’s Citz is irrelevant. Apply Citz of party

Question 4

Std of Review by Appellate Ct (FRCP)

Answer 4

• Q of law decisions: reviewed de novo (no deference to Dist Judge)
  e. g. Judge gives wrong instructions (content is Q of law)
• In bench trial decisions of questions of fact: clear error
  J is affirmed unless finding are clearly erroneous (deference to Dist Judge)
• In Jury trial decision of question of fact: J affirmed unless reasonable people could not have made the same finding (EXTRA deferential to jury)

Question 5

Erie Doctrine (FRCP)

Answer 5

Apply State vs Fed Law (FRCP, Const, Fed Statute)?

1) If FedLaw on point vs State Law
- Apply FedLaw (based on supremacy clause)

2) If NO FedLaw on point vs State Law
- Ct MUST apply State Law if issue is Substantive
Clearly Substantive: elements of claim/defense, SOL, rule for tolling SOL, choice of law rules = apply State Law)

3) If NO FedLaw on point + no issue noted as clearly Substantive) vs State Law
- Outcome determinative: if apply StateLaw determines outcome, then prob Substantive thus apply StateLaw
- Balance of interest: Fed vs State interest in deciding
- Avoid forum shopping: Not applying FedLaw allows parties to flock to FedCt

Question 6

Class Action types (FRCP)

Answer 6

• Prejudice: class treatment needed to avoid prejudice to class members OR non-class parties (rare case)
• Class seeks Equitable remedy: class seeks injunction OR declaratory judgment because D treated class members alike
• Class seeks Damages:
  1) Common Q PREDOMINATES over individual Q,
  AND
  2) Class Action better method than handle claims individually
  Procedure:
  1) Notify class members individually
  2) Rep pay for notice to class
  3) All member who opt in are bound by judgment
  4) Settle or dismiss ONLY w/Ct approval
• MUST meet SMJ (FQ or Div between Rep AND D)

Question 7

Default (FRCP)

Answer 7

• Notation by Clerk that D did not respond w/in 21days

- P MUST move for Default after 21days of SOP

Question 8

Voluntary Dismissal (pretrial - FRCP)

Answer 8

• P has RIGHT to vol dismissal: file notice of dismissal
• MUST be done before D answers OR before D motions for summJ
• If timely filed: dismissed w/o prej
• If P files Case2 + notice of dismissal2: dismissed w/prej

Question 9

Amended Pleadings (FRCP)

Answer 9

Right to Amend:
- P has right to amend ONCE w/in 21days after D serves first response
- D has right to amend ONCE w/in 21days of serving answer
CA:
- Right to amend BEFORE D answers or demurs
- May amend AFTER demur but before hearing by ANY party

FRCP+CA: If NO right to Amend: seek leave of court
- Ct looks at time, and futility of amendment

Variance: amend complaint during or after trial to conform evidence to pleadings ONLY if D does not object (e.g. P sues on breach of K, puts evidence on tort, D does not object, P moves to amend complaint to add tort)

Question 10

Specific Pjx (FRCP)

Answer 10

1) Contact between D and forum state:
- Contact MUST result from purposeful availament: D’s voluntary act reaches into the forum (benefit from contacts in forum), AND
- Foreseeability: foreseeable D could be sued in forum

2) Relatedness (causation): P’s claim arises out of D’s contacts (If NOT then possible Gen Jx)

3) Fairness: Jx is fair to D (when D is not at home in forum)
Balance between:
- Burden on D and W (convenience NOT an issue): MUST show severe disadvantage in litigation (wealth of party is irrelevant)
- State’s interest: forum wants to provide forum for its Citz
- Plaintiff’s interest: injury if not allowed to sue at home

Question 11

Renewed Motion for JMOL (RJMOL - FRCP)

Answer 11

Same as JMOL but AFTER trial is done

• MUST have raised JMOL otherwise waives RMOL
• Motion based upon evidence presented at trial and viewed in light most favorable to nonmoving party
• Granted ONLY if reasonable jury could not disagree on the result (takes J from one party and gives it to other), or Judge can order a new trial

CA: JNOV

Question 12

Counterclaim (FRCP)

Answer 12

Claim against OPPOSING party (once X asserts claim against Y) Can be made in answer (CA: different)

P MUST respond w/in 21days of SOCounterclaim

Types:
- Compulsory: claim arises from same TO as P’s claim
MUST be filed in pending case or claim is waived
CA: Compulsory Cross-Complaint

• Permissive: claim does NOT arise from same TO as P’s claim
  NOT required to file in pending case
  CA: Permissive Cross-Complaint
• MUST meet SMJ (FQ or Div) if not SuppJx (Pjx: already a party)

Question 13

Removal (FRCP)

Answer 13

Remove State claim to Federal Dist Ct (FDC) that “embraces” the State Ct where case was filed (e.g. filed in SoCal must go to SoD of CA, not NoD of CA)

By D ONLY w/in 30 days of SOP + file NOTICE of removal in FedCt + service on adverse parties + file notice in StCt

ALL Ds served (not all in claim) must join in removal

D can remove ANY case that has FQ SMJ
D can remove cases in Div SMJ unless (apply ONLY Div smj)
- Instate D: D is Citz of forum
- One yr: cannot remove more than 1yr case is filed in State Ct

Case becomes REMOVABLE if case against instate D is dismissed

If removal improper, Fed Ct will remand to State:

• P must MOVE to remand w/in 30days of removal notice if reasons are other than SMJ (e.g. instate D)
• P can MOVE to remand ANYTIME if reason is lack of SMJ
• P can NEVER remove, P only MOVES to remove

Question 14

Class Actions (FRCP)

Answer 14

• You CANT sue alone in class action

MUST meet ALL requirements (CA: different): CANT

1) Commonality: some issue in common to ALL class members so resolution for all in one case
AND
2) Adequate Rep: class Rep fairly and adequately represents the class
AND
3) Numerosity: too many class members for joinder
AND
4) Typicality: Rep’s claims are typical of those claims of the class

• D can appeal class cert w/in 14days of cert and Ct of App has discretion to hear the appeal
• CA -
  1) Assertainable class
  AND
  2) Well defined community of interest
• C: Common Q predominates, AND
• A: Rep is adequate, AND
• Class will result in substantial benefit to parties and court
• Amount in controversy: aggregate amount of ALL class members, not focused on Rep’s claim
• NO different types of class actions as in Fed
• Ct decides if cost of notice to Rep, D, or shared (Fed: different)

Question 15

Jury challenges (FRCP)

Answer 15

For cause (impartial, bias, etc): unlimited

Peremptory: THREE per side, but MUST be:
Race AND gender-neutral
- CA:
Peremptory: SIX per PARTY but MUST be:
Neutral on: Race, Color, Religion, Sex, National origin, Sexual orientation, or similar grounds

** Jury selection is State Action thus no discrimination allowed

Question 16

Service of Process SOP (FRCP)

Answer 16

Process: Summons AND complaint

Service Types:
1) Personal: directly to D

OR

2) SubService:
- D’s usual abode (no need to reside 365days), AND
- Serve TP of suitable age (not necessarily adult) who resides there (e.g. not babysitter, yes butler - no need to be related to D)
- CA (CA: effective 10days after mailing): ONLY if personal service “cannot w/reasonable diligence be had,” must serve TP at least 18yrs, AND TP MUST be informed of contents, AND process mailed first-class to D

3) D’s Agent ONLY if A receives service w/in scope of Agency
- CA: A (officer, or GM) OR left w/someone apparently in charge at office during office hours

4) Mail: if allowed by State Ct
- Waiver of service allowed: effective when P files waiver signed by D in Ct
- CA waiver: effective when D executes the waiver

5) CA: Outside of CA allowed in any manner allowed by CA or by mail (effective 10days after mailing)

Other docs (e.g. interrogs, not summons and complaint) do not need formal service, so ok to use mail but mail gives +3 days to respond
- CA: +5 days

Question 17

TRO (FRCP)

Answer 17

TRO: preserve status quo until hearing
- Proper if:
1) MUST show risk of imminent and irreparable harm if Ct waits until other party is heard
AND
2) Attempt to give oral or written notice to other party not available OR why notice is not required
- Up to 14days (up to two: 28days)
- MUST post bond to cover other party’s damages if TRO was unwarranted
- Once issued TRO MUST be served to other party

Question 18

Amendment to claim after SOL (FRCP)

Answer 18

Amended pleadings “relate back” to original filing

Elements:

• Original claim w/in SOL, AND
• New claim concerns same conduct, OR TO as original claim
  (e. g. C1 filed 7/1, SOL due 7/2, new C2 w/same TO as C1 filed on 8/1 is allowed)

Change D: also relate back ONLY if:

1) Concerns same conduct, TO
2) New D knows of original claim w/in 90days of filing, AND
3) New D knows that but for the mistake, new D would have been named

• CA -
  Change D:
  1) Original claim is w/in SOL
  2) Original claim contains charging allegations against DOEs
  3) P is genuinely ignorant of DOE’s ID
  4) P pleaded ignorance in original complaint
  5) MUST bus true D w/in 3yrs of filing

Question 19

Supplemental Pleadings (FRCP)

Answer 19

Filed after the original pleadings are filed

e.g. P sues D for breach of K, after case is filed D punches P on the face

Question 20

Prelim Injunction (FRCP)

Answer 20

Prelim: preserve status quo until Ct adjudicates claim
- NEVER granted ex-parte
- Proper if:
1) MUST show suffer irreparable harm if Injunction not issued
AND
2) Likely to win on merits of underlying case
AND
3) Balance: hardship to applicant -vs- hardship to D if injunction is issued
AND
4) Injunction is in the public’s interest
- MUST post bond to cover other party’s damages if TempInj was unwarranted
- Hearing for Inj and case may be consolidated
- Order is IMMEDIATELY appealable even though it’s NOT a final judgment

Question 21

Undiscoverable evidence (FRCP)

Answer 21

Privileged communications based on evidentiary privilege (similar concept as atty-client privilege)

Work Product OR trial prep materials: items prepared (by party or party’s A/rep) in ANTICIPATION of litigation is protected from discovery
- CA: different

Qualified Work Product: opposing party may discover PART of Work Product if opp party has:

1) Substantial need, AND
2) Not otherwise available
(e. g. statement by W made to PI in anticipation of lit)

Absolute Work Product (CANNOT be discovered)
- Opinion Work Product: mental impressions, opinions, conclusions, legal theories

Question 22

Pretrial Conference (FRCP)

Answer 22

• Ct may hold pretrial conference to process case and foster settlement
• Final pretrial conference SETS issue to be tried, admissible evidence, etc (roadmap for trial and avoids surprises)

Question 23

Juror misconduct (FRCP)

Answer 23

• Verdict may be set aside based upon external matters (investigations outside of Ct)
• BUT juror cannot testify about acts or statements made DURING deliberation unless showing of “extaneous prejudicial info or outside influence”

E.g. NOT external matter: juror using drugs during deliberation or lied during jury selection

Question 24

Issue Preclusion (Collateral Estoppel - FRCP and CA)

Answer 24

An affirmative defense: MUST assert in answer

A judgment binds P or D (or privies) in subsequent actions on DIFFERENT causes of action between P and D (or privies) as to ISSUES actually litigated AND essential to the judgment in the first action

Step analysis:

1) Party in original case is in privity (Agent of P) with party in next case
- Exception: nonparty may use issue preclusion offensively (to establish D’s liable) ONLY if Ct determines it’s fair and equitable to allow the nonparty to do so

2) Final J on merits (MUST have been litigated)
3) Same issue litigated AND determined in original case
4) Issue was essential to J in original case (finding on issue is the basis for Final J:

Question 25

Intervenor (Intervention of Right)

Answer 25

TP bring ITSELF into case as P (asserting a claim) or D (to defend a claim), Ct may re-align TP if necessary MUST: - TP's interest may be harmed if not joined, AND - TP's claim/defense and current case have at lest one common Q, AND - Application MUST be timely * MUST meet SMJ (FQ or Div) if not SuppJx (Pjx: submits to Ct)

Question 26

Claim Preclusion (Res Judicata - FRCP and CA)

Answer 26

An affirmative defense: MUST assert in answer A matter may not, generally, be relitigated by the same parties once it has been judged on the merits Step analysis: 1) Same claimant against same D (e.g. Case1: P v D, Case2: P v D, not D v P) 2) Final J on the merits even if NOTHING litigated 3) Same claimant asserts same claim from original claim (both involve same TO) - CA (minority): Claim for PI vs prop damages from same TO is NOT same claim

Question 27

Fictitious D's (DOEs)

Answer 27

P MUST state: P is genuinely be unaware of D's true ID AND Cause of action against Doe (charging allegations against Doe)

Question 28

PJX (basics)

Answer 28

Ct's power over the parties Steps: satisfy State's statute AND US Const Pjx (Const): proved by 1) domiciled in forum OR 2) consents OR 3) voluntarily presents in forum when served w/process If none look at contacts

Question 29

Motion to Dismiss 12(b)(6): failure to state a claim (FRCP)

Answer 29

4-corners of complaint: Ct looks ONLY at P's allegations of fact (plausible to support claim) in complaint (If facts were true, would P will judgment) - Ct ignores P's legal conclusion - Ct does NOT look at evidence - If D answered then P motions to 12b6, now called "Motion for J on pleadings"

Question 30

D's defenses - 12(b) (FRCP)

Answer 30

12(b) defenses can be included in answer or motion: 1) Lack of SMJ (NEVER waived: may raise on appeal) 2) Lack of Pjx (waivable) 3) Improper venue (waivable) 4) Improper process (waivable) 5) Improper SOP (waivable) 6) Failure to state a claim 7) Failure to join indispensible party Waivable defenses MUST be in FIRST response (motion or answer) or waive (Ct's discretion may still allow transfer for 12b3) Affirmative defenses (e.g. SOL, SoF, res judicata, self-defense) MUST be plead in ANSWER or waive - CA - Failure to State facts sufficient to constitute a cause of action Lack of SMJ May be asserted in Gen demurrer May be asserted in answer as affirmative defenses May be asserted in motion for judgment on pleadings AFTER D pleaded and time for demurrer has expired

Question 31

Extraordinary (peremptory) writ (CA)

Answer 31

If order not appealable (e.g. denial of motion to quash service of summons), losing party may seek write of mandate (order lower Ct) or prohibition (stop lower Ct) MUST show: 1) MUST show suffer irreparable harm if writ not issued AND 2) Appeal from final judgment is inadequate AND 3) Party has beneficial interest in outcome of writ ALWAYS discretionary * ONLY way to appeal denial of motion to quash service of summons is w/extraordinary writ

Question 32

General Pjx (FRCP)

Answer 32

If P's claim does NOT arise from D's contact then Ct must have Gen Pjx D is sued for claim arose elsewhere (Dispute blind Contact) Elements: 1) D must be at home in the forum (no fairness issues) - Human: where domiciled - Corp: ONLY where Incorporated OR where principal place of business (PPB: managers direct, coordinate, control Corp activity = nerve center)

Question 33

Right to Jury trial in FedCt (FRCP)

Answer 33

- 7thAmd: preserves the right to jury in civil actions AT LAW (not equity) BUT must be asserted - 6thAmd: auto right to jury in CRIMINAL case ONLY if crime has max sentence > 6mos - Does NOT apply in State Ct because 7thAmd not incorporated in Bill of Rights - CA Const: grants right to jury trial same as 7thAmd - Min 6, Max 12: vote MUST be unanimous unless agreed otherwise by parties - If claim involves legal remedy (damages) AND equitable relief (e.g. injunction): 1) Ct divides the case by issues 2) Jury decides issue of fact FIRST 3) Judge decides facts in equity SECOND CA: different

Question 34

Federal Q (SMJ)

Answer 34

Well pleaded complaint: P's claim itself MUST arise under federal law (Is P enforcing a Fed right? - IGNORE P's other material allegations)

Question 35

Change of Venue (FRCP)

Answer 35

- Transferee court must be proper venue (where P could have filed): MUST be proper venue w/o waiver by D + Pjx over D - If original Ct is proper, Ct may still transfer for: convenience of parties and Witnesses (where evidence and W are located) and interest of justice (Parties can agree to it) CA: on motion Ct may transfer if convenience of W (not the parties) AND in the interest of justice - Apply laws of transferor Ct UNLESS "forum selection clause" in K - If Original/Transferor Ct is improper: Ct may dismiss OR transfer in the interest of justice CA: D may move to change but MUST be w/or before answer, demurrer, or motion to strike

Question 36

Jury Instructions (FRCP)

Answer 36

- Before closing arguments: Ct informs parties of instructions to be given - Parties may object ONLY before final argument and before instructions are given

Question 37

Anti-SLAPP motion to strike (CA)

Answer 37

If raised by D, burden shifts to P to show probability of winning on merits - SLAPP: Strategic Lawsuit Against Public Participation (e.g. to chill speech, etc)

Question 38

Diversity SMJ (FRCP)

Answer 38

Elements: 1) Diversity between Citz of diff States OR Citz of a State and alien, AND 2) Clear an legal certainty amount exceeds $75K Citz of a State (human): MUST be domiciled in a State Establish domicile: 1) Physical presence AND 2) Intent to remain for an indefinite period of time (intent to make forum home) Corp Citz: where incorporated OR PPB (managers direct, coordinate, control Corp activity = nerve center) Alienage exception: alien and Citz cannot be of same State

Question 39

D's answer (pleadings - FRCP)

Answer 39

D MUST: 1) Admit (D can NEVER be deemed to admit damages) 2) Deny: must state "deny" otherwise admitted 3) D lacks sufficient info to admit or deny (D has duty to investigate info w/in D's control - cannot just say "dont know")

Question 40

Immunity from SOP (CARCP and FRCP)

Answer 40

If D is served w/process while being a W in CA case (Civ, crim, CA, or Fed): waived Pjx (NO immunity in CA) No waiver for Fed case while a W in CA case (Immunity FRCP)

Question 41

EW (Required Disclosures - FRCP)

Answer 41

MUST disclose w/in 14days of Rule 26(f) conference (discuss: production of required initial discs, claims, defenses, settlement, preservation of disc info, and discovery plan): 1) EW's ID, and written report by EW (report MUST include: opinions, bases for opinions, facts used to form opinion, qualifications, and EW's payment) - Facts known and opinions held by consulting E generally NOT discoverable - Work product: NOT discoverable (e.g. drafts, comm between atty/client and EW) - Failure to disclose: cannot use EW at trial unless failure is substantially justified or harmless - NOT required to disclose EW w/info that harm one's case

Question 42

Appeal (FRCP)

Answer 42

ONLY after final J (nothing for Judge to do on the merits) CA: Summ J considered final thus appealable Steps: - File notice of appeal in Dist Ct w/in 30days of final J (nothing for Judge to do on the merits) CA: File notice w/Ct of Appeal

Question 43

Remittitur and additur

Answer 43

Instead of ordering new trial IF jury's award is excessive OR inadequate (shocks the conscience), the Ct may: - Remittitur (Fed and CA): if jury's award is excessive, Ct gives option to P to take Ct's suggested lesser amount OR new trial (Ct cannot lower amount on its own) Allowed in State AND FedCt - Additur (CA ONLY): if jury's award is inadequate, Ct gives option to D to take Ct's suggested higher amount OR new trial Allowed in State BUT UnConst in FedCt (violation of 7thAmd)

Question 44

Offer of Judgment (FRCP)

Answer 44

If party offers amount to settle and opposing rejects, and party win more favorable judgment: opposing is liable to party for trial costs

Question 45

Verdicts (FRCP)

Answer 45

1) General: Jury decides who wins AND damages or relief. - Clerk enters judgment 2) Special: Jury answer issue of fact, then Judge reaches legal conclusion - Judge approves judgment and clerk enters judgment - Party waives objections to form of Q if no objections are made when the Qs are given to the jury 3) General verdict w/special interrogatories: jury decides who wins AND damages or relief, AND answers specific questions of fact

Question 46

Rule 26(f) Conference (FRCP)

Answer 46

Steps: 1) Meet and confer at least 21days before Rule 26(f) conference 2) At conference discuss: production of required initial discs, claims, defenses, settlement, preservation of disc info, and discovery plan

Question 47

Rule 11 (FRCP)

Answer 47

Applies to ALL docs EXCEPT discovery Docs signed by atty or pro se, are certified that to the best of the knowledge and belief of signor, after reasonable inquiry: 1) Doc is NOT for an improper purpose 2) Legal claims are warranted by law (nonfrivolous arguments) 3) Factual contentions and denials of contentions have evidentiary support OR likely to after further investigation Violation: sanctions to party, atty, and law firm (jointly responsible) Steps: 1) Party severs motion on violator 2) Violator has 21day safe harbor to cure 3) File motion w/court (CA Exception: no safe harbor for firvolous claims - completely w/o merit) Purpose of sanctions: Deter, not to punish

Question 48

Interlocutory (non-final) Review (FRCP)

Answer 48

Appealable even though NOT final J - Order granting, mod, refusing prelim OR perm Injunctions (NOT TROs)

Question 49

D's response (FRCP)

Answer 49

D MUST respond by motion or answer w/in 21 days after SOP - If waived service: w/in 60days - CA - D MUST respond by: answer, and/or general demurrer, special demurrer, or motions to: strike, dismiss/stay for inconvenient forum w/in 30 days after SOP (Fed: different days) General demurrer: assert defenses of lack of SMJ OR failure to state facts sufficient to constitute a cause of action (motion similar to a 12b6 motion) - Ct looks at 4-corners of complaint: ONLY P's allegations, ignores P's legal conclusions - MUST make sure to plead ALL elements of the claim of the substantive law (e.g. K law: offer, acceptance, etc) Special demurrer: used to assert minor defenses - Ct looks at 4-corners of complaint: ONLY P's allegations, ignores P's legal conclusions - Waived if not in answer or demurrer * Demurrers: are pleadings but act like motions thus can get a case dismissed like a motion to dismiss. NOT available in Lim cases Motion to quash service of summons (party makes special appearance): assert lack of Pjx, improper process, improper SOP (waivable defenses - motion similar to a 12b motion) - Denial of motion can be appealed right away ONLY through extraordinary (peremptory) writ - MUST be made BEFORE or WITH demurrer, answer, or motion to strike, otherwise D has made a Gen appearance and waived defenses Motion to dismiss/stay for inconvenient forum: MUST be raised BEFORE demurrer, or motion to strike, otherwise waived. Ok to raise AFTER answer Motion to strike: party can move to stripe all or part of pleadings Answer: D denies each and every allegation - If raising affirmative defense MUST state ultimate facts of defense - Cannot demand recovery from P, must file a cross-complaint

Question 50

Def Judgment (FRCP)

Answer 50

- Clerk DefJ: must meet all elements 1) D made no response AT ALL AND 2) Claim is for sum certain (complaint is cap in recovery in DefJ ONLY - at trial may recover more than complaint) AND 3) P files affidavit of sum owed AND 4) D is NOT minor/incompetent ``` - If missing one element: Move for DefJ w/Ct, then Ct will hold hearing Notice to D ONLY if D appeared in case (e.g. motioned or responded) Ct has discretion to accept/deny motion ``` - CA - - Clerk DefJ: must meet all elements 1) D made no response AT ALL AND 2) Claim is on K or judgment AND 3) Claim is for sum certain (complaint is cap in recovery in DefJ ONLY - at trial may recover more than complaint) AND 4) D was not served by publication AND 4) P files affidavit of sum owed ``` - If missing one element: Move for DefJ w/Ct, then Ct will hold hearing Notice to D ONLY if D appeared in case (e.g. motioned or responded) Ct has discretion to accept/deny motion ```

Question 51

Motion for New Trial (FRCP)

Answer 51

- Raised AFTER trial - J entered but ANY non-harmless error (prejudicial to party) requires start over - Newly discovered evidence - Ordering new trial is less drastic than RJMOL

Question 52

Discovery Scope (FRCP and CA)

Answer 52

- Discovery may be had of any NON privilege matter that is relevant to any party's claim OR defense Anything relevant to a claim or defense AND proportional to the needs of the case (even if inadmissible at trial) E.g. not proportional: asking for millions of docs for a $10K claim

Question 53

Impleader

Answer 53

NEVER compulsory thus can assert in present case or diff case For indemnity of full claim OR contribution pro-rata 1) Defending party brings Third Party Defendant TPD by filing TP complaint naming TPD (MUST be in privity) AND 2) Serves process (summons and TPD complaint) on TPD (MUST have Pjx) - Purpose: shift liability to TPD that D will owe P - MUST implead w/in 14days of serving answer OR Ct permission * MUST meet Pjx (TPD not a party yet), SMJ (FQ or Div) if not SuppJx - CA - Cross-complaint vs TPD

Question 54

In Rem or Quasi in Rem Jx (FRCP)

Answer 54

Ct power over D's property: first Ct must attach property at outset of case AND contacts (purposeful availment and foreseeable)

Question 55

Limited vs Unlimited Civil cases (CA)

Answer 55

Lim: up to $25K (claimant cannot recover more than $25K) - P MUST note classification on caption of complaint Unlim: $25K+, determine title to land, or equitable relief (e.g. inj, dec J) * Small Claims: individual up to $10K, entity up to $5K

Question 56

Reclassification (CA)

Answer 56

Auto: clerk auto reclassifies if P amends complaint and changes classification (raises/decreases amount in controversy) On Motion: party or Ct on motion may reclassify BUT MUST: 1) Ct must give notice to ALL parties, AND 2) Hold a hearing - Ct does NOT look at merits of the case - Ct looks beyond the pleadings: judicial arbitration, settlement conference statements From Unlim to Lim: will verdict necessarily result in $25K (virtually unobtainable) From Lim to Unlim: a possibility verdict will be +$25K - Aggregate on reclassification: either the entire case is lim or unlim (not mixed) - Even if cross-complaint make it +25K

Question 57

Evidence inaccessible requested in discovery (FRCP)

Answer 57

If docs/things are not reasonably accessible because of undue burden OR cost: Ct may order production and allocate expenses of production between parties

Question 58

Motion in limine

Answer 58

- Pretrial motion to decide whether jury should hear certain evidence

Question 59

Supp Jx (FRCP)

Answer 59

A Case2 that does NOT meet FQ or Diversity can be added to Case1 (already w/SM: FQ or Diversity) ONLY if: 1) Claim1 w/FQ and Claim2 share common nucleus of operative facts (same Transaction OR Occurrence T/O) 2) But SuppJx does NOT apply if Claim1 is Diversity AND P invokes SuppJx (limitation does NOT apply to Claim1 w/FQ) Except: multiple P and and one does not meet amount for diversity (e.g. class claims) 3) Ct's Discretion: Ct can allow/deny based on economy, convenience and fairness to the litigants Exceptions: - Novel or complex issue of State law - Certain joinders brought in by P - State claim substantially predominates over Fed claim -Dismissal of Fed claim - Adding non-diverse D

Question 60

Motion to Relief from J (FRCP 60)

Answer 60

If motion to relief is because J is void MUST be brought w/in reasonable time (no limit) If relief is based on: - Mistake, inadvertence, surprise, or excusable neglect - Newly discovered evidece that by due diligence could not have been discovered in time - Fraud, misrep, or misconduct of adverse party Motion MUST be brought w/in reasonable time NOT to exceed 1yr

Question 61

Involuntary Dismissal (FRCP)

Answer 61

Ct MAY order invol dismissal w/prejudice for: 1) Failure to prosecute the case 2) Failure to comply w/FRCP 3) Failure to comply w/Ct order CA: Ct MUST dismiss if 1) Case is not brought to trial w/in 5yrs of filing 2) No SOP w/in 3yrs of filing

Question 62

Complaint (pleadings vs fact pleadings)

Answer 62

Pleadings MUST state: 1) Statement of SMJ - CA: no need because CA is general SMJ but Lim cases REQUIRE caption 2) Statement of facts supporting a plausible claim (not just possible - Challenge w/a 12(b)(6) motion) - CA: Statement of ULTIMATE fact constituting the cause of action 3) Demand for relief sought (e.g damages, injunction, etc) - CA: Forbidden to state damages amount: PI, wrongful death, and punies in any type of case (D may request a state of damages) - Fraud claims require P to assert claim for relief with PARTICULARITY - CA Fact pleading: MUST allege ultimate facts on each element of each cause of action

Question 63

Asserting Privilege or Work Product (FRCP)

Answer 63

Object or seek protective order: include details of why it's privileged/WP to allow judge to determine if it is Use a privilege log

Question 64

Additional claims to Cross or Counters (FRCP)

Answer 64

Once counter or cross is filed, additional claims even if unrelated are allowed but MUST meet SMJ (FQ or Div) if not SuppJx (Pjx: already a party)

Question 65

Aggregation (diversity smj)

Answer 65

Add more claims to meet amount required for Diversity: - Single P vs single D for multiple claims - Single P vs multiple joint tortfeasors

Question 66

Interpleader

Answer 66

- A party (e.g. stakeholder, insurance) may require two or more claimants to litigate among themselves to determine which, if any, has the valid claim ($500+ and diversity ANY two contending claimants) - Prevents separate actions against party resulting in double liability on a single obligation)

Question 67

Motion for SummJ (RFCP 56)

Answer 67

- Ct may consider Evidence (first hand knowledge OR under oath: affidavits, decs, depos, interrogs) and it's viewed in light most favorable to nonmoving party - P or D moving MUST show: 1) No genuine dispute on material fact (proved by Evidence) AND 2) Party is entitled to J as matter of law (automatic if 1 is shown) - Ct has discretion to approve/deny - If moving, MUST do no later than 30days AFTER close of discovery - May move for partial J (e.g. SummJ on one issue)

Question 68

Motion for J as matter of law (JMOL - FRCP)

Answer 68

- Motion based upon evidence presented at trial and viewed in light most favorable to nonmoving party - ONLY move AFTER other party has presented their case AND rests - Granted ONLY if reasonable jury could not disagree on the result - If granted, case does not go to jury CA: Motion for Directed Verdict

Question 69

Initial disclosures (Required Disclosures - FRCP)

Answer 69

MUST disclose w/in 14days of Rule 26(f) conference (discuss: production of required initial discs, claims, defenses, settlement, preservation of disc info, and discovery plan): 1) ID of nonparty who is likely to have discoverable info that DISCLOSING party MAY use to support claim or defense (name, ph, and subject nonparty has info on) - NOT required to disclose nonparty who has harmful info to one's claim - Failure to disclose: cannot use W at trial unless failure is substantially justified or harmless 2) Docs and things (w/in one's control) that DISCLOSING party MAY use to support claims or defense (e.g. insurance) - NOT required to disclose docs/things that harm one's case - Failure to disclose: cannot use docs/things at trial unless failure is substantially justified or harmless - Discovery is BROADER than admissibility of evidence - Duty to Supplement response: After response to discovery + circumstances change + response now incomplete or incorrect + MUST disclose - CA - NO required disclosures

Question 70

Discovery tools (FRCP)

Answer 70

Requests for discovery may be sent ONLY AFTER Rule 26(f) conference (discuss: production of required initial discs, claims, defenses, settlement, preservation of disc info, and discovery plan) 1) Depos: person gives live testimony under oath from present recollection. - Parties to the claim: serve notice of depo is sufficient - Nonparties: better to supoena to compel attendance - Max travel: 100 from home or work - Limit: NO more than 10 total and cannot depose twice same person, no longer than 7hrs per day CA: Unlimited - Use: impeach deponent, any use if deponent is adverse, any purpose if deponent is unavailable for trial 2) Interrogs: written Qs to be answered in writing under oath - Parties to the claim ONLY (not nonparties) - Answer w/in 30days (+3 days if mailed) - Must answer from info reasonably available to party (must investigate if info w/in control) - Max 25Qs CA: 35Q 3) Request to produce: make docs/things available for review and copying, or enter premise to inspect, measure, etc. - Parties to the claim ONLY (get same info from nonparties by subpoena) - MUST respond w/in 30days - For Non-parties: must include a subpoena CA for Non-parties: Serve w/notice to depo and include a subpoena duces tecum 4) Med exam: ONLY when person's health is in controversy and there is "good cause" - Party to the claim ONLY - OR person in party's custody or legal control - MUST obtain Ct order 5) Request for admissions: written request to admit facts - Party to the claim ONLY - Failure to deny is an admission - "Made reasonable inquiry and cannot find enough evidence to admit or deny"

Question 71

SMJ

Answer 71

Ct's power over the case - Fed Ct have limited Jx: diversity of Citz (and alienage) OR Federal Question (FQ) - CA Ct: ANY civil case arising under Fed or State Law * Fed Ct cannot hear: divorce, alimony, child custody, probate estate * State Ct has GenJx thus can hear ANY case thus if no SMJ in Fed, ALWAYS look to State Except: Patent, BK, some Fed Securities

Question 72

Proper Venue

Answer 72

P can file in ANY Fed Dist Ct where: 1) ALL D resides in the same State (Human: domicile vs Corp: depends on Specific JX or Gen Jx) OR 2) Substantial part of events/omission of the claim arose If no 1), nor 2) 3) Any D is subject to Pjx at the time action is commenced ONLY if no other FD applies * Apply rules to FQ and Div cases ``` - CA - Local actions (land issues: recovery/interest/damage to prop): County where prop lies ``` Transitory actions (PI or K): any County where D resides, OR - K was entered - K was to be performed - Injury occurred

Question 73

Discovery and Rule 26(f) Conference (FRCP)

Answer 73

Steps 1) Meet and confer 21days before Rule 26(f) conference 2) Initial Disc (mandatory) w/in 14days of Rule 26(f) conference 3) Rule 26(f) confererence 4) Request Disc (discovery tools) after Rule 26(f) conference

Question 74

Supplemental Discovery (FRCP)

Answer 74

Duty to Supplement response: After response to discovery + circumstances change + response now incomplete or incorrect + MUST disclose CA: NO Duty to Supplement response: After response to discovery + circumstances change + response now incomplete or incorrect. - Party MUST propound a supp interrog to elicit later-acquired info (also supp demand for inspection)

Question 75

Enforce Discovery (FRCP)

Answer 75

Protective Order: move to prevent discovery of info: annoyance, embarrasment, undue burden, or expense - Ct can deny, limit, permit discovery Partial response to discovery: if responding party affirms some and denies some, requesting party can (two steps): - Move to compel + costs (re: atty's fees for motion) - If no response: merits sanctions ( + costs (atty's fees for motion) + hold in contempt No Response: requesting party (one step): - merits sanctions + costs (atty's fees for motion) + hold in contempt * No merits sanctions if loss of docs/things is unintentional

Question 76

Multiple P vs Multiple D

Answer 76

Allowed if claims: 1) Arise from same TO AND 2) Raises at least one common Q

Question 77

Crossclaim (FRCP)

Answer 77

Claim against CO-PARTY (P v co-P or D v co-D) co-party MUST respond w/in 21days of SOCrossclaim MUST arise from same TO as P's claim (BUT NEVER compulsory: assert now or sue later) MUST meet SMJ (FQ or Div) if not SuppJx (Pjx: already a party) - CA - Cross-complaint