Civil Procedure California Bar Exam Long Outline

Civil procedure

  1. Personal Jurisdiction

    1. State long-arm statute

    2. Constitutional Analysis: D must have such minimum contacts with the forum so that the exercise of jurisdiction does not offend traditional notions of fair play and substantial justice.

      1. Contact (purposeful availment and foreseeability)

      2. Fairness (relatedness of contact and claim or substantial ties giving rise to general jurisdiction.; convenience to D; state’s interest)

  2. Subject Matter Jurisdiction

    1. Diversity Jurisdiction

      1. Complete diversity: there is no diversity of citizenship jurisdiction if any plaintiff is a citizen of the same state as any defendant (across the v)

        1. Tested at the time the case if filed

        2. Human citizenship based on domicile (physical presence in state & subjective intent to make that her permanent home)

        3. Corporation citizenship based on (1) place of incorporation AND (2) principal place of business (look to the headquarters / nerve center or where the corporation does more production or service than anywhere else / muscle center).

        4. Unincorporated associations citizenship based on citizenship of ALL members (where members in every state – no diversity of citizenship).

        5. Decedents, minors and incompetents: look to their citizenship, not the citizenship of their representatives.

        6. Class action: citizenship based on that of the named Ps.

      2. Amount in controversy must exceed $75,000:

        1. P’s good faith claim is sufficient, unless it is clear to a legal certainty that the P cannot recover more than $75k (what she ultimately recovers is irrelevant, but a P who recovers less than $75k may be liable for the D’s litigation costs).

        2. Aggregation: may aggregate claims where it is one P v. one D; and for joint claims use the total value of the claims.

        3. Equitable relief: two tests, if either is over $75k it’s okay

          1. P’s viewpoint: does the absence of the injunction cost P more than $75K

          2. D’s viewpoint: would it cost D more than $75k to comply with the injunction.

    2. Federal Question Jurisdiction: Complaint must show a right or interest founded substantially on a federal law, so that the claim “arises under” federal law.

      1. Well Pleaded Complaint Rule: federal question must appear on the face of a well pleased complaint. P must be enforcing a federal right.

  3. Supplemental Jurisdiction

    1. THE TEST: the claim you are trying to get into fed court must share a common nucleus of operative facts with the underlying claim, such that it arises from the same transaction or occurrence.

    2. Limitation: you cannot use supplemental jx. to overcome a lack of diversity in a diversity case for a claim by a P. So, a non-federal, non-diversity claim can be heard in federal court if it meets “the test” UNLESS it is:

      1. Asserted by a P

      2. In a diversity case (not FQ)

      3. It would violate complete diversity.

    3. Discretionary factors: Court has discretion NOT to hear the supplemental claim: (1) if the federal question is dismissed early in the proceedings; or (2) if the state law claim is complex or (2) state law issues would predominate.

  1. REMOVAL: allows defendants (only) to have a case filed in state court “removed” to fed court.

    1. Requirements:

      1. May only remove cases that could have originally been brought in fed court (diversity/ FQ)

      2. May only be removed to the federal district court which embraces the state court in which the case was originally filed.

      3. Must remove no later than 30 days after the initial service of process.

      4. All defendants must agree to removal

    2. Special Rule for Diversity Cases: no removal if any defendant is a citizen of the forum.

      1. But, if the forum-citizen is dismissed, the case is removable. So, the remaining D has 30 days from service of the dismissal in which to remove. But, no removal more than one year have the case was filed in state court.

    3. Waiver: A D who files a permissive counterclaim in state court probably waives the right to remove. Filing a compulsory counterclaim in state court, though, probably does waive the right to removal.

  2. Erie Doctrine: in diversity cases, federal court must apply state substantive law.

    1. Clearly substantive: (1) elements of a claim or defense; (2) statute of limitations; (3) rules for tolling statutes of limitations; (4) choice of law.

    2. But, if there is a federal law (like FRCP or FRE) on point that directly conflicts with state law, apply the federal law as long as it is valid (i.e. it’s arguably procedural).

    3. If there is no federal law on point, and it is unclear whether the rule is substantive or procedural consider:

      1. Is the state rule outcome determinative? → apply state law

      2. Does either federal or state system have a strong interest in having its rule applied (balance of interests)?

      3. Avoid forum shopping. If the federal court ignores state law on this issue, will it cause parties to flock to federal courts? → apply state law.

  3. Venue

    1. Local actions (re ownership, possession or injury to land) must be filed in the district where the land lies.

    2. It it’s not a local action, venue is proper in any district where

      1. ALL defendant’s reside OR

        1. Human reside where they are domiciled

        2. Corporation resides in all districts where it is subject to personal jurisdiction when the case if filed.

      2. A substantial part of the claim arose OR

      3. Fall back-provision: venue is proper

        1. In a FQ case: any district where any D “is found”;

        2. In a diversity case: any district where any D is subject to personal jx.

    3. Special Rule: where all D’s reside in different districts of the same state, venue is proper in any district in which any of them resides.

    4. Transfer of venue: Can only transfer 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 without waiver by the D.

      1. If venue in the original district is proper, you may transfer to another district based on convenience of the parties and witnesses and in the interest of justice. Could should look to (1) public factors (what law applies, what community should be burdened w/ jury service, and (2) private factors (convenience, where witnesses and evidences are)

      2. If venue in original forum is improper, court may transfer in the interest of justice or dismiss.

    5. 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 b/c it is in a different judicial system.

      1. Does not matter that P may recover less in the other court.

      2. Almost never granted if P is resident of the present forum.

  1. Service of Process

    1. In addition to personal jx., must give notice to D. Deliver to D (1) a summons (formal court notice of suit); (2) a copy of the complaint.

    2. Timing: must be within 120 days of filing case or case dismissed w/out prejudice.

    3. Mechanics. Process may be served by any nonparty who is at least 18 years old

      1. Personal service: papers given to D personally

      2. Substituted service: papers given to a person at the D’s usual abode; person must be of suitable age and resides there.

      3. Service of D’s agent: process can be delivered to D’s agent.

      4. State law: can use any method permitted by state law.

      5. Waiver by mail: Process mailed to D by first class mail, postage prepaid. OK if D returns waiver form w/in 30 days.

    4. Geographic limitation: Process may be delivered to D in another state IF forum state allows. Except, federal court may serve outside the forum state regardless of state law if (1) bulge rule (w/in 100 miles of the courthouse) or (2) statutory interpleader.

    5. Immunity from service: states may immunize from service a witness or party who enters the state to appear in another action.

  2. Pleadings

    1. Rule 11: requires an attorney or a pro se party sign all pleadings, written motions, and papers certifying that to the best of her knowledge and belief, after reasonable inquiry: (1) the paper is not for an improper purpose, (2) the legal contentions are warranted by law, (3) that factual contentions and denial of factual contentions have evidentiary support.

      1. Certification effective every time position is “presented” to a court.

      2. Sanctions may be levied (they are discretionary) against attorney, firm or party to deter bad conduct (not for punishment). Can be non-monetary sanctions.

      3. Motion for violation of Rule 11 is served on the other party, but is NOT immediately filed on the court. B/c the party allegedly violation Rule 11 has 21 days (safe harbor) to withdraw the document or fix the problem. If she does not fix the problem, then the motion can be filed.

      4. Court has authority to raise Rule 11 problems sua sponte.

    2. Complaint:

      1. Requirements: (1) statement of subject matter; (2) short and plain statement of the claim, showing entitlement to relief; AND (3) demand for judgment.

        1. Pro se claimants must meet all these requirements.

        2. The purpose is to give the D proper notice.

      2. Special matters that must be pleaded with particularity or specificity: fraud, mistake, and special damages (must give details)

    3. Defendant’s Response: Rule 12 requires the D to respond by motion or by answer. Either one must be within 20 days after service or else risk default.

      1. Motions:

        1. Issues of form: (1) 12(e) motion for more definite statement – pleadings so vague D can’t frame a response (rare) or (2) 12(f) motion to strike, which is aimed at immaterial things.

        2. Rule 12(b) defenses: (1) lack of subject matter jurisdiction; (2) lack of personal jurisdiction; (3) improper venue; (4) insufficiency of process; (5) insufficient service of process; (6) failure to state a claim; (7) failure to join indispensable party.

          1. Can be raised either by motion or answer.

          2. Numbers 2, 3, 4, and 5 are waivable, so they must be put in the FIRST rule 12 response (motion or answer) or else they’re waived.

          3. Subject matter jurisdiction is NEVER waived.

      2. Answer:

        1. Timing: must be served w/in 20 days if the D makes no motions; if D does make a Rule 12 motions, and it’s denied, she must serve her answer within 10 days after court rules on motion. If D waives service, she has 60 days from P’s mailing to waiver form in which to answer.

        2. Must respond to allegations of complaint: (1) admit; (2) deny; (3) state that you lack sufficient information to admit or deny

          1. Number 3 acts as a denial, but can’t be used if the information is public knowledge or is in the D’s control.

          2. Failure to deny can constitute an admission on any matter except damages.

        3. Must raise affirmative defenses (e.g. SoL, SoF, res judicata, self-defense).

    4. Counter-claim: offensive claim against an opposing party. Filed with the D’s answer.

      1. Compulsory: arises from the same transaction or occurrence. MUST be filed in the pending case, or it is waived. The claim cannot be asserted in another action.

        1. But, if you never answer the case (e.g. get the case dismissed), the compulsory counter-claim rule does not apply.

        2. Still need federal jx. (but always meet the test for supp jx. b/c same T/O)

      2. Permissive: does not arise from same transaction or occurrence as plaintiff’s claim. May assert it with the answer in this case or in a separate case.

        1. Still need federal jx.: diversity, FQ (will NOT meet supp. jx. b/c not same T/O)

    5. Cross-claim: offensive claim against a co-party. It MUST arise from the same transaction or occurrence as the underlying action. NOT compulsory.

    6. Amending Pleadings:

      1. Right to amend:

        1. P has a right to amend one time before D serves his answer.

        2. D has a right to amend one time w/in 20 days of serving his answer.

      2. If there is no right to amend, party must seek leave of the court to amend.

        1. Granted if justice so requires – usually allowed unless delay or prejudice.

        2. If P amends, D must respond w/in 10 days or remaining 20 days, whichever’s longer.

      3. Variance: when the evidence at trial does not match what is pleaded. May amend to conform to the evidence, so pleading reflect what will be tried.

      4. Amendment after the statute of limitations has run: allowed if the amendment “relates back” to the original pleadings.

        1. To join a new claim: amended pleadings “relate back” if they concern the same conduct, transaction, or occurrence as the original pleadings, so you treat the amended pleading as though it was filed when the original was filed, so it can avoid the statute of limitations problem.

        2. Changing D after the SoL has run: will “relate back” if new party received notice of the action so that she will not be prejudiced by maintaining her defense on the merits, and knew or should have known that, but for a mistake concerning the proper party’s id, the action would have been bought against her.

  3. Joinder of Parties

    1. Proper D and Ps MAY be joined together if

      1. The claims arise from the same transaction or occurrence AND

      2. Raise at least one common question.

      3. And the claims meet subject matter jurisdiction.

    2. Necessary and Indispensable Parties:

      1. An absentee is forced to join the case if he meets one of three tests:

        1. Without the absentee the court cannot complete relief

        2. Absentee’s interest may be harmed if he isn’t joined.

        3. Absentee claims an interest which subjects a party (usually defendant) to multiple obligations.

Note: joint-tortfeasors are NOT necessary parties.

      1. Joinder must be feasible.

        1. There is personal jurisdiction over him AND

        2. Joining him will not make it impossible to maintain diversity.

      2. If joinder is NOT feasible, then the court may either (1) proceed without him or (2) dismiss the whole case. Factors for deciding whether to proceed or dismiss:

        1. Is there an alternative forum available?

        2. What is the actual likelihood of prejudice?

        3. Can the court shape relief to avoid that prejudice?

    1. Impleader (third-party practice): A defending party wants to bring in someone new b/c that 3rd party may owe indemnity or contribution to the defending party.

      1. Timing: D may implead as of right within 10 days after serving answer; after that, need court permission.

      2. After the 3rdP is joined

        1. The P can assert a claim against the 3rdP if: (1) the claim arises from the same transaction or occurrence as the underlying case AND (2) there is s.m. jx.

        2. The 3rdP may assert a claim against the P if: (1) same transaction or occurrence AND (2) there is s.m. jx.

        3. P may cross-claim against 3rdP if: (1) same T/O AND (2) s.m. jx.

    2. Intervention: where 3rd Party seeks to intervene in the case. Granted if (1) applicant claims an interest in the property or transaction that is the subject matter of the action AND (2) disposition of the action without him may impair his ability to protect that interest.

    3. Interpleader: joinder where several persons have same claim to same assets. Requires (1) complete diversity between the stakeholder and all adverse claimants + $75K OR (2) FQ.

    4. Class Actions:

      1. Initial Requirements – Rule 23(a):

        1. Numerosity: too many class members for practicable joinder

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

        3. Typicality: representative’s claims/defenses typical of those of the class

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

      2. Must fit in one of 3 types:

        1. Class treatment is necessary to avoid harm either to class members or to party opposing class. Usually limited fund. (Can ask money damages)

          1. No notice

          2. No opportunity to opt out

          3. No need for common issues to predominate OR

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

          1. No notice to the class required

          2. No opportunity to opt out

          3. No need for common issues to predominate. OR

        3. ($) Common questions of law or fact predominate over any question affecting only individual members, so class action is superior to other available methods. Presumptively used when money damages are at issue.

          1. Must provide notice to the class (best notice under the circumstances)

          2. Class members have right to opt out

          3. Must show common issues predominate and are superior.

      3. Certification: Court must determine “at an early practicable time” whether to certify the class as a class action, must define the class and the class claims, issues or defenses, and appoint a class counsel who will fairly and adequately represent the interests of the class.

      4. Judgment & Settlement

        1. All class members are bound by the judgment, except those who opt out.

        2. Court must approve a dismissal or settlement.

        3. ALL types of classes require notice of a proposed settlement be given to the class, and an opportunity for feedback re the proposed settlement.

        4. (b)(3) classes require a back-end opt out opportunity for settlement.

      5. Jurisdiction:

        1. Personal Jurisdiction: No need for minimum contacts for unnamed Ps as long as there is adequate representation, notice, and opportunity to opt out.

        2. Subject Matter Jurisdiction: FQ or diversity. If diversity:

          1. Look only to the citizenship of the class representatives (and not the class members). As long as the class rep’s divers, it’s okay

          2. Look only to the amount in controversy asserted by the class rep. As long as the rep’s claim exceeds $75k, it’s okay. Class members w/ claims not exceeding $75k may invoke supplement jx.


    1. Required Disclosure (must be produced even though no one asks)

      1. Initial Disclosure: (1) must identify persons and documents “likely to have discoverable information,” (2) computation of damages and insurance for any judgment.

      2. Experts: Must identify experts “who may be used at trial” and produce written reports containing opinions, data used, qualifications, compensation for study, etc.

      3. Pretrial: No later than 30 days before trial, must give detailed information about trial evidence, including documents and identity of witnesses to testify live or by deposition.

    2. Discovery tools:

      1. Deposition: parties or nonparties (who have been subpoenaed)

      2. Interrogatories: parties only

      3. Requests to produce: party or non-party (if accompanied by a subpoena)

      4. Physical or mental examination: only available though court order.

      5. Requests for admission: parties only

    3. Scope of discovery

      1. Standard: anything relevant to a claim or defense (something in the pleadings).

        1. Relevant means “reasonably calculated to lead to the discovery of admissible evidence.” Note: this is broader than admissible.

      2. Privileged matter is NOT discoverable

      3. Work product (material prepared in anticipation of litigation) is generally NOT discoverable.

        1. But, witness statements are discoverable if the other side shows (1) substantial need, and (2) it’s not otherwise available.

        2. Mental impressions, opinions, conclusions and legal theories are ABSOLUTELY protected.

        3. Work product need not be generated by a lawyer. It can be prepared by a party or any representative of the party (e.g. a private investigator).

    4. Enforcement of Discovery Rules

      1. Three main ways discovery problems are presented to the court

        1. Protective order: receiving party seeks protective order because the discovery request is over-burdensome.

        2. Partial violation: receiving party answers some and objects to others. If the objections are not upheld, this is a partial violation → light sanction

        3. Total violation: receiving party fails completely to attend deposition, respond to interrogatories or to respond to requests for production. This is a total violation → heavy sanction.

      2. Sanctions against a party

        1. Partial violation

          1. Can get an order compelling the party to answer the unanswered questions plus costs (including atty fees) of bringing the motion.

          2. If the party violates the order compelling him to answer, you can get heavy sanctions plus costs, and could be held in contempt for violating a court order

        2. Total violation: immediate heavy sanctions plus costs. No need to get an order compelling answers first.

        3. False denial of request to admit: recover only costs of having to prove the issue.

        4. Failure to make required disclosure: other side can choose to treat as partial violation or total violation. And the party failing to make disclosure cannot use the info at trial, unless failure was justified or harmless. Choices available:

          1. Establishment order (established fast as true)

          2. Strike pleadings of the disobedient party

          3. Disallow evidence from the disobedient part

          4. Dismiss the P’s case (if bad faith is shown)

          5. Enter default judgment against D (if bad faith is shown).

      3. Sanction against non-party: contempt (for violating subpoena or court order).

      4. Sanction against attorney: liable for all expenses (including atty fees) incurred by the other side is she counseled one of the bad acts.

  2. Pretrial Adjudication

    1. Voluntary Dismissal:

      1. P may dismiss once without prejudice by filing a written notice of dismissal, before D serves an answer or moves for summary judgment (P may re-file).

      2. If P files a dismissal a second time by filing written notice, that dismissal is WITH prejudice (so the claim cannot be refilled) (applies even if the case was filed in state ct).

    2. Default & Default Judgment: where D failed to respond. May be set-aside by showing good cause and a viable defense.

    3. Failure to state a claim 12(b)(6): Tests the sufficiency of P’s allegations. Assumes all allegations are true, and tests to see whether the facts alleged state a claim that the law would recognize.

      1. Does not consider the evidence, looks only to the face of the complaint

      2. May dismiss if the complaint shows that a complete defense bars the claim.

      3. AKA Motion for Judgment on the Pleadings.

    4. Summary judgment: moving party must show (1) there’s no genuine dispute as to a material issue of fact and (2) that she’s entitled to judgment as a matter of law.

      1. Can be for “partial” summary judgment (e.g. as to one of several claims).

      2. Court generally views the evidence (including affidavits) in a light most favorable to the non-moving party.

        1. Look at the evidence: is there a dispute on a material issue of fact

          1. Pleadings are NOT evidence (unless they are verified – under oath), though they may be relevant to show an admission.

          2. Thus, where the only evidence before the court are the Ds affidavits, that evidence may be sufficient to invoke summary judgment.

        2. Evidence must be first-hand knowledge.

  3. Conferences and Meetings

    1. Pretrial Conferences: court may hold pretrial conferences as needed to expedite the case and foster settlement.

      1. Determines issues to be tried and evidence to be proffered

      2. Recorded conference supersedes the pleading, and becomes a roadmap of issues to be tried, evidence to be presented at trial, witnesses etc.

      3. May be amended to “prevent manifest injustice” (very high standard – generally if it does not appear in the final pretrial conference order, it won’t happen in court).

  4. Trial, Judgment and Post-Trial Motions

    1. Jury Trial

      1. 7th Am preserves the right to a jury trial in a civil matter as to legal relief (i.e. damages), but a judge decides equitable relief (i.e. injunction).

      2. Demand for jury trial must be in writing no later than 10 days after service of the last pleading raising jury triable issues.

      3. In jury selection process, each side has unlimited strike for cause (e.g. bias, prejudice, related to a party). Each side also gets 3 “preemptory” strikes. Peremptory strikes must be used in a race and gender neutral way.

      4. Motion for judgment as a matter of law: exceptional order, by which court takes case away from the jury.

        1. Timing: Occurs after opponent has presented case, but before submission to the jury

        2. Standard: when evidence is viewed in a light most favorable to the non-moving party, reasonable people could not disagree on the result.

    2. Renewed Motion for Judgment as a Matter of Law: where jury reaches a verdict, and the losing party brings a motion claiming that reasonable persons could not have reached that verdict.

      1. Timing: must be raised within 10 days after entry of judgment. Moving party MUST have previously sought judgment as a matter of law at close of ALL evidence.

      2. Standard: same as with motion for judgment as a matter of law.

    3. Motion for a new trial: judgment entered, but errors at trial require a new trial.

      1. Timing: must be raised within 10 days after judgment.

      2. Grounds: (1) prejudicial error; (2) new evidence; (3) prejudicial misconduct; (4) judgment is against the weight of the evidence.

  5. Appeal

    1. Final Judgment Rule: As a general rule, can appeal only from final judgments, which means an ultimate decision by the trial court of the merits of the entire case.

      1. File notice of appeal in trial court w/in 30 days after entry of judgment

      2. Final = trial court has nothing left to do on the merits of the case.

    2. Interlocutory Review (pre-final judgment)

      1. As of right: anything having to do with injunctions; grant/denial of class cert.

      2. Discretionary: Upon its own discretion, DC may certify that there should be an interlocutory appeal. And the CoA may accept the appeal, again based on its own discretion.

  6. Claim and Issue Preclusion

    1. Claim preclusion (res judicata): An affirmative defense barring the same parties from litigating all claims that were actually litigated or could have been litigated in a prior claim.

      1. Elements: (1) same claim, (2) same parties, (3) final judgment, (4) on the merits, (5) in a court of competent jurisdiction.

        1. Same claim: split on authority

          1. Transactional Test: Same operative facts, same transaction or series of transactions.

          2. Primary Rights Theory: Same claim = same primary right. Still look to the evidence to determine whether same primary right. Thus, there are separate claims for property damages and personal injury b/c they involve different rights. (minority view)

        2. Same parties (or party represented in the prior action – “in privity”)

        3. Final judgmenton the merits”: General rule: unless the court said otherwise when it entered the judgment, any judgment is “on the merits” UNLESS it was based on (1) jurisdiction, (2) venue, or (3) indispensable parties.

        4. In a court of competent jurisdiction

    2. Issue preclusion (collateral estoppel): An affirmative defense barring a party from re-litigating an issue determined against that party in an earlier action, even if the second action differs significantly from the first one.

      1. Elements

        1. Same issue

        2. Actually litigated & decided (not enough that issue could-have-been litigated)

        3. Issue was essential to judgment

        4. Full and fair opportunity to litigate

        5. Does NOT have to be the same parties

      2. May only be asserted against one who was a party to the first case.

      3. May only be asserted by one who is a party to the first case. But, some courts have rejected this traditional view to allow for non-mutual assertion of issue preclusion:

        1. Non-mutual defensive issue preclusion: D who was not a party to the first case, may assert issue preclusion against a P who was a party to the first case. [Case 1: A v. B; Case 2: A v. C → C may assert issue preclusion against A as long as A had a full and fair opportunity to litigate the issue in Case 1].

        2. Non-mutual offensive issue preclusion: P who was not a party to the first case, may assert issue preclusion against a D who was a party to the first case [Case 1: A v. B; Case 2: C v. A → C may assert issue preclusion against A as long as A had a full and fair opportunity to litigate the issue in Case 1]

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