This is an extract of our Civil Procedure Bar Mini document, which we sell as part of our Civil Procedure - Bar Exam Outlines collection written by the top tier of Thomas Jefferson School Of Law students.
The following is a more accessble plain text extract of the PDF sample above, taken from our Civil Procedure - Bar Exam Outlines. Due to the challenges of extracting text from PDFs, it will have odd formatting:
Civil Procedure Mini
1. PERSONAL JURISDICTION - jurisdiction over the parties in the state (Same analysis in CA) a. Long Arm Statute - State's jurisdiction over non-residents. (1) General (2) Specific b. In Personam - Jurisdiction over the person based on contacts with the forum state i. Traditional Basis (1) Consent (2) Personally served in-state (3) Domicile ii. Minimum Contacts - "Whether the D has such minimum contacts with the forum so that jurisdiction does not offend traditional notions of fair play and substantial justice"
1. Contact - There must be a relevant tie between the D and the forum state. a. Purposeful Availment - "Purposely availed himself to the benefits and protections of the forum state" (Websites - Interactive / Passive) b. Foreseeablity - "Reasonably likely to be haled into court there"
2. Fairness - "fair play and substantial justice" a. Relatedness between the contact and plaintiff's claim. i. Specific - Claim arises out of minimal contact with forum state.
1. General - Claim does not arise out of the contact. Need continuous, substantial and systematic contacts. b. Convenience - The forum puts D at a severe disadvantage c. States Interest - In providing the forum to its citizens c. In Rem - Power to determine the status of property within its state. d. Quasi In Rem - Proceeding based on the presence of that person's property within the state. Modernly a minimum contacts analysis. Jurisdiction is limited to amount of property.
2. SUBJECT MATTER JURISDICTION (Power over the CASE) a. Diversity of Citizenship i. Citizens of different states (or a citizen of a state and a foreign state)
1. Complete Diversity - P can't be from same state as any D a. Domicile - (1) Physical presence (2) with subjective intent to remain. (Determined at the time of filing) b. Corporations - (1) State of incorp (2) PPB - Nerve center / total activity ii. Amount in Controversy Must EXCEED $75,000
1. Good Faith Test - Based on the good faith allegations of the P unless it appears to a legal certainty that she cannot recover more that $75,000.
2. Aggregation - 1 P v. 1D and joint tortfeasors - Can aggregate ANY claims
3. Injunctions - gain to P or the cost to D exceeds $75,000. iii. EXCLUSIONS - Federal courts will NOT hear cases involving divorce, alimony, child custody, or probate. b. Federal Question - "arises under" a fed law or resolution of a substantial question of fed law. i. Well pleaded complaint rule - The fed question must appear on the face of P's "well pleaded complaint." (NOT in a defense or counter claim) c. Supplemental Jurisdiction - Diversity and Fed Q get you into federal court. Supplemental Jurisdiction may permit an additional claim that does not meet original jurisdiction. i. Common Nucleus Test - The claim must share a common nucleus of operative fact with the claim that invoked diversity or federal question. CNOF is met by claims that arise out of the same transaction or occurrence.
1. Fed Q - The court may hear a related state claim by any party.
2. Diversity - Permits D's to adjudicate related counterclaims, crossclaims, and impleaders. NO diversity is needed with parties D brings in ii. Limitation - In diversity cases, P may not use Supp J to overcome a lack of diversity. iii. Discretion - Court has discretion to not hear claim if: (1) Fed Q is dismissed (2) state law is complex or predominates. 1
d. REMOVAL - (1) Allows D's to remove a case to federal court (2) All D's must agree (3) D who files a permissive Counterclaim waives removal right (4) Local D can't remove (5) Must have SMJ for Federal Court (6) Only removable to Fed district embracing state court (7) 30 days to remove from service of the document that first made the case removable i. Procedure - (1) File notice of removal (2) Sign under rule 11 ii. Remand - If removal is improper federal court can remand to state court. P must move to remand within 30 days of removal, but if there is no SMJ then the P can remand anytime. Whole claim can be remanded or only state claim. e. ERIE DOCTRINE - In a diversity case, must apply state substantive and Fed procedural law i. Step 1 - Court has clearly determined four areas to be substantive: (1) Elements of a claim or defense, (2) statute of limitations (3) choice of law. ii. Step 2 - If NOT clearly determined, is a Federal Law on point that directly conflicts with the State Law. If so, APPLY the Federal Law. (FRCP, FRE, Statute)
1. Note - FRCP is valid if it is arguably procedural (Has never been held invalid) iii. Step 3 - If NOT clearly determined and there is NO federal law on point, apply (1) Outcome Determinative test (2) Balance of Interests (3) Avoid Forum Shopping
3. *CA - Subject Matter Jurisdiction - Superior Courts have general jurisdiction over all cases except for those cases with exclusive federal jurisdiction. a. Superior Court Classifications i. Limited Civil Cases - Amount in controversy does not exceed $25,000. ($25,000 ok)
1. Limited Pleadings and Discovery - Limited to ONE deposition & a combined 35 interrogatories, inspection demands, and request for admissions.
2. Damages are Caped - Cannot recover more than $25,000.
3. Caption - Must write Limited Civil in the caption if P files a limited civil case. ii. Unlimited Civil Cases - Civil cases, amount in controversy exceeds $25,000. iii. Small Claims - Small claims division of the Superior Court
1. Damages are Caped - $7500 for individual, $5000 for entity b. Classification - Plaintiff initially determines what type of case it is. Attorney's fees and cost should not be considered. Any claim must exceed $25,000 (Cross complaint or complaint) c. Reclassification - May reclassify the case automatically by the clerk if it was misclassified or if subsequent events require change of classification or upon motion of the parties. i. Court may consider evidence beyond the complaint but may not consider the merits of the case in determining reclassification. (arbitration award, settlement conference)
4. VENUE - Determines which district court is proper (*CA - determines which county is proper) a. Local Action - Land ownership, possession, or injury must be filed where the land lies. b. Transitory Action - A district: (1) Where ANY D resides if ALL D's reside in the same state (2) Where a substantial part of events or omissions occurred (3) Div - PJ / Fed - Found i. Resides - Persons - Where domiciled / Corporation - Where subject to PJ c. *CA - Transitory - (1) Where D resides when case is filed (2) Contract - Where entered into or performed (3) PI or Wrongful death - Where injury occurred (4) Non resident - Any county
5. TRANSFER of Venue - In the Interest of Justice the court MAY transfer to any district in which the case Could have been filed. (i.e. proper Venue, PJ and SMJ) a. Interest of Justice - Court will balance both Public (burden of jury service / protecting citizens) and Private interests (Convenience of parties / location of evidence)
6. *CA - Transfer of Venue - May transfer between Superior Courts in CA. a. Original Venue Improper - D can transfer to a proper County before responsive pleading filed. b. Original Venue is Proper - A court on motion may transfer if: (1) Possibility of impartial trial (2) Convenience of witnesses (3) Judge qualified to act (4) Ends of justice would be promoted. 2
c. Forum Non Conveniens - If there is a far more appropriate court within a separate judicial system (foreign country), a court may dismiss or stay the action to let P sue D there. i. Requires a very strong showing of private and public interests to dismiss or stay. ii. Does not matter that P may recover less in the other court. iii. *CA - Can be to another State's court or a foreign country. Court may grant motion on the condition that D waive PJ and SOL.
7. SERIVCE OF PROCESS a. Notice - Notice must be given that is reasonably calculated under all circumstances to apprise interested parties of the pendency of an action. b. Service - Any non party over age 18, must deliver to D: (1) Summons (2) Copy of complaint c. Process i. Personal Service - given to D personally Anywhere in the forum state
1. *CA - In CA you can only use substituted service if personal service fails. ii. Substituted - (1) Usual place of abode (2) left with competent person who resides there
1. *CA - Must be (1) At least 18, (2) inform of contents, and (3) mail process to D first class, postage prepaid. (Service is effective 10 days after mailing) iii. Service on D's Agent - Process can be served on D's agent if receiving service is within the scope of the agency. (i.e. corporations registered agent) iv. State Law - Any method allowed by state law where fed court sits or service rendered. v. Waiver by Mail - Written waiver is valid if mailed to D by first class mail, postage prepaid, and the D returns within 30 days. (*CA - 20 days)
1. If the D does not return the waiver form, the D must pay the cost of service. vi. *CA - Publication - Only on affidavit from plaintiff's attorney that D cannot be served, after demonstrating reasonable diligence to serve D in another way. d. Out of State - Process delivered out of state is valid if the forms state law allows such service i. *CA - Can be made out of state by mail, postage prepaid, return receipt requested. If by mail service is complete 10 days after mailing. e. Immunity from Service - D is immune from instate personal service if he is instate to be a witness or party in another civil case. (*CA - NO such immunity) f. Other Documents - For subsequent papers, i.e. answer, motions, discovery, serve the documents by delivering or mailing the documents to the party's attorney or pro se party. If mailed add 3 days for any required response. (*CA - add 5 days)
8. PLEADINGS - Documents setting forth the claims or defenses. Federal a. Rule 11 Sanctions - Requires attorney, or pro se party, to sign all pleadings, written motions and papers certifying that to the best of her knowledge (1) Not improper purpose (2) Legal contentions warranted by law (3) Factual contentions and denials have evidentiary support. If violated the court may impose sanctions to deter future behavior. i. Continuing Certification - Recertified every time document is presented to the court ii. Discovery - Not applicable to discovery. iii. Sanctions - Sanctions can be non-monetary (striking a pleading, reprimanding the attorney) in an amount sufficient to deter future conduct. iv. Due Process - Before imposing sanctions, a court must give party a chance to be heard. v. Sua Sponte - Court may raise rule 11 sanctions sua sponte (on its own) vi. Objective standard - An objective standard is used for judging conduct. A lawyer may not avoid sanctions with a "pure heart and an empty head." However, an attorney may rely on the reasonable representations of the client. vii. Safe Harbor Provisions - A Rule 11 motion for sanctions may not be filed until 21 days following service. Gives counsel time to withdraw or correct the allegations.
1. *CA - Safe harbor also applies when the court raises the issue on its own 3
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