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In which State can Π sue Δ? Analysis: First, determine Jx CA & FED - Cts have Jx in 4 situations (CLPD): Consents Long-Arm Presence Domiciled Then do CON analysis – Shoe, Fairness & Notice CON Analysis (MET): Minimum Contact (R4PA) [Shoe] Relevant tie to forum State, such that 4seeable Δ c/b haled into forum Ct Purposeful Availment – of forum State tax breaks, market, laws… Exercise of Jx in forum State ok w/ R4PA, as long as Traditional notions of Fair Play & Substantial Justice are not offended (FN) Fairness – relatedness b/n Δ’s actions & Π’s claim (S v. GCS) Specific [this instance] v. General Jx [systematic & continuous contacts] & Convenience (hardship for Δ?) & State’s interest provide forum for citizens Notice – req’d by DP (i.e., 4Cability) SUBJECT Matter Jx (DFQ RVSE) -which Ct (State/FED)? Diversity FED Diversity (complete$75k) Complete diversity of citizenship at time action filed Humans: Presence in State & Subjective intent to make permanent home Decedents, minors, incompetents: Look at their citizenship (not reps’ ctznshp) Corps: State of Inc./PPB (nerve center)/muscle center NB (PPB): Hertz v Friend (2010) – where “high level officers direct, control & coordinate corp’s activities” UnInc: (Pship, union, LLC) determine citizenship of all members Amount in controversy m/b over $75K CA Diversity (CRM) Classification Amt stated in complaint (LUSC) Limited civil case (up to $25K) Unlimited (>$25K) Small Claims (individuals: $7500, corps up to $5000) Reclassification – doesn’t affect SMJx; by Ct or motion Limited Unlimited - Π must request & pay fee (possibility) Unlimited Limited: will result in J of $25k or less Multiple Claims – Aggregate if one Π & one Δ Reclassify if X complaint > $25k FED Question (AW) Arises under CON, FED law or treaties If Π seeks to enforce FED right, then FQ Well-Pleaded complaint rule – includes Jx grounds, basis for relief & demand for Justice NB: FQ even if just in anticipation of CON defense Removal (onlyΔ/embrace/w/in30days) Only Δs can remove from State to FED Ct (who) All Δs must agree to removal No removal if any Δ citizen of forum Remove to FED district embracing State Ct (where) Must remove w/in 30 days of first removable doc filing (when) Venue - Which Ct? FED VENUE (LT2RF) Land Action: File where land located Transitory Action (Ks, torts, etc.) File where all Δs reside OR/substantial part of claim arose Transfer (PI) Proper Venue – use law of transferor State Improper Venue – use laws of transferee State (NB: can consent to improper venue) Residence – domicile for humans/PJx for corps Forum Non-Conveniens – use if another system is more convenient CA VENUE (TT) Transitory Action (RKI/PPB) Brought in county where: Any Δ Resides at start of action Where K entered into or performed Where Injury occurred Or PPB Transfer of Venue (Im/Prop) Improper: Δ files motion for transfer Proper: Δ files motion for transfer if (ICJ): Impartial trial cannot be held, or Convenience of Witnesses & Ends of Justice better promoted elsewhere, or No Judge qualified to act NB: Selection clauses: forum enforceable; venue not Supplemental Jx - FED Ct has SMJx of at least one claim; how can we get non-SMJx claims in? TEST: Common Nucleus of Operative Fact(CNOF) Do claims arise from same Transaction/Occurrence (T/O)? Would claims ordinarily be tried together? Limitation – SJx won’t overcome lack of diversity in a diversity claim NB: SJx will overcome lack of diversity OR amount in controversy by anyone other than initial Π Erie Doctrine FED Conflict of Laws Rules (statesub;FEDprocdrl) Diversity - FED Ct must apply State substantive/FED procedural law If no FED procedural law, apply 3-part Test (OBF)
attesting papers have merit by filing & signing Fact pleading (UH) “Ultimate facts supporting COA” .last resort/need Π’s atty affidavit Outside CA – m/b consistent w/ CA law.Serve S&C w/in 120 days of filing (PSPWIG) Personal Service . must be addressed in first responsive pleading filed by Δ Complaint (NSSD) Notice pleading SMJx stmnt Short & plain stmnt of case.anywhere w/in forum State Substituted Service (AA): Agent Abode (m/b suitable age/discretion/live there) Service by Publication If: TPΔ/joinder party & w/in 100 miles Then: Out-of-State service ok Waiver by Mail – send w/in 30.If Δ has appeared. & Δ not Incompetent or infant Deny Hearing .Ct clerk gives notice to all 12b Defenses (SPVIFF) SMJx lacking PJx lacking (waivable) Venue improper (waivable) Insufficient service (waivable) Failure to State claim Failure to join indispensable party NB: if waivable.S&C w/in 60 days of filing (PSWPOI) Personal/Substituted service Subserve Personal: abode/competent/lives there/18/knows contents Corp: serve via agent/officers/directors NB: S&C must also be mailed w/ subservice Deemed effective 10 days after mailing Substitute only if no personal service w/ RP diligence Waiver by Mail (w/in State) – send w/in 30. Ct analyzes states’ interests If yes no conflict K claims – choice of law clauses If law chosen enforceable conflict w/ fundamental CA policy? If conflict. & Demand for J Counter Claim – compulsory X Claim – permissive Amended Pleadings Π once b4 Δ answers Δ w/in 20 days of answer O/w ask Ct to amend b/c justice so requires At trial: Move to amend to conform to Ev Relate back to join a new claim/Δ (T/O.KM) T/O Party Knew of action w/in 120 days of filing But4 Mistake party w/h/b named originally CA PLEADINGS (F2ARC) like Rule 11. & Forum shopping CA CONFLICT OF LAWS ANALYSIS (T-Ginterest/K-choice) Tort claims – govt interest approach Are two states’ laws identical? If no. by mail w/ return receipt Immunity – no immunity if being served for a State case PLEADINGS FED PLEADINGS (11/12/C3A) Rule 11 – Sign certifying document (NWSS) Not improper paper Legal contentions Warranted by law Facts Supported by Ev Rule 11 Sanctions (SSF) Sua sponte or on motion Serve on oppo first. 20 to return Publication .failure to answer (MAHA) Motions m/b filed b4 responsive pleading Answer (SPAFD) Serve w/in: 20 days of service or 10 days after ruling on any motion Personal defenses Admit NB: failure to deny c/b admission State lack of sufficient Ev to admit/deny Raise all affirmative defenses or may be waived Failure to answer = Default J Entered if (CFN) Claim is for a sum certain Δ Failed to appear. he is entitled to notice of Hearing by mail at least three days b4 Hearing on default app After entry . 60 to return Immune from service if testifying in State (civil) Geographic Limitation – heed forum State law NB: Delivery by one 18 & not a party CA SOP .Outcome determinative Balance of interests. does CA have greater interest than other State? CBX: DO SMJ ANALYSIS FOR EACH & EVERY CLAIM IN ESSAY Q!!!! SERVICE OF PROCESS FED SOP . give 21-day safe harbor Fines paid to Ct Rule 12(b) .
or One w/ interests which Subjects another to multiple claim Can party be joined? (FPD) Only if Feasible – i. Amount of damages (not for PI). T/O Response (QGASS) Quash motion (no PJx/bad service) To challenge. claims. have PJx & won’t destroy Diversity If party cannot be Joined? (W/OO) Proceed W/o party (ALS) Alternative forum available Likelihood of prejudice Shape relief to avoid prejudice? Or dismiss case (i. party was necessary) Impleader [3d party. can name Doe Δ Will work for relation back X complaint Ø co-party/TPΔ Filed any time b4 trial date set Must be t/o. or Lack of legal capacity. or Permissive if there’s a CQ Interpleader – [3d parties. & Common Qs predominate NB: Notice by pub ok Ct not req’d to appoint class counsel Settlements/dismissal m/b Ct approved Classification based on $s sought DISCOVERY FED DISCOVERY (R4ID2SP) Req’d Disclosures . or Anything tech wrong Not available in ltd civil cases Motion to Strike – all or part of complaint Complaint (FADX) Stmnt of Facts.. any claim can be joined if SMJx Class Action (SCIND) Initial Requirements (ACTN1): Adequate representation Commonality Typicality Numerousity & One of following (SRCQ): Separate actions risks inconsistent results. & Raise at least one Common Question of fact or law Necessary Party [3-steps] (NJnJ) Who is a necessary party? (RHS) One w/out which Ct can’t grant complete Relief. usu.. or CQ of law/fact predominate Certification (CCIDC) Define class. to shift/share blame] (10S) 10 days to implead Need SMJx Intervention – [3d party allowed to join suit] (RP) Either as a Right if interest harmed.Uniting of parties or claims in a single lawsuit FED JOINDER (PNI3C2) Permissive joinder (common T/O&Q) Arise from one common T/O. Rule 22] (MJR) Those w/ claims that expose Π to Multiple liabilities may be Joined as Δs & Req’d to interplead Claim Joinder – once a party.must notify all RP ID’able members of action Settlement/Dismissal . or Relief appropriate for entire class.7) Pymt of atty fees & expenses (BFF) Bad Faith or Frivolous litigation Punies Ø felon bringing action Ø victim Amended Pleadings Right to amend once b4 Δ files answer/after w/ Ct’s permission Amend to conform to Ev Relation back ok w/ same conduct. by Δ. issues. not compulsory JOINDER . if: Impracticable to bring all to Ct Ascertainable class Adequate representation. must appear specially or demurer – o/w waived General Demurrer -all true.Heightened pleading req’d for fraud. K breach Frivolous Litigation (21PP) 21 day safe harbor rule (§128. “can’t understand”) Used if complaint is ambiguous or unintelligible. defenses & appoint class counsel to fairly/adequately represent class interests Notice . Demand for J NB: Δ may request a stmnt of damages Π must provide w/in 15 days Π must always provide b4 default Verified pleadings tx as affidavits b/c they’re sworn Fictitious Δs – If unaware of identity.only w/ Ct approval CA JOINDER (I3C) Impleader – called X complaint (Ø Πs or Δs) Intervention – as of right or permissive if interest is direct & immediate Interpleader – holder of property w/o claim can interplead Class Action (IA2CQ).e. One whose interests may be Harmed if not joined. assert defenses Insufficient answer demurrer by Π Verified answer m/b filed w/ verified complaint Must file w/in 30 days or 10 days after motion denied Special Demurrer (goes after technicalities.e. so what? Still no case (FC) Failure to state facts sufficient 4 COA or challenge SMJx Answer Same as FED Ct but may use general denial.
NLT 10 days after J Based on: Prejudicial error/misconduct New Ev J Ø weight of Ev( CA MOTIONS (JV3JN) Jury Trial – As per CA CON .renewed JMOL File w/in 10 days after J Must JMOL first New Trial (PN Ø) .equity first Demand for jury w/in 5 days of trial setting Must deposit advance jury fees Number of jurors: 12 Verdict – 75% ok Directed Verdict Judge tells jury how to find on particular issue/case Final J c/b appealed Voir Dire – 6 peremptories per side – no bigotry JNOV – not req’d to make at trial to preserve Non Suit Motion .no time/number limits Expert – may request simultaneous exchange of info Enforcement – meet & confer Rogs – max of 35 specials.Moving party must file undisputed material facts stmnt w/ supporting Ev Non-moving party must show there is a triable issue of fact MSJ requires 75 day notice. respond w/in 30 days RFA – b/n parties. 2nd time w/ prejudice Default J – occurs when party fails to plead or o/w defend Failure to State a Claim [12b6] (ANA) Allegations assumed to be true. depos may be taken No disclosure of non-testifying witnesses absent exceptional need Protective order .unlimited only.physical exam ok. answers due w/in 30 days. heard 30 or more days b4 trial CMCs/Meetings FED MEETINGS (26fPS) 26(f) conference to submit discovery plan Pretrial Conference to expedite settlement (as needed) Scheduling meetings to plan trial CA MEETINGS)– CMCs only Trial. no duty to supplement if info accurate when given Scope – anything relevant: RP calculated to lead to discovery of admissible Ev NB: Discovery in limited civil cases Max of 35 total (Rogs. need C/O 4 mental exam No req’d disclosures Depos .bring after other side heard.Initial disclosures (w/in 14 days): names. J & Post-Trial Motions FED MOTIONS (JVR JRT) Jury Trial (w/in10/7th) Demand w/in 10 days of last pleading 7th preserves jury trial only in equity (not in law) If case involves both. admit truth. so Entitled to J as a Matter of law CA PRETRIAL (I/V MSJ) Invol Dismissal (D2/T5/S3) – after filing: Discretionary if no trial w/in 2 years Mandatory if no Trial after 5 years Mandatory if not Served w/in 3 years Voluntary Dismissal Any time b4 trial Atty checks w/ or w/o prejudice box MSJ . max 25 Qs RFP – party/non-party w/ subpoena. RFPs) 1 depo per party Form questionnaire also permitted if Π fills out & serves w/ summons CHRONOLOGY (PCTA) Pretrial Adjudication FED PRETRIAL (D2F MSJ) Voluntary Dismissal – once w/out prejudice b4 answer/MSJ. C/O w/in 10 days Privilege – requires log Supplemental . RFA. documents & things. max 10 depos & NMT 7 hrs/per day Duty to supplement upon learning response incomplete/incorrect Scope – relevant to a claim or defense RP calculated to lead to discovery of admissible Ev No priv’d info No Work Product Witness statements c/b discovered if substantial need & not o/w available Trial Experts m/b disclosed. but No RP judge/jury would find for Π based on facts in complaint Π may Appeal MSJ – moving party must show (M2): No genuine dispute re any Material fact.max of 35. damages proof. insurance agreements Experts & Trial information Rogs – written Qs.Sanctions for partial/total violation Need showing of good faith effort to get Ct’s help (CA DISCOVERY (WINDE2R3 PS2) Work Product – two levels (TA) Thoughts & opinion of atty – not discoverable Anticipation of litigation prep – can get w/ showing of need & info o/w unavailable IME . failure to deny = admission IME – Ct order when health at issue & on good cause Depos – non-party needs subpoena. addresses. J as matter of law (aka directed verdict) RP c/not disagree on result Ev viewed in light best for nonmoving party RJMOL . respond w/in 30. resolve legal issues first Voir Dire – Unltd for cause & 3 peremps JMOL (RPEV) . no limit to form rogs RFP – C/O w/in 10 days RFA .
As this Court and other courts have often recognized. and. .” . conserve judicial resources. Id. so can challenge adequacy of state procedures 3 essential elements (EFS): Earlier decision on claim/issue Final J on merits & Same parties. res judicata and collateral estoppel relieve parties of the costs and vexation of multiple lawsuits. . the defendant in the second suit may plead that fact in abatement. that decision may preclude relitigation of the issue in a suit on a different cause of action involving a party to the first case. once a court has decided an issue of fact or law necessary to its J.Appeal w/out Final J Class Actions – review cert of class Must seek review w/in 10 days Does not stay proceedings at trial level unless so ordered (CA APPEALS (TIR) Timing – 180 days after entry Interlocutory Review – appeal for writ of mandate/prohibition (IF) Must demonstrate Irreparable harm & Normal route of appeal at Final J inadequate NB: Appeals are considered a linear extension of lawsuit. the defendant in the second suit may set up that judgment as a bar under the principles of res judicata .C/b made after Π opens No COA found Final J c/b appealed Appeals FED APPEALS (FIC) Final J Rule (FU30) Appeal only Final Js (file NTL 30 days after J) Ultimate decision on merits Interlocutory Appeal . 449 U. a claimant can file a federal suit to challenge the adequacy of state procedures. The theory prevents this result by either of two means: (1) if the first suit is still pending when the second is filed.S. McCurry. Under res judicata. From MoFo letter to Ct re Primary Rights Theory: “The "primary rights" doctrine is used by courts to determine whether a plaintiff has improperly attempted to sue a defendant twice. Allen v. Thus. Under collateral estoppel. at 101. not restricted by res judicata principle BINDING EFFECT OF J Claim & Issue Preclusion FED & CA rules Claim preclusion (same): subsequent suit w/ same claim/COA (aka res judicata) 1st J conclusive on all actual & c/h/b litigated issues Issue preclusion (different): subsequent suit w/ different claim/COA (aka collateral estoppel) 1st J conclusive only re issues actually litigated Estoppel bar inapplicable w/o “full & fair opp to litigate”. or (2) if the first suit has terminated in a judgment on the merits adverse to the plaintiff. "The primary right theory has a fairly narrow field of application. The collateral estoppel bar is inapplicable when the claimant did not have a "full and fair opportunity to litigate" the issue decided by the state court. It is invoked most often when a plaintiff attempts to divide a primary right and enforce it in two suits. by preventing inconsistent decisions. encourage reliance on adjudication. a final J on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action. or in privity w/ original parties CA Primary Rights Theory – used by Ct to determine if Π has improperly attempted to sue Δ twice Applies to personal/property injury Invoked most often when Π attempts to divide primary right into 2 suits Barred by claims preclusion NB: Claims/Issue preclusion used to (RCP) Relieve parties of cost/vexation of multiple suits Conserve judicial resources Prevent inconsistent decisions (encourages reliance on adjudication process) More on Res: The difference between the two concepts has been succinctly described by Justice Potter Stewart: The federal courts have traditionally adhered to the related doctrines of res judicata [claim preclusion] and collateral estoppel [issue preclusion]. at 94. .
Abbreviation Key RP reasonable. usually C/L common law m/h must have m/h/h must have had M modernly/married prelim preliminary FM felony murder Q question! S&S search & seizure Wrnt warrant ID identification GJ Grand Jury B/Benies beneficiaries/benefits rq’d required P/Ev parol evidence Bi bilateral r’cd received 3P third party S&C summons & complaint O Officer/Owner BOD Board of Directors Pship partnership RAP Rule against Perpetuity Mort mortgage QCP quasi community property SS strict scrutiny Exec executive branch DRR dependent relative revocation IWC informed written consent ALI American Legal Institute 4cable foreseeable NB nota bene (note well) Stat statutory Ø against w/not/h would not have s/h/b should have been Jx jurisdiction MisD misdemeanor GBI grievous bodily injury VKI voluntary. knowing & intelligent cred credibility Ev evidence DJ double jeopardy CBX California Bar Exam B buyer h/b/d had been done! QK quasi-contract S seller Det detrimental P’ee promisee SJx supplemental jurisdiction D Directors S/L strict liability GP general partner b/c become(s)/became OOS out of state Prej prejudice IS intermediate scrutiny T testator T’ary testamentory o/s outstanding Prom/E promissory estoppel PJx – personal jurisdiction SMJx – subject matter jurisdiction JNOV J not w/standing verdict JMOL J as a matter of law RJMOL renewed JMOL MSJ motion for summary J Depo deposition RFPs requests for production RFA requests for admission Rogs interrogatories C/O court order priv’d privileged Pub publication Ct court CQ common question X cross COA cause of action T/O transaction/occurrence J Justice FED Federal Rules nat’l national PCV piercing the corp veil W/o without G’or grantor Cov’t covenant CP community property W witness/Will Punis – punitive damages CPC CA Probate Code Dispo disposition LOW loss of wages . reasonable person MPC Modern Penal Code Δ defendant Corp corporation Circs circumstances V victim m/b must be K contract Juvi juvenile peremps peremptory challenge admiss admissible SOL statute of limitations PC probable cause DP due process unRP unreasonable person 3PB third party beneficiary B4 before en4able enforceable P’or promissor Op operation Uni K unilateral contract TPΔ third party defendant CA California Rules SH shareholder w/ with G’ee grantee RPP reasonably prudent person SP separate property Q question Cong congress/congressional CEC CA Evidence Code COI conflict of interest NG not guilty Tx treat Ex: example usu.