California Bar Exam Lecture Notes - Federal Civil Procedure

8/12/2019 California Bar Exam Lecture Notes - Federal Civil Procedure

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I. SUBJECT-MATTER JURISDICTION

A. In General (OL I.A.)

1. To adjudicate a case, the court must have jurisdiction (power) to do so. Remember three concepts related to subject

matter jurisdiction.

a. !eneral " #ourt can handle an$ %ind o& case

b. Limited " 'ederal courts have limited jurisdiction and can preside over &ederal uestions or cases in diversit$

c. #oncurrent jurisdiction " A case can be heard in state or &ederal court

. Two %e$ points to remember in &ramin* an answer about &ederal jurisdiction+

a. ust be a statutor$ basis &or each claim a*ainst each part$ to be in &ederal court

b. ust be a jurisdictional *rant to hear the case

(1) - 11+ &ederal uestion jurisdiction

() - 1+ diversit$ cases

() - 1/0+supplemental jurisdiction

B. Original Subject-Matter Jurisdiction of Federal Courts (OL I..)1. Federal Question Jurisdiction 23 4.5.#. - 116

a. asic rule+

7oes a case arise under &ederal law8

b. 7eterminin* &ederal uestion jurisdiction+

(1) 'ederal statute has created private ri*ht o& action

() wellpleaded complaint rule+ 7e&endant claims &ederal de&ense but plainti&& cannot preemptivel$ claim

anticipated &ederal de&ense to sue in &ederal court because that violates wellplead complaint rule. I& case

couldn9t be brou*ht into &ederal court in the &irst instance, it cannot be removed to &ederal court

() state uestions involvin* substantial uestion o& &ederal law ma$ be su&&icient+ : is suin* in state law

ne*li*ence action, which reuires resolvin* &ederal uestion

. Diersit! Jurisdiction 23 4.5.#. - 16

a. A"ount in Controers!+

(1) ore than ;0


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5tate with principal o& business and where the$ are incorporated.

() Indiiduals+

!eneral rule is that individuals are citi>ens o& the state where the$ were last domiciled, with intent to

remain inde&initel$.

5pecial rule+ The citi>enship o& an individual who is administrator or eecutor o& an estate is

determined b$ the citi>enship o& the decedent

C. Su''le"ental Subject-Matter Jurisdiction 23 4.5.#. - 1/06 (OL I.#.)

1. Bow $ou %now there is a supplemental jurisdiction issue+

ultiple claims and one o& the claims will be able to survive in &ederal court and one part would not survive in &ederal

court

. 'irst step+

As% $oursel& i& the claims are arisin* out o& the same case or controvers$ i.e. a common nucleus o& operative &act

a. I& $es, then+

ore anal$sis is reuired

b. I& no, then+

no supplemental jurisdiction. 5econd step+

Is the sole basis &or jurisdiction diversit$8

a. I& no, then+

5upplemental jurisdiction eists

b. I& $es, then+

#on*ress sa$s there is no supplemental jurisdiction i& the : is tr$in* to *et around the amount o& controvers$

Reuirement in a diversit$ case b$ assertin* supplemental jurisdiction

C. ?ven i& supplemental jurisdiction eists, the court is not reuired to eercise it.

discretionar$

De$ words in each step+

E Is it a supplemental jurisdiction problem8

E Are the claims at issue part o& the same case or controvers$ i.e. common nucleus o& operative &act8

E Is there a &ederal uestion8

E #ourt discretion to decline the claim

,O/,0/ICA#

Anne, a resident o& #ali&ornia, sues the 4.5. !overnment in &ederal district court under the 'ederal Tort #laims Act a&ter her

husband and two children are %illed when their plane crashed into an electric power cord. The ori*inal claim a*ainst the 4.5.

!overnment &or &ailin* to provide adeuate runwa$ li*hts ma$ onl$ be brou*ht in &ederal court. Anne includes the cit$ o& 5an

7ie*o and the #ali&ornia utilit$ compan$ as de&endants in the action, alle*in* related state claims. oth #ali&ornia de&endants

move to dismiss based on lac% o& jurisdiction. Bow should the court rule on the motion8

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#ourt should dismiss the motions. :art o& this case can sta$ in &ederal court as there is &ederal uestion here under the

'ederal Tort #laims Act. ut part o& the case cannot survive in &ederal court alone as there is no diversit$ between the

plainti&&s and de&endants, who are &rom #ali&ornia. This appears to then be a problem o& supplemental jurisdiction.

The &acts seem to arise &rom common nucleus o& operative &act. The claims arise &rom plane crash so there is a common

nucleus. Anne also has &ederal uestion jurisdiction in &ederal court, so supplemental jurisdiction eists to consider state law

uestions.

D. 1e"oal and 1e"and of State Court Actions (OL I.7.)

1. 1e"oal

a. !eneral rule+

An action brou*ht in state court ma$ be removed b$ the de&endant to &ederal court i& the cause ori*inall$ could have

been brou*ht b$ the plainti&& in &ederal court.

b. ?ceptions+

(1) i& : could have brou*ht the case in &ederal court onl$ based on diversit$ jurisdiction " reuest &or removal on

*rounds o& diversit$ jurisdiction will not be *ranted i& an$ o& the de&endants in the case is a citi>en o& the &orum

state

() i& there are multiple de&endants, all de&endants must join in removin* to &ederal court

c. Timin* issues+

the case should be removed within = da$s. I& the case becomes removable solel$ on diversit$, it cannot be

removed i& it has been more than a $ear.

. 1e"and+

&ederal court would remand i& case was removed improperl$ or ma$ &ind a &orum selection provision en&orceable..

motion to remand must be made within = da$s o& removal notice and de&endant has burden o& proo& that removal was

proper.

,O/,0/ICA#

Fohn resides in the eastern district o& Gew Hor%. Be &iles a lawsuit a*ainst his ph$sician, 7r. Da$, &or medical malpractice in

state court. 7r. Da$9s o&&ices are located in the southern district o& Gew Hor%, but he is domiciled in Gew Ferse$. Fohn9s

action demands over ;1==,=== in dama*es. a$ 7r. Da$ have Fohn9s action removed to &ederal court8 I& so, to which court

will it most li%el$ be removed8

The case could have been brou*ht in &ederal court as there is diversit$ o& citi>enship and amount in controvers$

reuirement is met. 7r. Da$ is a citi>en o& Gew Ferse$. Fohn is resident o& Gew Hor% and sued the doctor in GH. I& a

plainti&& could have brou*ht the case in &ederal court, a reuest &or removal on *rounds o& diversit$ jurisdiction will not be

*ranted i& de&endants in the case is a citi>en o& the &orum state. Bere, we seem to not have this problem i& 7r. Da$ is onl$

&ound to be a citi>en o& Gew Ferse$. Be can remove the case to the &ederal court that *overns same *eo*raphical area

as the state court where he has been sued.

0. 2rits of Habeas Corpus

1. hat a writ o&habeas corpus is and what it is not+

writ is a civil action a*ainst jailer that alle*es that reason &or con&inement is de&ective. It is not an appeal or to continue

the criminal case.

. !round &or *rantin* writs o& habeas corpus+

violation o& due process, violation o& ri*ht o& sel&incrimination, violation o& ri*ht a*ainst double jeopard$, violation o& the

ri*ht a*ainst cruel and unusual punishment

Limits+ ehaustion o& state remedies and within one $ear o& &inal jud*ment o& custod$

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II. PERSONAL JURISDICTION

Hou must per&orm a separate personal jurisdiction anal$sis &or each and ever$ de&endant. e sure not to combine

them.

A. /erritorial Jurisdiction of t%e Federal Courts(OL II.A.)

1. !eneral rule+

A &ederal court can reach as &ar as a state court in appl$in* territorial personal jurisdiction

. 5ome special rules+

a. Gationwide jurisdiction

b. 1==mile bul*e " I& the 7 is joined under Rule 1C or 1J, and served in a judicial district not more than 1== miles &rom

where summons was issued

B. A''l!ing t%e General 1ule(OL II..)

1. Three wa$s to assert jurisdiction over a de&endant+

a. in personam

b. in rem

c. uasi in rem

C. In PersonamJurisdiction (OL II.#.)

1. ased upon the de&endant9s relationship with the state+

a. 7omicile a person is considered to be domiciled within the state i& the person resides within the state and that

person has epressed the intent to remain there inde&initel$

b. 5ervice " 7 who is served with process while in the &orum state is subject to the court9s personal jurisdiction even i&

presence in the state is temporar$ and entirel$ unrelated to lawsuit. ?ception+ inducement or judicial proceedin*s

. ased upon consent or waiver+

a. epress person ma$ epressl$ consent to jurisdiction i.e. si*nin* a contract with &orum selection clause

b. implied " state ma$ have substantial interest in nonresidents in a particular instate activit$ i.e. drivin*

c. waiver " &ailure to raise personal jurisdiction in answer under Rule 1(b)

. ased upon contacts+

a. !eneral jurisdiction+

where a de&endant is re*ularl$ en*a*ed in business, has a &acilit$ or is so &reuentl$ in a state that the number and

ualit$ o& de&endant9s contracts with the state would be described as s$stematic and continuous

b. 5peci&ic jurisdiction and outo&state de&endantsKreuirements+

(1) &ederal court lon*arm statute can reach out o& state de&endant

() minimum contacts

c. #onstitutionalit$ o& assertion o& speci&ic jurisdictionKminimum contacts+

(1) i& one contact that the de&endant has with the &orum state is the cause o& action, minimum contacts eist and

() i& a de&endant has 'ur'osefull! aailed itsel& o& the bene&its o& the &orum state, su&&icient minimum contacts

&or personal jurisdiction eist

D. In RemJurisdiction(OL II.7.)

1. hat it means+

ased on the interests o& a particular piece o& propert$ located within the &orum state

. :rereuisite+

there must be real or personal propert$ o& value located within the state where the &ederal district is located and that the

state has sei>ed the propert$ and *iven the owner proper notice

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0. Quasi in RemJurisdiction(OL II. ?.)

1. hat it means+

when the court sei>es real or personal propert$ o& value located within state or territorial limits and the dispute is

unrelated to the propert$

. hen it is constitutional+

inimum contacts are still reuired in order &or the court to eercise uasi in rem

,O/,0/ICA#

ar$ and Todd are residents o& Gevada. The$ purchase a used car at an automobile dealership in Gevada and drive it across th

countr$. 4n&ortunatel$, as the$ are drivin* throu*h Gew Hor%, the car catches &ire, causin* severe injuries to ar$. ar$ and To

&ile a lawsuit a*ainst the dealership in a Gew Hor% &ederal district court. The dealership moves to dismiss the action based on la

o& personal jurisdiction. Bow should the court rule on the motion8

The dealership is the de&endant in this case, which is in Gevada. This is a situation o& speci&ic jurisdiction. I& the de&endant has

just one contact with the &orum state which is the cause o& action, minimum contacts eist as lon* as the de&endant has

purpose&ull$ availed himsel& to the state. The minimum contacts reuirement is &ul&illed here as the car sold in Gevada, which

ended up in Gew Hor%, is the subject o& the suit. Bowever, purpose&ul availment is lac%in* here because there is no indication

that the dealership attemptin* to direct their activit$ in Gew Hor% when the$ sold the car in Gevada. #ourt should *rant dismiss

III. VENUE

A. 3enue (OL III.A."?)

1. hat venue is all about+

enue is the &ederal court where the action is &iled. ?ven i& court possesses personal and subjectmatter jurisdiction

over a de&endant or cause o& action, the plainti&& must also show that venue is proper.

. enue is proper wherever $ou can satis&$ one o& two tests+

a. enue is proper where one de&endant resides i& all residents reside in same state

?@A:L?$

A case &iled in the Gorthern 7istrict o& Illinois a*ainst &our de&endants, venue is proper i& at least one o& those

de&endants resides within the Gorthern 7istrict and all o& the de&endants reside somewhere in IL.

b. enue is proper where a substantial portion o& the events occurred

?@A:L?$

I& a suit is &iled in the 5outhern 7istrict o& Illinois, venue will be proper i& this is a suit about an automobile accident i&

the accident occurred somewhere in the 5outhern 7istrict o& Illinois.

. Third basis, but seldom used+

a. enue will eist in a diversit$ case+I& there is no other district where de&endant can be sued, then an$ district where de&endant is subject to personal

jurisdiction

b. enue will eist in &ederal uestion cases+

I& there is no other district where de&endant can be sued, venue will lie in an$ district where an$ de&endant can be

&ound

C. 7eterminin* residence in the contet o& venue

a. A corporation is deemed to reside+

(1) &or venue purposes, in an$ district, where corporation would be subject to personal jurisdiction.

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?@A:L?$

If a 4e( or5 Federal Court %as 'ersonal jurisdiction oer a cor'oration t%at is located in Florida but

incor'orated in Dela(are) t%e cor'oration resides in 4e( or5 for 'ur'oses of enue.

b. Aliens+

a$ be sued in an$ district


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of the federal court. #ubject matter jurisdiction includes federal question jurisdiction $ issues and controversies arising under

federal law "" and diversity jurisdiction $ where opposing parties are citizens of different states and amount of controversy is

above %&',(((. #upplemental jurisdiction would also grant subject matter jurisdiction but that is not at issue here.

he issue is not of federal question. )hat remains is diversity jurisdiction and ascertaining the citizenship of the two parties.

*laintiff is a citizen of #tate A. An executor of an estate retains the diversity of the deceased estate owner, and not his own

residence or domicile, in an action over the estate. herefore, executor is a citizen of #tate + and not #tate A for purposes of

this lawsuit to see damages from the deceased owner-s estate. #ince there is complete diversity between the parties and the

amount in controversy is over %&',(((, as the *laintiff ased for % million in damages /and the court will defer to that0,diversity jurisdiction exists in federal court. #ince executor is not a local defendant for purposes of this case, he can properly

remove the case and remand is not appropriate.

Assuming the motion is timely filed, the defendant has the burden of proving in a remand action that the removal to federal

court was proper. Here, the executor should be able to prove that and the motion to remand would be dismissed.

As for the executor-s motion to dismiss, we can assume that it is based on lac of personal jurisdiction. 1an state + assert in

personam jurisdiction over the defendant who was involved in an accident in #tate +2 3nder the minimum contacts analysis, if

the one contact that the defendant has with the forum state is the cause of action and the defendant had purposefully availed

himself to the forum, then in personam jurisdiction exists provided that traditional notions of fair play and substantial justice are

not violated. Here, the accident, which is at issue in a personal injury suit, involved defendant who had availed himself to #tate

+. here does not appear to be issues of fair play and justice as both defendants are in the same state and the events

occurred in that state. 4n personam jurisdiction exists and the executor-s motion to dismissed should be denied.

BAR EXAM APPLICATION

Muestion

Applicants were as%ed to anal$>e issues arisin* &rom a motion to dismiss &or lac% o& personal jurisdiction. A &reelance

journalist moved &rom 5tate A to 5tate three $ears a*o. Althou*h 5tate A has alwa$s been his home and he sa$s he still

considers it Nhome and plans to return Nsome da$, he now votes, pa$s taes, and owns propert$ onl$ in 5tate . Be publishes

an online newsletter that viewers can read and download throu*h a server in 5tate , but the$ cannot post messa*es to the

website. ost o& his stories and commentar$ concern people and events in 5tate A, most o& his readers live in 5tate A, and

most o& his advertisers are 5tate A &irms see%in* to attract customers in 5tate A. In a recent stor$, the journalist reported on

rumors he had heard concernin* :lainti&&9s alle*ed acceptance o& %ic%bac%s &or the award o& 5tate A contracts. 5oon a&ter the

publication, :lainti&& was &ired &rom his hi*hlevel *overnment position in 5tate A and sued the journalist, now 7e&endant, in&ederal district court in 5tate A. The 5tate A lon*arm statute eercises jurisdiction to the &ullest etent permitted under the

&ederal constitution. 7e&endant has &iled a motion to dismiss &or lac% o& personal jurisdiction.

ould the &ederal court in 5tate A have personal jurisdiction over 7e&endant8

Applicant must discuss whether a &ederal district court can assert personal jurisdiction over a de&endant whose activities

occurred outside the &orum state but included contacts with the &orum via the Internet.

*ersonal jurisdiction is proper where the defendant is domiciled in a state where he intends to reside. 5efendant is domiciled in

#tate + but the fact that he intends to move to #tate A someday is not intent enough to find that he is domiciled in #tate A for

purposes of in personam personal jurisdiction.

*ersonal jurisdiction can also be found if the defendant-s contact with a state is the subject of the lawsuit and the defendant

has purposefully availed himself to the state. his is a finding of personal jurisdiction through specific jurisdiction. Here, *laintiff

sued on the basis of a story that defendant targeted in #tate A, and that contact is the contact enough to establish minimum

contact with #tate A. )ith minimum contact, there will be specific jurisdiction if 5 has purposefully availed himself to the state.

Here defendant-s contacts with state A are extensive through his readers, and advertisers. He has targeted his content into

#tate A frequently. *urposeful availment is thus present though benefits and protections of #tate A and jurisdiction is proper

over the defendant through specific jurisdiction.

IV. SERVICE OF PROCESS AND PLEADINGS (OL IV.)

A. Co""ence"ent of Action (OL I.A.)

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1. Bow a &ederal case is commenced+

upon the &i lin* o& complaint with the court

B. Serice of rocess (OL I..)

1. For" of Su""ons

a. A summons must+

(1) be si*ned b$ the cler%

() identi&$ the court and the parties

() be directed to the de&endant

(C) state the name and address o& plainti&& 9s attorne$ or plainti&&

(ed b$ law

. 2aier of Serice

a. Bow it wor%s+plainti&& can reuest the waive and de&endant has dut$ to waive the notice

b. hat is not waived+

objections to court9s jurisdiction over the subject matter, parties or venue

c. Incentives to waive+

#arrot+ 7e&endant does not have to answer complaint &or /= da$s a&ter waiverP

5tic%+ #ourt ma$ impose costs &or actual service and reasonable epenses

C. Dis"issal for Insufficient Serice of rocess

a. #ourt will dismiss when+

:lainti&& &ails to properl$ e&&ect service pursuant to re*ulations outlined above

b. The de&ense o& insu&&icient service o& process is waived when+it is not raised b$ the de&endant in answer or Rule 1(b) motion to dismiss

,O/,0/ICA#

Ale sues 5all$ and Theresa in &ederal court. Be serves 5all$ a cop$ o& the summons and complaint in accordance with

the 'ederal Rules o& #ivil :rocedure. Be &ails to serve the summons and complaint on Theresa. Gevertheless, 5all$ e

mails a cop$ o& the complaint to Theresa the same da$ she receives it. hat actions ma$ Theresa ta%e on the complaint8

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C. leadings and Motions (OL I.#.)

1. Clai"s for 1elief

a. A pleadin* that states a claim &or relie& must contain+

(1) under Rule 3, a short and plain statement o& the *rounds o& the court9s jurisdiction with su&&icient &actual matter

that states plausible claim

() a statement o& a claim, which i& true, would entitle the claimant to relie&

() and a demand o& relie&b. 5pecial rule &or &raud or mista%e+

more detail, should be pled with su&&icient particularit$

. 1es'onses to a Clai" for 1elief

a. Options+

otion to dismiss without &ilin* an answer. Or 7 can answer while includin* the motion to dismiss in answer

7 can also include or sometimes must include counterclaim and cross claim a*ainst cross part$

b. otion to dismissKThe de&endant ma$ raise the &ollowin* 1(b) de&enses b$ motion to dismiss or b$ answer+

(1) lac% o& subject matter jurisdiction

() lac% o& personal jurisdiction

() improper venue

(C) insu&&icient process " &orm o& the summons is de&ective

(


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Foe &iles a complaint a*ainst ?d. In the complaint, Foe alle*es that ?d &raudulentl$ induced Foe to purchase a car b$

misrepresentin* the car9s a*e and condition. ?d &iles an answer den$in* the misrepresentation. Be then wants the action

dismissed based on Foe9s &ailure to state a claim. I& ?d did not assert Foe9s &ailure to state a claim as an a&&irmative de&ense

in his answer, is that de&ense waived8

Go, ?d can raise &ailure to state a claim later. It is not one o& the threshold de&enses.

. A"ended leadings (OL I.#.


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1. :urpose+

:lainti&& has some holdin* that would epose the plainti&& to multiple liabilit$ &rom adverse claims so the plainti&& can

commence an action &or interpleader to resolve liabilit$ between multiple claimants.

?@A:L?S$

:iece o& propert$, pri>e, proceeds o& an insurance polic$

. ocabular$

a. 5ta%e+

hat is bein* &ou*ht about8

b. 5ta%eholder+

ho has the sta%e8

c. Adverse claimants+

ho can be joined usin* interpleader to *et their ri*hts adjudicated8

,O/,0/ICA#

Amanda purchases a house &rom 7avid, who promises to replace the roo& within two months o& the closin* date.

7urin* the closin*, ;1=,=== is placed into escrow, which is to be released a&ter the roo& is replaced. 7avid repairs

sections o& the roo&, but &ails to replace the entire roo&. hen the escrow a*ent re&uses to *ive him the ;1=,===, 7avidsues. a$ the escrow a*ent include Amanda in the lawsuit8 I& so, how8

The escrow a*ent has ;1=,=== and he can use interpleader to join Amanda so that he is not subject to multiple

liabilit$ &rom adverse claimants.

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1. hat intervention is &or+

Gonpart$ ma$ assert a ri*ht or interest or de&ense in an on*oin* action

. Intervention b$ Ri*ht

a. 4pon a &indin* b$ the court that a nonpart$9s application was timel$, the nonpart$ shall be allowed to intervene in

an action i&+

(1) a &ederal statute con&ers an absolute ri*ht o& the part$ to intervene

() A nonpart$ is assertin* a protectable interest relatin* to the propert$ or transaction involved in the lawsuit,and the nonpart$9s interests will not be adeuatel$ represented in court+

(a) Interest+

the outsider must have interest at sta%e in the case

(b) Impairment+

The part$ would be prejudiced i& the case proceeds without them

(c) Inadeuate+

The interests o& the nonpart$ are not adeuatel$ represented in the case

. Intervention b$ :ermission+

a. 5tandard+

the &ederal statute allows a conditional ri*ht to intervention or the intervener has a shared common uestion o& lawor &act

VI. CLASS ACTIONS

A. rere;uisites to a Class Action (OL I.A.)

1. Gumerosit$+

The number o& members o& the class are so numerous that separate joinder o& each member is impracticable

. #ommonalit$+

Le*al and &actual issues are common to those raised b$ each member o& the class

. T$picalit$+

#laims or de&enses o& the representative part$ are t$pical o& those raised b$ each member o& the class

C. RepresentativenessQAdeuac$+

Representative part$ can &airl$ and adeuatel$ protect and represent the interests o& each member o& the class


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b. #A'A epands &ederal subjectmatter jurisdiction to include classes where+

(1) class has more than 1== persons

() at least one member o& the class is diverse &rom at least one de&endant

() total amount in controvers$ eceeds ;< million

?@#?:TIOG$

CAFA=s broad grant of subject-"atter jurisdiction does not a''l! to 687 local controersiesand 6>7 certain ciil rig%ts and ot%er categories of cases.

C. Settle"ent (OL I.!.)

1. #lass actions ma$ not be settled or compromised without court approval.

. In evaluatin* a settlement proposal, a court must consider+ 'air, reasonable and in the best interest o& the class


Muestion

Applicants were as%ed to anal$>e issue arisin* &rom a class action lawsuit brou*ht in &ederal district court b$ a &armer who alle*ed

that the de&endant, Truc%co, mar%eted a line o& pic%up truc%s with de&ective shoc% absorbers. The alle*ed losses o& class

members who had purchased these truc%s ran*ed &rom the cost o& replacin* the shoc% absorbers to serious personal injuries

su&&ered in accidents alle*ed to have been caused b$ the de&ective shoc% absorbers. 'armer9s onl$ claim personall$ was the

replacement cost. hen 'armer moved to certi&$ the class, Truc%co pointed out that man$ plainti&&s had su&&ered a wide variet$ o&

personal injuries alle*edl$ resultin* &rom the de&ective shoc% absorbers, and that 'armer9s law$er was recentl$ admitted to the bar

and had never handled class action liti*ation. The &ederal district court denied 'armer9s motion &or class certi&ication.

as the court9s rulin* on the motion &or class certi&ication appropriate8

Applicants must eplain that class certi&ication is unwarranted where the &acts su**est the absence o& claim t$picalit$ and

adeuate representation.

!ule 6 requires that in order to certify a class, four requirements must be met. hese are commonality, numerosity, typicality,

adequacy of representation. 1ommonality and numerosity is not an issue as class suffers from injuries relating to defective

shoc absorbers and there are many members within this class even though it is unclear how many members. At issue here is

typicality and adequacy of representation.

7*41A8479 he injuries suffered by the numerous plaintiffs vary widely, such that it would be difficult to give one remedy in a

single class action to all members of the class. #ee )almart v. 5ue, where the #upreme 1ourt ruled that all members must

suffer the same injury. +ecause injuries vary widely, some members may have tort claims, others may have claims based in

contract so typicality is defeated.

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5mith Transport as de&endant, a*ain servin* the a*ent. 5mith Transport moved to dismiss the amended complaint on the

*round that the applicable statute o& limitations had run. The court denied this motion.

7id the trial court err in re&usin* to dismiss the amended complaint a*ainst 5mith Transport8

Applicants must consider whether the statuteo&limitations would bar assertion o& a claim a*ainst a misidenti&ied de&endant

added to the action b$ an amended complaint &iled a&ter the applicable statute o& limitations had run.

*laintiff can amend the complaint within 6> days without seeing leave of court or adverse party-s permission. he doctrine of

relation bac allows a plaintiff to amend complaint to name new parties and new claims under special circumstances even ifthe #


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b. All other involuntar$ dismissals+

are dismissals with prejudice, such as &ailure to state a claim or prosecute, unless the court sa$s otherwise

. 3oluntar! Dis"issals

a. $ notice be&ore de&endant answers or &iles motion &or summar$ jud*ment, or dismissal b$ stipulation unless the

notice or stipulation states otherwise, the dismissal is without prejudice. ut i& the plainti&& previousl$ dismissed an$

&ederal or statecourt action based on or includin*+

5econd dismissal is with prejudice

b. $ motion+

#ourt will *rant unless de&endant would su&&er prejudice

B. Su""ar! Judg"ent(OL III..)

1. :urpose and standardKthe purpose o& summar$ jud*ment procedure is to avoid needless trials. Accordin*l$, the

standard is that the court must determine whether+

One part$ is entitled to jud*ment as a matter o& law

. :rocedure+

a. A part$9s own alle*ations+

part$ ma$ not use own pleadin*s to support claim &or summar$ jud*ment

b. A&&idavits+Out o& court statements but the court can ta%e these into account

c. Other evidence+

Thin*s *athered in discover$ such as deposition or admissions

d. 'or a plainti&&+

:lainti&& must prove ever$ element o& the cause o& action. ?vidence is viewed in li*ht most &avorable to plainti&&&

e. 'or a de&endant+

urden o& proo& to show a&&irmative de&enseP OR

7e&endant can produce evidence that :lainti&& cannot prove elementP OR

A&&irmative showin* o& absence o& evidence to prove that plainti&& cannot prove an element

,O/,0/ICA#

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,. 1elief fro" Judg"ent or Order(OL III.B.)

The court ma$ correct, on its own, clerical error, oversi*hts and omissions in enterin* jud*ment

1. :rocedure+

otion under Rule /=(b) must be made within a reasonable time or no more than a $ear a&ter entr$ o& the jud*ment

IX. APPEALS

A. Final Judg"ent 1ule(OL I@..)+

Onl$ &inal jud*ments are appeals, with some eceptions. One that disposes o& all issues as to all the parties

B. Standards of 1eie((OL I@.#.)

1. #onclusions or rulin*s on law+

de novo

. 'indin*s o& &act+

reversed onl$ i& clearl$ erroneous

. Other determinations b$ trial jud*e, such as rulin*s on discover$ motions+abuse o& discretion

C. S'ecial Cases$ er"itted Interlocutor! A''eals(OL [email protected].)

1. Injunctions+

Immediatel$ appealable.

. #ollateral order doctrine+

Interlocutor$ orders are appealable when the$ conclusivel$ determines a disputed uestions, resolves an important

issue completel$ separate &ro the action and e&&ectivel$ unreviewable on appeal &rom a &inal jud*ment

. #erti&ication+

'ederal courts can certi&$ an order &or appeal when the order involves controllin* uestion o& law as to which a

substantial *round o& di&&erent o& opinion eists and an immediate appeal &rom the order ma$ materiall$ advance the

termination o& liti*ation

D. Multi-Clai" or Multi-art! Judg"ents(OL I@.?.)

1. hen it applies+

One o& the claims a*ainst one o& the parties has been adjudicated

. hat can happen+

trial jud*e ma$ decide that there is no reason to den$ appeal and can sever the case

X. PRECLUSION LAW

A. ur'oses$

1es judicata and collateral esto''el - /%e 'ur'ose is to 'ro"ote judicial econo"! and finalit! of litigation

B. Res Judicata or Clai" reclusion(OL @.A..)

1. :revents reliti*ation o& claims+

a. between same parties and those in privit$

b. in the same transaction or occurrence or event

c. i& the adjudication was on the merits with proper jurisdiction

. Gote especiall$ what it means to be the Nsame claim i& multiple theories o& recover$, or two %inds o& dama*es, arise

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&rom the same transaction or events, all are part o& the same Nclaim &or res judicata purposes. 7isposition o& one upon

the merits will prevent reliti*ation o& the others. :lainti&&s are not allowed to Nsplit claims and brin* di&&erent parts

seuentiall$. This promotes judicial econom$.

?@A:L?$

A part$ obtains new counsel, who thin%s o& new theories o& recover$, and discovers new dama*es, but the second case

would be about same car accident liti*ated in the &irst case+ it is still the same Nclaim.

C. Issue reclusion 6Collateral 0sto''el7(OL @.A..)

1. utual collateral estoppel+ :revents reliti*ation o& issues+

a. #ases will be between same parties, one a&ter another

b. There will be common issue in both actions that was actuall$ decided in &irst action

c. 7isposition o& the issue was essential to the jud*ment o& the &irst action

e sure to note the di&&erence between and adjudication upon the merits and Nactuall$ liti*ated. The$ sound li%e the same thin*

but the$ are not. NAdjudication upon the merits just means that res judicata applies to a claim that has been

disposed o&, even i& no one ever reall$ decided it on the underl$in* merits (such as a dismissal as a sanction &or

violatin* a court order). NActuall$ liti*ated means what it sounds li%e.

. Gonmutual estoppel+a. A*ainst a part$ who was not a part$ to the &irst action+

#ollateral estoppel ma$ not be used a*ainst someone who was not a part$ to the previous action

b. 7e&ensivel$ b$ a part$ who was not part o& the &irst case a*ainst a part$ who was a plainti&& and lost the issue in the

&irst case+

7e&ensivel$, nonmutual estoppel because plainti&& had da$ in court and lost

c. O&&ensivel$ b$ a part$ who was not part o& the &irst case a*ainst a part$ who was a de&endant and lost the issue in

the &irst case+

O&&ensive, nonmutual estoppel ma$ be permitted i& the issue was &airl$ and &ull$ liti*ated in the &irst case and the

de&endant had all the procedural opportunities available to them in the &irst action

. 4se o& #riminal #ases in #ivil :roceedin*s

a. Acuittal+

5tandard o& proo& is di&&erent in a civil case so de&endant cannot use issue preclusion in civil case.

b. #onviction+

It is possible i& issue was &airl$ and &ull$ decided

,O/,0/ICA#

Ton$ is involved in a motor vehicle collision with art, the driver o& a truc% owned b$ art9s emplo$er, #hester Truc%in*. Ton$

loses his &irst suit a*ainst art &or personal injur$ and propert$ dama*e. Be then sues #hester Truc%in* &or the same relie&. I&

art was actin* within the scope o& his emplo$ment, ma$ #hester Truc%in* ar*ue that Ton$9s lawsuit is barred b$ the doctrine

o& res judicataor collateral estoppel8

Res judicata or claim preclusion bars claims made a*ainst the same part$ arisin* out o& the same event or transaction,

which has previousl$ been adjudicated on the merits in a place o& proper jurisdiction. Ton$9s lawsuit would not be barred b$

res judicata because there are two di&&erent parties. Bowever, collateral estoppel ma$ be used here b$ #hester de&ensivel$

i& the jur$ &ound that art was not ne*li*ent because under theor$ o& respondeat superior, that would be imputed to

#hester, and he would be able to use de&ensive, non mutual estoppel.

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XI. CONCURRENT JURISDICTION

A. /%e 0rie Doctrine(OL @I..)

1. Bow to reco*ni>e a potential N?rie Muestion+

a. a &ederal court sitin* solel$ in diversit$ OR

b. &ederal court ma$ have a case in supplemental jurisdiction with state law issuesP AG7

c. con&lict o& law+ state and &ederal laws or procedure di&&er

. hat the ?rie doctrine see%s to do+

a. reduce variation o& result to prevent &orum shoppin*

b. tr$ to respect role o& limited &ederal *overnment

c. accomplish uni&ormit$ in the wa$ cases are processed throu*h &ederal s$stem

. The crucial but elusive distinction+

whether the issue at uestion is substantive law or procedural law

?@A:L?$

5tate statute that sa$s Nmedical malpractice claim must be dismissed at the complaint sta*e unless accompanied b$ an

a&&idavit &rom a .7. 7e&endant as%s &ederal court to appl$ the state law in order to have the claim dismissed. Is the

state law is substantive or procedural8

C. The substanceQprocedure distinction

a. An eas$ case+

5tandard to appl$ to tort&easor " &ederal court applies state substantive law on ne*li*ence

b. Another eas$ case+

Bow the complaint is served " 'ederal Rules o& #ivil :rocedure appl$

c. A harder case+

:rocedural matter that is not covered b$ &ederal law. 'ederal court is reuired to balance the interest

7o not use the words Nsubstantive or Nprocedural until $our net to last sentence.

A#I4G /,0 01I0 DOC/1I40

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Muestion e issues arisin* out o& a motion to compel production o& certain documents. A #it$ Transit

Authorit$ bus collided with a car driven b$ an outo&state Tourist. Immediatel$ a&ter the accident, &ollowin* Transit Authorit$9s

standard procedures, the bus driver called his supervisor and completed an operator9s accident report &orm. 5oon the Transit

Authorit$ supervisor arrived, too% the bus driver9s statement, and recorded it in her investi*ative report, alon* with witness

in&ormation, photo*raphs, and a dia*ram o& the scene in her report. Tourist sued Transit Authorit$ &or personal injur$ in &ederalcourt, and served reuests &or production o& all accident reports relatin* to the collisionP and &or the bus operator9s entire

personnel &ile, includin* disciplinar$ actions, sa&et$ records, and drivin* records. Transit Authorit$ re&used, and Tourist has

made a motion to compel production o& the accident reports and the bus operator9s personnel &ile.

5hould Tourist9s motion to compel production be *ranted in whole or in part8

Applicants must discuss (1) whether accident and investi*ative reports prepared in the ordinar$ course o& business are

discoverable, and () whether the bus operator9s personnel &ile is discoverable.

*arty is entitled to discovery of information that is relevant to the claim or defense of party, not burdensome to produceand not privileged. :ven if the information is not admissible, it may be discoverable if it can lead to other admissibleevidence. he bus operator-s personnel file is discoverable as it is not privileged information, not burdensome to produce

and may contain information that is relevant to proving negligence, such as evidence of habit, routine of driving reclessly.#o the personnel file is discoverable because it is relevant.

he accident and investigative reports prepared in ordinary course of business would be discoverable unless they aretreated as wor product, prepared for purposes of litigation. hese accidents reports appear to have been prepared inanticipation for litigation by agents after an accident, and qualify under wor product doctrine. 3nless the proponent forcompelling discovery can show undue hardship and substantial need, the wor product will not be discoverable.


Muestion /

Applicants were as%ed to anal$>e issues arisin* &rom a motion &or a new trial. :lainti&& complained that she had been passed

over &or promotion to a mana*ement position in #orporation in &avor o& a less eperienced male collea*ue. 5hortl$ therea&ter,:lainti&& was &ired. :lainti&& sued #orporation in &ederal district court, alle*in* se discrimination in violation o& &ederal law.

7urin* voir dire, the court as%ed each prospective juror whether he or she had ever been a part$ to an emplo$ment

discrimination lawsuit, and the$ all said no. At the end o& the trial, the jur$ deliberated &or several hours and then returned a

verdict &or :lainti&&. Two da$s a&ter the entr$ o& jud*ment, #orporation learned &or the &irst time that the jur$ &oreperson had

previousl$ &iled and lost two emplo$ment discrimination lawsuits. ?i*ht da$s a&ter jud*ment, #orporation moved &or a new trial.

5hould the trial court *rant #orporation9s motion &or a new trial because o& the jur$ &oreperson9s conduct8

Applicants must consider whether the jur$ &oreperson9s apparent bias a*ainst #orporation so &undamentall$ undermined the

&airness o& the trial that the court should *rant #orporation9s motion &or a new trial.

8osing party may file a judgment for a new trial in a limited number of situations, such as procedural error, jury prejudice or

misconduct. 1ourt determines whether the error was harmless as opposed to merely imperfect. Here the motion is timely file

within 6? days of jury verdict. he basis for the appeal is procedural error because during voir dire, the jury selection, the biasof the jury foreperson was not revealed. he court has to decide if this procedural error is harmless or whether the party was

prejudiced due to the error in a way that could have determined outcome of trial. Here, the fact that the foreperson is involved

maes it more liely for the court to find harmful error because the foreperson wields influence on the jury. #o the court is liely

to grant a new trial.

Documents

California Bar Exam Lecture Notes - Federal Civil Procedure