ESSAY – CIVIL PROCEDURE

 USD ASBP Civil Procedure Essay Workshop (CA Bar Exam – July 2015 Q1)

Barbri Essay:
 USD ESSAY BOOK: 2. Civil Procedure (80 pages) (45%)
o CAT: Civil Procedure Essay 1 (1:30)
o CAT: Civil Procedure Essay 2 (1:30)
o CAT: Civil Procedure Essay 3 (1:30)
o CAT: Civil Procedure Essay 4 (1:30)

Essay Crossover Subjects:

CIVIL PROCEDURE – CAN BE EITHER
FEDERAL CIVIL PROCEDURE
CALIFORNIA CIVIL PROCEDURE

Common Essay Topics:

 CIVIL PROCEDURE
o Federal Rules of Civil Procedure more common than CA Code of Civil Procedure
o Analyze Personal Jurisdiction
o Analyze Subject Matter Jurisdiction
o Analyze Issue & Claim Preclusion
o Discovery
o CA: Venue, Service of Process

ISSUE CHECKLIST

PROPER COURT PRELIMINARY ISSUES

 Personal Jurisdiction (PJ)
 Subject Matter Jurisdiction (SMJ)
 Supplemental Jurisdiction
 Removal and Remand
 Venue
 Notice
 Choice of Law

PRETRIAL PROCEDURES
 Pleadings
 Joinder of Parties
 Joinder of Claims
 Class Action
 Discovery

DISPOSITION WITHOUT TRIAL

 Dismissal/Default
 Motion for Summary Judgment

TRIAL
  Right to a Jury
 Judgment as a Matter of Law (JMOL) – Directed Verdict in CA

POST-TRIAL
 Renewed JMOL/JNOV in CA
 New Trial
 Motion to Set Aside Judgment
 Remittitur / Additur

APPEAL
 Final Judgment Rule & Exceptions

USE OF FINDAL JUDGMENT

 Res Judicata (Claim Preclusion)
 Collateral Estoppel (Issue Preclusion)

MEMORIZATION ATTACK SHEET

PROPER COURT ISSUES

 Personal Jurisdiction
o Traditional Bases
 Consent
 Domiciled in forum
 Present & served
o Modern – Minimum Contacts
 Long-arm Statute AND
- CA  to constitutional limits
- Specific statue: as limited
 Nature of Contacts
- Purposeful availment
- Foreseeability of being hauled into court
- Relatedness
- Essentially at home
 Fairness Factors
- Convenience
- State’s interest
- Other interests
 Subject Matter Jurisdiction
o Federal Question
 Arises under federal law
o Diversity of Citizenship
 Complete Diversity required
- Person – Domicile
- Corporation – may have 2
 Incorporation state
 PPB (nerve center)
- Unincorporated Association – Domicile of members
 AND exceeds $75,000
 CA – Subject Matter Jurisdiction
o Unlimited case – Exceeds $25,000
o Limited case – $25k or less
 o Small claims –
 Person – $10k
 Business – $5k
 Supplemental Jurisdiction
o Common Nucleus of Operative Fact
o Same Transaction or Occurrence
 Removal Jurisdiction
o Only Defendant may remove
o 30 days – 1 year max
 Remand
o To State Court if Removal Improper
 Venue
o Claim arose
o Defendant resides
 FED  any district where any D resides, all in same state
 CA 
- Any county where a D resides at time case is filed
- No D lives in CA – any county ok
o Reside/Venue Definition
 Person – Domicile
 Corporation
- FED  where subject to personal jx
- CA  PPB; contract entered into, performed or breached
o Alternative – any D subject to PJ
 Transfer of Venue
o Original Venue Proper
 FED  could have been filed or all consent
 CA  interest of justice
o Original Venue Improper
 FED  dismiss or transfer
 CA  may transfer to proper county
 Forum Non Conveniens
- CA 
 Interests of justice
 Public factors
 Private Factors
 Notice
o Service of Process
o Method of Service
 Personal Service
 Substituted Service
- CA  must mail too only if personal service can’t be made
 Constructive Service
o Service in Foreign Country
 Choice of Law
o Erie
 State Substantive Law
 Federal Procedural Law
 If unclear:
- Outcome determinative test
- Balancing test
o CA  Conflict of Law
  Tort: Comparative Impairment Test
 Contract: Depends on Choice of Law Clause
- No Clause: Comparative Impairment Test
- Yes Clause: Ok if reasonable basis & No CA conflict

PRETRIAL PROCEDURES
 Pleadings
o FED  Notice Pleading
o CA  Fact Pleading
 Complaint
o Identify parties
o Statement of claim & SMJ
o Demand for judgment
o Signature
 Response
o Pre-answer Motion
 Motion for a More Definite Statement
- CA  Demurrer
 Motion to Strike
- CA  Anti-SLAPP
o Federal 12(b)(6) Motions
 Lack of SMJ
 Lack of PJ – 1st response
 Improper Venue – 1st response
 Insufficient Process – 1st response
 Insufficient Service – 1st response
 Failure to State a Claim
 Failure to Join an Indispensable Party
o CA: General Demurrer
 Failure to state cause of action
 Lack of SMJ
o CA: Special Demurrer
 Uncertain pleadings
 Liability theory unclear
 Lack of legal capacity
 Another case exists
 Misjoinder of parties
 Contract pleadings not ok
 Certificate if required
o CA: Motion to Quash
 Lack of PJ
 Insufficient process
 Insufficient service of process
o Answer
 Respond
 Assert affirmative defenses
 Amended Pleadings
o Right to Amend
o Federal – Relationship Back Doctrine
 Claims – same conduct, transaction, or occurrence
 Defendants
- Same conduct, transaction, or occurrence
 - New party knew of action
- Would have been named
o CA – “Doe” Amendments
 Timely Filed
 Genuine ignorance of:
- Identity of party
- Facts giving rise to action
- Law allows cause of action
 Ignorance pled
 3 years to substitute
 Joinder of Parties
o Permissive Joinder
o Necessary party is:
 No complete relief
 Interest harmed
 Multiple inconsistent obligations
o Join Necessary party if:
 Personal jurisdiction, and
 Diversity not destroyed
o If Can’t Join, court may:
 Dismiss because indispensable, or
 Proceed without
o Impleader – D Can Add a 3rd party D
o Intervention – Nonparty Wants to Join
o Interpleader – Property Holder Wants a Single Lawsuit
 Joinder of Claims
o Counterclaim
 Compulsory
- Same transaction or occurrence
- Supplemental jurisdiction will extend
 Permissive
- Not same transaction or occurrence
- Supplemental jurisdiction will not extend
o Crossclaim – Against Co-Party
 Not compulsory
 Same transaction or occurrence
 Supplemental jurisdictions will extend
 CA  called a “cross complaint”
 Class Action
o Federal Requirements
 Numerosity
 Commonality
 Typicality
 Adequacy
o Federal – Type of Class
 Prejudice
 Injunctive relief sough
 Questions of law/fact common to class predominate
o Federal – Citizenship Issues
 Diversity – named representative
 Class Action Fairness Act
- Any class member diverse
 - Aggregate exceeds $5 million
- 100 + class members
o CA – Class actions – No Types
 Ascertainable class
 Member community interest
- Common questions of law or fact
- Adequate representative
- Class substantial benefit
 Discovery
o Federal – Rule 26 Mandatory Disclosures
 Initial disclosures
 Expert information
 Pretrial witnesses & documents
 Discovery Tools
o Depositions
o Interrogatories
o Request for admissions
o Request for admissions
o Request to inspect & produce
o Electronically stored data
o Physical or mental exam
o CA  limited cases, less discovery
 Scope of Discovery
o Need not be admissible
o No attorney work product

DEPOSITION WITHOUT TRIAL

 Dismissal
o Voluntary
o Involuntary
o Failure to State a Claim
 Default Judgment
 Motion Summary Judgment
o No genuine issue of material fact & entitled to judgment as matter of law

TRIAL
 Right to Jury Trial
o FED  legal, then equity
o CA  equity, then legal
 Judgment as a Matter of Law
o Reasonable people could not disagree
o CA  directed verdict

POST-TRIAL ISSUES
 Renewed JMOL
o Only allowed if JMOL first
o CA  called JNOV & not required to file DV first
 Motion for New Trial
 Motion to Set Aside Judgment
 Conditional New Trial on Damages
o Remittitur: damages too high
o Additur: damages too low (not allowed in federal court)
APPEAL
 Final Judgement Rule (FJR)
 FRJ Exceptions
o Injunctions
o Collateral Issues
o Multiple Claims/Parties
o Extraordinary Writ
o Certification of Class Action
 Standards of Review

USE OF FINAL JUDGMENT

 Res Judicata (Claim)
o Valid Final Judgment on the Merits
 FED  final when rendered
 CA  final when appeals done
o Same P & Same D
 FED  same transaction or occurrence
 CA  primary rights theory
 Collateral Estoppel (Issue)
o Valid Final Judgment on the Merits
 FED  final when rendered
 CA  final when appeals done
o Same Issue Actually Litigated
o Issue was Necessarily Determined (Essential to Judgment)
o Use Against Party/Privity Only
o Use by:
 FED  party or privy only
 CA  stranger allowed if fair
- Defensive use – fair opportunity to be heard
- Offensive use – if fair and equitable

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