CIVIL PROCEDURE SHORT OUTLINE/CHECKLIST

CHECKLIST

I. Proper Court
a. PERSONAL JURISDICTION
b. SUBJECT MATTER JURISDICTION
c. SUPPLEMENTAL JURISDICTION
d. VENUE
e. REMOVAL

II. Erie Doctrine

III. Pleadings
a. COMPLAINT
b. 12b/ANSWER
c. COUNTERCLAIMS
d. CROSS-CLAIMS
e. AMENDMENTS/SUPPLEMENTAL PLEADINGS
f. RULE 11

IV. Parties and Claims (Joinder)

a. JOINDER OF PARTIES (Permissive & Compulsory)
b. JOINDER OF CLAIMS (Class Action, Intervention, Impleader, Interpleader)
c. COUNTERCLAIMS

V. Discovery
a. TYPES
b. SCOPE
c. ENFORCEMENT

VI. Pretrial Adjudication

a. DISMISSAL
b. DEFAULT JUDGMENT
c. 12(b)(6)
d. SUMMARY JUDGMENT

VII. Jury Trial

a. SEVENTH AMENDMENT
b. TRIAL MOTIONS

VIII. Appeal

IX. Res Judicata/Collateral Estoppel

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 CIVIL PROCEDURE SHORT OUTLINE/CHECKLIST
I. Proper Court
A. PERSONAL JURISDICTION
i. Personal jurisdiction refers to the court’s power over a particular Δ or property. Most states,
including California, grant cts in personam jurisdiction based on statute, but the court must also
have jdx based on Constitutional grounds (in rem - ct must attach prop at outset of case)

ii. Statutory Limitations (State rqmt)

1. A court typically grants in personam jurisdiction on one of the four following grounds:
a. (1) physical presence in the state at the time of service (voluntarily);
b. (2) domicile in state – where a person maintains her permanent home;
c. (3) consent to service, or
d. (4) by long arm statute, which specify how a court may exercise jurisdiction. In
California’s long arm statute gives a court power of any person/property over
which the state can constitutionally exercise jurisdiction.
iii. Constitutional Limitations
1. Courts assess several factors when determining Constitutionality of personal jurisdiction
(1) minimum contacts, (2) relatedness, and (3) fairness, and (4) notice (Shoe)
a. (1) Minimum Contacts
i. There must be a relevant tie between the defendant and the forum
state, satisfied by showing purposeful availment and foreseeability.
1. (1) purposeful availment –contact resulted from Δ reaching out
to/targeting the forum state (driving on streets qualifies)
2. (2) foreseeability – it must be foreseeable that defendant will
be “haled into court” in the forum
ii. Stream of Commerce - generally PJ if Δ places into stream of commerce
and does some other act to show its intent to serve a particular state
b. (2) Relatedness
i. Specific PJ: If the claim is related to Δ's contacts in the forum state, then
the court will be able to exercise specific personal jurisdiction.
ii. General PJ: If the claims do not arise from the Δ’s contacts, the court
may still exercise general personal jurisdiction if the Δ has engaged in
systematic and continuous activity in the forum state so that the
defendant is essentially at home in the forum.
c. (3) Fairness
i. The exercise of jurisdiction must be fair, so that it doesn’t offend
“traditional notions of fair play and substantial justice.” Factors include:
1. (1) Convenience – is Δ put at a severe disadvantage?
2. (2) State’s Interest – providing redress for plaintiff’s harms
3. (3) Plaintiff’s Interest – in obtaining convenient/effective relief
d. (4) Notice
i. Δ must be given notice & opportunity to appear & be heard

B. SUBJECT MATTER JURISDICTION

i. SMJ refers to the court’s power over the subject matter of the action. Federal SMJ can be based
on two grounds: (1) diversity or (2) federal question.
ii. Lack of SMJ can be raised at anytime, even after appeal (via a suit in equity to set jdgmt aside)
iii. Diversity Jurisdiction
1. Test for diversity when the case is filed
2. For a federal court to have SMJ over the action based on diversity of citizenship, two
requirements must be met: (1) there must be complete diversity, and (2) the amount in
controversy must exceed $75,000, excluding costs.
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a. Complete Diversity
i. To have complete diversity, all Πs must be citizens of different states
than all Δs. Determining citizenship depends on the nature of the party:
1. Natural Persons
a. A natural person’s citizenship is the state of her
domicile, which is the place where (1) there is presence
in the state, and (2) intent to remain.
2. Corporations
a. Citizenship of a corporation is (1) any state where
incorporated, and (2) where it has its PPB – which is
where the managers direct, control, and coordinate
activity (nerve center).
3. Unincorporated Associations (LLCs, Partnerships, etc)
a. Any state in which a member is a citizen.
4. Decedents/Minors/Incompetents
a. Use their citizenship, NOT the representative’s.
ii. Alienage jdx if citizen of a state and citizen of a foreign country
b. Amount in Controversy
i. A plaintiff’s good faith claim must exceed $75,000, exclusive of interest
and costs. It matters not that a plaintiff obtains less than this amount at
judgment, it just matters what is pled.
ii. Aggregation:
1. 1 PL v. 1 DF – plaintiff may aggregate claims (no limits)
2. 2 PL v. 1 DF – no aggregation unless it’s a single right
a. Joint owners of real estate have common right; Several
victims of same accidents do not have common right
3. 1 PL v. 2 DF – no aggregation unless joint tortfeasors
iii. Equitable Relief:
1. To meet amount for injunction, this is met if harm to Π is over
$75k, or if amount for Δ to comply with injunction is over $75k.
3. Exclusions - (1) divorce; (2) alimony; (3) child custody; (4) to probate an estate
iv. Federal Question Jurisdiction
1. Federal courts also has jdx over actions arising under the Constitution, laws, or treaties
of the US. The federal question must appear as part of Π's well-pleaded complaint, and
cannot be based solely on any defenses. Plaintiff must be enforcing a federal right.
a. Well pleaded complaint = claim is for enforcement of a federal right
v. California SMJ:
1. California superior courts are courts of general subject matter jurisdiction, and can hear
any case not dedicated to another division of the superior court.
a. Three classifications: (1) unlimited – exceeding $25k, can recover any amount
or equitable relief. (2) limited - $25k or less – limited to recovery of $25k. (3)
small claims – individuals/$7500 or less, corporations/$5000 or less.
b. Reclassification: If amount changes, matter can be reclassified on
motion/hearing by a party, or automatically by clerk. Can change from limited
to unlimited if possibility that recovery will exceed $25k. Can change from
unlimited to limited only if $25k is virtually unobtainable.

C. SUPPLEMENTAL JURISDICTION
i. If a Π alleges both federal and state claims, the federal ct has discretion to hear the state law
claims as well based on supplemental jdx, which requires:

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1. Claims share a common nucleus of operative fact which is satisfied if claims arise from
the same transaction or occurrence
2. Limit-If underlying case based on diversity, Π can't overcome lack of complete diversity
a. (supplement jdx can be used by Π to beat amt in controversy, Δ or TPD can)
D. VENUE
i. Proper venue determined at the time the case is filed
ii. Proper Venue: Venue refers to the proper district to bring the action. Venue is proper in:
1. (1) in the district where any Δ resides if all in same state; if foreign Δ then any district
2. (2) in the district in which a substantial part of the events or omissions that give rise to
the claim occurred, or a substantial part of property is situated, or
3. (3) if no district under 1 or 2, then in any district where any Δ is subject to personal jdx
NOTE - These rules don't apply to removed cases, venue set in district embraced by state ct
iii. Residence
1. Individual – residence is place of domicile
2. Corporations–residence is any district where subject to PJ w/ respect to the action in Q
3. Non-US Citizens – any district
iv. Transfer of Venue
1. Ct may transfer to another venue if (1) convenient for the parties & where the action
could have original been filed (PJ, SMJ, & Venue appropriate), or (2) all parties consent
2. If venue was proper, new location should be center of gravity given public/pvt factors
v. Forum Non Conveniens (used if other Ct is in a different country/judicial system)
1. A court may dismiss or stay an action based on FNC if the court finds, in the interests of
justice, that another forum is superior (even if venue is otherwise proper). The court
considers both public and private factors:
a. Public factors
i. (1) Availability of alternative forum; (2) Π's choice of forum; and (3)
forum state's interest in providing a forum for its residents
b. Private factors
i. (1) Convenience of the parties and witnesses; (2) location of the
evidence; and (3) where the cause of action arose
vi. Venue in California
1. Must be in the proper county. Local actions: where land is situated. Transitory Actions:
where any Δ resides, where K entered or to be performed, where breach/harm occurred
2. Transfer may be sought if (1) There is no reason to believe impartial trial cannot be had
in the original venue; or (2) Convenience of witnesses and ends of justice would be
promoted; or (3) No judge is qualified to act.

E. REMOVAL
i. Requirements:
1. An action originally filed in state court may be removed to federal court if the action
could have originally been brought in federal court (IE: satisfied PJ, SMJ, and Venue), in
the district embracing the state court where action was originally filed.
2. Only Δs may remove, and all Δs (who have been served) must join in removal
3. Diversity case exceptions: (1)no removal if Δ is a citizen of the forum state; (2) no
removal more than one year after the case was filed in state court
ii. Procedure: Δs file notice of removal in federal court for district that geographically encompasses
the state court from which the action is being removed within 30 days after service.
1. If another Δ is served later, it restarts the 30 day clock. Δ must attach all docs served in
state action, must copy all parties, and file copy of notice of removal in state court.

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iii. Remand: Π may then move to remand to state court if federal jdx is improper within 30 days
after removal based on procedural defects (ex: Δ was citizen of forum state; can't stop removal,
only remand). A motion to remand based on lack of SMJ can be made at any time.

II. Erie Doctrine

A. In diversity cases, & in sup. jurisdiction cases where the court exercises supplemental jx over state law
claims, the federal court must apply state substantive law, but may apply federal procedural law.
i. If law is clearly substantive/procedural, courts will simply apply according to above rule
ii. Clearly substantive state law issues (in which Ct would have to apply state law):
1. (1) elements of claim/defense; (2) SoL; (3) rules for tolling SoLs; (4) conflict or choice of law rules
B. If unclear whether law is substantive or procedural in nature, courts will generally use one of three tests:
i. (1) Outcome Determinative Test – if applying/ignoring state rule would substantially affect the
“outcome” of the case, state law must be applied. (unless would apply fed law if it is important
(i.e. constitutional right))
ii. (2) Balancing of Interests – does either federal or state system have a strong interest in having
its rule applied?
iii. (3) Avoid Forum Shopping – if federal court ignoring state law will lead to a floodgate of federal
actions, then state law should apply.

III. Service
A. SERVICE OF PROCESS
i. Process = two documents; a summons and a copy of the complaint
ii. Any nonparty who is at least 18 years old can serve process on Δs
iii. Can be served
1. Personal service - Give to Δ personally, anywhere
2. Substituted service (left w/ 3rd party) okay if at Δ's usual abode and serve someone of
suitable age and discretion who resides there
3. Service of Δ's agent okay if receiving service is w/in scope of agency
4. Other methods permitted by state law in which federal ct sits or in which service is to be
affected (state provision must be constitutional…rsbly calculated to give Δ notice)
iv. Service does not have to occur prior to SoL expiring; only complaint must be filed before

IV. Pleadings
A. COMPLAINT
i. A complaint must contain:
1. (1) the grounds for SMJ
2. (2) short and plain statement of the claim, showing entitlement to relief, and
3. (3) demand for relief
ii. Federal courts use notice pleading. In stating a claim, the pleading must put the opposing party
on notice of the claims against them sufficient for the other side to respond. Today, the
standard is slightly higher based on the Twombly/Iqbal decisions, where the facts must support
a plausible claim, which the judge determines by using her own experience and common
sense. California uses fact pleading – must allege sufficient facts to support cause of action.
iii. Certain claims must be pled with particularity (more detail) – fraud, mistake, special damages.

B. DEFENDANT’S RESPONSE
i. Motions (due 21 days after service; if waived service then 60 days from when mailed)
1. Motion for More Definite Statement – where pleading is vague

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2. Motion to Strike – improper, immaterial matter contained in pleading
3. Rule 12(b) Motion (defenses for Δ)
a. (1) lack of SMJ
b. (2) lack of PJ
c. (3) improper venue
d. (4) insufficiency of process
e. (5) insufficiency of service of process
f. (6) failure to state a claim upon which relief may be granted [can be brought anytime)
g. (7) failure to join indispensable party.
NOTE - Numbers 2-5 are waived if not asserted in first response (motion or answer).
4. If motion denied, Δ must answer within 14 days
ii. Answer (due 21 days after service, 14 days after denial of motion)
1. An answer must respond to the allegations of the complaint, by (1) admitting, (2)
denying, or (3) stating lack of sufficient information to admit/deny.
2. Failure to deny constitutes an admission on any matter except damages.
3. Answer must also raise any affirmative defenses (SoL, SoF, res judicata, etc)
iii. Demurrer (CA)
1. A demurrer is a responsive pleading in CA, which is brought by Δ for failure to state
facts sufficient to constitute a cause of action. The court takes all factual allegations as
true and determines whether Π has alleged sufficient facts to support his causes of
action.
iv. Motion to Quash (CA)
1. A defendant can move to quash service of a summons by claiming lack of PJ, improper
service, or improper service of process (BY SPECIAL APPEARANCE). It must be filed
before or with a demurrer, or else these defenses are waived. If denied, must answer
within 15 days, and must seek writ of mandate within 10 days.
v. Anti-SLAPP Motion to Strike (CA)
1. SLAPP lawsuits are suits against public participation. These are suits brought to chill the
valid exercise of free speech and petition. When Π sues Δ for an act Δ took in
furtherance of her free speech right or right to petition the government, Δ can make an
anti-SLAPP motion to strike
a. Δ must first show that Π’s claims arise from protected activity. Once this
showing is made, the burden shifts to Π to show probability of success.
b. Δ who wins can then file a suit for malicious prosecution – SLAPPback suit.

C. COUNTERCLAIMS (ASSESS PJ, SMJ, SUPP!!!!!!!!!!!!!!!!!!)

i. A counterclaim is a claim against an opposing party.
1. There are two types of counterclaims: (1) compulsory and (2) permissive.
ii. Compulsory Counterclaims
1. A compulsory counterclaim is one in which arises from the same T/O as the Π’s claim.
2. It must be asserted or is waived in any subsequent proceeding.
iii. Permissive Counterclaims
1. A permissive counterclaim is any claim that does NOT arise from the same T/O
(transaction or occurrence) as Π’s claim.
2. It can be brought in a later action and is NOT waived if not asserted.

D. CROSS-CLAIMS (ASSESS PJ, SMJ, SUPP!!!!!!!!!!!!!!!!!!)

i. A cross-claim is a claim against a co-party. It MUST arise from the same T/O as the underlying
claim, or else it may not be brought in this action. It is NOT required to be alleged and is thus
NOT waived if it is not asserted.
ii. Cross claims are never compulsory
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E. AMENDMENTS/SUPPLEMENTAL PLEADINGS
i. Amendment as of Right: (once w/in 21 days)
1. Π has a right to amend once w/in 21 days after Δ serves his first Rule 12 response
2. Δ has a right to amend a pleading once w/in 21 days after serving his answer.
ii. If no right, amendment requires written permission from the other side, or leave of court
iii. Amendment after SOL has Run – RELATION BACK—hard test to meet
1. To join a new claim after the SOL has run, the amended pleadings “relate back” if they
concern the same conduct, T/O as the original pleading.
2. To change a Δ – the pleading “relates back” if
a. (1) it concerns the same conduct, T/O,
b. (2) the new party knew of the action within 120 days of filing, and
c. (3) the new party knew, but for a mistake, it would have originally been
named.
F. RULE 11
i. Rule 11 requires the attorney to sign all papers and certify that, to the best of their knowledge,
after a reasonable inquiry:
1. (1) the paper is not for any improper purpose
2. (2) legal contentions are warranted by law (or non-frivolous argument to change law)
3. (3) factual contentions and denials of factual contentions have evidentiary support
ii. Violation of Rule 11 results in sanctions. Party must be put on notice from another party and
given 21 days to fix any problem before filing a Rule 11 motion for sanctions with the court.

V. Parties and Claims (Joinder)

A. JOINDER OF PARTIES
i. Compulsory Joinder
1. Rqmts: A party must be joined in a case when they are necessary or required because:
a. (1) without the absent party, the court cannot accord complete relief among
the existing parties, OR
b. (2) the absent party’s interest may be harmed if he is not joined, OR
c. (3) the absent party claims an interest which subjects an existing party to a
risk of multiple or inconsistent obligations.
2. Feasibility:
a. Joinder must also be FEASIBLE, meaning (1) the court has PJ over the party, and
(2) joinder will not defeat diversity.
b. If joinder is NOT feasible, then the court may either proceed without the
necessary party or dismiss the case. Factors to be considered whether to
dismiss the case include (1) prejudice to absent/present parties, (2) extent to
which prejudice can be avoided, (3) adequacy of judgment without absent
party, and (4) whether absentee will have adequate remedy (alt forum)
ii. Permissive Joinder
1. A party may be joined in the case as long as (1) the claims arise from the same T/O, and
(2) there is a common question of law or fact among the parties.
B. JOINDER OF CLAIMS
i. Class Actions
1. (Step 1) FOUR REQUIREMENTS (CAN’T):
a. Commonality – there are some questions of law or fact in common to class
b. Adequacy – rep will fairly and adequately represent class
c. Numerosity – too many class members for practicable joinder.
d. Typicality – rep’s claims/defenses typical of those of the class

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2. (Step 2) THREE TYPES OF CLASS ACTIONS

a. TYPE 1: Prejudice: class treatment necessary to avoid harm either to class
members or to non-class party. Ex: many claimants to a fund. Individual suits
might deplete the fund, leaving some without remedy.
b. TYPE 2: Injunction or declaratory judgment (not damages) sought because class
was treated alike by Δ.
c. **TYPE 3: Damages/Common Q:
i. (1) common questions predominate over individual questions; AND
ii. (2) class action is the superior method to handle the dispute.
3. (Step 3) Court Requirements
a. The court must (1) certify the class at an early practicable time, and (2) appoint
class counsel who will fairly/adequately represent the class.
i. Certification is immediately appealable (even though not a final jdgmt)
4. Notice Requirements
a. ONLY IN TYPE 3 is notice required. Notice must be given to all reasonably
identifiable members – telling people they may opt out or else will be bound, or
can appear separately through counsel. Class rep pays to give notice
5. Bound by Judgment
a. ONLY IN TYPE 3 All class members are bound by a judgment unless they opt out.
There is no right to opt out of a Type 1 or 2.
6. Settlement/Dismissal
a. The court must approve all settlements or dismissals. In TYPE 3 actions, the
court gives notice to class members to get feedback on whether case should be
settled or dismissed. Ct may give second opportunity to opt out
7. SMJ of Diversity Actions – as long as the representative is diverse from all Δs, and as
long as the representative’s claim exceeds $75,000, SMJ is met.
8. CAFA
a. The class action fairness act makes it a little easier to satisfy class certification
requirements. Under CAFA:
i. (1) only minimum diversity is required (any class member of diff
citizenship than any Δ)
ii. (2) amount in controversy in aggregate exceeds $5 million
iii. (3) there are at least 100 members of a proposed class
iv. (4) ANY defendant may remove, not all have to join
1. However, a federal court must decline jurisdiction if (1) more
than 2/3 of the Πs are citizens of the state, (2) a Δ from whom
significant relief is sought is a citizen of that state, (3) the
principal injuries occurred in that state, and (4) no similar class
has been filed in the previous 3 years.
b. A federal court may decline jurisdiction if more than 1/3 but less than 2/3 of the
Πs are citizens of the state, and the primary Δ is a citizen of the state.

ii. California Class Action

1. California allows class actions “when the question is one of a common or general
interest, of many persons, … and it is impracticable to bring them all before court, one
or more may sue or defend for the benefit of all. This means you must show:
a. (1) an ascertainable class of persons

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b. (2) well-defined community of interest. In considering this element, you must
consider: (1) whether common questions predominate, (2) representative is
adequate, and (3) class will result in substantial benefit to parties and court.
2. There are NO SEPARATE TYPES of class actions.
3. Individual notice is not required, but may be given – court decides who pays.
4. Does not require class appointed counsel
5. Plaintiffs can aggregate all claims against defendants

iii. Intervention
1. AS OF RIGHT: An absentee has a right to join a pending suit if the absentee’s interest
may be harmed if she is not joined & her interests are not now adequately represented.

2. PERMISSIVE: An absentee may join in a case if she has a claim or defense that have at
least one common question of law or fact with the pending case. Permissive joinder is
discretionary with the court, and may deny joinder if prejudice or delay will arise.

iv. Impleader
1. Claims against a non-party
a. Δ may bring into the case a third party defendant (TPD) in order to obtain
indemnity or contribution on the underlying claim. Right to implead within 14
days after serving an answer, otherwise you need leave of court
b. Claim may be asserted only to obtain recovery, and that recovery must be for
the Δ/third-party Π's own liability to the original Π (can't deny liability)
2. Claims against a Π
a. A TPD may assert claims against a Π, and vice versa, if the claims arise under the
same transaction/occurrence as the Π's original claim (doesn't have to be for
indemnity)
3. Steps to implead: (1) Δ files third-party complaint naming TPD; (2) serve process on TPD

v. Interpleader
1. One holding property forces all potential claimants into a single lawsuit to avoid
multiple litigation and inconsistency. Person with property is the stakeholder, and
requires adverse claimants to determine if they have a valid claim.
2. RULE 22: Requires complete diversity, and excess of $75k, or fed question.
3. STATUTORY: Only minimum diversity and $500 in issue
a. Minimum diversity = diversity btwn any two contending claimants

VI. Discovery
A. RULE 26(f) CONFERENCE (can't request discover until after this) - Parties give ct detailed discovery plan
B. DUTY TO SUPPLEMENT exists in Federal Ct but not in CA if circs change after you respond to discovery
C. TYPES OF DISCOVERY
i. Depositions - Parties or Non-Parties
1. Q'ing a person who gives sworn statements before a court reporter. Party–give written
notice of depo to all parties. Non-Party–must subpoena, along with a SDT for docs.
2. Limited to 10 depos per side, can't depose same person twice, & can't exceed 7 hours.
ii. Requests to Produce - Parties or Non-Parties
1. May be sent to a party, or a non-party (subpoena nonparties), requesting that docs are
made available for inspection/copying at a designated time and place. Must respond
within 30 days.
iii. Interrogatories - Party only

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1. Written question to another party only, to be answered in writing under oath. Must
respond within 30 days. Limited to 25 per party.
iv. Physical/Mental Examinations- Parties only
1. Only available through a court order, and limited to ONLY parties
a. Includes those in legal custody/control (not employees)
2. Requires (1) health be in actual controversy, and (2) “good cause” is shown
3. Moving party may pick the doctor
v. Requests for Admissions- Parties only
1. Written request by one party to another party ONLY to admit the truth of discoverable
matters. Must respond within 30 days.
vi. Required Disclosures
1. Initial Disclosures –w/in 14 days after 26(f)-must ID witnesses and copy/describe docs &
tangible evidence likely to have discoverable info that disclosing party may use to
support claims/defenses
a. Includes ESI, computation of monetary relief, and insurance coverage
2. Experts – as directed by the court – disclose experts that may be used at trial, including
a written report containing experts opinion, data, qualifications, compensation amt, etc
a. Experts obtained in anticipation of litigation, but who are not expected to
testify, may be discovered only upon a showing of exceptional circumstances
3. Pretrial – No later than 30 days before trial, must give detailed info about trial evidence,
including docs and witnesses that will testify.
D. SCOPE OF DISCOVERY
i. General Rule
1. Generally, you can request discovery of anything relevant to a claim or defense, as long
as it is rsbly calculated to lead to the discovery of admissible evidence. The requested
discovery need not be admissible at trial.
ii. Privileged Material
1. However, privileged material is not discoverable (atty/client, etc; see evidence outline)
iii. Work Product
1. Work product is any material that is prepared in anticipation of litigation. It can be
prepared either by the attorney, the party, or one of their representatives.
a. CA requires it be prepared by attorney or her agent
2. Absolute work product is never discoverable
a. Mental impressions, opinions, conclusions, and legal theories.
3. Qualified work product is not discoverable by an opposing party unless (1) there is a
substantial need, and (2) it is not otherwise avail.
4. In order to withhold privileged material or work product, you must expressly describe
the material in writing, generally called a PRIVILEGE LOG, and describe the date, author,
recipient, and the privilege.
E. ENFORCEMENT OF DISCOVERY RULES (SANCTIONS)
i. Protective Order
1. A party may move for a protective order to prevent discovery of a certain matter that it
deems improper for discovery (improper=harassing, undue burden/expense, etc)
ii. Sanctions
1. 1st, party must certify to the ct that she tried in good faith to resolve discovery dispute
2. If a party fails to respond to discovery requests or gives insufficient responses, a party
may file a motion to compel a party to answer; Discovery is broad prior to trial—at
discovery anything reasonably calculated to lead to relevant evidence is admissible
(hence can likely get motion to compel answer at discovery stage)
3. Partial violation = 2 steps. Total violation goes straight to RAMBO + costs
a. Step 1) order compelling party to answer, plus costs of bringing mx (atty fees)
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b. Step 2) Failure to comply w/ order = RAMBO discovery sanction: monetary
sanctions, establishing facts as true, striking pleadings, disallowing evidence,
dismissing plaintiff’s case(if bad faith shown), default judgment (if bad faith
shown)

VII. Pretrial Adjudication

A. DISMISSAL
i. Π may voluntary dismiss her action as of right any time before Δ serves and answer or MSJ.
Otherwise, need written agreement from opposing parties, or leave of court.
ii. First dismissal is WITHOUT prejudice. Any subsequent dismissal is WITH prejudice, even if the
first action was in state court.
B. DEFAULT JUDGMENT
i. DefaultDefault judgmentΠ entitled to recovery
ii. Π can show that Δ has failed to answer within 21 days and ask the court to enter the Δ's default.
iii. Clerk can enter a default judgment against the Δ only if
1. (1) Δ failed to respond in any way,
2. (2) the claim itself is for a certain sum of money, (popular MBE point for Qs)
3. (3) Π provides an affidavit of the amount owed, &
4. (4) Δ is not a minor or incompetent.
iv. Otherwise, Π must prove damages in a hearing before a judge prior to default jdgmt
v. If Δ appears on the case in any way then:
1. Only the judge may enter a default
2. Δ gets additional notice of the default judgment
vi. Default judgment may be set aside on any of the limited grounds that apply to all judgments

C. 12(b)(6) MOTION (Demurrer=failure to state sufficient facts)

i. Under FRCP 12(b)(6), Δ moves to dismiss for failure to state a claim. It tests only the sufficiency
of plaintiff’s allegations
1. The court ignores legal conclusions and looks at allegations of fact. It asks, if the facts
alleged were true, would the plaintiff win?
ii. The court cannot look to anything evidence outside the four corners of the complaint (can't look
at evidence of the case), otherwise the court must treat the motion as a MSJ.

D. MOTION FOR SUMMARY JUDGMENT - FRCP 56

i. Moving party must show
1. (1) there’s no genuine dispute as to material issue of fact AND
2. (2) that she is entitled to judgment as a matter of law.
ii. Must move within 30 days after close of discovery.
iii. Court weighs evidence, but cannot rely solely on pleadings. Summary judgment resolves issues
of LAW. If it is an issue of fact, it is reserved for the trier of fact and cannot be resolved by MSJ.
iv. MSJ can be partially granted, prohibiting litigation on some issues but requiring it on others

VIII. Jury Trial

A. SEVENTH AMENDMENT
i. The Seventh Amendment right to a jury only applies to FEDERAL actions, and only guarantees
the right to a jury trial for all actions at common law, but not for equitable actions.
1. If the action involves legal and equitable issues, then the Π has a right to a jury for the
legal action first, then the court decides the equitable action.
2. In California, the equity claims are determined first, then legal claims. And if complaint
seeks equitable relief and damages are merely incidental, there is no right to a jury trial.
ii. Party will waive its right to a JT unless it is demanded properly and timely
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iii. Jury trial must be demanded in writing no later than 14 days after service of the last pleading
raising jury trial issue (withdrawal of demand requires consent of all parties)
1. Jury demand may be withdrawn only if all parties consent
iv. Peremptory challenges - Federal ct gives 3 per side, CA gives 5 per side
B. CA Constitution gives right to jury trial in civil cases
C. JURY MISCONDUCT
i. External matters allow verdict to be impeached
1. (bribes, verdict based on outside investigation, lied/concealed material facts during voir dire etc)
ii. Intrinsic matters do not allow impeachment of verdicts (on drugs, etc)

D. CAN JURY BE DISREGARDED?

i. JMOL (Mx for Directed Verdict/Nonsuit Motion in CA)
1. A mx for Judgment as a Matter of Law (JMOL) is an exception order that takes the case
away from the jury, & the court decides the outcome of the action.
2. The court will only grant a JMOL
a. (1) after the other side has been heard or at the close of evidence, AND
b. (2) if reasonable persons could not disagree on the result.
i. The evidence must be viewed in favor of the non-moving party.
ii. Renewed JMOL (Renewed Mx for Directed Verdict-CA)
1. A renewed JMOL is the same as a JMOL, but it comes AFTER the trial/verdict.
2. If you did not move for a JMOL, you cannot move for a renewed JMOL
a. CA-lacks the prerequisite; can make mx after trial regardless
iii. Motion for New Trial
1. After trial, a party may move for a new trial within 28 days after the judgment on one of
the following grounds:
a. (1) prejudicial error at trial makes judgment unfair,
b. (2) new evidence that could not be obtained with due diligence,
c. (3) prejudicial misconduct by party, attorney, juror
d. (4) serious error in judgment by jury – judgment against weight of evidence, or
e. (5) excessive or inadequate judgment.
2. Remittitur/Additur
a. If jury's damage figure if excessive/inadequate:
b. Remittitur - Judge gives Π a choice of either having a new trial or Π takes a lesser
amount/award
c. Additur - Judge gives Δ a choice of either having a new trial or Δ paying a greater
amount/award (only allowed in CA)

IX. Appeals
A. FEDERAL APPEALS
i. A party must appeal within 30 days from entry of the judgment
ii. Final Judgment Rule - Generally, You can only appeal from final judgments.
1. Final judgment is an ultimate decision by the trial ct of merits of the entire case
iii. Exceptions to the final judgment rule include:
1. (1) pretrial orders involving temporary remedies, (2) final judgment on collateral
matters, and (3) interlocutory orders of great importance that may be determinative of
the ultimate decision.
B. CA APPEALS
i. Must be brought within 60 days after service with entry of judgment, or 180 days after
judgment is entered. Must be a final judgment. CA allows for extraordinary writs (of mandate
or prohibition) – seeking review of an interlocutory order. It’s within the discretion of the court
of appeal to hear the writ or not.
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C. STANDARDS OF REVIEW
i. Questions of law=de novo - No deference to district judge
ii. Non jury questions of fact = clearly erroneous - Some discretion/deference to district judge
iii. Jury trial questions of fact = affirm unless rsbl people could not have made that finding
iv. Discretionary matters = abuse of discretion

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X. Res Judicata/Collateral Estoppel
A. If case 1 and case 2 are in different judicial systems, court in case 2 applies the preclusion law of the
judicial system that decided case 1
B. RES JUDICATA (CLAIM PRECLUSION - one bite at the apple…)
i. For res judicata to apply, the following must be shown:
1. (1) there is a valid, final judgment on the merits;
a. Valid - valid as long as not void (lack of SMJ, etc)
b. Final - Generally the same as whether final for purposes of taking an appeal
c. On the merits
i. Involuntary dismissals do not qualify as on the merits
1. (lack of jdx, improper venue, failure to join indispensable party)
2. (2) the cases are brought by the same claimant against the same Δ;
3. (3) the same cause of action (or claim) is involved in the later lawsuit;
a. All claims/causes of action arising out of the same transaction or occurrence
b. Minority view = claims based on primary rights, not on T/O - CA follows this
4. (4) cause of action was actually litigated/could have been litigated, in the prior action
a. Jdgmt often base on actual litigation, but default judgment/etc qualifies
ii. In federal court, a judgment is final when rendered. In federal court, all claims arising out of the
same transaction or occurrence must be brought together.
iii. In CA, a judgment is final upon the conclusion of any appeals. CA also adheres to the primary
rights doctrine, under which a cause of action is an invasion of a primary right, and any different
injury arising from the same occurrence may be brought in a separate action.

C. COLLATERAL ESTOPPEL (ISSUE PRECLUSION)

i. The doctrine of collateral estoppel bars a Π from re-litigating issues where:
1. (1) there is a valid, final judgment on the merits
2. (2) the issue was actually litigated in the first action,
3. (3) issue was essential to the judgment in the first action.
4. (4) must be identical issue in each action
ii. Collateral estoppel may only be asserted against a party that was a party to the previous case
(or who was represented by that party).
iii. Under the doctrine of mutuality, collateral estoppel may only be asserted by one who was a
party to the previous case. Some courts, including CA, have abolished the mutuality
requirement, and allow a stranger to an action invoke the doctrine of issue preclusion if:
(Parklane factors)
1. (1) the opposing party had a full/fair opportunity to litigate in case 1
2. (2) opposing party could foresee multiple lawsuits/had incentive to litigate strongly
3. (3) party asserting defense could not have joined easily in the first case
4. (4) no inconsistent judgments/different procedures on the record
iv. If defensely (someone wants something from you) you can use issue preclusion; if offensively
(you want something from someone) then you can possibly use issue preclusion (then analyze
using factors above)

XI. MISC NOTES/ISSUES

A. Judgments are enforceable during pendency of post-trial motions unless the court otherwise orders
B. Grounds to set aside a judgment
i. (1) mistake, inadvertence, surprise, or excusable neglect
ii. (2) newly discovered evidence that by due diligence could not have been discovered in time to
move for a new trial
iii. (3) fraud, misrepresentation, or other misconduct of an adverse party
iv. (4) judgment is void
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v. (5) the judgment has been satisfied, released, or discharged; a prior judgment on which is is
based has been reversed or otherwise vacated; or it is no longer equitable that the judgment
should have prospective application
vi. (6) any other reason justifying relief from the operation of the judgment

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I. HEAVILY TESTED AREAS
 Subject matter jdx
o Citizenship
 Establishing a new domicile
 Decedents, minors, and incompetents
o Aggregation
 Supplemental jdx
o If underlying case is based on diversity, limitation of Π to overcome lack of complete diversity
 Venue
 Removal
 Pleadings
o Sufficiency re the "short plain statement of the claim," particularly the claims that require more detail
o Counterclaims
 Compulsory counterclaims
 Establishing SMJ for new claims
 Discovery
o Which discovery tools can be used to get info from non-parties
o Duty to supplement
o Privilege re work product
 Parties and claims
o Who is a necessary party
 Absent party whose interest may be harmed if not joined is most likely to be tested
 Class Action is red hot on the bar
o Type 3 class action - Damages - Where common questions predominate and class action is superior
method to handle the dispute
 Most likely b/c also requires notice to all class members, so can test both issues
o SMJ - If diversity jdx then class representative must be diverse and rep's claim must exceed $75,000
 Pretrial Adjudication
o Motion for summary judgment
 Classic hypo w/ 3 permutations
 Π hit by car driven by Δ and sues alleging Δ ran red light while Π crossing under green. Δ
files MSJ and attaches affidavits from wxs saying they saw accident and Δ had green
o 1) Π relies on complaint saying Δ ran red - MSJ granted
o 2) Π has affidavit of someone who spoke to someone who saw it - MSJ granted
o 3) Π has depo testimony from drug addict/swindler who saw Δ run red - no MSJ
o JMOL and Renewed JMOL
 Issue/claim preclusion

II. IMPORTANT TO REMEMBER

 Every claim must have SMJ, so always analyze SMJ when a new claim comes in
 Supplemental jdx
o Analyze whether the claim has an independent basis for SMJ before going into supplemental jdx
 Joinder tip
o "C" joinders, counterclaim and crossclaim, are btwn existing parties
o "I" joinders, impleader and intervention, bring in new parties

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