* Civil Procedure (Federal Rules) * 

(California Code is different from the Federal Rules . .

It will be explained apart where it is written as CC) 

​

​

1.   ** Personal Jurisdiction ("PJ")  

   1. Issue: Whether the court has power over the Defendant (“D”) 

   2. PJ must be asserted along with (i) Answer (a written pleading filed by the D to respond to a Complaint filed by the Plaintiff (“P”) in a lawsuit served upon D), (ii) 12b motion prior to answer (This will be explained in details later soon), or else (iii) it is waived (voluntary relinquishment or surrender of some known right or privilege)​​

   3. There are two requirements for PJ to be satisfied

      1. State statute (This will be explained below at “Statutory Analysis”) 

      2. Due Process under the Constitution by federal court (This will be explained below at “Constitutional Analysis”) ** 

         1. ​​​​"Statutory Analysis" (Satisfying the State Statute in order to know whether the court has power over the D = whether the court in question can litigate the D) 
            1. In order to satisfy the state statute, that is, in order for the court to have power over the D, the D must be/have been: 
               1. physically present in the forum state ( = the state where the lawsuit is brought) at the time of the personal service (i.e., delivering a summons, complaint, or other legal document which must be served by handing it directly to the person named in the document, a.k.a. the D. This will be explained in details later soon); 
                  1. Transient D (i.e., D who is served with personal service of process while in the forum state only temporarily, such as, during travel) will be served irrelevant to his brief presence in the state 
                  2. Personal service by fraud or by force by the P will be invalid 
                  3. Parties and witnesses who are non-residents but are present in the forum state merely to take part in a judicial proceeding, or who are passing through the forum state on their way to a judicial proceeding elsewhere are given immunity (As to CC, no immunity) **

               2. domiciled in the forum state; ​​

                  1. “domicile” of a person: This refers to the place where a Person maintains her permanent home, though not physically present within the state when served with the personal service of process

                  2. "domicile” of a corporation:  This is based on (i) place of incorporation; and (ii) principal place of business, where its high level officers direct, control, and coordinate its activities

               3. citizen, even though domiciled abroad;

               4. consent to PJ; 

                  1. ​Express consent (Appear in action, By contract, or By appointment of agent for personal service of process)

                  2. Implied consent (When the forum state has substantial reason to regulate the in-state activity of a non-resident, and by engaging in such activity, non-resident appointing a designated state official as his or her agent for the personal service of process) ** 

               5. acted within the scope of the Long Arm Statute  

                  1. If no traditional basis of aforementioned 1. – 4. fit to the D, it means D is a non-resident. Thus, the P must look to see if the forum state has a Long Arm Statute, which grants court a power to Constitutionally exercise PJ over a non-resident

                  2. Here, non-residents include people who (i) perform within the forum state, or (ii) who cause results within the forum state by the acts performed outside of the forum state 

                  3. And in order for the court to have the power to constitutionally exercise PJ over non-residents, the following “Constitutional Analysis” must be met 

                     1. Again, “Constitutional Analysis” is made only when the D does not meet the status of 1. – 4. above ** 

         2. Constitutional Analysis (This analysis is to satisfy the Due Process (i.e., fairness in government proceedings, when the liberty or property of an individual is at stake) under the Constitution, to know whether the court has the power to Constitutionally exercise PJ over non-residents) 

            1. Minimum Contact – The D must have had minimum contact with the forum state: 

               1. Purposeful Availment: first, the minimum contact must have resulted from Purposeful Availment. That is, D must have reached out to the forum state & purposefully availed the protection of law, privilege and benefit of the forum state; and 

               2. Foreseeability: secondly, it must have been foreseeable that D could have got haled into the court by a P and defend himself or herself at the courtroom 

            2. Relatedness – Relation between the contact of the D and the claim of the P. In other words, whether the claim of P has arose due to the contact with the forum state by D

               1. General PJ: The contact with the forum state by D is “too systematic and continuous in the forum state” that D is “essentially at home”, thus the court can exercise PJ over any cause of action against the D. The D who performed outside of the forum state (= out-state activity) causing only results within the forum state will be within this General PJ

               2. Specific PJ: The contact with the forum state by D is “less than systematic and continuous in the forum state” that the court could exercise PJ only for cause of action brought from the in-state activity.  **

                  1. In order to satisfy Specific Jurisdiction, there must be "minimum contacts (see above)" and "not offensive to fair play (i.e., not unreasonable and unfair)" 

            3. Fairness – This “Fairness element” will be analyzed only in the case of Specific PJ above. To see whether the Specific PJ is fair, there are three factors that need to be analyzed:

               1. Convenience of the Forum State (i.e., The Burden of Proof will be on the D): Generally, the Forum State is constitutionally acceptable unless the D can show the Forum State puts him or her at a “severe disadvantage” in the litigation compared to the other party

               2. Interest of the Forum State: Whether the Forum State can provide redress to its residents & also protect its residents from similar disputes that occurs within the Forum State

               3. Interest of the P: Whether it is possible for P to take action in his or her hometown, and obtain convenient & effective relief​

   4. Stream of Commerce PJ Cases 

      1.  If a D manufactures product in State A, and sells them to a second party in State B, the D is thereby placing the product in the stream of commerce. Yet, the product somehow winds up in State C and causes an injury therein the State C 

         1. Here, just placing an item in the stream of commerce is not a sufficient basis for PJ. That is, just placing an item in the stream of commerce is not a sufficient basis for the court to have power over the D

         2. D must at least place an item in the stream of commerce coupled with some other acts that shows the intent to serve that particular state, such as re-modifying its products to comply with the law of the state C or maintaining a state office at state C could be a sufficient basis for PJ

         3. However, it is yet unresolved whether placing an item in the stream of commerce with the knowledge or hope that it will wind up in a particular state would be a sufficient basis for PJ **

   5.  Internet PJ Cases

      1.  Passive website (This is the case where allowing people to view only the contents for informational purpose on his or her website)

         1. Insufficient for the court to exercise General PJ (see above)

         2. Sufficient for the court to exercise Specific PJ (see above) 

      2.  Active website (This is the case where allowing people to do business on his or her website) 

         1. Sufficient for the court to exercise General PJ 

            1. Purposeful Availment & Foreseeability (see Minimum Contact under Constitutional Anaylsis above) must be shown in the case of Active website

               1. Example) Although the D only had two transactions in State X, it could be said that sufficient minimum contacts existed to support a finding of PJ if the D allowed people to do business in his or her website not just let people view the contents in his or her website **                                                                                                            

2. Subject Matter Jurisdiction (“SMJ”) 

   1. This is the next question you would have to ask after the PJ analysis is finalized. You will need to ask which court do the D and the P go to in State X: State court or Federal Court

   2. State courts can hear any kind of cases 

   3. Federal courts can hear two types of cases under SMJ: (1) Diversity of Citizenship cases & (2) Federal Question cases 

      1.  Diversity of Citizenship cases

         1. Two Requirements (Citizenship & Amount in controversy) **

            1. Citizenship

               1.  The case of the D and the P needs to be between (i) citizens of different states (diversity), or (ii) a citizen of a state & a citizen of a foreign country (alienage)

                  1. Permanent Resident Aliens (“green-card” aliens) are not citizens of any US states. Thus, litigation with them might invoke alienage, but never diversity

                  2. US citizens living oversees are deemed not to be citizens of any states in the case of Diversity of Citizenship cases 

                  3. Complete Diversity Rule: No P can be the citizen of the same state as any D 

               2.  Types of Citizenship 

                  1. Citizenship of Natural Persons: (i) citizenship based on domicile, (ii) but if a person wants to establish a new domicile, he or she must have both: (a) physical presence at the State he or she wants to domicile, and (b) intent to make that place as home permanently or for an indefinite period of time

                     1. Test for Diversity is at the time when the case is filed, thus changing domicile after the case is filed does not affect the case 

                  2. Citizenship of Corporations: (i) Place of Incorporation, and (ii) Principal Place of Business, where its high level officers direct, control, and coordinate its activities

                  3. Citizenship of Unincorporated Associations (e.g., Partnerships or Limited liability companies): Where any member of the association is a citizen

                  4. Citizenship of Decedents, Minors, or Incompetents: The citizenship of the decedents, minors, or incompetents, not the citizenship of the representative of the decedents, minors, or incompetents 

                  5. Citizenship of Children: The citizenship of his or her parents ** 

            2. Amount in Controversy 

               1. Amount in Controversy must exceed $75,000 unless there are any exceptions 

                  1. This amount does not include legal costs or interest on the claim

                  2. The amount of controversy will be measured at time the case is filed as well

               2. P who wins less than $ 75,000 may have to pay the litigation costs of the D (i.e., filing and discovery expenses are included in the litigation cost of the D but not attorney fees for each party pays his or her own attorney fees unless some law provides for fee-shifting)

               3.  Aggregation of Amount in Controversy

                  1. Claims of one P against one D may be aggregated even if they are actually unrelated (i.e., the P may sue the D of multiple claims as long as the claims involve the D) 

                  2. Claims of one P against multiple Ds may be aggregated only if all the Ds are jointly liable 

                  3. Claims of multiple Ps against one D may be aggregated only if the Ps have undivided or common interest (i.e., single title or single right) **

               4. Injunction (i.e., a court order requiring a person to do or cease doing a specific action)

                  1. Two tests

                     1. Viewpoint of P: If the absence of the injunction cost P more than $ 75,000, then the Amount in Controversy element is met

                     2. Viewpoint of D: If it costs D more than $ 75,000 to comply with the injunction, then the Amount in Controversy element is met  

               5. Federal Question cases 

                  1. Rule

                     1. The P must be enforcing a federal right that “arises under” a federal law (i.e., US Constitution, Federal Legislation or Federal Statute)

                     2. The right to relief of P must require a resolution of a substantial question of federal law

                     3. The federal question must appear on the face of "well pleaded complaint” of P 

                     4. The federal question cannot appear in a defense or counter claim of P **

                  2. Exception

                     1. The federal court will not exercise jurisdiction in:

                        1. domestic relations (e.g., divorce, alimony, child custody)’, or

                        2. probate proceeding (i.e., the process of identifying the property of the deceased, paying any debts, identifying the proper heirs, and distributing the property to them) unless the claim asserted involves the (i) actual probate (i.e., officially proving of a will); (ii) annulment of a will, or (iii) seeking property in the process of the probate proceeding

3. Supplemental Jurisdiction (“SJ”)

   1. After the claim has been determined whether it is a Diversity of Citizenship jurisdiction or a Federal Question jurisdiction, it can get into federal court. However, once the case got into federal court, additional claims (e.g., crossclaim, counterclaim) may be asserted related to the main claim. Generally, the additional claims also must meet the SMJ (i.e., Diversity of Citizenship jurisdiction or Federal Question jurisdiction). However, there are times the additional claims will not meet the standards of SMJ. If this is the case, the additional claims will not be able to get into federal court. That is, the additional claims may not be tried in court. Yet, the federal court can still hear the additional claims if it invokes “Supplemental Jurisdiction”

   2. Test for Supplemental Jurisdiction 

      1. In order for the additional claims to meet the SJ standard:

         1. The claim must share a “common nucleus of operative fact (i.e., same transaction or occurrence)” with the main claim that invoked Diversity of Citizenship jurisdiction or Federal Question jurisdiction **

         2. Exception

            1. However, even if the additional claims meet the SJ standard, the federal court has discretion not to hear the claims if:

               1. the state law claim is complex; 

               2. state law issues would predominate the case (i.e., here the state law issues cannot predominate the case, because then, federal law will be of no use, and federal law cannot be of no use because the case is tried in federal court); or

               3. the claim that got the additional case into federal court is dismissed early in the case

         3. Limitation

            1. In a Diversity of Citizenship Jurisdiction case, claims by P cannot invoke SJ to resolve the lack of citizenship, yet the D can (However, P can use SJ in Diversity of Citizenship Jurisdiction cases to resolve the lack of "amount in controversy (one of the requirements of SMJ, see above)", and to resolve the lack of citizenship in a Federal Question Jurisdiction)

4. Venue 

   1. Venue determines which district of the court is proper (As to CC, determines which county court is proper) 

   2. Rule

      1. The P may lay venue in any district of the court where:

         1. all D reside (i.e., and if all D reside in different districts of the same forum state, the P can lay venue in the district where any of the D resides); 

         2. substantial part of the claims or events (i.e., where the contract was to be entered into, where the contract was to be performed, or where the injury occurred) arose (Note that there can be more than one state where substantial part of the claim arose); or

         3. substantial part of property is located **

      2. Waiver of Venue

         1. Venue may be waived by the parties unless timely objection is made to the "Improper Venue" under Rule 12 (Rule 12 deals with defenses and objections. This will be explained in details later) 

      3. Transfer of Venue

         1. In the “Interest of Justice”, a federal district court may transfer the case from the initial federal district court (“transferor”) to another federal district court ("transferee"), even if the initial federal district court ("transferor") is a proper venue, where:

            1. the case could have been filed, that is, the transferee must have all proper PJ, SMJ, Venue against all D; or

            2. all parties consent 

               1. Note that under “Interest of Justice”, the court will balance factors of both public interests (i.e., availability of alternative forum (i.e., court), burdened of jury service, protecting citizens, and what law should apply) and private interests (i.e., convenience of the parties and witnesses, location of the evidence)

         2. However, if the initial federal district court (“transferor”) is an improper venue, the federal district court will look into the “Interests of Justice” to look whether the case could be transferred to another federal district court; and if the court determines as negative, the case will be dismissed

      4. Transfer of Statutes 

         1. Even if the transfer of venue is possible, the transfer of venue will only occur, if it is possible to apply the “Choice of Law” rules of the transferee 

            1.  "Choice of Law" is a set of rules used to select which proper jurisdictional laws to apply in a lawsuit **

               1. ​The Choice of Law usually operates in conjunction with the “Forum Selection Clause (i.e., a contractual agreement that allows the parties to agree on which court and which location the parties would like to have their legal dispute)” 

         2. Thus, if the “Choice of Law” rules of the transferee is not possible, the “Transfer of Venue” will not occur

      5. Forum Non Conveniens 

         1. This is a discretionary power that allows the federal district court to dismiss the action or to stay (i.e., postpone a case, usually until a matter pending is taken care of) the action, if there is a far appropriate court elsewhere (e.g., within a separate judicial system, foreign country)

         2. In order to decide whether there is a far more appropriate court elsewhere, the court will look into the “Interest of Injustice (see above)”

            1. Note that if the P is currently the resident of the present forum state & the other courts are available and adequate, Forum Non Conveniens is almost never granted

5. Removal & Remand

   1. Removal

      1. Definition: This allows D to remove (i.e., transfer) a case from a state court to a federal court, if the case could originally have been brought in federal court 

      2. Rules

         1. Who cane remove: The D, in the initial action, can remove (i.e., and if there is more than one D, all other Ds must agree to remove)

            1. Note that the P cannot remove ​

         2. Where can it be removed: It can only be removed to the federal district court embracing the state court (i.e., the state court where the case was initially filed) **

         3. When can it be removed: The D can remove within 30 days of service of process (i.e., delivering a summons, complaint, or other legal document which must be served by handing it directly to the person named in the document, usually the D)

         4. What can be removed: The D can remove a case that meets the requirements for SMJ (i.e., Diversity of Citizenship Jurisdiction or Federal Question Jurisdiction: see above)

            1. Note that when a removable claim is joined with one or more non-removable claims, the entire case may be removed   

      3. Exceptions to Removal

         1. The exception to removal only applies if the D is trying to remove its case in Diversity of Citizenship Jurisdiction 

            1. In Diversity of Citizenship Jurisdiction, Removal is not possible if any Ds are citizens of the forum state (i.e., the state where the lawsuit is brought). Yet, if the claim against the forum state D is dropped, the case can be removable within 30 days of service of dismissal of the forum state D

               1. This rule does not apply if the case raises a federal question​

            2. Removal is not possible if more than one year after the case was initially filed in state court

   2. Remand 

      1. Definition: This allows P to remand (“retransfer”) the case from a federal court to a state court, if the removal was improper

      2. Rules 

         1. The P must move to remand within 30 days after notice of removal was filed by the D in federal court

         2. Yet if the reason of the remand was lack of SMJ, the P can remand at any time **

6. Erie Doctrine

   1. Issue: If the case got into the federal court, which law should be applied

   2. General Rule

      1. In a Diversity of Citizenship case, federal court must apply the substantive law of the state where the federal court sits 

         1. Substantive law: Substantive law refers to all categories of public law (i.e., law which governs relationships between individuals and the government, which generally comprises constitutional law, administrative law, tax law and criminal law, as well as all procedural law) and private law (i.e., a branch of the law that deals with the relations between individuals or institutions, which generally comprises civil law (i.e., contract law, law of torts and property law), labor law, commercial law, corporations law), including the law of contracts, real property, and torts

         2. Procedural law: Procedural law establishes the rules of the court and the methods that are used to ensure the rights of individuals in the court system. In particular, laws that provide how the business of the court is to be conducted

   3. Exceptional Rule

      1. In a Diversity of Citizenship case, in federal court, there are times the judge has to apply different types of laws in the following cases:

         1. If there is a federal law on point (i.e., federal constitution, federal statute, or Federal Rule of Evidence, or FRCP) directly conflicting with state law, apply federal law as long as its valid. This is based on supremacy clause (i.e., supremacy clause establishes that the federal constitution, and federal law generally, takes precedence over state laws, and even state constitutions)

         2. If there is no federal law on point, and the issue is determined to be “substantive (see substantive law)”, the federal judge must apply the law of the state where the federal court sits. The below four issues are clearly deemed to be substantive **

            1. Elements of a claim or defense

            2. The statute of limitations (i.e., a law that sets a fixed time the parties involved have to initiate legal proceedings from the date of an alleged offense, whether civil or criminal. Namely, it is the the deadline for filing a lawsuit) 

            3. Rules of tolling statute of limitations (i.e., a legal doctrine that allows to pause or delay of the pass of period of time set forth by the statute of limitations, which in the case lawsuit could potentially be filed even after the statute of limitations has passed. Although grounds for tolling the statute of limitations vary by jurisdiction, common grounds include: The P was a minor at the time a cause of action accrued, the P has been deemed mentally incompetent, the P has been convicted of a felony and is imprisoned, the D has filed a bankruptcy case triggering a stay of lawsuits, the D is not physically within a certain jurisdiction (state or country), and the parties were engaged in good-faith negotiations to resolve a dispute without litigation when the statute of limitations expired. In these cases, the set time of the statute of limitation could be paused or delayed)

            4. Conflict Law / Choice of law 

               1. ​Conflict of Law: A set of rules for determining which law to apply in a case over which two or more contradictory laws seem to have jurisdiction

               2. Choice of Law: A set of rules used to select which laws to apply in a lawsuit. Choice of law issues frequently arise in lawsuits in the federal courts that are based on diversity jurisdiction, where the P and the D are from different states **

         3. If there is no federal law on point and the issue is not one of the four above, federal judge must determine whether the issue is “substantive” or “procedural” based on the following rules:

            1. If the state law is outcome determinative, that is, if applying or ignoring the state law affect the outcome of the case, it is probably a substantive law, thus state law should be applied 

            2. If there is a balance of interest, that is, if the federal system has a greater interest, the issue is procedural, thus, apply the federal law. And, if the state system has a greater interest, the issue is substantive, thus, apply the state law

            3. Avoid forum shopping (i.e., a practice adopted by litigants to get their cases heard in a particular court that is likely to provide a favorable judgment for him or her), that is, when the federal court gets to disregard the state law on the issue, the parties will all try to convene to the federal court to get a favorable judgment, which then the forum shopping must be avoided, thus, in this case, the state law should be applied **

7. Pleadings ( = Complaint & Answer)​​​

   1. Complaint 

      1. Definition: Principal pleading by the P

         1. Rule: By the P filing the complaint, the action commences between the P and the D 

      2. Requirement of a Complaint

         1. Plain and short statement of the claim, showing his or her entitlement to a relief (i.e., need to plead sufficient facts to support a plausible claim)

            1. Note 1: It is a “plausible” claim not a possible claim (i.e., plausible claim is a claim that it reasonably might happen, while possible claim is a claim that can happen) 

            2. Note 2: When a claim involves “special matters”, such as fraud, mistake, special damages, these cases need to plead sufficient facts with particularity and specificity (i.e., who, what, where, when, why, how) 

         2. Demand for relief 

         3. Grounds for SMJ (see above) must be proved

            1. Note that as to CC, grounds for SMJ is not required in the complaint **

   2. Answer

      1. Definition: A written pleading (i.e., a formal statement of the cause of action or a defense) filed by a D to respond to the complaint of the P

      2. ​Rule: An answer generally responds to each allegation in the complaint by denying or admitting it, or admitting in part and denying in part

      3. Time: The answer must be filed within 21 days after service of the complaint by the P

      4. Rule 12 

         1. Definition: Rule 12 (i.e., all the Rule 12 below) requires the D to respond (1) by motion(i.e., asking the court to issue a ruling or order on a legal matter), or (2) by answer (see above. Types of Answer will be explained in details later soon). And to avoid default judgment (i.e., if one party fails to fulfill a legal duty, then the court will rule in favor of the other party)

         2. Time: The D must respond by either way within 21 days after the service of process is made 

         3. Rule 12 Motions

            1. Issues of Form

               1. 12(c) – Motion for judgment on the pleadings (i.e., a request by the party to the court to rule in his or her favor based on the pleadings(i.e., a formal statement of the cause of action or a defense) on file, without accepting the evidence)

               2. 12(e) – Motion for a more definite statement (i.e., a request by the party to the court to ask for a more definite statement for the pleading is too vague that the D cannot form a response) 

               3. 12(f) – Motion to strike (i.e., a request by the party to the court to remove all pleadings or evidences of the other party) 

            2. Rule 12(b) Defenses

               1. 12(b)(1) – Lack ofSMJ(see above)

               2. 12(b)(2) – Lack ofPJ(see above)

               3. 12(b)(3) – Improper venue(see above)

               4. 12(b)(4) – Insufficiency of process (i.e., problems with the summons(i.e., the document that officially starts a lawsuit and informs the D that he or she is being sued) or the complaint)

               5. 12(b)(5) – Insufficient service of process(i.e., this will be explained in details later soon)

               6. 12(b)(6) – Failure to state a claim upon which relief can be granted 

               7. 12(b)(7) – Failure to join an indispensable party(i.e., a person or an entity(i.e., corporation) that must be included in a lawsuit in order for the court to render a final judgment) 

                  1. Note that 12(b)(2), 12(b)(3), 12(b)(4) and 12(b)(5) are waivable (i.e., the legal rights could be lost). Thus, they must be put in the above ‘issue of form’ or in the ‘answer (Type of answers will be explained in details later soon)’ or else they are waived(i.e., the legal rights are lost)

                  2. Note that 12(b)(1) is never waived

                  3. Note that if the D responds with a timely motion under R12(b), and the court denies the motion, the responsive pleading by the D must be served within 14 days of notice of the denial

      5. Types of Answer

         1. General Denial

            1. At times the answer is in the form of a general denial, denying everything

         2. Affirmative Defense

            1. The answer may comprise "affirmative defenses (i.e., a defense where the defendant introduces evidence, which, if found to be credible, will negate the criminal or civil liability, even if it is proven that the defendant committed the alleged acts. Examples of affirmative defenses could be self-defense, insanity, necessity, laches (i.e., an unreasonable delay in asserting a claim), etc. 

         3.  Counterclaim

            1. Definition: A claim against an opposing party

            2. Time: The P must respond within 21 days of service by the D

            3. Types of Counterclaims

               1. Compulsory Counterclaim

                  1. This claim is possible if the claim arises out of the same transaction or occurrence as claim of the P

                  2. Unless you have filed the claim in another case, the P must file this in the pending case, or the claim is waived (i.e., the P is surrendering the claim)

                  3. The supplemental jurisdiction(see above) could be used

               2. Permissive Counterclaim

                  1. This claim does not arise from the same transaction or occurrence as claim of the P 

                  2. Here, ‘permissive’ means the P is not required to file it in this case and therefore may sue in a separate case 

                  3. The supplemental jurisdiction cannot be used, thus every claim must meet SMJ **

         4. Crossclaim

            1. Definition: Claim against a co-party

            2. Rule

               1. This claim is possible if the claim arises out of the same transaction or occurrence as claim of the P

               2. The claim is not compulsory thus the P may file and sue in a separate case as well

               3. The supplemental jurisdiction cannot be used, thus every claim must meet SMJ

         5. Additional Claims

            1. After the P filed a counterclaim or a cross claim, he or she can join additional claim to it even if the additional claim does not arise out of the same transaction or occurrence as claim of the P

            2. Yet, because the supplemental jurisdiction cannot be used in the additional claims, every claim must meet SMJ

         6. Demurrer (As to CC)

            1. Definition: In California, as the complaint is served by the P, the D can raise a defense to the allegations. A demurrer is a legal defense to a complaint that objects to the complaint while not disputing any of the facts in the complaint. That is, even if the facts stated in the complaint might be true, under demurrer, the D could claim there is no legal basis for the complaint written by the P **

            2. Types of Demurrer

               1. General Demurrer

                  1. Rule

                     1. This can be raised in the answer as an affirmative defense, or can be asserted in a motion for judgment on the pleadings under 12(c) (see above)

                     2. This asks the court to dismiss the complaint written by the P based on the substantive legal problems with the complaint, such as:

                        1. The D failed to state facts sufficient to constitute a cause of action, or  

                        2. Lack of SMJ

               2. Specific Demurrer

                  1. Rule

                     1. This can be raised in the answer as an affirmative defense, and if it is not raised in the answer it is waived (i.e., the P surrenders to raise the specific demurrer claim)

                     2. This asks the court to dismiss the complaint written by P based on lack of compliance with the rules governing the form, such as:

                        1. the complaint is ambiguous and vague,

                        2. lack of legal capacity of the P, 

                        3. defect or misjoinder of the parties, 

                        4. failure to plead whether the contract is verbal or written, etc.

            3. Reply​​​

               1. ​Definition: Response to a counterclaim or Where the court orders a reply to an answer **

   3. Amend the Pleadings

      1. The P may amend his or her pleadings:

         1. as a matter of course one time within 21 days after serving it, or 21 days after service of a responsive pleading (i.e., formal declaration by a party in reply to a prior declaration by an opponent) is filed 

         2. with leave of court (i.e., With the permission that is granted by a court to perform a specific act). That is after a responsive pleading is filed, a pleading may be amended with leave of court if justice requires

            1. Note that the courts will consider whether there is prejudice, delay and futility of an amendment 

            2. Note that the Timing for the D to respond to the amended pleadings by P is

               1. within 14 days after P amended his or her pleadings, or 

               2. the amount of time the D has to amend which is 21 days after serving his or her answer, whichever is longer (i.e., the D has a right to amend once within 21 days of serving his or her answer) **

         3. Relation Back Doctrine

            1.  Rule: The P amends the pleadings after statute of limitations has run. That is, the doctrine allows P to amend the complaint in order to state a new claim, even if the statute of limitations has run, as long as the factual situation upon which the new claim depends remains the same as the initial pleading, and the new claim is known by the D who is mentioned in the new claim by the P within 90 days of its filing. If an amendment relates back, the court will treat the amendment as if it had been filed on the date of the initial pleading

            2. Factors of Relation Back Doctrine

               1. In order for the P to join a new claim by amending the pleadings even if the statute of limitation has run: **

                  1. the claim must concern the same conduct, transaction, or occurrence as the initial pleading. This means you treat the amended pleading as if it was filed when the case was initially filed, which is to avoid a statute of limitations problem

                  2. the party that is joining in the claim by P knew of the action within 90 days of its filing

                  3. the party that is joining in the claim by P knew or should have known that he or she would have been named in the initial pleading 

                  4. where the P sued the wrong D by mistake, the right D who was not mentioned knew about it **

      2. Rule 11

         1. Definition: The rule requires a lawyer to sign all pleadings, written motions and papers, except for Discovery documents (i.e., Discovery will be explained in details later soon). Note that this rule is within the rule that all amended pleadings be filed within 21 days of service, etc. (see above)

            1. Certification – By signing, the lawyer is certifying that to the best of his or her knowledge or belief after reasonable inquiry, that:

               1. the document is not for an improper purpose,

               2. legal contentions are warranted by law, and at the same time, factual contentions and denials of factual contentions have evidentiary support or are likely to after further investigation

            2. Continuing Certification – The certification is effective every time the position in the document is presented to the court **

            3. Punishment under Rule 11

               1. Definition – Court has an inherit power to punish

               2. Rule – Court has discretion to impose sanctions against the lawyer, firm or a party in order to deter a repeat of bad conduct in the future 

                  1. Note that before imposing sanctions, as all civil procedure requires, a court must give the party an opportunity to appear and be heard under procedural due process (i.e., the constitutional requirement that federal government must not deny the right of citizen as to  life, liberty, or property interest; and the right to be given notice and the opportunity to be heard in court)

               3. Types of Sanctions

                  1. Monetary Sanctions: Directly paid to the court, not to the other party

                     1. ​Note that under Frivolous Litigation, by statute, the court can order a party or his or her lawyer or both to pay expenses and attorney fees incurred by another party because of bad faith or frivolous (i.e., the purpose to harass a party completely without merit) tactics in litigation 

                  2. Non-Monetary Sanctions: Reprimand a lawyer  or strike a pleading​

               4. Safe Harbor Provisions

                  1. Definition: A legal provision to reduce or eliminate punishment and liability of a person in certain situations 

                  2. Rule: A party may not file sanction against the other party immediately until after 21 days following the service at issue. That is, under the safe harbor provisions, it must give the other party the time to withdraw or correct the situation that is at issue raised by a party 

                     1. As to CC, the safe harbor provisions apply to the issues where “the court” raised as well **

8. The Service of Process

   1. Notice must be given to the D

      1. Definition of Notice

         1. Due Process Clause in the Constitution prohibits court from exercising PJ (see above) to the D unless the D has a proper notice of the court proceeding

         2. This requires that a reasonable method be used to personally serve and notify the D of a pending lawsuit in order for the D to have an opportunity to appear and be heard at court

            1. Note that the service of process must be done within 12 weeks of filing the case, or case will be dismissed without prejudice (i.e., allows the party to refile the case) 

            2. Note that the case will not be dismissed if the P shows good cause for delaying the service of process 

   2. Reasonable method of personal service

      1. The Federally-Authorized Methods 

         1. Personal Service

            1. Papers ( = summons (i.e., the document that officially starts a lawsuit and informs the D that he or she is being sued) & a copy of the complaint written by the P) delivered to the D personally by any non-party;

         2. Substituted Service

            1. Leaving Papers with a competent person of suitable age and discretion who resides at the residence of D;

            2. As to CC:

               1. the person who receives the Papers on behalf of the D must be at least 18, who shall be informed of the contents thereof, and by thereafter mailing a copy of the summons and of the complaint by first-class mail, postage prepaid to the person to be served at the place where a copy of the summons and complaint were left, 

               2. substituted service can only be used if the personal service fails, or

               3. publication service to the general public can be used only after a reasonable diligence was made to serve the D 

         3. Delivery to an agent appointed by the D to accept the personal service, who has a duty to notify the D **

         4. The State-Law Methods

            1. The state-law methods can use any method permitted by the state law where the federal court is, or where the service is effected 

            2. However, in case of out-of-state service of process, papers may be delivered to the D in another state, if the state law allows

               1. Exception

                  1. Federal court may serve outside the forum state (i.e., the state which has the court where disputes are heard and decided) regardless of the state law if (1) the party is close to the forum state; or (2) the case involves a statutory interpleader (i.e., A type of interpleader, which is a suit pleaded between two parties to determine a matter of claim or right to a property held by another party. This will be explained in details later soon) **

   3. Immune from Service of Process

      1. The D is immune from in-state personal service if he or she is in-state to be a party of a witness of another civil case. That is, parties and witnesses who are non-residents but are present in the forum state merely to take part in a judicial proceeding, or who are passing through the forum state on their way to a judicial proceeding elsewhere are given immunity

      2. Note that CC, does not have this immunity 

   4. Notice Requirements for cases involving multiple parties or unknown parties

      1. All parties need to be notified by the best practical means available, yet only when all D have substantially identical interests  

         1. If the address of the D is known or could reasonably be ascertained, it must be notified by mail

         2. If the address of the D is unknown, it must be notified by publication 

            1. Note that a state taking no further steps to provide notice to the D with the knowledge that notice had not been received violate Due Process **

9. Discovery

1. Definition of Discovery

   1. The pre-trial phase in a lawsuit in which each party investigates the facts of a case, through the rules of civil procedure, by obtaining information from the other party and from discovery devices (this will be explained in details later soon) 

2. Extent of Discovery

   1. The parties can discover any information relevant to a claim or a defense, and any information proportional (i.e., whether the information that is requested to be discovered is important in resolving the issue, whether the burden or expense of the proposed discovery outweighs its likely benefit) to the need of the case, as long as it is not privileged (i.e., that is not within attorney-client privilege (see Professional Responsibility), witness evidentiary privilege (see below), or work-product privilege (see below))

      1. As to CC, any party may obtain discovery regarding any matter, that is not privileged, that is relevant to the subject matter involved in the pending action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence

         1. Witness Evidentiary Privilege

            1. Definition: A privilege a person holds, as a witness, cannot be compelled to disclose certain privileged information. Under this privilege, the witness may also be entitled to prevent others who share the privileged information from disclosing it

         2. Work Product Privilege 

            1. Definition: A privilege that a party may not discover or compel disclosure of written or verbal documents prepared by or for an attorney in the course of legal representation, especially in preparation for litigation

            2. Exceptions to Work Product Privilege

               1. Qualified Work Product: If the work product contains a witness statement and there is an exceptional need of the witness statement, and the statement is hard to obtain incurring undue burden to the other party unless discovery is held, the court may be able to discover the statement

               2. Absolute Work Product: Information that cannot be discovered (i.e., mental impression, opinion, legal conclusion, legal theory)

                  1. Note that, if a party inadvertently produce privileged information or protected information, the party must notify the other party promptly, return any documents related to the information to the other party 

                  2. Note that, under Federal Rules, even if the information is not reasonably accessible or incur undue burden/cost, if requesting party can show good cause for the discovery, the court can order to produce the information under the discovery process

3. Required Discovery 

   1. Definition: There are information that must be produced even if no party requests

   2. Types of Required Discovery

      1. Initial Disclosure

         1. Definition: The parties are required to provide information they may use to support their cases at trial

         2. Rule: The disclosure must be made before the mandatory meeting between the parties (i.e., as to CC, it has no initial disclosure requirement, instead it has pre-trial disclosure requirement (this will be explained in details later soon))

         3. Types of documents that must be disclosed at Initial Disclosure:

            1. documents and electronically stored information (e.g., photographs, recordings, copies) that will be used to support a claim or a defense

            2. negotiations of insurance

            3. names and addresses of witnesses

            4. expert witnesses (i.e., all written reports by the expert witness must be disclosed (i.e., the opinions of the expert witness, the bases for the opinions, facts that were used to form the opinions, the qualifications of the expert witness, and the fees of the expert witness))

               1. Note that reports relevant to ‘consulting experts’ are not discoverable without exceptional need ** 

      2. Pre-trial Disclosure (Same disclosure as "Initial Disclosure" above which is used in case of CC)

         1. Definition: The parties are required to provide detailed information about trial evidence, including the identity of witnesses who will testify 

         2. Rule: The disclosure must be made within one month before trial between the parties 

   3. Discovery Devices

      1. Definition: The devices that are used to execute the discovery process and acquire evidence during the process 

         1. Note that if a party does not want to comply with the discovery process, the objection to the discovery process must be made properly, accurately and particularly in details or else the objection will be waived 

      2. Types of Discovery Devices

         1. Depositions

            1. Definition: Verbal proceeding permitting a lawyer to examine any person (i.e. party to a lawsuit or a non-party) regarding the subject matter of the lawsuit

               1. Note that the ‘deposition of a party’ could be used for any purpose by any party while the ‘deposition of a non-party’ could be used only when the witness is unavailable at trial

            2. Rule

               1. Lawyer cannot depose a same person twice

               2. Time to depose a person cannot exceed one day of seven hours without court approval

               3. The number of questions (i.e., max 10Qs) each lawyer could ask is limited based on the court 

               4. Phone and video depositions are permitted

         2. Interrogatories

            1. Definition: Written questions to a party to be answered in writing 

            2. Rule

               1. A party has one month to respond with answers or objections as to the written questions

               2. The number of questions (i.e., max 25 Qs) each lawyer could ask is limited based on the court 

                  1. Note that a party must respond to the written questions, unless the party has no reasonable way to respond even after reasonable investigation **

   4. Discovery Devices under Request

      1. Request for Physical or Mental Examination 

         1. Rule

            1. This is available only through a court order on a showing that the health of the party is:

               1. in actual controversy in the case, and

               2. for good cause (i.e., the evidence of physical or mental condition cannot be acquired elsewhere)

            2. The examinee (i.e., party to be examined) can request the party, who caused the examinee to be examined, a copy of a detailed written report of the results of all tests/examinations made, diagnoses and conclusions, together with reports of all earlier examinations of the same condition

            3. As soon as this report is delivered to the examinee, the party, who requested the examination, can request the examinee for the party to receive reports of any tests/examinations previously conducted on the same condition

            4. If the examinee is not a party to the case, the examinee is exempt from producing the report if he or she informs that the report is unavailable

      2. Request for Admission

         1. Rule

            1. This rule allows one party to ask another party to admit or deny certain statements, or verify whether the documents are genuine. That way, admitted statements or verified documents can be considered true during the trial

            2. If a party is served a request for admission, he or she must respond within a month of the service request

            3. The party is required to provide an answer for each admission request, either by admitting it, denying it, or explaining why it cannot be admitted or denied

            4. If the party fails to respond, the admission will be automatically done (i.e., that is, the statement will be automatically admitted at trial)

      3. Request for Production 

         1. Rule

            1. When served with the request to produce the evidence, the other party is obligated to find all documents listed in the request within reason stating that either the document will be produced or assert objection to the request

            2. If the party decides to produce the documents, the party must send them to the other party, unless an exception applies and the party is not required to produce the requested documents

               1. Exceptions

                  1. There are number of exceptions that would allow a party not to fulfill a request for production, which are:

                     1. privilege: the information contained in the documents is subject to a privilege, such as a doctor-patient privilege or attorney-client privilege

                     2. impossibility: the request for production is requesting documents that are incredibly difficult or impossible to acquire

                     3. broad: the request for production is unduly broad that the effort to gather all documents would far exceed any value that the documents would give to the requesting party

                     4. vague: the request for production is unduly vague that the effort to gather all documents would far exceed any value that the documents would give to the requesting party

                        1. Note that if a party fails to properly respond to the request for production, even though no exceptions above apply to the party, the requesting party can make a court request to compel (i.e., to enforce a request for information relevant to the case). And if the court grants the request, the court will order the party to complete the request for production of documents. However, if the party keeps denying to complete the request for production of documents, the party will face contempt of court (i.e., conduct that defies, disrespects, or insults the authority or dignity of a court). And, if the party is found in contempt of court, the party may face jail time or a fine

                        2. In addition, a party has a duty (a) to promptly amend an incomplete or incorrect response, or amend an initially correct response that has become incorrect because of newly discovered information, and (b) to promptly complement if the additional or corrective information has not otherwise been made known to the other party during the discovery process (i.e., these duties apply to every discovery devices above (i.e., that is, the party has a duty to amend and complement every discovery devices above)) **