加州民訴時間點總結_田律師整理.docxVIP

民訴時間點總結1. One Year Rule: A case may not be removed on the basis of diversity of citizenship jurisdiction more than one year after it was commenced in state court. 28 U.S.C. 1446(b)Note also that a case must be removed no later than 30 days after the defendant discovers, through service of an amended pleading, order, etc., that the case has become removable.2. Generally, a defendant must file a notice of removal within 30 days after receipt by or service on that defendant of the initial pleading or summons. In some states, the defendant is served with summons and copy of complaint not at the same time, so the 30 days start to run from the moment of the receipt of the copy of complaint. If the defendants receives at different time, then the later served defendant initiates timely removal, the earlier served defendant may join in the removal even though his 30 day period for initiating removal may have expired.3. Section 1446(b)(3) also allows a defendant to file a notice of removal within 30 days of receipt of an amended pleading, motion, order, or other court paper (such as discovery or other state court pleadings) that shows that a nonremovable case (or an apparently nonremovable case) is in fact removable.4. After the removal petition, If the defendant has not answered, she must answer or present the other defenses or objections available to her under the Federal Rules within 21 days after being served, or within seven days after filing the petition for removal, whichever period is longer. Amendments may be made to pleadings filed before removal.5. Demand for Jury Trial: The right to a jury trial in a case removed to a federal court may be waived unless a timely demand for a jury trial is filed. If, at the time of removal, all necessary pleadings have been served, a trial by jury will be granted to a party so entitled. The removing party must file a demand for jury trial within 14 days after the notice of removal is filed. The nonremoving party must file for jury trial within 14 days after service on her of the notice of filing for removal.6. Remand: A plaintiff can file a motion to have the case remanded (sent back) to the state court. If the plaintiff bases this motion on a defect other than subject matter jurisdiction (e.g., a defect in removal procedures), it must be brought within 30 days of removal. If the court erroneously fails to remand, but the subject matter defect is cured before trial begins, failure to remand does not require that the federal judgment be vacated.7. Waiver of Service: In federal court, The defendant generally has 30 days (60 days if outside the United States) from the date that the request was sent to return the waiver. A defendant who waives formal service of process has 60 days, instead of the usual 21 days, to answer the complaint. The waiver of service does not waive the defendants right to object to venue and jurisdiction.8. In California, If defendant does not return the acknowledgment of receipt of summons within 20 days from the date of mailing, he or she is liable for plaintiffs expenses in serving defendant by another method. Cal. Code of Civ. P. 415.30 The return of the acknowledgment does not waive defendants right to challenge the courts exercise of personal jurisdiction. In contrast to federal procedure, the return of the acknowledgment does not extend a California defendants time to respond to the complaint.9. The following motions must be filed, with no extensions, within 28 days after entry of judgment: renewed motion for judgment as a matter of law, motion to amend judgment, motion for new trial, motion to amend findings of fact in non jury case, and grant of new trial on courts initiative.10. In federal Court, the TRO will expire within 14 days unless the restrained party consents to an extension or good cause is shown for an extension. In California, the TRO does not have a specific time limit; rather, it expires automatically when a preliminary injunction is either issued or denied. If no notice was provided to the opposing party, the court will set a hearing on the application for preliminary injunction within 15 days of the issuance of the TRO (or 22 days if good cause shown).11. Motion for More Definite Statement: In Federal Court, A party may move for a more definite statement before responding (by filing an answer or reply) to a pleading (a complaint) that is so vague or ambiguous that a responsive pleading cannot reasonably be framed. The opposing party has 14 days after notice of an order to obey unless the court fixes a different time.12. Motion to Strike: In Federal court: Before responding to a pleading or, if no responsive pleading is permitted, within 21 days after service of the pleading, a party may move to have stricken any insufficient defense, or any redundant, immaterial, impertinent, or scandalous matter. Such motion may also be made upon the courts initiative at any time.In California:a. Motion to Strike:A party may move to strike any irrelevant, false, or improper matter included in a pleading, or any part of a pleading not filed in conformity with statute, rule or court order. Cal. Code of Civ. P. 436 The motion must be filed within the time allowed to respond to a pleading (30 days).b. Anti-SLAPP Motion to StrikeWithin 60 days after service of the complaint, a defendant may file a special anti-SLAPP motion to strike the complaint when the plaintiff has filed a strategic lawsuit against public participation (SLAPP).13. Answer:a. In Federal Court, If no Rule 12 motion is made, a defendant who was formally served with a summons and complaint must present an answer within 21 days after service; a defendant to whom the complaint was mailed and who waives formal service must answer within 60 days after the request for waiver was mailed to her. If a Rule 12 motion is made and the court does not fix another time, the responsive pleading is to be served within 14 days of the courts denial or postponement of the motion. The answer is due within 14 days of service of a more definite statement if the court grants a Rule 12(e) motion. The same timing rules apply to answers to counterclaims and cross-claims.b. In California, Defendant has 30 days from the date service of process is deemed completed to file an answer. If defendant instead brings one of the demurrers discussed above and the court overrules the demurrer, the defendant must file an answer within 10 days unless the court orders otherwise. The time period begins to run as of the date of service of notice of the courts ruling. Although there is no fixed time, period for filing an answer after denial of a motion to strike, courts generally follow the same time period as for a demurrer.14. Amendmenta. In Federal Court, Amendments can occur at all stages of litigation. In federal court, a pleading may be amended once within 21 days of serving it, or, if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or pre-answer motion.b. In California, a party may amend once, as a matter of right, before an answer or demurrer to the complaint is filed or after the demurrer is filed but before the hearing on the issue raised by the demurrer.15. Sanctiona. In federal court, The court has discretion to impose sanctions, limited to what is sufficient to deter repetition of such conduct, against a party who presents a paper to the court in violation of the above requirements, either on the courts own initiative or on motion of the opposing party. For Motion of the opposing party, a party who believes that his opponent has presented a paper in violation of Rule 11 may serve a motion for sanctions on the party. If the party does not withdraw or correct the matter within 21 days, the moving party may then file the motion for sanctions with the court.b. In California, the 21 day safe harbor provision applies to motions by a party and to the courts own motion;16. Settling defendants are required to give notice of proposed settlements to identified federal and state officials. Final approval of the proposed settlement may not be issued until at least 90 days after the notice is served.17. Disclosurea. Initial Disclosure: In Federal Court, These initial disclosures must be made within 14 days after the meeting of the parties required by Rule 26(f) (discussed at H. I ., infra) unless a different time is set by court order or by stipulation.b. Disclosure of Expert Testimony: This disclosure must be made at the time directed by the court or, in the absence of any directions or any stipulations among the parties, at least 90 days before trial ; if the evidence is intended solely to rebut another partys disclosure of expert testimony, it must be made within 30 days after disclosure of the evidence being rebutted.c. Pretrial Disclosures: At least 30 days before trial, a party must disclose to the other parties and fi le with the court a list of the witnesses she expects to call at trial, the witnesses she will call if the need arises, the witnesses whose testimony will be presented by means of a deposition and a transcript of pertinent portions of the deposition, and a list of documents or exhibits she expects to offer or might offer if needed. Within 14 days after this disclosure, a party may serve objections to use of the depositions at trial and to the admissibility of disclosed documents and exhibits.18. Time of discoverya. Pre-action Discovery: In federal court, at least 21 days before the hearing date for the court order for deposition of any person, the potential party must serve each expected adverse party with a copy of the petition and a notice of hearing.b. Completion of Discovery: In California, Discovery must be completed on or before 30 days, and motions regarding discovery must be heard on or before 15 days, before the date initially set for trial.c. In California, the deponent has 30 days to make corrections after receiving the reporters notice to review, correct and sign the transcript. In California, objections to written questions are waived unless served within 15 days of service of the questions.d. In California, a plaintiff may serve an inspection demand on the defendant 10 days after he is served with process, but there is no similar timing restriction on the defendant. In California, the plaintiff may serve a request for admissions to admit the truth of facts or other matters on the defendant 10 days after service of process. There is no similar timing restriction on the defendant.19. Pretrial ConferencePlanning for discovery: As soon as practicable, and in any event at least 21 days before a scheduling conference is held or the scheduling order required by Rule 16(b) is due (see below), the parties must confer to consider their claims and defenses, the possibility of settle1nent, initial disclosures, and a discovery plan. The parties must submit to the court a proposed discovery plan within 14 days after the conference addressing the timing and form of required disclosures, the subjects on which discovery may be needed, the timing of and limitations on discovery, and relevant orders that may be required of the court. Note that, in California state courts, parties are not specifically required to meet and confer regarding planning for discovery or to provide a proposed discovery plan.20. Case Managementa. Schedule Conference: In federal court, the court must (except in classes of cases exempted by local rule) hold a scheduling conference among the parties or counsel. The conference may be held by telephone, mail, or other suitable means. The court must, within 90 days after the appearance of a defendant and within 120 days after the complaint has been served on a defendant, enter a scheduling order limiting the time for joinder, motions, and discovery. The order may also include dates for pretrial conferences, a trial date, and any other appropriate matters. This schedule cannot be modified except by leave of court upon a showing of good cause.b. Case Management Conference: The court must hold an initial case management conference for most actions within 180 days after the filing of the complaint.c. Fast Track: For unlimited civil cases assigned to Fast Track, the trial court considers multiple factors in setting a time goal for disposition (75% of cases are to be disposed of within 1 2 months of filing, 85% within 1 8 months, and 1 00% within 24 months).21. Judicial ArbitrationBoth in Federal and California Courts, Within 30 days of the judicial arbitration award, a party may reject the award and request trial de novo. Any evidence that the case was arbitrated is generally excluded.22. JNOVRenewed Motion for Judgment as a Matter of Law (Formerly Judgment Notwithstanding the Verdict (JNOV) Renewed motion for judgment as a matter of law (JMO) must be filed no later than 28 days after entry of judgment and the party making the renewed motion must have moved for judgment as a matter of law at some time during the trial.23. Motion for new trialA federal motion for a new trial must be filed no later than 28 days after judgment is entered. Within that period, the court may order a new trial on its own motion. In California, the aggrieved party must fi le a written notice of intention to n1ove for a new trial within 15 days after notice of entry of judgment.24. Summary Judgmenta. In Federal Court, unless local rule or court order dictates otherwise, a party may fi le a motion for summary judgment any time until 30 days after close of all discoveries.b. In California State Court: A party may bring a summary judgment motion after 60 days have elapsed since the general appearance of the party against whom the motion is brought, or at an earlier time that the court may direct upon a showing of good cause. In marked contrast to the notice requirements under Rule 56, a California party moving for summary judgment must serve all moving papers at least 75 days before the hearing date. Opposition papers must be filed at least 14 days before the hearing, and reply papers at least five days before the hearing.25. Time for appeala. In Federal CourtUnder Rules 3 and 4 of the Federal Rules of Appellate Procedure, an appeal may be taken by filing a notice of appeal with the district court within 30 days from the entry of the judgment appealed from (60 days where the United States is a party to the action). However, if a timely renewed motion for judgment as a matter of law (formerly a motion for JNOV) or motion for new trial is made, or if a motion to set aside or amend the judgment is n1ade within 28 days of judgment, the running of the 30 days is terminated. Upon the entry of an order based on such post-trial motions, a new 30 day period begins to run. However, a notice of appeal filed during the pendency of such a post-trial motion will become effective on final disposition of the motion by the trial court. Upon a showing of excusable neglect, made within 30 days after the time to appeal has expired, the district court may extend the time for filing a notice of appeal by 30 days from the time it would otherwise have run, or 14 days from the date of the order granting the extension, whichever is later.b. In California State CourtCRC 8.104 and 8. 108 govern the timing of the filing of a notice of appeal. These rules are very strictly applied. An untimely notice of appeal must be dismissed. Except in cases of public emergency, or as permitted by CRC 8.108, the appellate court has no jurisdiction to extend the time to file the notice. Generally, the notice of appeal must be fi led within 60 days after the service by the court clerk or party of the notice of entry of judgment, or 180 days after entry of judgment if no notice was served. Cal. Rule of Court 8.104 CRC 8. 108 extends the time to appeal when certain trial and post-trial motions have been fi led (such as motion to vacate judgment, motion for JNOV, and new trial motion).26. Interlocutory Appeals ActReview under the federal Interlocutory Appeals Act 28 U.S.C. 1 292 is discretionary and may be available when: (i)