1-35 Questions Flashcards
What is the amount in controversy req. for diversity jurisdiction?
MUST EXCEED 75,000
ex: $75,000.01
Who can remove a case?
ONLY defendants.
If a plaintiff seeks to remove a case to federal court, what are their options?
they have none – they cannot remove a case to fed court.
If a plaintiff removes a case to fed court, and a defendant seeks to remand it, what should the court do?
Remand the case. Plaintiffs cannot remove cases to fed court from state.
In civil procedure, what is contributory negligence considered?
An affirmative defense.
What must a defendant do to use the affirmative defense of contributory negligence?
Plead it.
If a defendant is thinking about a potential counter claim that arises out of the same transaction/occurrence against a plaintiff, what is true about it and what is it called?
The driver MUST assert the claim as a compulsory counter claim.
If a defendant fails to put forward a counter claim that Aries out of the same transaction or occurrences of a pedestrians claim, when can they bring it back up?
Never – the defendant forfeits it.
Who has the burden of proof for a contributory negligence claim?
The defendant.
What must be true about a defendant’s acts in a state for there to be minimum contacts?
1) The defendant must reach out to the state
2) and the action must arise out of or relate to those contacts.
What has SCOTUS determined to be a company’s PPOB?
Wherever its head quarters are. (Hertz)
What are the two requirements for supplemental jurisdiction?
1) FC must have original jurisdiction over one or more of the claims
2) the claim seeking supplemental jurisdiction must form part of the same case or controversy under Art 3
what has the supreme court interpreted “must form part of the same case or controversy under Art 3” to mean?
It must arise out of the common nucleus of operative facts.
How does a lack of diversity affect a counter claim between defendants that a federal court considering using supplemental jurisdiction to hear the counter claim via the common nucleus of facts will consider??
Diversity is irrelevant in this context.
If a plaintiff seeks to use supplemental jurisdiction over state law claims that derive from the same case or controversy (Common nucleus of facts) as an appropriate federal claim, what must be true about the underlying claim?
It must present a colorable claim under federal law.
If a federal claim is dismissed in fed court, and the court had previously used the fed claim to exercised supplemental jurisdiction over a CNF state law claims, what happens to the state law claims?
The court
2) in its discretion
3) can rely on FQ dismissal
4)as a reason to discontinue the state
If a federal claim is dismissed in fed court, and the court had previously used the fed claim to exercise supplemental jurisdiction over a CNF state law claim, what must happens to the state law claim?
Nothing, the court still has supplemental jurisdiction over the claim even without the underlying Fed claim. But they may dismiss it in their discretion.
What type of doctrine is supplemental jurisdiction?
A discretionary one.
What does a A discretionary one mean in the context of supplemental jurisdiction?
Court is never obligated to excercise it.
If a state law claim adequately forms part of the same case or controversy as a federal claim, does a federal court have to hear it in relation to supplemental jurisdiction?
No, Supp juris is up to their discretion.
When is an action removable?
If it could have been originally filed in fed court.
If an action is commenced in state court, and thercomplaint is later timely amended to include a federal question, is it removable?
Yes.
When does the forum defendant rule bar removal?
1) When a DEFENDANT seeks to remove a case to fed court from state court in the state which they reside,
2) diversity is the only basis for federal jurisdiction.
If the forum defendant rule bars removal, what is the reason?
1) The defendant is domiciled in the state they seek to remove the case, and
2) diversity is the only basis for jurisdiction.
If defendants are served at different times, how much time do defendants get to remove and when does the clock run?
The defendants get 30 days to remove, and the clock runs from their individual time of service.
If removal statutes allow different acceptable removal periods based on when defendants are served, what happens to an earlier defendant’s case when their removal time has lasped and a later defendant wants to remove the case to fed court?
Earlier defendant can consent to removal even when they failed to remove timely.
When can SCOTUS review a state court judgement?
When the decision rested on federal grounds.
If a state court issues a ruling based on both state and federal law, what is true?
SCOTUS can’t review Fed claim because:
1) issue was decided
2) on adequate and independent state grounds
What must be true for complete diversity to be implicated?
The parties must be opposed in interest.
What do courts look to minimum contacts to satisfy?
The requirements of fair play and substantial justice.
What must be true to support general jurisdiction against a company?
A company would have to have continuous, systematic, and substantial contact with the state so as to call it home.
Place of incorporation/place of headquarters will meet this.
If a suit seeks specific jurisfiction over a company based on its sales into a state, what must be true about the suit?
The suit must relate to the sales within the state.
Absent additional facts, what does the mere fact that you have gen. pers. juris. over a parent company in a state mean in regards to its subsidiary?
Nothing.
If an accident happens out of the country, and a US plaintiff seeks to use a company in a state’s federal court, can they?
Yes, even if the accident happened out of the states, so long as there is sufficient purposeful contacts with the state.
If a defendant fails to raise personal jurisdiction in there first answer, is it waived?
No, if the defendant amends their answer and asserts personal jurisdiction within one week of the original answer.
How long does a defendant have to amend their complaint and include a lack of personal jurisdiction argument if their original complaint did not include it?
One week.
If a defendant did not include a lack of personal jurisdiction argument if their original complaint, and seek to amend it within one week, must they seek permission of the court?
No, it can be amended as a matter of course.
When is service within 100 miles of a courthouse where an action is pending sufficient to establish personal jurisdiction over a defendant?
When the defendant is joined under Rule 14/19, and was not the original defendant.
What must be true about service of an individual defendant through an employee?
The employee must be:
1) authorized by appointment to accept service
OR
2) Authorized by law to accept service on behalf of D
What is true about rules around service of third parties at Defendant’s place of employment?
There is no general authority to serve these people on behalf of D.
When can service on someone of suitable age and discretion on behalf of a defendant occur?
At Defendant’s usual dwelling or abode.
If a third party is served at defendant’s dwelling or place of abode, what must be true of them for it to be valid service?
They must be of:
1)suitable age
2) and discretion
When can a defendant raise a defense of insufficient service of process?
ASK SOMEONE/FIND OUT IF THERE IS A TIME LIMIT VIA THE MOTION ROUTE
In their:
1) answer (responsive pleading)
2) by motion (even at trial)
Under Rule 12, a defendant must object to insufficient service of process in their first response to the complaint, which is due within 21 days of service.
What is true about service of process in federal courts in relation to the service laws in the state they sit in?
It can exceed state bounds.
IF a service of process was not timely, how can a plaintiff survive a defendant’s motion to dismiss?
By demonstraying
2) good cause
3) for their failure to serve timely.
What generally must be true for good cause to be found in failure to effect timely service?
Service must have been affected by something out of defendant’s control.
What law governs statute of limitations?
State law.
How long is timely service of process allowed by FRCP?
90 days from filing the complaint.
