CIV PRO Flashcards
What is the basic analysis for PJ?
- Must satisfy state long arm statute
- Satisfy due process
Generally, the analysis for both is the same.
What is the analysis for personal jurisdiction?
Does the court have general jurisdiction? - is D at home in the forum? if not, then move to specific jurisdiction.
Does D have such minimum contacts with the forum so jurisdiction does not offend traditional notions of fair play and justice?
(1) Contact - (a)purposeful availment (b)foreseeaility that they would be hailed into court
(2) Relatedness - Does the contact include the very thing that harmed P?
(3) Fairness - (a) burden on D and witnesses(severe disadvantage in litigation? (b)States interest (c) P’s interest.
Notice must be what - Civ PRO?
Who can serve process?
When must process occur?
What are the ways in which process can be served to an indivudal in the U.S?
Reasonably calculated, under the circumstances, to apprise interested parties of the action.
Any non party who is at least 18 years old.
If in the U.S, within 90 days after filing the complaint.
(1) Personal service
(2) Substitued - must be a D’s usual place of abode and to someone of suitable age and discretion who resides there.
(3) To D’s agent
(4) Those methods permissable by state law. (state where the court sits or where service occurs.
What are the permissable ways in serving process on a business?
What are the ways in which you can serve someone in a foreign country?
When D waives service, do they waive any defense?
Officer, managing or general agent or state law methods.
- As directed by american court
- Method allowed by internaitonal agreement
- method allowed by foreign country law
- method directed by foreign offical after request from american court
- personal service
- Mail sent by clerk of the american court, requiring signed recipet
No.
Federal courts have jurisdiction over what two cases?
A human is a citizen of what state?
State courts have SMJ over what?
- FQ
- DOC
- Case must be between two different state citizens or a citizen of a U.S state and an alien.
- Amount in controversey must exceed 75,000.
- Where they are domiciled. - (1) presence (2) intent to permanently remain.
Everything else.
What is the citizenship of a corporation for diveristy purposes?
An unincorporated association is a citizen of which state?
- principal place of business and 2. state of incorporation.
Any state in which their individual partners are citizens.
When can you aggregate claims to meet diveristy $ requirement?
One P aggregating against One D or claims against jointly responsible D’s.
To establish FQ SMJ, what must P show?
The claim in P’s claim must arise under federal law. - is P establishing a federal right?
When can D remove from state court to federal court?
Must all D’s join removal action?
Can the plaintiff remove?
What cases can be removed? what are the exceptions?
To what court is the case removed to?
Once D files notice of removal, what can P do?
Must remove no later than 30 days of service of the paper that shows the case is removable.
Yes.
NEVER, even if they are D on counterclaim.
Those that meet requirements for diversity of FQ. Exceptions are, if removing based on diversity ONLY. (1)No removal if any D is citizen of the forum AND no removal more than one year after the case was filed in state court.
The federal district embracing the state court where the case was filed.
Move to remand. If removal was improper for reason other than SMJ, they have to do 30 days after notice of removal. If SMJ, they can remand any time.
What is the test for supplemental jurisdiction?
- Is the orginial case properly in federal court? 2. Is there a common nucelaus of operative fact between the original case and sought claim? 3. is the limitaiton applicable?
The limitaiton is that in a diversity case, P cannot invoke supplemental jurisdiction. however, when there are multiple P’s, and the claim by one of them doesnt meet the controversey requirement.
When does the eerie doctrine apply?
How do you approach an Eerie problem?
A federal case based on diversity.
- Is there a valid federal law or statute, or FRCP, on point which directly conflict with the state law? if yes, apply federal law due to suprememcy clause. FRCP - presumptively valid.
- If no, Judge must apply state law if the issue is substantive. (1) elements of claim or defemse (2) statute of limitaitons (3)rules for tolling SOL (4)conflict or choice of law rules (5) standard of whether to grant new trial when damages are challenged.
- If there is not federal law on point and the issue is not substantive, judge must determine if it is substantive. look at 1. outcome determinative?2. Balance of interests. 3. prevent forum shopping.
Where may P lay venue?
What must D show to transfer venue?
What is forum non coveniens and how does it differ?
- District where all D’s reside or
- Substantial part of claim occured there. NOTE: doesnt apply where state court case is removed.
SPECIAL rules - if all D’s reside in same forum, you can use any district where one resides. If D doesnt live in U.S, you can use any district unless there is another D.
- if originial venue is proper, D must show that transfaree is the center of gravity based on public and private factors. ( where the evidence and witnesses are, forum selection clause etc.).
Center of gravity is in a court of another judicial system so federal court dismisses or stays the case.
What must a complaint contain?
- grounds for SMJ 2. facts supporting a plausible claim for relief 3. demand for relief. NOTE: fraud, mistake and special damages require more particularity.
Under rule 12, D must file a motion or answer how long after recieving the complaint?
What are the 12(b) defenses?
What are the waivable defenses and how can you avoid waiving them?
21 days after being served with process. (60) days if service was waived.
- Lack of SMJ
- Lack of PJ
- improper venue
- improper process.
- improper service of process
- failure to state a claim
- failure to join indispensible party.
2,3,4,5 - must be included in first motion or answer unless they are waived. If the first motion is denied, D has 14 days to answer.
D must do what in an answer?
- Admit, 2. Deny 3. state that you lack sufficient information to admit or deny. (b) raise affirmitive defenses.
When can pleadings be amended?
How does a supplemental pleading differ from amended?
(1) P has right to amend her complaint once no later than 21 days after service of D’s rule 12 response. D has right to amend her answer once no later than 21 days of serving her asnwer. REMEMBER, right to waive saves the waivable defenses.
(2) No right - if justice so requires, court will allow right to amend unless it causes delay, predjuice.
(3) A variance if the evidence at trial doesnt match the pleadings.
4. Amendment after SOL has run - if the claim concerns conduct, transaction or occurence as the originial complaint then it relates back or to change a D after the statute has run. - NOTE - this will occur when P sues wrong D.
Concerns conduct after filing of original complaint.
