Civ Pro Flashcards
can you assign your contract for nominal amount so the assignee can sue for under grounds of diversity in fed court when State law permits it?
28 U.S.C. § 1359 provides that a “district court shall not
have jurisdiction of a civil action in which any party, by assignment
or otherwise, has been improperly or collusively made or joined to
invoke the jurisdiction of such court.”
the relevant test here for the purpose of determining federal
diversity jurisdiction is whether the assignment is impermissibly
collusive, not whether it is valid under state law
What is PJ? What is SMJ?
SMJ diversity and amount exceeding 75000 not concerned with how much the jury awarded.$75,000 is the minimal amount-in-controversy requirement for diversity cases. But an action will not be dismissed based on failure to meet the amount-in-controversy requirement unless it is clear at the moment of filing that to a legal certainty, more than $75,000 cannot be in issue SMJ defense can never be waived.
PJ: minimum contact for court assert jurisdiction over D. This contacts with State A
were so slight that he would not have been found to have “purposely availed himself” of the opportunity to do business in the state, making the State A federal court’s exercise of personal jurisdiction over him a
denial of due process.
Application of the test depends on subtleties of the particular facts, including how much of
the defendant’s product went into the forum state, what the defendant knew about the likelihood that an article would find its way to that state, etc
Lack of PJ cannot be asserted if D did not make a preanswer motion raising that
defense nor including the defense in his answer.
If a company changes state of incorporation when the suit is litigated, can the counter party sue for removing the case from fed court for lack of SMJ
because subject-matter jurisdiction is determined based on the facts
regarding citizenship on the day that the lawsuit is commenced.
Changes in a party’s citizenship post-commencement do not affect
the court’s jurisdiction unless they suggest that a party acted in bad
faith
Can a summary judgement be appealable? What about qualified immunity ruling?
only “final judgments” may be appealed from
the federal district court to the federal Court of Appeals. Thus 28
U.S.C. § 1291 gives the Court of Appeals jurisdiction over “appeals
from all final decisions of the district courts of the United States[.]”
There are a few situations in which an “interlocutory” appeal—i.e., an
appeal from a lower-court decision that has not yet been embodied in
a final judgment—is allowed in the federal system. But unless the
decision falls within one of this handful of exceptions (mostly, decisions granting or denying injunctions), the decision is not appealable if there has not yet been a final judgment in the case.
Collateral orders ( as name suggests collateral to merits of case) are immediately appealable.(1) the matter is separate from (i.e., “collateral to”) the merits of the claim being pursued; (2) the matter is too important to be denied appellate review entirely; and (3) deferring appeal until entry of a final judgment in the whole case would prevent the eventual review from being “effective” in the circumstances.
Denials of motions for
governmental immunity are one of the rare situations in which an
interlocutory appeal may be allowed
If a motion is patently false, no facutal basis Rule 11 sanctions. Client had no knowledge of the claim
lawyer must be able to show factual contentions have evidentiary support
Rule 11(b)(2) says that the lawyer is also certifying a belief, again “formed after an inquiry reasonable under the
circumstances,” that “the claims, defenses, and other legal contentions
are warranted by existing law or by a nonfrivolous argument for
extending
client cannot be vicariously liable for a sanction imposed against the lawyer.
client could not be sanctioned because there was no evidence that the client “knew the complaint filed on her behalf was factually or
legally baseless,” and no evidence that she had “provided false information to her attorneys, thereby facilitating a factually groundless
complaint.”
Two dismissal rule, dismissed in state court and then fed court, can you file a case again? or does it operate as a bar to sue third party and even related party
first, voluntarily dismissed in state court and dismissed in fed court cannot sue against the D or related party operates as a stop to adjudication on merit. Exceptions being if notice of second dismissal says without prejudice and
***had the sequence
been reversed, so that the first suit was in federal court and dismissed,
and the second was a state action later dismissed, then 41(a)(1)(B)
would not have applied, and the pedestrian would be allowed to bring
The purpose of the rule is to prevent harrasment
a second federal action
Rule 403 substantive value outweighed by unfair prejudice- autonomy given to trial judge, can the decision to admit or exclude evidence be appealed? What is the standard used?
If judge has clearly “abused” that discretion, a very hard standard for the appellant to satisfy
For facts, standard is clearly erroneous.clearly erroneous” standard applies only to appellate review of the “findings of fact” made by the judge sitting without a jury—it
does not apply to review of the judge’s decision on evidentiary matters.
De novo review tends to occur only when the main issue is how the law applies to a given
set of facts
The concept of “harmless error” deals with a
separate issue—whether, on the assumption that a ruling was erroneous, the error was sufficiently grave that the judgment below
cannot be affirmed
Removal from State court to Fed court
in case of diversity- diff state D has right to move to fed court embracing the state court.
For a corporation- citizenship is determined by state incorporated and principal place of business
Principal place of business : have to satisfy nerve center, CEO or primary decision makers have to stay in the state.
We are not concerned with day to day operation of a corporation
While for a partnership, A partnership is an unincorporated association and is deemed to be a citizen of every state in which any
member of the partnership is a citizen
Important point on removal: even if there were diversity, under 28 U.S.C. § 1441(b)(2), a case based solely on diversity may not be removed if any defendant is a citizen of the state where the action was originally brought
What citizenship counts when a personal representative sues on
behalf of an estate, and (2) of what state(s) is a corporation deemed to
be a citizen?
So here, the fact that
the son is domiciled in State B is irrelevant—given that the son is
bringing suit here as the legal representative of the estate of his father
the doctor, § 1332(c)(2) requires that the son be deemed to be a citizen
of State A, since that was the state of citizenship of the doctor at the
moment of his death.
Can SMJ /PJ defense deemed to be waived if D does not respond in his pleadings
Rule 12(h)(1), saying that the defense of lack of personal jurisdiction is among those waived if the defendant doesn’t
raise it by either making a timely motion under Rule 12(b) or asserting
it as part of his answer.) But there is a different rule for the defense of
lack of subject-matter jurisdiction: Rule 12(h)(3) says that “If the court determines at any time that it lacks subject-matter jurisdiction,
the court must dismiss the action.
Days of appeal once default judgement entered in the books?
30 days of appeal from when Default judgement is entered by the clerk. Once the 30 days is passed,
ju
Discovery: if one party alleges other non party is responsible, during discovery should it produce the other party ( does not work for it)
Rule 35 authorizes the court to
order a party to produce a non-party for examination only if that party has “legal control” over the non-party, a situation that does not exist
here, since Driver no longer works for Defendant
Existing claim is amended, will statute of limitation for amended complaint get a lookback?
an untimely amended claim will “relate back” to the date of the original pleading only if it arises out of the same transaction or occurrence as the original claim.
State A law states The facts tell you that under State A
law, “relation back” applies where the new and old claim not only arise out of the same conduct or transaction but are supported by identical or near-identical legal theories. Here, the old claim is a pure
breach-of-contract claim, and the new claim is a pure tort claim, so it is very unlikely that the federal court would find that State A law would allow relation back in this circumstance
Even if state law does not allow the benefit of lookback, can go to fed law 15(c)(1)(b) of arising from same transaction or occurence
While the only other arg that can be used is that the requirements of 15(c)(1)(B) are
satisfied here—i.e., that the breach-of-contract claim and the tortiousinterference claim arise out of the same “conduct, transaction or
occurrence.” which they don’t hence no lookback
Forum non convenience- china company no business in State A and contract states that chinese law Can D dismiss action on basis of forum non convenience case heard in china
courts can decline jurisdiction and and dismiss the
action in favor of an alternative forum if that forum is adequate since contract states chinese law and adequate forum.’ ex.including which state or country’s substantive
law will govern the case, the forum state’s interest in trying the case,the location of witnesses, and the burdensomeness of jury duty. See
Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947)
“[W]here subject matter jurisdiction or personal jurisdiction are difficult to determine, and
forum non-conveniens weighs heavily in favor of dismissal, the court properly takes the less burdensome course.”). So there is no brightline rule stating that a federal court must first consider dismissal on jurisdictional grounds before reaching the question of forum non conveniens.
What is Valid service of process? Can you file for the service of process after limitation period of entry of default judgment
Two ways to look at this: Judgement is void if court does not have PJ. No PJ if there is no valid service of process
Look at State law and if not satisfied point towards the fed law.
(1) following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made; or
(2) doing any of the following:
(A) delivering a copy of the summons and of the complaint to the individual personally;
(B) leaving a copy of each at the individual’s dwelling or usual place of abode with someone of suitable age and discretion who resides there; or
Actual physical delivery is needed cannot be through email
