civ pro

Question 1

Venue

Answer 1

deals with if that particular court can hear the case but also convenience

Question 2

Original Jurisdiction

Answer 2

where you can file the case

Question 3

PJ

Answer 3

Looking at the people
Court has to determine if they have proper to “hale” a person to ct: force def to appear( no constitutional limit to hale someone to court)
Due process: does distant def have to come to ct (deny them life liberty ect)
Waiveable: Look @ force def: P chooses forum ( no force in issue) Def may waive PJ if they appear to defend case w/o appearing specialty

Question 4

Specific Juris

Answer 4

def contacts w state is what lead to suit (few contacts would be PJ)
For activities/ causes of action in state

Question 5

In personam: judgement against person

Answer 5

Look @ ties to forum state
Citizens of state: auto subject to PJ even if not present in state
Non citizens: tagged in state w service of process

Question 6

minimum contacts

Answer 6

look to see if they has contact in state: even if def cant be served in state/ no consent: state can still take juris if def has sufficient contacts( due process) * International shoe case) look at corporations presence

Question 7

purposeful availment

Answer 7

have to go there on your own free will, courts power of you: person has to come there - situation has to arise due to them being there

Question 8

In rem: PJ over prop

Answer 8

Title
Adverse possess.
Mortgage foreclosure
Property is in forum state & dispute about property ownership

Question 9

quasi in rem

Answer 9

def owns prop & attached
Case doesn’t involve property but juris. Over prop.

Question 10

PJ checklist

Answer 10

Constit. Auth to assert (must not violate due process)
Stat. auth (must be citizen in state that juris.)
P must create adeq. Process to serve def
P must prop. Serve def( make sure service is adeq. Def residence- serve to someone of suitable age
Minimum contact ( person has to have some contact in that state)
Purposeful availment (see what persons purpose for coming to the state: look to see if the person was there for court)( look at how a company advertises or posts things/ business that they do in another state- see what type of benefit they receive from the other state that would allow the court to have power over them)

Question 11

long arm stat.

Answer 11

states typically enact statutes permit P to serve out of state def.- may say extent of allowed by Constitution OR give criteria to restrict state courts PF Or they may go too far

Question 12

challenge PJ

Answer 12

Service in state generally satisfies PJ
Special appearances: def can ask the court to permit a special appear: for sole purpose of challenging the courts PJ: P can’t serve def while in state if that: def may only object to JR: raising another issue could subject to service the courts PJ
Collateral Challenges: since PJ can be waived: def participated in case that will be waive any objection & can’t challenge later : def fails to appear & default judgment is entered: def can collateral attack by saying lack of PJ

Question 13

diversity

Answer 13

parties are from dif states: let them go to 2 fed ct ( not a requirement)
Subject matter jur deals with subject & diversity
Constitution: citizen of dif state
Statute: complete diversity & amount controversy: minimal diversity is enough in some cases (multiparty class action)
25% of fed civil
cases are diversity: parties can’t create diversity by assigning cause of action or right to sue: may defeat diversity if assignee not diverse w def.
Basis for SMJ but looks at residence of parties

Question 14

domicile

Answer 14

Citizenship: intent to stay in that state & residence ( one state only)

Question 15

fed ct auth.

Answer 15

constitution ( fed subject matter) & fed statute auth. ( diversity)

Question 16

Fed rule 1

Answer 16

Rules that govern the U.S. District Ct to secure the just, speedy and inexpensive determination of every action
Cases should be run to reach just results and not decided on legal technicalities

Question 17

rule 2

Answer 17

here is one form of action- civil action
Contracts with CL as it is highly technical language to properly plead types of actions
Communicates merger of law & equity in the fed. Ct system
Can issue injunctions and deals w damage

Question 18

complaint must allege what 2 things

Answer 18

SMJ & PJ

Question 19

diveristy

Answer 19

Complete: 2 dif people living in dif states: look at domicile (physical presence & intent to remain indefinitely or foreseeable future) AND
Amount controversy: must exceed $75,000
( look to see if federal issue is embedded in the state law- will have to go through the 4 part test to see if it has federal ?) THEN see if it is a substantial ?: can’t be to the parties( its from the federal perspective)
OR

Federal ?: constitution, treaty, or statute ect

Question 20

domicile for business/ Corp.

Answer 20

Business Diversity: 1 or more person treated as citizen ( figured by domicile)
Exception: Incorporation: dealing with state in which they are inc. and state that constitutes principal place of business: can be citizens of 2 states if these are dif & typically are
Corporations: do citizenship test- max 2 states
For business look at incorporation & principle place of business (nerve center, where they hold their meetings)
When 2 people want to bring a claim in same transaction: still have to be diverse
Ex: PA & PC v. DB

Question 21

Nerve center test

Answer 21

look @ businesses and all operations in 1 state & headquarters is on the border in another state : principal place of business

Question 22

aggregate amounts

Answer 22

Single P & D
P can aggregate claims and add up amounts
No aggregation when multiple def: have to show $75,000 against 1 def

Can aggregate claim even though incidents are seperate- people & parties need to remain the same (no specific length of time) look @ facts & circumstances

Can count punitive damages for aggregate claim: not available for breach of K or certain tort

Question 23

minimal diversity

Answer 23

can support fed SMJ amount in controversy over $5 million
Court has to use discretion to deny juris & must deny juris. Dep on specifics of class action

Question 23

minimal diversity

Answer 23

can support fed SMJ amount in controversy over $5 million
Court has to use discretion to deny juris & must deny juris. Dep on specifics of class action

Question 24

fed ? applies if

Answer 24

P claim arises out of fed statute, Constitution or treaty: copyright allows you to sue for infringement in fed. Statute, Fed. Debt ACT permits P’s to sue when business use improper debt collection pract., city taken P property w/o paying comp. OR Claim arises out of state law: necessary component of claim is a fed. issue Ex: fed tax laws: incorporation: state creates la for the tax law/ cheating on taxes

Question 25

well pleaded complaint

Answer 25

-Lousiville v. Motley (assess fed ? raised based on complaint) - fed ? must arise from this Answers or counter claims don’t count Artful Pleading: Add fed ? to complaint that isn’t really there Declaratory Judgment action: if D met this rule then fed ? is there Limits on embedded Fed. Issues Claim arises out of fed law: fed. Ct under fed ? Infringement/ Patent is exclusively fed. Law

Question 26

fed ? juris.

Answer 26

Fed ?: arising under certain fed law OR necessary component: state law claim Arising under: Fed constitution OR Nec. Component: Asserts but not federal: will look @ some aspect of fed. Law Actually disputed Necessarily raised Substantial & taking jurisdiction doesn’t upset fed/state balance

Question 27

removal juris.

Answer 27

File in fed ct. & move from state ct. To fed. Ct as long as FSMJ exists Exception:1. diversity is only basis for FSMJ & def is citizen 2. All def don’t agree to remove

Question 28

removal procedure

Answer 28

if its state law & no diversity byt amended complain adds fed claim D will get 30 days from service of amended complaint to remove

Question 29

1446 a : notice of removal

Answer 29

file in district and division where action is pending a notice of removal signed to rule 11 & contain a short and plain statement of the grounds for removal: cope all of process, pleadings & orders

Question 30

1441 a: civil action brought in a state court:

Answer 30

civil action brought in a state court: have original FSMJ may be removed by def (action is pending) Exception 1441(b): def can’t remove if: diversity is only basis for FSMJ & def is citizen of state in which case was brought: diversity is the only establishment: have to make sure they are not citizen of foreign state

Question 31

1446 c 30 day deadline

Answer 31

Within 30 days after the receipt the def through service of initial pleasing set forth claim for relief OR receipt of a copy on amended pleading order - saying the case become removable Exception: case may not be removed on bases of juris. Conferred by sect 1332: more than 1 year after start of action

Question 32

1447 c: remand motion

Answer 32

Remand the case basis on defect other than SMJ must be within 30 days after filing notice of removal If before that final judgment district ct lacks SMJ: case will be remanded Order remanded case may require payment by defendants

Question 33

1446 d : no appeal of remand

Answer 33

Order remanding case to state court from which it was removed is not reviewable on appeal Exception: civil rights cases

Question 34

Non removable claims

Answer 34

a claim filed in state court arising under laws of US are joined with claims that can’t be heard in fed. Ct Def may remove but fed ct can return the non-removeable claims to state ct

Question 35

forum choice

Answer 35

P choses form: state or fed Exceptions: 1. Pure state law issues 2. Exclusive fed. Jurisd

Question 36

specific juris.

Answer 36

sue def in state where its not their home: show there is enough contact in state Minimum contacts: D’s actions in state Purposeful availment: by conducting activities in forum state ( intl shoe case) See if contacts arise out of that juris. ( look @ fairness facts for def: look @ purposeful avail & minimum) ( pennoyer case- serve person before they left the state)

Question 37

Challenge PJ if def doesn’t specifically object then they waive PJ:

Answer 37

need to specially appear: then they can’t be served @ that time- if def fails to appear- default judgment will be given

Question 38

General Juris:

Answer 38

can sue def in state about anything: must be def home state

Question 39

Specific: juris

Answer 39

foreseeability ones product would end up in a state &/but that one would be One would be haled into court there ( b/c of their contacts) Served def while in state

Question 40

stream of commerce: specific juris

Answer 40

Uncertain test for PJ Establish purposeful contacts require specific content to make product “specifically in that state”

Question 41

SJ: libel

Answer 41

Arises out of contacts w/ state Publication sold in state & defamatory statement based on research in state Ex: newspapers dols in state & research is done in that state

Question 42

Gen. Juris

Answer 42

if case doesn’t arise out of def contact w/ state Must be individuals domicile( home state)(def)

Question 43

Juris: Based on Land

Answer 43

In Rem: property in forum state ( enough to establish minimum contacts)

Question 44

corp

Answer 44

isn't limited to domicile

Question 45

quasi in rem

Answer 45

Take juris not necessarily including property b/c it has been attached & damages come from value of that property (causes/ provides contact w/ state) w/o PJ: ct. May only issue a remedy w/ respect to the land

Question 46

rule 3

Answer 46

file complaint in Ct: have to get someone to serve papers for you can’t file it yourself

Question 47

rule 4

Answer 47

Legal auth: to serve process in fed. Ct Must leave summons @ someones house w suitable age & must reside there EX: if they are on a business trip & served not ok b/c not the common abode , also housekeeper isn’t okay

Question 48

venue : PJ or substantial event

Answer 48

Cts that should be hearing this case Check state law to see what’s the appropriate venue CA venue: person has to live or do business in that county

Question 49

venue based on claim

Answer 49

Look @ events give rise to claim location or where prop. Located 3 things to look @ Products liable: where manufacture & injury occured K: made & breach Tresspass: prop. Location ( venue doesn’t exists where convenient for

Question 50

multiple proper venue

Answer 50

Venue will be appropriated in more than 1 district Residence path will often cover multiple possible fed. Ct. where there are corp. Def

Question 51

catchall provision

Answer 51

Alt. if residency path nor claim occurrence path produce property venue Rare but can occur where: events took place overseas & def don’t reside in the same US state

Question 52

improper venue

Answer 52

Waivable: if P files in ct. w/o venue & D fails to time move to dismiss: issue is waived 28 USC 1406: gives FDC authority to transfer to another court with prop. Venue OR dismiss the case if statute of limit has run out case maybe dismissed or transferred to another court

Question 53

notice

Answer 53

provides service: make sure parties of case: general aximum Publishing in newspaper is good enough notice ???

Question 54

private

Answer 54

def seeks to transfer from a ct with a prop. Venue: P should get to choose forum unless balance of convenience weighs strongly

Question 55

public

Answer 55

cts familiar w/ governing law- relative congestion of the 2 cts effecting time resolution- local interests in deciding local controversies

Question 56

balance & trasnfer

Answer 56

overwhelm weight goes to Ps choice of forum: everything must strongly weigh against transfer from a place w prop. Venue Transfer: ct may transfer a case for venue reasons only to a ct: within the same system: state to cts or fed to another fed. SMJ & PJ exits

Question 57

forum non conveniens

Answer 57

CL allow ct to dismiss a case even w SMJ PJ & venue Appropriate when there is effective convenient forum outside of fed ct. System: foreign country & balance between private & public interest Court will consider dismissing Test: for Forum non conveniens (I don’t want to hear this case on fairness factors alone) look to see if alternative forum is available What are the private & public interests

Question 58

Quasi Heightened Plausibility Pleading

Answer 58

Rejects idea that P could simply allege a conclusory statement that each claim was met P must show that not only that the claim was conceivable Can’t simply plead language of tort: must

Question 59

pleading

Answer 59

Identify disputed issues Has to plausibly plead can’t just state the tort ect

Question 60

complaint

Answer 60

Has damages & injunctive orders Identify basis for SMJ (have to allege) P files complaint : shows how def violated P’s legal rights: establish def liability D files an answer by admitting or denying the allegations

Question 61

steps to a decision

Answer 61

Motion to dismiss: all facts in complaint are true & asl only if they state a claim ( saying complaint failed to allege a claim) Summary judgment: if there are false allegations: no dispute on the facts

Question 62

default judgment

Answer 62

Set aside an entry of default ( MCQ) KNOW ENTRY OF DEFAULT & DEFAULT JUDGMENT DAMAGES SUPPORTED BY EVIDENCE

Question 63

contest complaint

Answer 63

Def Need to contest the facts alleged

Question 64

completion of trial (waiver)

Answer 64

After trial pleadings are impliedly amended to conform to evidence Failure to join a needed party & state a claim: aren’t waived if not included in 1st pleading Have to be asserted before closing of trial

Question 65

Rule 5

Answer 65

Serving things other than the complaint

Question 66

Rule 6

Answer 66

If you use the mail then the party has 3 extra days to respond to the service Look @ the local rules & time: abide by that for the complaint Waiver of service: is included with the mail of complaint- if def exercises it then the service is then okay( they also get extra time) : if they don’t waive then you must serve them beyond the mailing; def then has to pay for the service HE TENDS NOT TO TEST THIS RULE

Question 67

Rule 7

Answer 67

Kinds of pleadings allowed: limiting # of pleadings to a complaint & an answer Response to the old way of pleading

Question 68

Rule 8

Answer 68

Look at ways that you have to respond; if you don't respond then you will be treated as you have admitted what was alleged Counterclaim doesn’t need to include an allegation of complaint bc P already did allegation Entitle P to relief Have to go through complaint & admit or deny every # paragraphs in the complaint & assert defenses: defendant does this : some paragraphs may have multiple allegations in them - def can say summary judgment (P or D can move for this) Can seek discovery

Question 69

Affirmative defenses

Answer 69

Statute of limitations Claim has been released Issue preclusion or claim preclusion

Question 70

rule 9: particular plead

Answer 70

If def is under age or incompetent then the P doesn’t need to allege that def isn’t able to defend themselves: it is up to the def to do so Plead with all details of the incident Complaint - look at jurisd & venue: make sure to identify the parties 9(b): Fraud: need to include particularity when the parties dealt with each other over time 9(g): special damages

Question 71

Rule 10

Answer 71

Check with your law firm and the local rules on the case

Question 72

Rule 11

Answer 72

Have to be truthful in pleading otherwise you will be sanctioned to court Have to reasonably/ adequately investigate the allegations in the complaint : look @ facts & the law ( failure to do so is a sanction) Bad faith pleading violates this rule Must have a good faith argument Continuing duty: doesn’t apply to oral arguments – advocate for position asserted in pleading if you see something wrong in complaint must bring it to court’s attention Don’t serve court, serve it to the party before you go to court w it (21 days.. To fix problem before going to ct) Filing a pleading for an improper allegation: this violates the rule

Question 73

rule 12: motion to dismiss

Answer 73

Only get one motion to dismiss: this is waivable – PJ or service of process or venue not waivable: lack of SMJ or failure to state a claim, failure to join a party Def can: accept every factual allegation in complaint is true & claim P is not entitled to relief Motions don’t contest the facts. Take the details to be true : def will have to say lacks PJ, venue or something. Say details don’t amount to a claim Motion for a more definite statement Complaint was bad & def can’t figure out how to respond (rare) Try to just motion to deny this allegation b/c you don’t understand

Question 74

Rule 20

Answer 74

Common ? of law or fact then you can bring the def in: defs have to be the same thing to join them together Doesn’t mean there has to be only 1 trial: trials can be separated and just 1 pretrial

Question 75

Amend the pleading (MCQ)

Answer 75

When def moves to dismiss & court agrees 1. Within 21 days of serving : from service, responsive pleading, service of rule 12 motion 2. If a response pleading is needed from original pleading: serve 21 days after Responsive pleadings: counterclaim. Complaint, 3rd party claims ect Also a plaintiff is required to answer but can move to strike an affirmative defense (rule 12) 3. Def files motion to dismiss: P can amend the complaint in 21 days If you amend w/o leave: you only get 1 free amendment after that you have to ask court for permission Only one “without leave” amendment Counterclaims: def gives a counterclaim then a plaintiff needs to respond to this

Question 76

Amend w Leave of Court

Answer 76

Undue prejudice to opposing party Any amendment by 1 party makes it prejudice to the other side Can’t prepare for trial given time left Once trial has happened: the pleadings are automatically amended to conform to the evidence at trial – P has to satisfy Liberally granted Look @ undue prejudice (prejudice that isn’t fair to put on the other party) to deny leave to amend

Question 77

Leave to Amend & Relation Back ( essays - remember 2 step process)

Answer 77

Original complaint was filed before statute of limitations ran out P has to amend after SOL runs out: new claim barred by new filing or new party who couldn’t be sued Claims have to arise out of same conduct in the pleading: have to look at notice b/c def will have to be given notice so they won’t get the new date ( see if original complaint gives notice to the additional claim) Court has to grant leave to amend If it wil then will the time barred claim relate back to the original filing date or will it allow for the amended filing date

Question 78

new parties

Answer 78

New party didn’t get served w the original complaint : notice is then an issue Focus on whether the def SHOULD have knows that it would be sued in absent mistake Rule: 1. New party should have known about mistake 2. That it would’ve been sue BUT FOR a mistake

Question 79

Relation Back

Answer 79

Had the notice of the complaint & knew that they would have been sued BUT FOR a mistake Claims: as long as the newly alleged claim is sufficiently related to the circumstances giving rise

Question 80

joinder

Question 81

joinder

Question 82

compulsory counterclaim( memorixe this & exceptions)

Answer 82

If a jurisdiction lacks: if fed ? is in 1 claim and the other one doesn’t & doesn’t have diversity Supplemental jurisd: allows fed. SMJ over claims rising from the same transaction w/o independent basis for FSMJ

Question 83

comp. counterclaim exceptions

Answer 83

another pending suit, jurisd. Based on property attachment rather than PJ, claim arises after the initial case is filed, possibly if a case is settled before def. Files any pleading

Question 84

permissive counterclaim

Answer 84

any claim not arising from the same transaction as the initial claim can be filed as a counterclaim: may have an indep. Basis for FJ ( diversity or fed ?)

Question 85

counter claim

Answer 85

multiple Ps or Ds : they can bring claims against each other All are permissive not compulsory May be filed if it arises out of the transaction If the claim relates to any property Is a claim against another party on the same side of the V. like 2 defs. Involve alternative liability to a P: as well as a direct claim

Question 86

same transaction standard

Answer 86

Look to see if there are issues of fact Is there a logical relationship between the 2 actions ( quote words in the fact pattern)

Question 87

Intervention

Answer 87

As of right: if an outside party meets the requirements then the court is required to let them in: fed. Statute provides an unconditional right to intervene OR claims an interest relation to the transaction & disposing of the action as a practical matter may impair the movant’s ability to protects its interests BUT not if existing parties adequately already represent that interest (quote facts in fact pattern for step 3) 1. Claim an interest relating to the transaction 2. Situated in disposing the action that impede the movants ability to protect the interest 3. But if not existing parties adequately represent the interest Permissive: conditional right by fed. Statute, intervenor has a claim or defense that shares main action: does letting this in help the case or unduly delay it

Question 88

partial intervention

Answer 88

(if it denies intervention then it also can do this)(add this to an intervention analysis) Limited only to file briefs on motions raise by other parties; but can’t file their own motion Court may prohibit intervention but allow a non-party to participate as amicus curiae aka friend of the court: may filebriefs on issues before the court but aren’t parties impacted by judgment

Question 89

alternative to intervention

Answer 89

Amicus Curiae: can contribute/ give oral argument to the court