Civil Procedure ✔️ Flashcards
What are the routes to subject matter jurisdiction in federal court?
Federal Question
Diversity jurisdiction
Supplemental jurisdiction
Define subject matter jurisdiction.
A court’s competence to hear & decide “this type of case” (i.e. cases of general class and subject to which proceedings in question belong).
What cases fall under federal district courts’ “Federal question” jurisdiction?
District courts have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the U.S.
What do you look to to determine whether a Federal question exists?
The face of the well-pleaded complaint.
It must form the plaintiff’s cause of action.
⚠️ Anticipating a federal defense alone is not a federal question. Also not answers or counterclaims.
Is there an amount of controversy or diversity requirement for federal question jurisdiction?
No.
⚠️ AIC and diversity are for diversity jurisdiction.
What are the requirements of diversity jurisdiction?
- Complete diversity,
- Amount in controversy over $75,000.
⚠️ A federal question is not required.
What is complete diversity?
Complete diversity requires that no plaintiff share citizenship with any defendant. (No duplicates on either side of the “v.”)
NB: If any plaintiff is a citizen of the same state or same foreign country as any defendant in the case.
How is citizenship determined for diversity? (Individuals? Corporations?)
(Individuals) Domicile is the state in which an individual is present and intends to remain (reside for an indefinite period). NB: Can have only one domicile at a time, domicile determined @ time action is commenced.
(Corporations) Citizenship is: state of incorporation AND state where it has its principal place of business (i.e. “nerve center” from which high-level officers direct, control, and coordinate its activities) NB: Is often multiple.
How to know the amount-in-controversy has been met?
Plaintiff’s good-faith assertion in complaint is sufficient ⚠️ unless there is a legal certainty that plaintiff cannot recover alleged amount.
When can you aggregate claims to meet the amount-in-controversy?
Aggregation of claims permitted for:
- single P against single D,
- multiple Ps with common/undivided interest (counterclaims generally don’t count)
A permissive counterclaim must meet the amount requirement.
A compulsory counterclaim need not.
When can a court exercise supplemental jurisdiction (baseline rule)?
Common nucleuse of operative fact: A federal court with jurisdiction may exercise supplemental jurisdiction over additional claims the court wouldn’t independently have SMJ over (usu state law claims against a nondiverse D), as long as they arise out of a “common nucleus of operative fact” such that all claims should be tried in a single proceeding.
This includes additional claims against the same party.
What requirements if you permissively join as an additional plaintiff to a diversity action? Counterclaims? Cross-claims?
To permissively join you cannot violate the complete diversity rule (you aren’t required to satisfy the amount in controversy).
Permissive counterclaims must satisfy both diversity and AIC.
Compulsory counterclaims need not satisfy jurisdictional amount.
If court has SMJ over original complaint, then cross-claims don’t need to satisfy the AIC or diversity.
What’s removal?
When can a case generally be removed and who can do it?
A defendant may generally remove a case from state to a federal court with SMJ.
Removal is determined by pleadings that have been filed by the time petition to remove is filed.
Where can a case be removed to?
What happens if a case is removed to the wrong place?
Removal must be to the district court for the district and division in which the state court action is pending.
Removal to the wrong district court is subject to a motion to remand (or transfer to the proper federal court).
Rules re removal of a case based solely on diversity?
If removal is based solely on DJ, claim may be removed only if NO defendant is a citizen of the state in which the action was filed.
Diversity must exist at the time of original action filing as well as at time notice of removal is filed, unless:
- party preventing diversity is dismissed, or
- non-diverse party against whom P has no colorable claim was fraudulently joined to defeat diversity.
If federal question claims are joined with claims that aren’t independently removable, can the case be removed?
Yes, the entire case can be removed.
What are the timing and notice requirements for removal?
30 days from pleading: Defendant must file notice within 30 days after receipt by/service on the D of the initial pleading.
1-year limitation unless bad-faith P: A removal based on DJ cannot occur more than one year after action is commenced (⚠️ unless P acted in bad faith)
Who of the defendants must join/consent in a federal question removal?
Only the defendants against whom the federal claim is filed must consent/join in removal.
When can you bring a motion to remand for lack of SMJ?
Motion to remand for any other (non-SMJ) defect?
Lack of SMJ: Any time before final judgment is rendered.
Other reasons: Must be within 30 days after filing of notice of removal.
What is concurrent/exclusive jurisdiction (for FQ claims)?
State courts and federal courts have concurrent JX of FQ claims, ⚠️ except when Congress expressly provides that JX of the federal courts is exclusive.
What ways can federal question jurisdiction be found to exist?
Express: FQ exists if cause of action is expressly created by, and the underlying right is provided by, Fed law.
Implied: FQ likely to be found if right is created by Fed law, and a cause of action can be fairly implied and was intended by Congress.
Not express/implied: Complaint must involve a state claim that is:
- necessarily raised,
- actually disputed,
- substantial, and
- capable of resolution in Fed court without disrupting the Fed-state balance approved by Congress.
What are the types of personal jurisdiction?
In personam
In rem
Quasi-in-rem
What will a federal court look to, to determine if it has PJ over the parties?
State long-arm statutes.
What are the Due Process requirements for the exercise of PJ?
Minimum contacts, fair and reasonable: A federal court may not exercise PJ over a D unless the D has “minimum contacts” with the forum state and the exercise of JX would be fair* and reasonable.
Purposeful availment: D’s contacts with forum state must be purposeful and substantial, such that D should reasonably anticipate (foresee) being taken to court there.
* The DP requirements are satisfied if nonresident D has certain minimum contacts with the forum state such that the maintenance of the action “does not offend traditional notions of fair play and substantial justice.”
Can PJ be consented to?
Yes.
A party may expressly, impliedly, or voluntarily consent to PJ.
What are the defenses to an exercise of PJ?
When must they be asserted, and what happens if you don’t?
Lack of JX,
insufficiency of process
insufficiency of service of process.
They must be asserted in responsive pleading (or motion before), and failure to object waives the objection.
What are the bases for in personam JX?
(i.e. How can a court get in personam JX over sb?)
- Voluntary (appearance alone does not waive right to object to PJ),
- Domicile (if authorized by statute, a state has JX over person domiciled in state (person with capacity intends to make that state his home)),
- Consent (D can expressly consent to JX by K or once an action is brought, impliedly through conduct, or voluntarily via appearance in court unless purely to object to JX),
- Long-arm statute (authorizes PJ over nonresidents who engage in some in-state activity or cause some action to occur within state to extent permissible under Due Process Cl),
- Attachment of property (if claim is not related to ownership of attached property, there must be minimum contacts between D and forum state to establish JX).
Difference between specific and general JX?
They are types of PJ.
Specific: when cause of action arises out of or closely relates to a D’s contact with forum state, even if it’s the only contact; specific personal JX is for that action only.
General: requires that D be domiciled in or have continuous and systematic contacts with the forum state; confers personal JX even when c/a has no relationship with D’s contacts with the state!
When are an organization’s contacts imputed for in personam JX purposes?
Partnerships: Each partner is generally agent of partnership.
Corporations: Out-of-state corporation’s contacts with forum state don’t automatically establish JX over wholly-owned subsidiary, unless it is parent’s alter ego or acting as agent.
Employees/Agents: Contacts by nonresident employer’s agents/employees are imputed to employer if acting within the scope of agency/employment (⚠️ not usu applicable to independent contractors).
What factors help determine whether an action would “offend traditional notions of fair play and substantial justice”?
Interest of forum state in adjudicating matter,
Burden on D of appearing in case,
Interest of judicial system in efficient resolution of controversies, and
Shared interests of the states in promoting common social policies.
Rule for in personam JX over corporations?
Incorporated in-state: Any action may be brought against a resident corporation.
Foreign: “continuous and systematic” “essentially at home”: (Foreign = not incorporated in forum state): Apply minimum contacts and substantial fairness rules. Test is whether a corporation’s affiliations with the forum state are so “continuous and systematic” as to render the corporation essentially “at home” in the forum state.
A corporate D is always at home in: state where incorporated, and state of its PPOB (and in exceptional cases where operations are so substantial as to render the corp at home there too).
What is JX over a nonresident’s website based on?
The degree of interactivity between the website and the forum, ranging from passive sites to those that are integral to D’s business.
What can a contract help with, with regard to in personam JX?
In suits based on a K, the K can be a significant factor in determining whether minimum contacts exist, and choice-of-law provisions are significant in establishing that the out-of-stater purposefully availed herself to benefit of forum state’s laws.
What is in rem JX?
It gives court authority to determine isseus concerning rights to real/personal property.
Do in rem and in personam JX have different due process requirements?
No, they are the same. For in rem, the property must generally be present within the forum state.
What are a defendant’s big-picture rights with regard to in personam JX?
Notice and an opportunity to be heard.
Notice: must be reasonably calculated under the circs to apprise interested parties of pending action and afford them the opportunity to object. Form: via in-person delivery, registered mail, etc. if identity/address known or obtainable through reasonable efforts.
Opportunity to be heard: for D whenever there is state-sponsored interference with D’s property interest.
What can you do to defend yourself against a jurisdictional claim?
Make a collateral attack.
Generally, where is venue proper?
Venue is proper in the judicial district:
where any D resides (if all D resides in same state),
where substantial part of the events/omissions occurred, or
where property subject to the action is located,
(otherwise where any D is subject to PJ).
For venue purposes, where does a defendant reside?
(Individuals) The district where D is domiciled.
(Organization as Defendant) Where D subject to PJ.
(Organization as Plaintiff) Where PPOB is located.
What is the general rule of transfer of venue?
Original venue was proper: Transfer permitted to any district where case might have been brought, or to which all parties consent.
- Diversity—New district court must apply law from transferring court.
- Fed Question—New district court in another appellate circuit will apply federal law as interpreted by its own court of appeals (⚠️ not the appellate circuit of the transferring court)
Original venue was improper: Either dismiss the case, or transfer to proper district if in the interest of justice.
- Diversity—New district court applies choice-of-law rules of the state where located (⚠️ not the transferring court).
- Fed Question—New district court will apply its own court of appeals interpretation of law (⚠️ not the appellate circuit of the transferring court)
May a court lacking in personam JX over the D transfer the case to a different venue?
Yes.
When is forum non conveniens used? (Venue)
A discretionary power for a court to decline to exercise JX; only used when the mst appropriate forum for the action is a state or foreign court.
Burden generally on D.
⚠️ But if forum selection clause designates a state or foreign court, burden shifts to P.
What is the Erie doctrine?
In Fed Question, use federal law (both substantive and procedural).
In Diversity action, use state substantive law and federal procedural.
With supplemental JX, use state substantive law for state-law claim.
How to distinguish substantive or procedural law? (Erie)
Substantive law includes:
- elements of claim or defense,
- statute of limitations & tolling(!), and
- burden of proof(!).
Procedural law includes:
- judge/jury allocation,
- assessment of attorney’s fees, and
- equitable/legal determination.
When state and Fed laws conflict, and there’s a valid federal statute on point, apply federal law.
⚠️ Only use the federal rule if it does not abridge, enlarge, or modify any substantive right.
When there’s no federal statute on point, apply state law if failure to do so would lead to different outcomes between state and fed court.
When to apply federal common law? (Erie)
Fed Question—apply federal law for:
- Admiralty,
- When the U.S. is a party,
- Interstate disputes,
- Cases implicating foreign relations,
- Cases in which gov’t acts in proprietary role (e.g. enters Ks), and
- When Congress has left a gap in a statutory scheme.
Diversity—when a “uniquely federal interest” is at stake and a significant conflict exists between that interest and the operation of state law.
If state JX is concurrent with FQ JX and Fed common law would have applied in Fed court, then it will also apply in state court.
What conflict-of-law rules does a federal court apply? (Erie)
Federal court must apply state’s conflict-of-law rules.
Diversity—District court is bound by conflict-of-law rules of state in which it is located, but only to the extent that the state’s rules are valid under the FFAC and Due Proc Cl.
Timeframe for service of process?
Must serve process within 90 days after filing of complaint.
Service of Process = Complaint + 90 days.
How can an individual be served?
Personally,
At D’s usual place of abode with a person of suitable age/discretion who resides there, or
to D’s agent.
How can an organization be served?
To officer or agent,
or by following state law.
What requirements to get waiver of service?
Request for waiver must be in writing and addressed to D (individual or officer/agent of corp), and must give D reasonable time of at least 30 days after request sent to return waiver.
What is the effect of a waiver of service?
A waiver of service extends time to serve the answer from 21 (after service of process) to 60 days (after waiver request sent—90 if foreign).
What is the purpose of a TRO?
A temporary restraining order preserves the status quo until an opportunity for a full hearing.
How long is a TRO effective?
A limited time (no longer than 14 days, absent good cause or the adversary consents).
When can a TRO be issued without notice?
If immediate and irreparable injury will result, and
movant’s attorney certifies efforts made to give notice and the reason why notice should not be required.
Can you appeal a TRO right away?
No, a TRO is not generally immediately appealable.
What is a motion to dissolve?
A motion to dissolve is used for a TRO issued without notice. The adverse party may appear and move to dissolve or modify the TRO (must give 2 days’ notice unless the court sets a shorter time).
What requirements for a preliminary injunction?
May be issued to a P if:
- P is likely to succeed on the merits,
- P is likely to suffer irreparable harm in the absence of relief,
- Balance of equities is in P’s favor, and
- Injunction is in the public interest.
Succeed, Irreparable Harm, Balance of Equities, Public Interest.
Preliminary Injunction = “S-IH-BE-PI”
When is a preliminary injunction issued?
Prior to a full hearing on the merits, upon notice to the defendant.
