Civil Procedure Flashcards
Personal jursidiction
(1) need state statute
(2) must be constitutional
- does defendant have minimum contacts with the forum so jurisdiction does not offend traditional notions of fair play and substantial justice?
specific personal jurisdiction- minimum contacts
Contact must result from defendant’s purposeful availment-voluntary act. Must be foreseeable that defendant could be sued in the forum. Plaintiff’s claim must arise from or relate to defendant’s contact with the forum.
Will arise if defendant’s contacts with the forum caused the harm to plaintiff.
general personal jurisdiction
Defendant must be at home in the forum. Or defendant served with process in the state.
People are at home where they are domiciled. Companies are at home in the state where they are incorporated and where they have their principal place of business.
Fairness factors
- burden on defendant and witnesses
- state’s interest in providing a forum
- plaintiff’s interest
Who can serve process?
Anyone who is at least 18 years old and not a party to the action
When must process be served?
Within 90 days of the filing of the complaint
Personal service
Process given to defendant personally anywhere
Substitute service
- at defendant’s usual place of abode
- with someone of suitable age and discretion
- who resides there
Service on agent
Process can be delivered to defendant’s agent but it must be within scope of the agency to receive process
Process by state law methods
Can serve process by means permitted by the law of the state where the federal court sits or where service is made.
Service on business organizations
Can be served by delivering to an officer or managing or general agent a copy of summons and complaint or by using a method permitted by the state where the federal court sits or where service is to be made.
Service on a minor
Can be made only by the law of the state where service is to be made.
Waiver of service of process
Plaintiff mails defendant a notice and request to waive service including copy of complaint, two copies of waiver form, prepaid means of returning the form. If defendant executes and mails the waiver form to plaintiff within 30 days, she waives service.
Effective when plaintiff files waiver with court. We act as though defendant was served with process on the day of filing.
Defendant must pay costs of service if they fail to return the form and have no good cause for failing to do so.
Diversity jurisdiction
case between citizens of different U.S. states or citizens of a foreign country and the amount in controversy exceeds $75,000.
Diversity doesn’t exist if any plaintiff is a citizen of the same state as any defendant. Determined when case is filed. Citzienship of a person who is a U.S. citizen is the one state U.S. state where they are domiciled. Citizenship of a corporation is any state where it is incorporated and the one state or country in which it has its principal place of business. Unincorporated association or partnership takes on the citizenship of all of its partners or members. For class actions, citizenship of named class rep is used.
For amount in controversy, any single plaintiff may aggregate all of her claims against a single defendant. Claims don’t have to be related.
Exclusions- divorce, alimony, child custody, probate
Establishing a new domicile
- need physical presence in new domicile AND
- intent to make that place home for the indefinite future
Federal question jurisdiction
Plaintiff’s claim arises under federal law, constitution, or treaty.
Removal
Defendant can remove cases to federal court based on diversity or federal question SMJ.
Must remove no later than 30 days after service of the first paper that shows the case is removable. All defendants served with process must join in removal. if a later served defendant initiates timely removal, the earlier served defendant may join in the removal even though the 30 day period expired for them.
Plaintiffs can never remove.
Limitation- cases cannot be removed based on diversity if any defendant is a citizen of the forum state. cases cannot be removed more than one year after filed in state court.
Removal venue
Defendant removes to federal district court embracing the state court where the case was filed. doesn’t matter if this venue wouldn’t have been proper under venue statutes.
remand
must move to remand no later than 30 days after filing of notice of removal (unless asserting lack of SMJ).
Supplemental jurisdiction
Must have a case already in federal court based on diversity or federal question. Check whether additional claims have independent bases for subject matter jurisdiction. If not, then they may be able to come in through supplemental jurisdiction.
Claim we’re trying to get into federal court must share a common nucleus of operative fact with the claim that satisfied federal SMJ. Test is always met if the claim comes from the same transaction or occurrence but the test is broader than this.
Limitations in diversity cases. Claims by plaintiffs in diversity cases generally cannot invoke supplemental jurisdiction. Only applies when there are multiple plaintiffs.
Court has discretion to decline even if requirements are met. Does so if state law claim is complex, will predominate in the case, or the claim that had independent SMJ is dismissed early in the case.
Erie doctrine
Is there some federal law on point that directly conflicts with state law? Is it arguably procedural? If yes apply federal law as long as its valid. Supremacy clause.
If no federal law on point, federal judge must apply state law if the issue decided is substantive.
- conflicts choice of law rules
- elements of a claim or defense
- statutes of limitations
- tolling
- new trial standards
If no federal law on point and issue isn’t one of the five above, federal judge has to determine whether the issue is substantive.
- Is it outcome determinative?
- Balance of interest
- avoiding forum shopping
Venue
Plaintiff may lay venue in any district where
- all defendants reside or (note that when defendants reside in different districts of the same state you can lay venue in any district where one defendant resides)
- a substantial part of the claim arose or a substantial part of the property involved in the lawsuit is located
does not apply for removed cases. venue for removed cases is the federal district embracing the state court where the action was filed.
people reside where they are domiciled. A business resides in all districts where they are subject to personal jurisdiction for the case.
Transfer of venue
Federal district court can transfer to another federal district court. Transferee court must be a proper venue and have personal jurisdiction over the defendant. These things must be present without waiver.
Court can transfer to any district even improper venue if all parties consent.
If transfer is from a proper venue, the burden is on the party seeking transfer. Transferee court must apply the choice of law rules of the transferor court.
If the original venue is improper court can transfer in the interests of justice or dismiss. Transferee court apply its own choice of law rules.
Forum selection clauses
Federal law will enforce them. Transferee court will apply its own choice of law rules.
forum non conveniens
Applies when there is another court that is the center of gravity for the case but the court cannot transfer the case to that court because it is in a different judicial system. The other court must be available and adequate. Usually the forum will be adequate unless plaintiff can get no remedy there.
complaint
must contain grounds of subject matter jurisdiction, short and plain statement of the claim, demand for relief sought. Plaintiff must plead sufficient facts to support a plausible claim. Judge uses own experience and common sense to determine plausibility.
Fraud, mistake, and special damages must be pled in greater detail- particularity or specificity
Defendant’s response to complaint
Must make a motion or answer no later than 21 days after service of process. If waived service, 60 days from when plaintiff mailed the waiver form to respond.
Rule 12(e) MTD
motion for more definite statement- complaint is so vague or ambiguous that defendant cannot respond. must move before answering.
rule 12(f) MTD
motion to strike asks court to remove redundant or immaterial things from a pleading
Defenses that are waived if they are not put in the first response
Lack of PJ
Improper venue
Improper process
Improper service of process
Motions for failure to state a claim or join indispensable party
Can be made as late as at trial