Civil Procedure Flashcards
What power(s) must a court have for a Plaintiff to bring a case? Over whom and over what must the court have such power(s)?
To bring their case, a plaintiff must find a court that has power over the defendant(s) (“personal jurisdiction”) and power over the type of case (“subject matter jurisdiction”), and the location (“venue”) must be proper.
What are the types of Personal Jurisdiction?
In personam: The forum has personal jurisdiction over the defendant.
In rem: The forum has power to adjudicate rights of all persons as to a particular item of property (the defendant not personally bound).
Quasi in rem (two types): (1) court adjudicates rights of parties in property based on property being in forum; close connection between case and property provides minimum contacts; (2) court attaches property to bring defendant into forum on unrelated claim; defendant must have minimum contacts with forum.
Most, if not all, states authorize jurisdiction over a defendant in what circumstances?
STATUTORY PART OF 2-STEP ANALYSIS
(1) Is present in forum state and personally served with process therein;
(2) Is domiciled in forum state;
(3) Conducts systematic and continuous business in the state such that the defendant is “essentially at home” therein;
(4) Consents to jurisdiction; or
(5) Commits an act covered by the long arm statute.
What is the general framework for a personal jurisdiction analysis?
(1) Does PJ fall within a statute?
(2) Does PJ satisfy the Constitution?
On the exam, if a PJ analysis is required and there is no statute provided, what should you do?
For the first step, indicate that a statute is required for the state to exercise PJ and assume that that step is met.
What is the constitutional question for PJ over a defendant? What are the factors/steps in this constitutional analysis/requirement?
Does the defendant have such minimum contacts with the forum so that jurisdiction does not offend traditional notions of fair play and substantial justice?
3 Factors/Steps: Contacts, Relatedness, and Fairness.
What makes up the “Contact” Factor of the Constitutional PJ test? What is needed to satisfy it?
Contact(s) result from Purposeful Availment and is/are Foreseeability.
- Purposeful Availment: Purposeful Availment means that the contact between D and the forum state must result from her voluntary act (results from her targeting the forum in some way–causing an effect in the forum; marketing a product; using the roads; Sending a tortious email; etc.).
- Foreseeability: Foreseeability means that D should have known or reasonably anticipated that her activities in the forum made it foreseeable that she could get haled to court there.
What makes up the “Relatedness” Factor of the Constitutional PJ test? What is needed to satisfy it?
If P’s claim is related to D’s contact with the forum, a court is more likely to find that jurisdiction as to that claim (SJ) is fair and reasonable.
P’s claim ARISES FROM or RELATES TO D’s contact with the forum (P’s harm was CAUSED by D’s contact with the forum). If D has substantial contacts with the forum, relatedness is satisfied if the claim merely relates to D’s contacts with the forum.
- Yes –> Specific PJ
- No –> If P’s claim is unrelated to D’s contact with the forum, the court must have General PJ over the defendant.
What happens if relatedness is satisfied in the PJ analysis? What if it’s not satisfied?
If the “arise out of or relate to” test is satisfied, the case will be assessed for specific PJ (move on to the fair or reasonable analysis). If the test is NOT satisfied, the only way to proceed is with general PJ. If general PJ exists, then D can be sued in the forum on a claim that arose anywhere in the world.
What makes up the “Fairness” Factor of the Fair (or Reasonable) Constitutional PJ test? What is needed to satisfy it?
Along with Relatedness, when determining whether Specific Jurisdiction is appropriate for D, the court will consider the following Fairness Factors:
(1) The BURDEN ON D and witnesses (D must show that the forum puts her at a “severe disadvantage”–relative wealth is a factor, but not determinative);
(2) FORUM STATE’S INTEREST (EX: state wants to protect its citizens);
(3) P’S INTEREST (EX: injured and cannot travel);
(4) the interstate judicial system’s interest in EFFICIENCY; and
(5) shared interest of states in furthering SOCIAL POLICIES.
- [THIS IS ONLY FOR SPECIFIC PJ]
What is needed to establish General Personal Jurisdiction over a defendant?
Person:
- “At home” in the forum. The one state where he has a domicile.
- Served with process in the forum while voluntarily there (“tag jurisdiction”).
Business:
- Registered to do business in the state and appointed an agent for service of process there. Assumes that state law authorizes general PJ on that basis (rare).
- Must be “at home” in the forum. (1) the state where it is incorporated; (2) the state where it has its Principal Place of Business (PPB). The PPB is where the business has its “nerve center.”
What is the constitutional standard for Notice? What documents are needed for process?
D is entitled to Notice. Notice must be reasonably calculated under all the circumstances to apprise the interested parties of the action.
- Process: (1) Summons: The formal court notice of suit and telling D when to respond; (2) Copy of the Complaint.
[On bar exam, notice means service of process]
Who can serve process in federal court?
Any person who is (1) at least 18 YEARS OLD and (2) NOT A PARTY to the action.
- Do not need to be appointed by the court.
How long does P have to serve process in the US?
Service must take place within 90 days of filing the complaint (can be extended for good cause).
How can process be served on an individual? (what are the options?)
Options:
- Personal Service (in-hand delivery - anywhere).
- Substituted service at D’s USUAL ABODE on someone of SUITABLE AGE AND DISCRETION who RESIDES THERE.
- Service on Agent (as long as it is within the scope of that agency).
- State Law Methods (methods from both the state where the federal court sits and where service is to be made are fine).
How can process be served on a business organization? (what are the options?)
- On an officer of agent (EX: president; treasurer; secretary)
- State law methods (methods from both the state where the federal court sits and where service is to be made are fine)
What considerations are applied when service is made on a minor or incompetent?
It can be done only by methods permitted by state law (only the state where the service is made).
What is a method for service allowed by international agreement?
- Method that American courts tell you.
- Method allowed by foreign government law.
- Method directed by a foreign official in response to a letter of request (from American court).
- Personal Service in the foreign country (unless prohibited by foreign country’s law).
[Subject to the Constitutional standard]
Can service of process be waived? If so, then how? Does this waive anything else?
P mails to D a notice and request to waive service. Must include copy of complaint, 2 copies of a waiver form, and a pre-paid means of return. If D executes and sends the form back to P within 30 days (60 if D is outside the US), then she has waived formal service of process. P will then file that waiver in court.
NOTE: This does not waive a PJ defense.
- Can be used for individuals and businesses.
If D waives service of process, then when is D considered to have been served with process?
On the day that P files the waiver with the court.
Why might D accept a waiver of service of process?
There is a penalty if you don’t. If D does not have good cause for failing to return the waiver form, they must pay the cost of the service.
Where (in terms of state-boundaries) may process be served?
Within the state in which the federal court sits and outside that state if state law allows.
[Same analysis as with PJ]
What can make a defendant immune to service of process?
D is immune from process while appearing in another case.
Can you serve non-service of process documents by email?
Yes, if the other party agrees.
What is subject matter jurisdiction?
Subject Matter Jurisdiction is a court’s power over THE CASE.
[NOTE: SMJ cannot be waived!]
What kinds of cases can a state court hear?
A state court can hear ANY CASE with few exceptions.
When are the types of cases that federal courts can hear?
- Federal Question: The CLAIM must arise under federal law (Well-Pleaded Complaint Rule: “is the plaintiff enforcing a RIGHT under a federal law?” Yes –> federal court).
- Diversity: (1) citizens of different US states (Complete Diversity: no P from same state as D) OR between a citizen of a US state and a citizen of another country (Alienage Jurisdiction); (2) the amount in controversy must EXCEED $75,000.
When is diversity jurisdiction determined?
It is determined when the case/claim is filed.
Can a non-US citizen be considered a US citizen for Diversity SMJ purposes if they are domiciled in the state?
No.
What is the exception to alienage jurisdiction?
Jurisdiction is withdrawn if a non-US citizen who is a permanent resident of the US is domiciled in the same state as an adverse party.
What is the citizenship of a natural person?
It is their state of domicile.
- There can only be one domicile.
- It is retained until changed.
How does a natural person change their domicile? What are the relevant factors?
To change their domicile, a natural person must have (1) physical presence in a new place AND (2) subjective intent to make the new place their domicile for the foreseeable future. Courts look to ALL RELEVANT FACTORS that show intent to make it their home.
What is the citizenship of a corporation?
A business is the citizen of (1) any state in which it is incorporated AND (2) ONE state in which it has its Principal Place of Business (PPB). The PPB is where the corporation’s managers direct, coordinate, and control the business.
What is the citizenship of an unincorporated business association?
An unincorporated business association takes on the citizenships of all of its MEMBERS (EX: partners/owners/LLC members).
What is the citizenship of a representative of decedents, minors, and incompetents?
The representative takes on the citizenship of the decedent, minor, or incompetent.
What goes into the $75,000+ required for SMJ?
Only the claim itself is considered. Litigation costs and interests on that claim is not included (prejudgment interest that would result from a delay in payment because of litigation–suing to recover interest is okay).
- Good faith allegation by P usually controls unless it’s clear to a legal certainty that $75,000+ isn’t possible.
What is required for the Aggregation of Claims?
Aggregation means adding 2 or more claims to meet the required amount needed for diversity SMJ.
A single P may aggregate all of her claims against a single D without the claims being related (but multiple Ps cannot do this).
What is the aggregation rule for joint claims?
For joint aggregation claims, look to the total value of the claim. There is no aggregation–no adding anything.
- If the word “joint” is there, then this applies on the bar exam!
How is the amount in controversy determined for claims for equitable relief?
2 Tests. If either is met, courts will usually find the amount in controversy requirement satisfied.
- Plaintiff: If the relief were granted, would it have a value of $75,000+ for P?
- Defendant: If the relief were granted, would it cost D more than $75,000+ to comply?
What are the diversity jurisdiction exclusions?
Federal courts decline actions for divorce, alimony, child custody, and probate.
Can P change their citizenship after a cause of action has accrued but before the claim has been filed?
If there is a genuine change of citizenship, then that’s fine even if that was the motive. However, if there’s collusive creation of diversity (through a sham transaction), the transaction will be ignored and there will not be diversity.
What is Removal? What is Remand?
Removal: A procedure allowing D to move the case from state to federal court.
Remand: Sending back to state court.
When can a defendant remove a case to federal court?
Removal is available to D when a case filed in state court could have been brought in federal court and the Diversity OR Federal Question requirements are met.
- For Diversity, if any D is a citizen of the forum state, SHOULD NOT be removed.
What is the procedure for removing a case to federal court? What is the timing for Removal?
Notice of Removal: D files a notice of removal in federal court (all Ds must consent to the removal).
- States grounds for removal
- State/Federal Court permission is not required to file the notice.
- D must attach all documents served on her.
- Serve the notice of removal on adverse parties.
- File a COPY of the notice of removal in state court.
Timing of Removal: D must remove NO LATER THAN 30 DAYS after service of the first paper showing that the case is removable (usually service of process, which includes a copy of the complaint). New D being added restarts the 30-day period.
Who must join in a Removal from state to federal court? How long do parties have to Remove a case?
All Ds served with process must join. Earlier-served Ds may join later-served Ds Removal even if their 30-day period has expired.
Can P Remove a case to federal court if D files a counterclaim?
No, they are not a defendant for purposes of removal.
What types of cases can be removed?
- Starting point is always that SMJ is met.
- If removing on the basis of DIVERSITY, then Removal SHOULD NOT be allowed if (1) D is a CITIZEN OF THE FORUM STATE OR (2) if MORE THAN ONE YEAR has passed since the case was filed (remember that you have 30 days initially to actually Remove the case–this is an additional limitation).
[NOTE: The one-year restriction does not apply if D can show that the non-diverse D was originally joined to prevent removal]
What Venue may a case be Removed to?
The case must be removed to a federal court geographically EMBRACING the state court (it doesn’t matter if the venue is not proper under venue statutes).
What is Remand and what is the procedure/timing for Remand?
If P believes that the case should not have been Removed to federal court, she can remand.
- If there is a defect other than lack of SMJ (EX: the D-home-state removal exception), P must move to remand within 30 days.
- The 30-day limit does not apply if the federal court doesn’t have SMJ (lack of SMJ is never waived).
What law should be applied when the P’s and D’s state residencies differ, P is suing D in federal court in D’s home state, and the claims arise from different states than those 2 states?
Federal courts apply the state law that would be applied by the courts of the state in which the federal court is located (would be D’s home state’s law).
What is Supplemental Jurisdiction? What is the general framework?
It is a form of SMJ–applied when diversity and federal question fail. It gets claims into a federal case even though the individual claims cannot on their own invoke diversity or federal question.
(1) Anchor: Must have a case already in federal court (via diversity or federal question).
(2) Common Nucleus Test: The new claim must share a common nucleus of operative fact with the claim that is already in federal court (the anchor claim).
- Always satisfied when it arises out of the same transaction or occurrence.
- In DIVERSITY cases, P’s CANNOT invoke supplemental jurisdiction unless there are multiple Ps and the claim by one of them doesn’t meet the amount in controversy requirement (very limited).
When does a federal court have discretion to reject a supplemental jurisdiction claim?
The federal court can decline supplemental jurisdiction if the claim upon which federal SMJ is based (anchor) is DISMISSED EARLY in the case (probably dismissing in this case).
- Can also dismiss if state law claim is COMPLEX or WOULD PREDOMINATE in the case.
What is the basic rule of the Erie Doctrine?
A federal court in a diversity case will apply federal procedural rules, but the substantive law of the state in which it sits.
What is the approach to applying the Erie Doctrine?
(1) Is there a federal law on point that directly conflicts with state law?
- If so, apply the federal law as long as it’s valid. If it’s a FRCP, it’s presumptively valid if it’s arguably procedural (which FRCP usually are).
(2) If there’s no federal law on point, then the federal judge MUST APPLY STATE LAW to the issue if that LAW IS SUBSTANTIVE.
- Clearly Substantive: (1) Conflict of choice of law rules; (2) Elements of a claim or defense; (3) Statutes of Limitations; (4) Tolling of Statutes of Limitations; (5) Standard of granting a new trial because the jury’s damage award was excessive or inadequate.
(3) If there is no federal law on point and if the issue is not clearly substantive, then the federal judge must decide whether the issue is substantive.
- Messy law on this.
- FACTORS: Outcome determinative (would applying or ignoring the state rule affect the outcome of the case? Yes –> state law); Balance interest factors (does either the federal or state system have a stronger interest in having its rule apply? Yes –> that law); Avoid forum shopping (if the federal court ignores state law on this issue, will it cause parties to flock to federal court? Yes –> state law).
- Deciding whether the federal substantive law is more appropriate to be applied (if it exists!).
What are the Erie rules regarding common law?
There is no GENERAL federal common law. So, the general common law of torts, contracts, and property is state law, and federal courts must apply that state substantive law in a diversity case. However, there are areas in which federal courts are free to make up common law on their own–where states can’t make their own common law (EX: International relations, admiralty, disputes between states, the right to sue a federal officer for violating one’s federal rights).
Where can Venue be laid?
P may lay venue in any federal district where (1) all Ds reside (or in any district where a D resides if all Ds reside in the same state) OR (2) a substantial part of the claim arose (or a substantial part of the property involved in the lawsuit is located).
- More than one district can satisfy the “substantial part” requirement.
FALLBACK (if 1 and 2 don’t work): (3) Any district where D is subject to PJ for that action.
What does reside mean for Venue purposes?
Individual: Reside for an individual means where the individual is domiciled.
business: Reside for a business means the district where the business is subject to PJ with respect to the action in question.
What does transfer mean for venue purposes? What is the proper terminology for the courts involved in the transfer?
Transfer is when a case goes from one trial court within a judicial system to another trial court within that same judicial system. The transforee must be a proper venue and must have PJ over the defendant.
- Transforer –> transforee
Can venue rules be waived for transfer purposes?
Generally not, but a court can transfer the case to any district (even an improper venue) if all of the parties consent and if the court finds cause for the transfer.
In a transfer in which the original venue is a proper venue, under what circumstances can the court order the transfer?
If the original district is a proper venue, that court can order transfer based on convenience of parties and witnesses and in the interests of justice. Because transfer overrides the plaintiff’s choice of forum and the plaintiff chose a proper venue, the burden is on the person seeking transfer (usually the defendant) to show that the transfer is proper. The court will consider both public and private factors to determine whether another court is the center of gravity for the case.
- Public: what law applies; what community should be burdened with jury service; the desire to keep a local controversy in a local court; etc.
- Private: The court considers convenience (EX: where witnesses and evidence are).
In a transfer in which the original venue is a proper venue, what are the choice of law rules?
The transferee court must apply the choice of law rules of the transferor court. However, if transfer is to give effect to a valid forum selection clause, then the transferee court applies its own choice of law rules.
Forum selection clause in federal court transfer:
- Ordinarily enforced if not unreasonable.
- Only public interest factors are considered (non-enforcement unlikely).
In a transfer in which the original venue is a proper venue, what are the potential-transferor court’s options?
If the original venue is improper, then the court can either transfer (if in the interest of justice) or dismiss. If transferred, then the choice of law rules do not travel with the case (the transferee court will apply its own rules).
- The court will usually transfer if possible.
What is Forum Non Conveniens and when does it apply?
Forum Non Conveniens applies when the center of gravity in a case is in another judicial system, however, because it’s in another judicial system, the current court cannot transfer the case (general transfer rules). Forum Non Conveniens is determined based on the same public and private factors as with the original proper venue transfer analysis to determine center of gravity, and includes the consideration of whether the other forum is “adequate.”
- Public: what law applies; what community should be burdened with jury service; the desire to keep a local controversy in a local court; etc.
- Private: The court considers convenience (EX: where witnesses and evidence are).
- Adequate: The other court must be available and “adequate.” Generally, it’s adequate unless you’ll get no remedy at all in the other court.
If Forum Non Conveniens applies, the current court can either stay the case (halt it so nothing happens) or dismiss it.
Is correctness of venue automatically considered to be waived without a timely objection?
Yes, Venue is considered to be waived unless a timely objection (in a pre-pleading motion or, where no such motion is made, in the answer) is made to the improper venue.
Can venue be waived?
Yes, unlike SMJ, venue can be waived.
What is needed for a complaint in federal court?
The complaint must contain the following:
(1) The grounds for SMJ (doesn’t need to allege grounds for PJ or venue!)
(2) A short and plain statement showing P is entitled to relief
- Sufficient facts to support a PLAUSIBLE CLAIM. To determine plausibility, the judge uses their own reason and common sense.
- Claims dealing with Fraud, Mistake, or Special Damages will require greater detail or specificity.
(3) Demand for relief
What is needed for a Response in federal court?
D must respond by motion OR by answer to avoid default.
- Must do one of these no later than 21 days of service of process (or 60 days if they waived service).
What is a Motion? What types are there?
A request for a court order.
Types:
- A motion for a more definite statement (complaint too ambiguous) (rare).
- Motion to strike (take out redundant or immaterial things in a pleading–can be from either P or D).
- Motion to dismiss (Waived if not in first Rule 12 response: lack of personal jurisdiction; improper venue; improper process; improper service of process) (Not waived: failure to state a claim; failure to join an indispensable party)
