Civil Procedure Flashcards
How is citizenship determined for the three main types of parties?
- Individuals—the (one) state where a party is domiciled (resides with intent to remain)
- Corporations—state(s) where incorporated and the state where principal place of business located
- Partnerships/LLCs—based on domicile of each individual partner/member
When is supplemental jx available (not including exceptions)?
A court with SMJ over a claim may hear other claims if they share a common nucleus of operative fact (CNOF).
When is sup jx avaialble under diversity jurisdiction?
- Counterclaims—compulsory yes; permissive no, unless they meet diversity requirements
- Cross claims—yes, if they arise out of the same transaction or occurrence
- Joinder of parties—claims from permissive joinder cannot destroy complete diversity
When is sup jx unavailable under the FRCP (for Ps)?
Supplemental jurisdiction does not extend to claims by (i) existing plaintiffs against defendants joined as necessary or permissive parties or as a result of impleader or intervention or (ii) plaintiffs joined as necessary parties or as a result of intervention
What are the limitations on removal jx beyond needing federal SMJ?
- Cannot remove if any defendant is a citizen of the state where the claim is filed
- Notice to remove must be filed within one year after action is commenced unless P acted in bad faith
- Notice to remove need include only a plausible allegation that the amount in controversy exceeds $75,000
What are the four bases for PJ?
- Presence—physically present and served with process; cannot be a result of fraud
- Domicile—resides in the state with intent to remain indefinitely, even if temporarily away
- Consent—by authorized agent to accept service of process, failure to timely challenge by motion to dismiss, registering to do business (if required by the state), voluntary appearance, or implied consent (e.g., driving a vehicle in the state, filing a counterclaim)
- Long-arm statute—most states have a statute authorizing PJ over non-residents who engage in activity or cause action to occur within the state; exercise of a long-arm statute is authorized to the extent permitted by the Due Process Clause
What does the Due Process Clause require in order to get PJ over a defendant?
Due process requires sufficient minimum contacts between a party and the forum state so as not to offend traditional notions of fair play and substantial justice.
1. Minimum contacts
* Purposeful availment—purposeful and substantial contacts with the forum state
* Foreseeability—D should reasonably anticipate being taken to court there
* Relatedness—between cause of action and forum state (general or specific PJ)
2. Fair play and substantial justice (fairness)
* Interest of forum state
* Burden on D to appear (convenience)
* Interest in judicial efficiency
* Shared interest of the states in promoting common social policies
What are the methods of service on an individual?
- Personal “in hand” service;
- Leaving it at D’s usual place of abode with a person of suitable age and discretion residing therein;
- Delivering it to a D’s agent; or
- Other method allowed by state law.
How does waiver of service operate?
P may send a form via first class mail or other reliable means, requesting D waive service by returning the form within a reasonable time limit (usually 30 days unless a foreign D); D’s waiver extends the period to serve an answer to 60 days after the request was sent.
Where is venue proper in federal court?
Venue in a federal action is proper in a district in which any D resides (if all Ds reside in the same state) or where a substantial part of the claim arose or property is located. If there is no other option, venue is proper where the D is subject to personal jurisdiction.
How does a court evaluate a motion to transfer?
- If venue is proper, the court can transfer to another district with proper venue based on convenience of the parties and witnesses and in the interest of justice (transferror law applies)
* Forum non conveniens—the court will dismiss an action when the forum would be too inconvenient for the parties and a foreign (not a federal) court is more appropriate - If venue is improper, the court must dismiss or transfer to a district where venue is proper (transferee law applies)
- Forum Selection Clause—followed unless unreasonable and unjust or a result of fraud
What is the Erie doctrine?
A federal court sitting in diversity will apply its own procedural rules but will apply the substantive law of the state in which it sits (if no federal law is on point).
When does federal common law apply in a diversity case?
“Uniquely federal interest” is at stake and a significant conflict exists between that and interest and operation of state law.
When there is a conflict between federal and state law and no federal statute or rule is on point, the court will apply state law if it is outcome determinative, if the state’s interest outweighs the federal interest, or if it would prevent forum shopping
What must a complaint include?
The complaint must include a short and plain statement with the following:
* Grounds for subject matter jurisdiction;
* Statement of the claim and entitlement to relief; and
* Demand for judgment for the relief sought.
When must an answer be filed and what must it include?
Timing—D must respond by answer or motion within 21 days of service of process
Answer—D’s response must admit or deny and raise affirmative defenses or counterclaims
What are the grounds for a motion to dismiss and when can it be filed?
◦ Lack of subject matter jurisdiction (may raise at any time, even on appeal);
◦ Lack of personal jurisdiction (waived if not included in first response);
◦ Improper venue (waived if not included in first response);
◦ Insufficient process or service of process (waived if not included in first response);
◦ Failure to state a claim (may raise at any time through trial); and
◦ Failure to join a necessary party (may raise at any time through trial).
When can a pleading be amended?
As of right
* Allowed once no later than 21 days after serving it if no responsive pleading is required
* If a responsive pleading is required, within 21 days of service of whichever is received first (i.e., the responsive pleading or 12(b) motion)
2. By leave of court when justice requires and if no undue prejudice to the opposing party
What is the relation back doctrine?
An amended pleading will relate back to the date of the original pleading if it involves the same transaction or occurrence and provides notice to the opposing party.
◦ Adding a claim will relate back if it arose out of the same transaction or occurrence
◦ Changing a party must involve the same transaction or occurrence and the party must receive notice within 90 days of filing of complaint and know or have reason to know the action should have been brought against him.
What does signing/certifying a pleading or motion mean?
By signing, the signer certifies the filing was made after reasonable inquiry and for a proper purpose, and certifies the legal basis and evidentiary support of the claim.
When can a party generally be joined?
Unless the party would destroy diversity, a party may join if her claim arises from the same transaction and occurrence and raises a common question of law or fact.
When is a party necessary?
Court cannot afford complete relief without the party;
There is a danger that the party would be harmed without joining; or
There is a risk of an inconsistent judgment or double liability
When is a party indispensable?
1) Extent to which judgment would prejudice the parties in the person’s absence;
2) Extent to which prejudice could be reduced or avoided by protective provisions;
3) Whether a judgment rendered would be adequate; and
4) Whether the plaintiff would have an adequate remedy if action were dismissed for nonjoinder
When is intervention allowed?
- As of right—nonparty has an interest in the subject matter that is not adequately represented and it will be impaired unless the nonparty is allowed to intervene
- Permissive—nonparty’s claim or defense has a common question of law or fact with the pending claim or the nonparty has a conditional right to intervene under federal statute; allowed within the discretion of the court considering prejudice to the parties
- Subject matter jurisdiction must exist for the intervenor’s claim; supplemental jurisdiction does not apply if the case is based on diversity jurisdiction
What are the requirements for a class action?
Commonality—common questions of law or fact support the claim;
Adequacy—the representatives must adequately and fairly protect the class;
Numerosity—the class size is so large that joinder is impracticable; and
Typicality—the claims or defenses of the representative are typical of the class.
