civil procedure Flashcards
what is the minimum contacts test?
- contact
- relatedness
- fairness
what is is the test under contact?
- Purposeful availment: did D reach out to forum state
2. Foreseeability: is it foreseeable that D could be sued here
what is the relatedness test?
did the claim arise from D’s contact with the forum?
whats the difference between specific pj and general pj?
- general pj is not based on D’s contact with forum
2. specific pj is based on D’s contact with forum
how do we tell if there is general pj?
- if d is domiciled in the state
for coporation its where incorporate and principal place of business
when do we use the fairness test?
for specific jurisdiction
what is the fairness test?
we must balance
- d’s interest; must be put at a serious disadvantage (wealth not relative)
- states interest
- p’s interest
what is the constitutional test for pj?
- contact (purposeful availment, forseeability)
- relatedness (specific or general pj)
- fairness (Ds v. states v. P’s interestS)
what is subject matter jurisdiction?
can the federal court hear the case?
what cases can states hear?
generally anything except federal patent infringement, bankruptcy, some federal securities, and antitrust claims.
what two types of cases can the federal government hear?
- diversity of citizenship (or alienage)
2. federal question
what are the two requirements for diversity of citizenship?
- complete diversity, citizens from different states or alienage
- the amount in controversy exceeds $75,000
can a person have more than one domicile at a time?
NO
How do we establish a new domicile?
- physical presence
2. intent to make a permanent home
when do we test for diversity?
when case is filed?
is D.C. considered a state in regards to diversity?
yes
how do we determine citizenship of a corporation?
- every state where incorporated
2. PPB (nerve center) where it coordinates, controls activity
how do we determine citizenship of a partnership or LLC?
all of its member
citizenship of decedents, minors, incompetents?
we dont use representative, but citizenship of decedents, minors, incompetents
in addition to complete diversity, what is the other requirement?
amount in controversey must exceed $75,000
are costs included in the amount in controversy?
no, neither interest
does it matter how much the plaintiff actually wins?
NO, but if under $75,000 P may have to pay costs
can we aggregate P’s unrelated claims?
yes
for joint claims we use what for amount in controversy?
the total amount
what cases can the federal court decline to hear?
- divorce
- alimony
- child support
- probate
what is a federal question case?
when P is enforcing a federal right aka arises under federal law
do we need to test each claim to see if it meets the smj requirements?
yes
if a claim does not meet smj, what happens?
you can invoke supplemental jurisdiction
what is the test for supplemental jurisdiction?
whether they share a common nucleus of operative fact
what is the exception for supplemental jurisdiction?
if its a diversity case brought by plaintiff
unless there is 2 plaintiffs.
does the court have to grant supplemental jurisdiction?
no they cannot
what is removal?
when D removes state case to federal court
who can remove?
only D
When must a D remove?
30 days after service of provess, all D’s who have been served must remove
what cases can be removed?
cases that meet
smj or fq
what are the exceptions to the removal?
diversity cases
D is a citizen of the forum state (instate)
D cannot remove after year
where does the removal have to be?
the same district as the state case.
how many days does the P have to remand?
30 days for non smj related
anytime if court lacks smj
what is the eerie doctrine?
- is there a federal law on point that conflicts with state law? if yes apply fed law due to supremacy clause.
- if no, apply state law if it is substantive? issues that are clearly substantive are -
statute of limitations
elements of a claim or defense
conflict - if not clearly substantive, must determine using balance test.
a. outcome determinative
b. balance of interest
avoid forum shippoing
what is venue?
venue tells us exactly what court we can bring it in
where is venue proper?
where all D’s reside or where substantial part of the calim arose
where does a human reside?
where domiciled
where does a business reside for purposes of venue?
where subject to PJ
where we can transfer venue?
proper venue plus + pj
is transfer of venue mandatory?
no discriminatory
what factors do we have to weigh in transfer of venue?
balance of public and private factors
do courts usually honor forum selection clauses?
yup
what is forum non conveniens?
theres a better court more suited, we dismiss or stay
when is forum non conveniens rejected?
when P is resident of the present forum.
How do give notice to the D he is about to be sued?
service of process of the (1) summons and (2) complaint
who can serve process?
anyone over 18
what are the three methods of service?
- personal service anywhere
- substitute service at D’s usual abode on someone of suitable age and descretion and who resides there (doesnt have to be related)
- service on the D’s agent
what method of service is preferred in federal court?
no preference
what is the significance of waiver?
if D returns waiver form, has 60 days to answer. if he doesnt respond, he has to pay costs of service.
how many days do u have to respond to waiver?
30 days
how many days do you have to respond to interrogatories?
30 days, unless mailed then u have 33
what is in a complaint?
- subject matter jurisdiction
- short and plain statement of claim (facts supporting a plausible claim)
- relief sought
what has to be pleaded with more particularity and specificity?
- fraud
- mistake
- special damages
how long do you have to respond to a complaint?
21 days, if not there is default
how does a D respond to a complaint?
- motion
2. answer
if you waived service how long do you have to respond to complaint?
60 days.
what are the 12b defenses?
12(b)
(1) lack of subject matter jurisdiction
(2) lack of PJ
(3) improper venue
(4) improper process
(5) improper service of process
(6) failure to state a claim
(7) failure to join a indispensible party
what 12b defenses do you lose if you dont raise them in your answer?
12(b)(2)-(5)
in responding to allegations of complaint?
1) admit
2) deny
3) lack info to admit or deny
if you fail to deny an allegation in a complaint what happens?
its deemed admitted, except for damages
what is a counterclaim?
a claim against an opposing party.
what are two different types of counterclaims?
compulsory and permissive
what is a compulsory counterclaim?
arises from same T/O as P’s claim
what is a cross claim?
a claim against a coparty. Must arise from the same T/O as the underlying action.
what is the plaintiffs right to amend?
once 21 days after D serves answer or 12 b response
what is the D’s right to amend?
once 21 days after serving of serving his answer.
if there is no right to amend, what happens?
if justice so requires
amendment after the statute of relations has run?
relates backs, if same conduct, transaction, or occurense
what are the requirements to change a defendant after the statute has run?
- same T/O
- Party knew that he was one who shouldve been sued within 90 days of service
- Knows but for a mistake he wouldve been named originally.
what is rule 11?
when answering lawyer signs and certifies that
- not improper purpose
- warranted by law
- factual contentions are supported by evidence
what is the purpose of a rule 11 punishment?
to deter not punish. no monetary awarded to other party.
if the other party violates rule 11, can you make a motion for sanctions immediately?
No, must serve them and then they have a 21 safe harbor period to avoid sanctions.
what are the initial disclosures during discovery that are required?
- identities of persons who will support your claim
- documents and things that will support your claims
- computation of monetary relief
- insurance coverage
what happens if a party fails to identify someone or documents they were required to identify?
the party cannot use that witness in the case unless substantially justified or harmless
what is an expert witness?
a witness who because of his specialty or skill or training is giving an opinion.
Must the party disclose the expert witness?
yes the identity and written report by EW
Opinion, bases, facts used to form the opinions, EW’s qualifications, how much EW is being paid.
what is the farthest a person can required to travel to have her deposition taken?
100 miles
whats the limit on depositions?
10, no longer than a day of 7 hours, not more thane once.
What are interrogatories?
written questions, to be answered under oath
to whom can you send interrogatories?
only parties
what is the maximum amount of interrogatories allowed?
25
what are the requirements to get a court ordered medical exam?
- good cause
2. health is in question
who can be subjected to a medical exam?
only party’s or someone under legal control or custody
who chooses the licensed person to perform the exam?
the one seeling the order
what is the scope of discovery?
anything that is relevant and proportional to the needs of this case
reasonably calculated to lead to admissible information
what is work product?
material prepared in anticipation of litigation
when is there a qualified work product?
- substantial need
2. not otherwise available
