Civil Procedure

Question 1

Federal Subject Matter Jurisdiction

Answer 1

a

Question 2

Federal Question Jurisdiction

Answer 2

a. Fed district courts have original jx over all civil actions arising under the Constitution, laws, treaties of the US. Case arises under fed law if fed question appears on fair reading of well-pleaded complaint.
b. Const / fed statutes may create right of action, in which case, fed ct has jx to hear suit.
c. D’s use o ffed law as basis for defense will not create fed ques jx.
d. violation of fed statute does not create fed cause of action unless statute also provides remedy for violation.
e. State ques involving ques of fed law may be sufficient to create fed ques jx; mere presence of fed law in claim is insufficient to create jx - fed law must have substantial impact on state law issue.
f. Admiralty/maritime - fed ct has orig jx.
g. Fed ct has subj-matter jx to review state court conviction of prisoner

Question 3

Well-Pleaded Complaint

Answer 3

To create fed ques jx, fed ques must arise within P’s affirmative claim, regardless of any defense D may raise.

Question 4

Admiralty and Maritime Jx

Answer 4

Fed courts have original jx over admiralty/maritime cases with “maritime nexus,” requiring that incident giving rise to case had “potential disruptive effect on maritime commerce,” and general character of activity shows “substantial relationship o traditional maritime activity.”
Ps may sue maritime claims as common-law claims in state courts, but remedies specific to admiralty courts not available.

Question 5

Writ of Habeas Corpus

Answer 5

Fed ct has subj-matter jx to review state ct conviction of prisoner through writ of habeas corpus in civil cause of action brought agst psn under confinement. This is not an appeal and does not continue crim case agst prisoner or make determination of guilt/innocense; only based on 1) viol of Due Process Clause of 5th and 14th Am, 2) viol of prhibition of compelled self-incrim of 5th and 14th Am, 3) viol of protection agst double-jeopardy of 5th and 14th Am, 4) viol of right not to be subj to cruel and unusual punishment under 8th Am

• Habeas corpus relief only available when state ct’s determination contrary to, or involved unreasonable application of, clearly established fed law as determined by SC of US.
• To seek HC from fed ct, prisoner must have exhausted all remedies available at state level, incl appellate review
• petition for writ of HC must be brought within 1 yr of final judgment of custody (may not file successive petitions w/o approval of US Ct of App)

Question 6

Diversity Jurisdiction

Answer 6

Fed dist cts have original jx over matters involving litigants who are citizens of diff states, US citizens and citizens of foreign country, foreign state and US citizen, if amount in controversy >$75,000.

Complete diversity required (citizens of diff states).

• Must be met only at time suit filed
• Not destroyed if one later moves to same state as other
• Destroyed if complaint amended to add/dismiss party (jx can be affected)

Exception to complete diversity - Class Actions; if >100 people and amt in cont >$5M, minimal diversity needed (any P diverse from any D).

Question 7

Supplemental Jurisdiction

Answer 7

Allows fed dist ct to hear claims over which it would not ordinarily have jx. Permits claim falling outside FQJ and DJ to “piggy back” on claim that does fall within jx.

Fed court has supplemental jx over claims of other Ps who do not meet jx amt for diversity action when at least one P in action does satisfy jx amount of >$75k. Supp jx only exercised if only reason did not qualify for DJ was amt in cont req.

Requirement: Claim arises out of the same transaction/occurrence (common nucleus of operative fact) as claim over which ct has original jx (FQJ/DJ).

May include claims involving joinder/intervention of add’l parties, even if not otherwise fed jx over parties, unless compulsory joinder/intervention would destroy complete diversity.

May not exercise supp jx over parties included thru impleader or permissive joinder.

If non-diverse parties join and no supp jx, ct may dismiss non-diverse parties.

Even if arises from same transaction/occurrence and not trying to circumvent DJ, ct can decline exercise of SJ:

1) state law claim raises novel/complex issue of state law
2) state law claim substantially predominates over claim over which dist ct has jx
3) ct has dismissed all claims over which it had jx
4) exceptional circumstances or compelling reasons to decline jx

Question 8

Amount in Controversy

Answer 8

Fed dist cts have original jx over matters involving litigants who are citizens of diff states, US citizens and citizens of foreign country, foreign state and US citizen, if amount in controversy >$75,000 (with legal certainty; burden on D), excluding costs/expenses of litigation (unless contract or statute that allows winning party to collect atty fees, then included).

Majority - amt in cont determined according to amt sought by P (P’s viewpoint rule); minority - amt not necessarily the amt sought or recovered, but value of consequences that may result from litigation (either viewpoint rule).

Amt in cont may be met by combining / aggregating total claims against D (but not against multiple Ds, unless claims common / undivided). Multiple Ps cannot aggregate claims (but ct may have supp jx).

If suit seeks injunction, amt in cont is either injunction’s worth to P, or cost of injunction to D.

Question 9

Domicile

Answer 9

• Domicile is state of citizenship, or physical presence in state with intent to remain there indefinitely.
• Alien - citizen of foreign country; if perm resid of US, must not be domiciled in same state as another party in the suit
• Corp is citizen of state/foreign country of both 1) incorporation and 2) where its principal place of business is.
  
  • PPB - nerve center / place from which corp’s high-level officers direct, control, coordinate corporation’s activities.
• Unincorporated association (ptshp, LLC) citizenship is where all members of the associations have citizenship.(unless class action, where use PPB)

Question 10

Fed Court Declines Jx

Answer 10

Even if diversity jx requirements met, fed ct may decline jx if situation traditionally viewed as matters for state courts to decide, such as:

1) Probate exception - validity of will, administration of estate
2) Family law exception - divorce, child custody, child support

Question 11

Concurrent Jurisdiction

Answer 11

Fed ct has conc jx over case if it could also have been brought in state court. Both state and fed laws/policies may apply, resulting in conflict of laws.

Question 12

Removal

Answer 12

D has right to remove/shift case from state to fed ct (not P). Case originally brought in state ct may be removed to fed ct if P cld have brought case in fed ct. At least one P’s claim SMJ.

If based on diversity, must be complete diversity. Diversity needs to stand at time of filing and removal. If based on fed law, no need to show diversity.

Fraudulent Joinder Rule - P cannot add another D on purpose to defeat diversity and preventing removal; party claiming this would have burden to prove no possibility P could establish case of action in state court against in-state D, or there is outright fraud in P’s pleading of jx facts. Rule applies to Ds named in original complaint and those joined prior to removal.

D may remove when P suing D in jx not D’s home state, but if home state, no removal allowed.

If fed ques jx, and state claim appended (not supp jx or orig) entire case removed to fed court, but once there, must sever non-removable and remand back to state court.

If multiple Ds, all Ds who have been properly joined and served in case must consent to removal.

Question 13

Removal Procedure

Answer 13

D must file notice in fed dist ct in dist in which action pending. D must include copy of pleadings served on D, notify adverse parties, file copy of notice with state court after which state ct must proceed no further unless case remanded. Fed ct will consider whether removal proper, if not, will remand.

Notice must be filed w/in 30 days of svc of initial pleading. If case not removable at initial pleading and complaint amended to make case removable, then 30 days of service of amended pleading (if joined later, then that D gets 30 days, too). Diversity case cannot be removed >1yr later (unless bad faith from P).

Venue of removed case is district court in same state.

P can bring motion to remand if believes improper removal. Motion to remand must be made within 30 days if defect other than lack of SMJ (objection to SMJ cannot be waived - if any time before final judgment court lacks SMJ, case must be remanded). D has burden to show removal was proper.

Question 14

Dismissal

Answer 14

Court must dismiss action if determined no SMJ. Lack of SMJ may not be waived by parties.

Question 15

Lawsuit Based on Invalid Law

Answer 15

Suit cannot be filed based on invalid law, or it will be dismissed or remanded for amended complaint. Cannot consider pleading subsequent to removal petition. If action remanded and amended complaint filed, Ds can file to remove case to fed ct second time.

Question 16

Territorial Jurisdiction

Answer 16

Authority of ct to bind party to action. 3 ways to establish:

a. fed ct has terr jx over state in which fed dist ct located.
b. fed statute that creates cause of action may provide that fed cts have nationwide jx.
c. 100-mile bulge rule - fed ct may exercise jx over D outside state in which ct is located if D joined under Rule 14 or 19 and served within judicial district of US no more than 100 miles from where summons issued. (D must have type of minimum contacts with bulge that would support psnl jx for ct in the bulge.)

Question 17

Personal Jurisdiction

Answer 17

Court’s authority over a D; must be established separately for each D.

Establishing general jx: 1) domicile/residency, 2) consent, 3) presence of D or agent when served, 4) waiver, 5) long-arm statute (also make sure DP of 14th Am not violated), 6) minimum contacts, 7) substantial business.

3 types: In Personam, In Rem, Quasi In Rem

Question 18

In Personam Jurisdiction

Answer 18

Jurisdiction over parties to lawsuit. D typically present in the jx / forum state, or has significant contacts with state. 1) Specific in personam, 2) general in personam

If judgmt entered w/o psnl jx, void, not entitled to full faith and credit by other court (but preclusive effect on future litigation if D waived psnl jx challenge or challenged it and lost)

Question 19

Specific In Personam Jx (Minimum Contacts)

Answer 19

1) D purposefully availed self to privileges of doing bsns in forum state and received state’s benefits/protections; has minimum contacts to reasonably anticipate being haled / brought to court there; must have targeted forum state as place from which to derive econ benefit (i.e. ads). (Merely putting product in stream of commerce not enough to show purposeful availament, must also have add’l contacts / advertising.)
2) These contacts gave rise to specific cause of action.
3) Jx meets fair play and substantial justice.

Question 20

General In Personam Jx (Domicile)

Answer 20

Continuous and systematic contact with forum state. D has to be domiciled in state. Contacts so systematic and continuous (substantial) rendering D 1) essentially at home in forum state, and 2) it would be fair to hear any action over D in that jx. Typically established through domicile.
(Corps - 1) state of incorporation, and 2) PBB)

Question 21

Long-Arm Statute

Answer 21

Fed court can have psnl jx over D if state ct where fed ct sits has psnl jx; may exercise psnl jx over out-of-state D if authorized by state’s long-arm statute which places limitations on state’s ability to establish psnl jx by setting out the types of contacts that will support jx. Tpically:

a) D transacts bsns w/in state,
b) D contracts to supply goods and svcs anywhere within state, or
c) D owns, uses, possesses real property within state

Constitutionality: just bc state permits psnl jx over party doesn’t mean fed ct may automatically assert - it must also determine whether state law constitutional under Due Process Clause of 14th Am.

Question 22

Due Process Clause of the 14th Amendment

Answer 22

Shall not deprive a person of life, liberty or property without due process of the law.

Question 23

Consent / Waiver

Answer 23

Consent: Implied/express; can be in contract clause. Driving in state implicitly consenting.

Waiver: Act in a way inconsistent with argument that no psnl jx; conduct discovery or other within state.

Non-motorist statute: By driving into another state, you impliedly consent to jurisdiction for cases arising from operation of the motor vehicle, and appoint registrat (DMV) as agent for service of process.

Question 24

Presence / Service

Answer 24

If D physically present in jx while served with process, psnl jx; doesn’t matter if presence temporary, or unrelated to suit. Presence must be voluntary (not coaxed or participating in a legal proceeding).

Question 25

Fair Play / Substantial Justice

Answer 25

Courts must consider 5 factors when determining whether it would be fair to require D to litigate ni forum state:
(Reasonableness / Balancing Test) a) burden on D,
b) interest of P in obtaining relief,
c) int of forum state,
d) efficiency of interstate judicial system, e) shared policy interests of states

Burden on D drives analysis and must be substantial for court to reject psnl jx on basis of fairness.

Question 26

In Rem Jurisdiction

Answer 26

Based on interest of particular piece of property in forum state.

• Real or psnl prop of value in state where fed dist located
• Court seizes (in rem jx cannot begin until court has effective control of asset)
• Owner of prop received proper notice of proceeding.

Question 27

Quasi In Rem Jurisdiction

Answer 27

Where attachment of real/psnl prop part of relief requested, fed ct has jx where prop situated.

• Real/psnl prop of value located in state/territorial limits of fed ct (presence of prop in state provides sufficient minimum contacts)
• D owns property
• prop being attached/seized
• D has been provided proper notice of proceedings

Question 28

Service of Process

Answer 28

a

Question 29

Commencement of Action

Answer 29

• Civil action commenced in fed ct when COMPLAINT filed.
• P presents summons to clerk for sign/seal - if meets reqmts for format of summons, clerk certifies and issues to P for service on D.
• Summons - ct doc informing D that complaint filed that he must respond to or held in default. Subpoena - compel attendance of witness.

Question 30

Summons (Rule 4)

Answer 30

• Signed by clerk
• ID court and parties
• Directed to D
• Name, address of either P or P’s atty if rep’ed
• Notify D of:
  time period within which must appear/file answer AND potential for default judgmt if D fails to appear w/in spec time
• Contain seal of court

Question 31

Service of Process

Answer 31

• P charged with service of process
• Summons must be served with copy of complaint, and unless both served at same time, process improper/incomplete
• Service must occur w/in 90 days of complaint, if not, ct dismisses w/o prejudice (unless P can show good cause why not timely)
• Effected by person at least 18 and not party in suit
• If D person, can personally deliver process to D, leave at usual place of abode with person of suitable age and discretion who resides there, or serve D’s registered agent
• If D corp/ptshp/assoc, can deliver copy of summons and complaint to officer, managing/general agent, any agent authorized by appt or law to receive service of process
• If rules of service not followed by P, case shd be dismissed for insufficiency of service of process.
• D could file motion to dismiss for insufficient service of process; if doesn’t object to insuff svc of process in pre-answer motion or answer, then waives right to object.
• Even if D receives notice of action, still could be dismissed if improper service of process.

Question 32

Waiver of Service

Answer 32

D may waive svc of process upon P’s request (does not waive objections to SMJ or PJ, or venue)

• Request by P must be in writing to D, sent 1st class / reliably, be accompanied by copy of complaint, ID ct where complaint filed, inform D of consequences of waiving svc, state date req sent, allow D reasonable time to return (at least 30 days after sent, of 60 for those outside US), provide D with extra copy of req and prepaid postage.
• D has duty to waive upon request unless D is minor/incompetent, US or agency, state/local/foreign gov’t.
• If D agrees to waive svc, 60 days after waiver to answer complaint (90 days if outside US)
• If D fails w/o good cause to sign/return waiver, expenses of service may be incurred and other reasonable expenses to file motion to collect service expense. Good cause is not that the complaint is unfounded or was in wrong court.
• If rules not followed, case could be dismissed; D may raise objection to service in motion to dismiss, failure to raise to insuff svc of proc in pre-answer motion or answer waives D’s right to object. Ct will dismiss for insuff svc of proc even if D received actual notice by other means.

Question 33

Venue

Answer 33

SMJ - whether suit can be brought in fed ct sys, and PJ what state suit can be brought in. Venue dictates region within particular state / judicial district - where action filed.

Proper venue:

• dist in which D resides (if all Ds reside in same state);
• dist in which substantial part of the events / omissions giving rise to claim occurred or property subj to action located;
• dist where D would be subj to PJ if no other dist in which action cld be brought
• where party consents to venue, PJ in venue, waives objection by failing to raise it
• ct may raise improper venue sua sponte.

Question 34

Residence Determination for Venue

Answer 34

1) Residence of Natural Person
- where domiciled (including aliens admitted to permanent residence)
2) Residence of Entities
- if P, venue proper where P maintains PPB
- if D, venue proper where D subj to PJ
- if corp resides in state with multi districts, venue proper in dist that would have PJ over corp had dist been its own state
3) Non-Res Alien
- any judicial district proper
- multi-D case, disregard NRA when computing venue

Question 35

Transfer of Venue

Answer 35

Fed ct may transfer to any other dist in which it cld have been brought for convenience of parties and witnesses in interest of justice. Does not dismiss action so P may refile, but transfer to appropriate jud dist.

• Substantial deference to P’s choice of forum. D bears burden to prove adequate alt forum exists and P’s choice signif inappropriate.
• Party making motion has burden to prove factors in favor of transfer (calendar congestion) and ct to which transferring has PJ and SMJ
• When action filed in proper venue transferred to diff ct, substantive law applied shd be same law that would have been applied by transferor court.

Question 36

Forum non Conveniens

Answer 36

Motion. Ct may decline to exercise jx and dismiss action if loc seriously inconvenient forum and an adequate alt forum exists in foreign country or diff jx. May not transfer to foreign country, so must dismiss so P can file in diff forum, but may transfer to other fed ct.

If remedy inadequate or unsatisfactory so no remedy at all, then ct may give substantial weight to possibility that bringing suit in foreign forum could result in change in substantive law.

Deference to P’s forum has less weight when P is from foreign country.

If determined that adequate alt forum exists, weigh public/private interests to determine whether to dismiss action under this doctrine.

Question 37

Public and Private Interest Considered for Forum non Conveniens

Answer 37

Public:
- resolving disputes locally and not burdening local ct with distant disputes
- avoiding applic of foreign law if case requires applying law of another jx
- avoid imposition of jury duty for acse that would not have substantial impact on potential jurors; community
Private:
- ease of access to evidence
- cost of witness attendance at trial
- availability of compulsory process
- other factors lessening time and expense of trial

Question 38

State Law in Fed Court

Answer 38

Decision Act, Erie Doctrine, Uncertain Law

Question 39

Decision Act (like Supremacy Clause)

Answer 39

Applicable provisions of fed Const, treaties, constitutional statutes enacted by Congress always take precedence over state law.
Fed ct apply fed law when considering issues involving US Const, and constitutional fed statutes.

Question 40

Erie Doctrine

Answer 40

If state law conflicts with fed law, the fed ct hearing the state law claim (with SMJ) in diversity or supplemental jx must apply substantive law of state in which court sits, and fed procedural rules.

Purpose of Erie Doctrine: 1) avoid forum shopping, 2) avoid inequitable administration of law. Question is, in diversity or supplemental jurisdiction, whether judge in fed court must use state law in deciding issue or is free to ignore state law. Judge MUST apply state law if 1) substantive matter (Erie); procedural would be fed law, 2) where fed rule does not conflict with state law; supremacy (Hanna), 3) procedural matter with substantive effect / outcome determinative (York); may encourage forum shopping, 4) where state holds greater interest (Byrd); be creative - why would it be better to apply fed/state law (uniformity, economy, judicial efficiency, sol v laches, 7th am v judge-based trial selection). Otherwise, apply fed law.

Question 41

Uncertain State Law

Answer 41

If fed ct uncertain about state law or law unclear/unsettled, court may
1) abstain from hearing state law claim,
2) if state law allows, certify question to state ct and obtain ruling on issue,
3) try to predict how state ct wld rule on issue using available/relevant resources
Fed circuit cts of appeal do not give deference to dist cts’ interpretation of unsettled law but review those decisions de novo.

Question 42

Federal Common Law

Answer 42

In geneal, under Erie, no general fed common law. Ct apply law of state in which located. Fed common law now exists to interpret Congressional intent, or meaning of statutes.

Cong made broad rules w/unclear/indefinite standards for cts to interpret. Congressional action will take precedence over common law rules.

Question 43

Federal or Constitutional Interests

Answer 43

Fed cts make fed common law when 1) fed / const interests are at stake, 2) Cong had inadequately addressed situation concerned, and 3) applic of indiv state laws in various jx would create unacceptable levels of diversity / uncertainty.

Fed common law rules adopted when Cong given cts pwr to make comm law rules, or Cong has been silent on question involving fed law.
Fed com law confined to: maritime, foreign relations, comm’l rights/liab of fed govt, and prop rights/liab of fed govt.

Question 44

Erie Chart

Answer 44

1) Is subject matter of the case / claim based on fed question jx? NO
2) Is there a state-stipulated procedure and federally-stipulated procedure? YES
3) Can both procedures be followed simultaneously? NO
4) What is source of federally-stipulated procedure?
- US Const or Fed constitutional statute - use federal procedure
- FRCP? Does rule abridge, modify, enlarge substantive right? YES - State rule; NO - Fed rule.
- Fed Practice / Policy? Does practice conflict with state procedure? YES - Fed practice; NO - use balancing test: is state law at issue integral to substantive rights and obligations at issue? YES - State law; NO - weigh application of state law against countervailing fed considerations and consider likelihood of diff outcomes if fed law applies.
- Fed Common Law? Is fed common law in one of the following areas recognized as suitable bc significant national interest involved: contractual pwrs of US, admiralty/maritime disputes, int’l relations? NO - State procedure; YES - if State/Fed still conflict, if right primarily substantive, apply state, if primarily procedural, apply federal procedure.

Question 45

Types of Pleadings

Answer 45

Under FRCP: complaint, answer to complaint, answer to counterclaim, answer to cross-claim, third-party complaint, answer to third-party complaint, reply to answer (if ordered by court)

Question 46

Rules of Pleadings

Answer 46

1) File complaint to initiate lawsuit
2) State claim for relief (including complaint):
- short, plain stmt of grounds for ct’s jx
- short, plain stmt of claim showing pleader entitled to relief (including sufficient factual matter, stating claim is more than sheer possibility that D has acted unlawfully - Twombly/Iqbal)
- demand for relief sought
3) Inconsistent claims ok in pleadings (i.e. dog didn’t bite, but bit bc was provoked)
4) Party may set out 2+ stmts of claim / defense alternatively / hypothetically, either in single count or defense or separate ones (i.e. hit by D, sues, alleges negligence, but also alleges intentional)
5) Liberally construed - cts directed to ignore technical defects if no substantial right prejudiced; Twombly/Iqbal set hightened standards in pleadings that may affect how construed.
6) Plead claims/defenses in simple, direct, concise manner - no technical pleading forms necessary; should use gen’l terms and omit evidentiary mat’l, but contain sufficient factual matter to set out plausible claim for relief.
7) Some cases involve special matters pleaded with particularity:
- capacity/authority to sue if required to show ct has jx
- fraud/mistake/condition of mind
- condition precedent when denying condition occurred
- time/place when testifying sufficiency of pleading
- special damages

Question 47

Responsive Pleading

Answer 47

Answer is pleading where responding party admits/denies opposing party’s allegations and lists defenses; must admit allegations that are true and deny others; general denial only appropriate when intending in good faith to deny all allegations; if fail to deny, deemed admitted.

Affirmative defenses in answer or reply to counterclaim - relies on factual issues not presented in complaint; not necessarily deny allegation but plead additional facts.

Responsive pleading affirmative defenses:
- accord/satisfaction, arbitration/award, assumption of risk, contributory negligence, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, licenses, payment, release, res judicata, SOF, SOL, waiver

Affirmative defenses that raise objections based on jx or procedural matters may be raised in responsive pleading or preanswer motion. If obj raised by motion, must be before responsive pleading (so known as preanswer motion).

Objections in preanswer motion to dismiss or responsive pleading:
- lack of SMJ, lack of PJ, improper venue, insufficient process, insufficient service, failure to state claim upon which relief may be granted, failure to join indispensible party (under Rule 19)

Motions may be joined but making one motion cannot raise defense/objection available but omitted from earlier motion.

Failure to raise objection in answer/preanswer motion to dismiss is waiver of defense unless objection to SMJ, failure to state claim, or failure to join party.

Motion to dismiss for failure to state claim, join party, or state legal defense may be raised in any pleading, motion, or at trial.

If determined no SMJ, ct must dismiss.

Answer or preanswer motion must be filed within 21 days of service (not including date of svc). If falls on wknd / holiday, then next bsns day.

Question 48

Amended and Supplemental Pleadings

Answer 48

Amendment allowed once as matter of course within 21 days of service of original pleading; if response required then within 21 days after service of responsive pleading or motion to dismiss, motion for more definite statement, motion to strike (whichever sooner).

If not entitled to amendment as matter of course, may amend pleading with written consent of opposing party or with leave of court. Leave must be freely given where justice requires - court will consider: reason for delay in raising matter being raised in amendment, and prejudice to opposing party caused by delay.

If party objects at trial to evid not being within scope of issues raised in pleadings, ct may permit pleadings to be amendment to conform to evid.

Response to amended pleading required if original required one.

Question 49

Doctrine of Relation Back (Amendments)

Answer 49

Relation Back Doctrine - amendment treated as though filed within original pleading. Amendment that adds new claim considered filed on date which orig filed if asserts claim / defense that arose from same conduct, transaction, occurrence as orig claim.

If add new party, considered filed on date as original complaint if 1) assert claim / defense from same conduct, transaction, occurrence, 2) party added received notice of orig action within 90 days of service of claim such that it will not be prejudiced in defending on merits, 3) party knew/shd have known that orig action would have been asserted against it if not for mistake concerning proper party’s identity.

Question 50

Rule 11

Answer 50

Kaplan page 33