Civil Procedure (Emanuel) Flashcards
lack of personal Jurisdiction
improper service
improper venue
defenses that are waived if not asserted in teh answer or in a pre-answer motion against the complaint
D can not remove from state to federal court…
if he is a citizen of the state where the action is pending
MBE questions seem to be set in fed court- check to make sure…
the fed court has SMJ
SMJ=
diversity or fed question
if fed question
fed issue must appear as part of P’s well-pleaded complaint
the fact that D has raised or is expected to raise a defense based on a fed statute doesn’t by itself create fed question jurisdiction
Complete diversity
there has to be at least ONE CLAIM as to which there is complete diversity
Supp J can be added w/o complete diversity
Supp J
in multiclaim scenario - and there isn’t SMJ for the additional claim on a standalone basis- you’ve got to see if Supp J does or doesn’t apply
Situations where SuppJ Does apply:
- compulsory counterclaims
D brings a cc against P. the claim is a state law claim. but is of the same transaction or occurence as the main claim
-additional parties to a compulsory counterclaim
same as above. but bringing in a p2
-impleader of 3rd party Ds for purposes of claims by third party plaintiffs against TPDs and claims by TPDs against TPPs but NOT original P against TPDs
- multiple Ps joined under rule 20.
if same T/o then P2 doesn’t have to meet AIC requirement but DOES have to meet complete diversity
where Supp J DOESNOT apply to additional claim
-impleader of 3rd party D for claims by OG P against TPDs
- rule 20 joinder
can solve the AIC problem but not diversity.
p1 (state A) and p2 (state B) against
d1 (state A) and d2 (state B)
only P1 v D2 and P2 v D1 claims allowed even if only one 75,000
Existence of diversity
moment of filing rule
A partnership is a citizen of
every state where any partner is a member
Relation-back doctrine
relation back to time of filing even if lineup of parties in suit changes?
citizenship of a corporation
- where it has its principle place of business (headquarters) AND
- state which it is incorporated
is not a citizen of the state where it does most business or generates the most revenue
Citizenship of an estate
what counts is the citizenship of the decedent not of the executor or administrator
AIC
a single P can aggregate all her claims against a single D
the standard: “legal certainty”
unless it cna be said that there is a legal certainty that P ‘s Claim(s) as pled cannot result in a recovery of more than 75,000 the case cannot be dismissed for failure to meet the threshold
most tested question on removal
if only source of fed Jurisdiction is diversity–>
D cannot remove if ANY D is a citizen of teh state where the action is pending
remand to state court
P may remand to state court within 30 days of D filing notice of removal
if not, waives right to remand
lack of SMJ is never waived
when to look for a PJ issue
whenever D is being sued in a fed or state court that is not located in D’s home state
two types
specific and general
specific Jurisdiction
type of PJ
when suit involves activites in the forum state
minimum contacts
that D should have reasonably anticipated being HALED INTO COURT THERE. usually this means that d must have PURPOSEFULLY AVAILED ITSELF of the PRIVILEGE OF DOING BUSINESS in teh forum state and RECIEVED THAT STATE’S BENEFITS AND PROTECTIONS. this means that D must in some sense have “targeted” the forum state
“D lacks min contacts with state B, making ir a violation of her federal constitutional 14th amend due process rights for state B to exercise PJ over her”
EXAMPLE:
D is a corporation incorporated in State A, and with its principal place of business (i.e., its headquarters) in
State B. D manufactures a product that it sells and delivers to a customer in France, where the product causes injury
to P while P is travelling in France. P is a resident of State C, and sues D in a product liability action in the State C
state courts.
No matter how much business activity D does in State C (e.g., even if D derives 60 percent of its sales
from deliveries made directly to customers located in State C), the State C courts cannot hear the suit. That’s because:
(1) the suit would have to be based on general jurisdiction (since the suit does not arise out of any conduct by D relating to State C)
and
(2) State C is neither the state in which D is incorporated (which is State A) nor the state in
which D has its principal place of business (which is State B).
uworld
A complaint filed in federal court must contain all of the following:
Caption with the court’s name, a title, the parties, a file number, and a designation as a “complaint”
Short and plain statement showing the grounds of the court’s subject-matter jurisdiction
Short and plainstatement of the claim showing that the plaintiff is entitled to relief
Demand for the relief (ie, remedy) the plaintiff seeks (Choice A)
Signature, address, phone number, and email address of the plaintiff’s attorney (or unrepresented plaintiff) (Choice D)
The statement of the claim need only contain enough facts for a court to plausibly infer that a claim for relief exists. Detailed, specific facts are unnecessary unless the claim alleges fraud or mistake (neither of which applies here).
deponent must answer the questions unless refusing to answer is necessary to:
enforce a court-ordered limitation (eg, an order limiting the deposition’s scope)
present a motion to terminate or limit the deposition (eg, to prevent unreasonable annoyance or embarrassment of the deponent) or
preserve aprivilege (eg, privilege against self-incrimination)—as seen here.
The questioning party may adjourn or complete the deposition before filing a motion to compel a response.
If the deponent is a nonparty, the motion must be filed where the deposition occurred. But if the deponent is a party (as seen here), it must be filed where the lawsuit is pending.
FRCP 60 allows a district court to correct a clerical mistake or a mistake arising from an oversight or omission in a judgment, order, or other part of the record. The court may do so on its own initiative (ie, sua sponte) or pursuant to a party’s motion before an appeal from the judgment or order is docketed—ie, added to the appellate court’s schedule. The appellate court’s leave (ie, permission) is only required after the appeal has been docketed.
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