Civil Procedure - Federal Flashcards
Two-Step Analysis of PJ
PJ
- Fall within state statute (long arm, resident motorist act)
- Must satisfy the Constitution (Does the defendant have such minimum contacts with the forum so jurisdiction does not offend traditional notions of fair play and substantial justice? (Contact, Relatedness, and fairness)
What two factors are needed to show minimum contacts in a PJ analysis?
PJ
Purposeful Availment & Forseeablity (Forseeable that D could be sued in forum)
When is there a Specific PJ? (Relatedness)
PJ
The P’s claim arose from or relates to D’s contact with forum. If the claim is related to the D’s contact with the forum, a court is more likely to find Specific PJ
When is there general PJ?
PJ
The defendant must “be at home” in the forum.” If a claim is unrelated to the d’s contact with the forum, the court must have “general” pj over the d, which requires the d be at home in jx.
What extra factor do you consider when the court only has special PJ over a D?
PJ
Fairness ( burden on the d and witnesses, state’s interest, p’s interest)
Notice usually consists of what two documents?
Notice/ Service
A Summons & Copy of Complaint
Who can serve process?
Notice/ Service
at least 18 year old & not a party to the action
When must process be served?
Notice/ Service
within 90 days of filing the complaint
What is personal service?
Notice/ Service
Process is given to the defendant personally ANYWHERE
How does one do substituted service?
Notice/ Service
(1) At D’s* Usual place of abode*
(2) With someone of suitable age and discretion (like 14?)
(3) who resides there
~in fed, sub service okay even if pers. service is possible~
How can you serve a business or organization in the US?
Notice/ Service
(1) Deliver to an officer (pres, etc) or a managing or general agent a copy of summons & complaint. ** OR **
(2) Use a method permitted by the state where fed ct sits or where service is to be made
What must the plaintiff include in the request to waive service?
Notice/ Service
A copy of complaint and two copies of the waiver form, with a prepaid means of returning the form.
How long does a D have to waive service?
Notice/ Service
If D executes and mails the waiver from to P within 30 days (60 for Ds outside of US), she waives service of process.
If a D waives service of process, do they also waive any defenses like lack of PJ?
Notice/ Service
NO.
When is the waiver effective?
Notice/ Service
The day P files the signed waiver form with the court. For timing purposes, this means you act as though the D was served with process on day P filed the waiver form.
What is the penalty for failing to waive service?
Notice/ Service
If D did not have good cause for failing to return the waiver form, D must pay cost of service
What is SMJ ?
SMJ
SMJ is the court’s power over the case.
Can a lack of SMJ be waived?
SMJ
No, it cannot (unlike PJ). If a case does not invoke fed SMJ, the fed ct. cannot hear the case. If it does, the judgment is void.
What are the two requirement for Diversity jurisdiction?
SMJ
(1) The case is between citizens of different US states (or between a citizen of US state and a citizen of foreign country )
(2) the amount in controversy exceeds $75,000
What is the Complete Diversity Rule?
SMJ
Diversity of citizenship jurisdiction does not exist if ANY p is a citizen of the same state as ANY D.
When is the citizenship of the parties determined?
SMJ
When the case is filed (not when the claim arose)
How do you establish where a person is domiciled for purposes of diversity jurisdiction?
SMJ
(1) physical presence in the new domicile
(2) the INTENT to make that place your home for the indefinite future
How do you establish citzenship for a corporation?
SMJ
A corp is a citzen of any state or country in which it is incorporated **AND ** of the ONE state in which is has it principal place of business (PPB)
How do you determine a corportion’s principal place of business?
SMJ
Look for the “nerve center” of the corp. State where the corp’s managers direct, coordinate, and control business activities. Headquarters, usually.
How do you determine an unicorporated association’s citizenship?
SMJ
Takes on the citizenships of all of its members. If its a LP, you included the citizenships of GPs and LPs.
How do you determine the citizenship of Decedents, minors, incompetents?
SMJ
Use their own citizenship; Represenatives citizenship is irrelevant.
How do you determine the citizenship for a class action?
SMJ
Citizenship of name represenative(s)
When may claim amounts be aggregated to meet the $75,000+?
SMJ
Any single plaintiff may aggregate all of her claims against a single defendant. No limit to the number of claims that can be aggregated and claims do not have to be related to each other.
How do you quantify Equitable relief in terms of the amount in controversy requirement?
SMJ
Two Tests (if either met, most courts satisfied):
(1) Look at P’s view point, if granted does the relief requested have a value of more than $75k?
(2) Look at D’s viewpoint , if granted will the relief request by P cost the D more than $75k?
What is Collusive Creation of Diversity?
SMJ
If a party attempts to create diversity by a sham transaction, the courts ignore the transaction and declare that diversity does not exist.
When is there Federal Question Jurisdiction?
SMJ
The P’s claim must “arise under” fed law like the constitution or fed legistation.
What is the well pleaded complaint rule?
SMJ
It is not enough that some fed issue is raised by the complaint. The P’s claim itself must “arise under” fed law.
What claims usually arise only under state law (unless expressly stated other wise in the question)?
SMJ
Regular tort, contract, and property claims.
How is a case removed to Fed Ct?
SMJ
(1) Fed SMJ is necessary
(2) D files notice of removal in** fed ct,** stating grounds of removal (Fed SMJ)
(3) D “promptly” seves a copy of the notice of removal on adverse parties
(4) D files a copy of the notice of removal in state ct.
How long does a D have to remove a case?
SMJ
D must remove no later than 30 days after service
Can plaintiffs remove a case to fed ct?
SMJ
Plaintiff’s can never, never ever, remove. This is true even if the D files a counterclaim against the P that by itself could be heard in fed ct.
Which district court must the Defendant remove to?
The fed district ct that “embraces the state court where the case was filed
What is the deadline for the removal of the diversity jurisdiction case?
SMJ
One year after the case was filed in state court
When is the deadline for a P to make a motion to remand for a reason other than lack of SMJ (like for the one-year limitation on the removal of div. cases)?
SMJ
She must move to remand no later than 30 days after filing of the notice of removal. If she fails to do this, she waives her right to remand.
When is the deadline for a P to make a motion to remand if she believes the removal was improper because the court lacked SMJ?
SMJ
No time limit on ordering remand. REMEMBER SMJ is never waive, and a court without SMJ is powerless to act on the case.
What is supplemental jurisdiction?
SMJ- Supplemental Jurisdiction
Supplemental Jurisdiction is a form of fed SMJ. But it is fundamentally different from div. or FQ. Div. and FQ SMJ get cases into fed ct. Supp. Jx does not. Instead, it gets claims into a federal case.
How should you analyze ANY additional claim for SMJ?
SMJ- Supplemental Jurisdiction
(1), check for Div or FQ jx over the additonal claim first (EXAM TIP: dont just merely state there is supp jx w/o first addressing whether the claim has an idependent basis for SMJ)
(2) Now check for Supp Jx if no diversity or FQ.
How do you determine if an additional claim has supplemental Jx?
SMJ- Supplemental Jurisdiction
Shares a common nucleus of operative fact
Claim arises from the same transaction or occurence.
What is the limitation on the use of supp. Jx in div. cases?
SMJ- Supplemental Jurisdiction
Claims by P’s generally cannot invoke supplemental jurisdiction.
ExceptioN: Multiple P’s and a claim by one of them does not meet amount in controversy requirement.
What is the* Erie* Doctrine? (What is the approach for an exam)?
Law Applied in Fed Ct
When must a fed judge apply state law or federal law?
Step 1. Ask: is there some fed law on point that directly conflicts with state law? If so, apply fed law. (supremacy clause)
Step 2. If no fed law on point, the fed judge must apply state law if the issue is decided to be substanative. (see other flash card)
Step 3. if no fed law on point and the issue is in a grey area, the fed judge must determine if the issue is “subsanative” or “procedural.” (see other flash card for tests)
What issues are usually substantive issues?
Law Applied in Fed Ct
- Conflict or choice of law rules;
- Elements of a claim or defense;
- Statute of Limitations
- Rules for tolling statute of limitations; and
- the standard for granting a new trial b/c the jury’s award was excessive or inadequate
What are the 3 tests a fed judge may consider when determining whether an issue is substantive or procedural? Describe each.
Law Applied in Fed Ct
- Outcome Determinative: Would applying or ignoring a state rule affect the outcome of the case? If so, its probably a substanative
- Balance of Interests: Does either the fed or state system have a stronger interest in having its rule applied?
- Forum Shopping: If the fed ct ignores state law on this issue, will it cause the parties to flock to fed ct?
What are the basis choices under the venue statute?
Venue, Transfer, and Forum Non Convieniens
- Residential venue (where d resides)
- Transactional venue (where a substantial part of the claim arose or property involved in the suit is located)
Where does a human “reside” for purposes of residential venue?
Venue, Transfer, and Forum Non Convieniens
Where they are domiciled
Where does a business “reside” for purposes of residential venue?
Venue, Transfer, and Forum Non Convieniens
A business resides in all districts where it is subject to PJ for the case.
When can a court transfer venue if the original district is a proper venue?
Venue, Transfer, and Forum Non Convieniens
Based on the convience of the parties and the witnesses and in the interests of justice. Burden is on the person seeking the transfer to show this.
When a diversity case is filed in a proper venue but the court order transfer, what choice of law rules must the new court apply?
Venue, Transfer, and Forum Non Convieniens
The new court must apply the choice of law rules of the old court.
What is a forum selection clause? Do cts enforce them?
Venue, Transfer, and Forum Non Convieniens
A FSC is a provision in which parties agree to litigate in a particular place. Fed law enforce FSC if they are not unreasonable.
When can a court transfer venue if the original district is an improper venue?
Venue, Transfer, and Forum Non Convieniens
The court may transfer in the interest of justice or just dismiss the case. Ct. will transfer if possible.
What is Forum Non Conveniens?
Venue, Transfer, and Forum Non Convieniens
Forum Non Conveniens applies when there is another court that is the center of gravity for the case. It is court’s discretionary power to decline to exercise its jurisdiction where another court, or forum, may more conveniently hear a case.
What must a complaint contain? 3 things
Pleadings
- Grounds of SMJ
- Short and plain statement of claim showing p is entitled to relief
- A demand for relief sought
