CivPro MBE Flashcards
What is venue?
Among courts that have SMJDX and PJDX, which specific district court(s) may hear the case?
nature of subject matter JDX for state courts
state courts have SMJDX for any kind of case–pretty much assume. Courts of general JDX
Can you waive or consent to lack of subject matter JDX?
No! only can consent to PJDX, but not SMJDX
What is presumption of fed JDX?
Presume NO federal JDX; burden is on pty seeking
When can objection to SMJDX be raised?
at any stage of proceeding, including appeal. However, if not contested, generally cannot contest judgment collaterally on that basis.
What happens if someone applies for fed JDX but matter is already in state court? General rule and exceptions
Generally, EVEN IF already in state court, fed court with JDX must still hear case. UNLESS:
- resolution by state court would eliminate need for fed court to decide fed issues
- interference with complex state reg scheme or matter of great importance to state
- if fed court is being asked to enjoin punishment for criminal, contempt of court, or civil fine
- parallel proceedings that go beyond waste, when fed policy of unitary adjudication of issue (Col. River WCB vs US)
If fed court does not have JDX, what do they so?
MUST transfer to other fed court that action could have been brought when filed. If transferred, treated as if filed on date on which originally filed.
When does fed court have original JDX?
over all civl actions arising under the C, laws, or treaties of US
When does fed court have concurrent vs exclusive JDX?
Concurrent generaly between state and fed, EXCEPT when Congress says fed has exclusive JDX
Can state courts enforce rights created by federal law?
They sure can! Application to federal court is optional. Dowd Box Co.
If trying to get into fed court and CoA is not expressly or implicitly created by fed law, 4 criteria to get fed JDX over a state law claim?
If fed issue is:
- necessarily raised
- actually disputed
- substantial
- capable of resolution in fed court without disrupting state-fed balance Congress has approved
If a state law incorporates a standard of federal law, is the law state or federal for SMJDX purposes?
State law incorporation of a federal std (say a regulation) does not automatically trigger fed JDX. If no federal remedy in the law, fed court may grant JDx or not depending on whether they think the case is important to decide on fed grounds bc of fed issue or interest
Where in the lawsuit does a federal issue need to be raised to get JDX?
on the face of a well-pled complaint—with “well pled” meaning that the court will consider only the necessary elements of the P’s CoA
What pleadings are not considered for fed JDX?
Defenses, answers, counterclaims
what is a declaratory judgment?
When person anticipates a future problem and asks for a dec judgment to resolve uncertainty and avoid lawsuits. Most states have Stus saying this is OK.
Does FdQ JDX have an amount in controversy requirement?
NO IT SURE DOES NOOOOTTT
4 options (one required) and 1 other requirement for diversity JDX
Options:
a. citizens of different states, but a matter of state law
b. US citizens and citizens or subjects of other nation
AND
amount in controversy MORE THAN 75K
with exceptions!
exceptions to diversity JDX (subject matter of state law)
IF PRIMARILY DISPUTED:
- probate of will, admin of estate
- family law:divorce, alimony, custody
When may suit be brought in US fed or state court against sovereign state?
Generally not except:
- commercial activity by state
- tort in US
- seizing property in violation of intl law
what is the requirement of complete diversity?
No P can be from the same state as any D
OR
if any P AND and D are aliens of same country
exception to complete diversity of citizenship requirement (from fed statute)
if property is claimed by more than 1 person, need only 2 adverse claimants of diverse dicizenship, not complete diversity. FEDERAL INTERPLEADER RULE
class action exception to complete diversity requirement
If class action is more than $5m, any P can be diverse with any D to get JDX
death toll exception to complete diversity
Death toll over 75 at one location, then only need 1 p and 1 D to be diverse IF
1. D resides in one state and substantial part of accident was in another state
2. any 2 Ds reside in different states (regardless of official residency)
3. substantial parts of accident took place in different states
HOWEVER, IF:
substantial majority of Ps and D are in same state AND the laws of that state will decide case. NO fed JDX.
When is diversity determined (like, when people are assessed re: where they are domiciled)
At the time the case is filed. Domicile diversity need NOT exist when action arose.
What happens if, after case gets diversity JDX, the Ds move to same state or the amount in controversy falls below $75K?
Does not change court.
How to determine where domicile?
where present and intends to reside for indefinite period
individual can only have one at a time
What elements show domicile has changed?
- establish presence in new place
- manifest intent to remain there for indefinite period
- maybe: exercises rights like voting, pay taxes, owns property, employed in state
- Does NOT count: compulsory change: incarceration, military; intent to move
What if one party is an alien who does not have citizenship ANYWHERE?
An alien present in US and is not resident of foreign country OR
a US citizen whose domicile is foreign country
=NO diversity JDX
What if permanent resident alien in NJ get sued by citizen of NJ?–for diversity JDX
NO diversity JDX. Also no diversity JDX when 2 foreigners sue each other.
how to determine diversity JDx in class action
if over $5M,
home court advantage rule
It prohibits removal under diversity JDX when a defendant is a citizen of the state where the case was filed.
when can you assert a 12b6 “failure to state a claim on which relief can be based” defense/MTD?
In any pleading, or at trial
When can you assert a defense of no personal JDX?
either in a pre-answer motion or in the answer if it’s your first motion
When can you assert improper venue?
either in a pre-answer motion or in the answer if it’s your first motion
When can you assert insufficient service of process? R4
either in a pre-answer motion or in the answer if it’s your first motion
what is specific in personal JDX
minimum contacts with forum state, plus exercise in JDX would comply with FAIR PLAY AND SUBSTANTIAL JUSTICE
How to get general in personam JDX–person and corp/partnership
- D (individual) is domiciled in state (continuous and systemic contacts, essentially at home in state) OR
- service of process in the state qualifies for general JDX–shows they hang out there knowingly
UNLESS someone is there only to answer legal summons, suit or similar
UNLESS procured by force or fraud - consent, expressly or by participation w/o objection
-appoint agent for receiving process
-
CORPORATIONS or other businesses: general in personam JDX is ONLY where corp is “at home” in the state: incorporation, OR at principal place of bus (nerve center)
What is in rem JDX
brought directly against property to determine all interest in property (like forfeiture, condemensiton)
What is quasi in rem JDX
Brought against person in reference to property:
- type 1: determines parties’ interest in property, like quiet title
- type 2: uses property to satisfy claim unrelated tp property (attachment to collateral, ease garnishment)
What is in personal JDX
- suit brought directly against person
- adjudicates personal liability
- like torts
who can deliver service of process (summons and complaint)?
Anyone over 18 and not a party to the suit
do you have to file proof you served served process?
If service was made in US a not waiver, should file proof of service affidavit. however, fsilreu to file doesn’t not affect validity of service.
3 elements for proper venue
Venue is proper in any federal district where (1) any defendant resides, as long as all defendants reside in the same state, (2) a substantial part of the events occurred or a substantial part of the property at issue is located, or (3) any defendant is subject to the court’s personal jurisdiction (if the first two provisions do not apply).
what must an Answer include to avoid waiving?
- admission or denial for each allegation in complaint
2 .motions that have not bee waied - affirmatie defenses
- compulsory counterclaims
what is present with a failure to state a claim?
request that the court dismiss the suit because the nonmovant’s complaint fails to assert a legally cognizable claim OR fails to allege facts that sufficiently support the claim
supplemental jurisdiction: when can it be exercised over state law claims
A federal court may generally exercise supplemental jurisdiction over claims that fall outside of its original subject-matter jurisdiction when those claims share a common nucleus of operative facts with a claim that falls within its original subject-matter jurisdiction.
name 5 methods for getting info in discovery
depositions
interrogatories
request for production
request for admission
physical/mental exams
how many depositions per party under FRCP?
10 per party
interrogatories –how many and response deadline
written questions served on a party
can serve up to 25 questions
written responses within 30d of service
request for production–how, and limits
- served on a party OR nonparty (need a subpoena if nonparty)
- to produce and allow inspections of docs, e-info, items or land
- no limit to #
- writetn response within 30d of service
requests for admission
requests served on other party to admit truth of facts within scope of discovery
- no limit
- written response due within 30d of service
motion for JML (aka directed verdict)–when can be filed?
after nonmoving party presents case but before case submitted to jury
What must a JML motion show to be granted?
Evidence the other side presented is legally insufficient for reasonable jury to find in their favor
When asked for JML, how must court consider the evidence?
- all reasonable inferences from evidence must be draw in nonmovant’s favor
- disregard evidence favorable to nonmoving that jury need not believe
- not consider credibility of witnesses
- not evaluate the weight of the evidence (NO “evidence is meager and therefore no reason jury could…”)
when is the clearly erroneous standard of review used?
when appealing a bench trial, it’s used to review the trial judge’s finding of fact. Will be reversed if no reasonable just could have made such a finding.
standard of review for appeal from judge’s decision to granted directed verdict (JML)
It’s a purely legal issue and will be reviewed de novo
When may a juror be excused mid-case?
By the judge for good cause (family illness, etc)
What is the minimum number of jurors that must return a verdict?
6 jurors, unless the parties stipulate otherwise
What should an appeal court use to decide whether a judge’s ruling on an evidentiary issue should be overturned?
It’s a discretionary ruling, so “abuse of discretion”–high deference. Only reverse If arbitrary or unreasonable
What is the standard for an appeal of a judge’s decision on legal issues (conclusions of law, jury instructions)
de novo review–no deference (because the court can know all the legal issues, unlike seeing factual testimony and evidence)
What is the standard to overturn a trial court’s judgment of a factual issue? (witness credibility, factual determinations/verdict)
If a fact issue in a bench trial: clear error. High deference, reverse only is no reasonable judge would have done it.
If a jury trial? substantial evidence. High deference, reverse only if no reasonable jury could have made finding
what is collateral estoppel?
Issue preclusion. stops relitigation of an issue that was actually litigated, determined, and essential to valid final judgment on the merits of a previous case. Used to stop a big corp from re-arguing in all subsequent trials that they contribute to climate change when a court already found they did.
Under what circumstances can a plaintiff NOT offensively assert collateral estoppel/issue preclusion?
Cannot assert issue preclusion as a P if:
- P could easily have joined first action
- D had iittle incentive to vigorously defend in first action
- second action affords procedural opportunities unavailable in first action
Steps for settling a class action suit once offer is out
- Court provides reasonable notice of proposal to all class members
- Parties file statement identifying agreements made in connection with proposal
- Hearing & opportunity for members to object or opt out (if it is a “common question” class action)
- Court hold hearing, issues finding that proposal is fair, reasonable & adequate
May class members opt out of a class after they have opted in?
In “common question” class actions, court may give members second opportunity to opt out.
3 types of class actions that a court may certify
- Prejudicial risk – separate actions would create a risk of (1) inconsistent decisions regarding the parties or (2) impairing absent class members’ interests
- Common question – common questions of law or fact predominate over individual questions, and a class action is the best method to fairly and efficiently adjudicate the dispute (as seen here)
- Final equitable relief – injunctive or declaratory relief is appropriate because the opposing party’s actions generally apply to the whole class
Subject matter exceptions to federal diversity jurisdiction
Federal courts cannot exercise diversity jurisdiction over cases involving:
- probate matters (eg, authenticating wills, administering estates)
- domestic relations (eg, issuing divorce, alimony, or child-custody decrees)
what is the 100-mile bulge rule?
Fed Ct may get PJDX over a party who is:
• added through impleader or required joinder and
• Served with process within 100 miles of the federal court where the suit is pending—
even if the party is served in another state.
Where is venue proper when suing a resident of a foreign country?
venue is proper in any judicial district if the D is a resident of a foreign country
where is venue proper for removal to state court?
- Federal district where state action was pending
Where is venue proper for suing a federal official in her official capacity?
- Where D resides
- Where substantial events occurred or property is located
- Where plaintiff resides if no real property is involved in suit
venue for suing a foreign government
- Where substantial events occurred or property is located
- In federal district court of Washington, D.C.
proper venue for multiparty, multiform litigation
- Where defendant resides
- Where substantial part of accident occurred
proper venue for a suit under the Federal Tort Claims Act
- Where plaintiff resides
- Where act/omission occurred
where is venue proper, not counting special rules?
ANY ONE OF THESE:
- RESIDENTS where any defendant resides—but only if all defendants reside in the same state
- INCIDENT/SUBJECT where a substantial portion of the events occurred or a substantial part of the property at issue is located OR
- BACKUP: PJDX. where any defendant is subject to the court’s personal jurisdiction—but only if 1 and 2 don’t work
What is the effect of polling the jury after a verdict is read?
If the poll reveals that the verdict is not unanimous, the court can
either order a new trial OR
direct the jury to deliberate further
how Many jurors must return a verdict for it to be valid?
At least 6
AND
unanimous among whoever is there
What is the effect of polling the jury after a verdict?
If the poll reveals that the verdict is not unanimous, the court can
either order a new trial OR
direct the jury to deliberate further
how many days to enter a RMJML after the verdict?
28 days to file the motion after the entry of judgment
What if the amount in controversy is exactly $75,000
No diversity JDX! need one more dollar.
what changes a person’s domicile?
continues until definitively changed because he/she (1) establishes a physical presence in a new place and (2) manifests an intent to reside there indefinitely.
FCRP requires how many jurors in a civil case?
6-12
what law determines whether a federal court can exercise PJDX over an out of state defendant?
The forum state’s long-arm statute
The federal court of a state can exercise PJDX to the same degree as that state
the federal court of Utah District is governed by the Utah Long Arm law
Can a D’s counterclaim based on federal law invoke federal question JDX?
no. Think of it like a defense, which cannot invoke FedQ JDX
Is a plaintiff’s claim the ONLY thing that bring federal question JDX?
No, other things count.
What is minimal diversity and when is it allowed for diversity JDX?
When at least 1 P is diverse from one D
- interpleader: OK as long as any 2 claimants from diff states
- class actions are than $5m: any P diverse from any D
- torts where at least 75 people dies: any P diverse from any D
Whose state citizenship controls for JDX when estate, minor or incopemetne has a guardian suing on behalf?
the minor, incompetent or decedent, not the guardian
(others, the rep counts)
which members of the class in a class action determine domicile
the named or representative class members only (lots of times you don’t even know the members of a class)
How many citizenships can a corp have?
Several.
State(s) or foreign country(its) where incorporated
Principal place of business: where the nerve center and executive offices are, not the factory
What about when suing a partnership
parnterhisp includes, unions, trade associations, etc.
residents of every state in which they have a members
Can you create or defeat diversity by moving?
Yes, so long as you really moved and have a new domicile
Can you get diversity JDX but assigning your claim to someone in another state?
(like debt collection)
Yes, but ONLY if it is a FULL assignment
partial assignments (like the collector get 50% of debt and the assignor retains 50% interest)
What type of allegation supports exceeding $75K for diversity JDX?
Any good faith claim for seeking more than $75K, even if not recovered
Will only dismiss when it’s a legal certainty they won’t get $75K (like a debt of $50K)
When can you aggregate claims to get over the $75K limit for diversity JDX?
Only works between one set of P and D
Cannot aggregate claims across Ps or Ds
TRICKY: if Ds jointly and severally or jointly liable, then one D for this purpose
When does removal apply?
When a P files a case in state court that could have been in federal
So the D tries to REMOVE it to federal court
no such thing as reverse removal
May a P petition for removal of their case to federal court
no, only the defendants. All must consent to removal
How long does a D have to file for removal?
30d after service of process
all D must agree
If P sues 2 Ds over a diversity claim in Ds’ state, can they remove it to federal court?
No, diversity removal only works if P filed in a state in which no D is a citizen (like P’s state)
this is because the reason we have diversity JDX is to protect Ds against being dragged into another, possibly biased or inconvenient, state
Timing of removal in diversity cases
DIVERSITY ONLY
must be accomplished within 1y of commencement action in state court
this happens because complaints change and might qualify for fed SMJDX after being amended
DIFFERENT: D 30d of service of complaint
Exception: if P acted in bad faith, can remove after one year. Example: if P adds a non diverse D, waits a year and then dismisses that D
If removal is proper, it happens
instantly and automatically as soon of notice of removal is required
What if a state thinks removal was improper?
They petition the federal court for remand and IT decides
another way to say Common Nucleus of Operative Fact
same transaction or occurrence
Can the court abstain from diversity removal?
Can it abstain from Supp JDX?
Yes, it’s up to the court to decide, based on practicality
How to get Supp JDX on diversity claim
. 1. Same T&O as anchor claim
- If Ps are asking for supp JDX, HARD. Almost only not covered: claim of P against single D.
(logic: If person wanting supp JDX for a claim, P chose fed JDX and has to live with its limtied nature. Ds, to be fair to them, were dragged in to fed court)
Ex: does a COUNTERCLAIM in a diversity action have to satisfy a $75K requirement?
Answer: generally no, if counterclaim is compulsory (same T&O). Ecettion: unless compulsory counterclaim is by a P. Rare.
Permissive counterclaim is NOT compulsory, not same T&O. Can be heard by diversity court ONLY if separationsep qualifies for diversity JDX (total diversity, 75K)
Crossclaim: must be same T&O as claim or counterclaim. So this will generally qualify for Supp. JDX UNLESS it is by a P.
does a COUNTERCLAIM in a diversity action have to satisfy a $75K requirement?
A
nswer: generally no, if counterclaim is compulsory (same T&O).
Do crossclaims qualify for Supp JDX?
Depends if it is based on a cross claim by Ds (yes, supp, only Ps get the hard rules)
If the cross claims is the rare crossclaim by P, then no–exceptions.
When can a P get in on Supp JDX even with a claim under $75K
P’s supp claims all against ONE D–then it’s not a D who was joined under the rules.
AND
It arises from the same T&O
BUT
cannot join a non-diverse P OR D
Can Supp JDX destroy diversity?
NO because if they destroy diversity they won’t be allowed to be joined at all
