Con Civ Flashcards
Subject Matter Jurisdiction
- State Cts vs. Fed Cts
State = Unlimited SMJ Fed = Limited SMJ
Pleading SMJ
Must be affirmatively pleaded
Can you waive SMJ ?
Can NEVER BE WAIVED !
When can you Object to SMJ ?
ANYONE Can Object to SMJ .. ANYTIME !
- From 1st response to appeal
- Plaintiff can even object if he went to wrong ct
- Court can Object itself too
2 ways Fed Cts get Jurisdiction
- Federal Question / arising under Federal Law
2. Diversity
What creates Federal Question Jurisdiction ?
The Plaintiff’s claims - must be based on federal law
What creates Diversity Jurisdiction?
- Plaintiffs and Defendants - Must be from different states (Complete Diversity - either side of the “v”)
- Amount in controversy must be over $75,000
Minimal Diversity (only 3 ways) =
Any plaintiff diverse from any defendant
ONLY Allowed 3 times:
- Federal statutory interpleader
- Class action over $5 million
- 75 + persons ~ plane crash, etc
When is Diversity determined?
Time the complaint Filed only
Citizenship for Individuals =
Domiciled (can only be 1 at a time)
Citizen of US
~and ~
Permanent Residence + Intent to remain indefinitely
Citizenship for Aliens =
1) Foreign Citizenship = ok
2) Permanent US citizen = state where Domiciled
Weird Citizenships
1) Dead Guy
2) infant / Incompetent
3) Class Action
1) Dead guys place
2) Incompetent’s Place
3) Named Representative’s Place
Citizenship Business / Corp =
1) Where it’s Incorporated
~and~
2) Principal Place of Business
Diversity - Assignment of Claim ..
Assignor State ONLY if he gets Whole Claim
SMJ - Amount 2 ways to get to $75,000+
- Single claim for over
- Multiple claims by ** 1 Plaintiff** add up to more / aggregation
- can’t add low amount + multiple defendants
- can’t add multiple low plaintiff claims
Supplemental Jurisdiction - 2+ Def Jointly Liable - how treated for amount ?
Treated as 1 Def
Removal is proper ONLY if ..?
Case could have originally been brought in Fed Ct
- Would the Ct have SMJ ?
Was the Motion Properly granted ?? - Fed Question or Diversity -
Who Removes Case?
Defendant
If more then one Def - Removal consent time -
w/in 30 days of Service
Removal of Diversity case - Defendants MUST ..?
NOT be citizen of the Removal State
Removal is Automatic …and then ??
Fed Ct decides if it was proper
Supplemental Jurisdiction Rule
Allows Ct to hear cases not normally have jurisdiction over:
- Claims constitute same CASE or CONTROVERSY
= arise out of the same Common Nucleus of Operative Fact
which means - Same Transaction or Occurrence
Supplemental Jurisdiction -
Is the Ct required to hear it?
NO - discretionary
Supplemental Jurisdiction - Diversity cases
- No Supplemental Jurisdiction over
(Plaintiff situations)
Multiple Parties +
Diversity Case = hard for Plaintiff to get Sup JDX
Diversity Counter-Claim - does it have to be $75,000+ ??
Not Compulsory !
Permissive Counter-Claim : Rule
Only if Independently satisfies - Diversity + Amount
Compulsory Counter -Claim
Arises form same transaction or occurrence
Cross - Claim / Supplemental Jurisdiction - to qualify ?
Same transaction or occurrence as the anchor claim
- the action or the counter-claim
Supplemental Jurisdiction - Diversity ..several Plaintiff’s vs. 1 Def / 1 P = $75,000+ ..then can the other Ps join together voluntarily w/ less $$?
Yes - as long as same transaction or occurrence
Supplemental Jurisdiction - Fed Questions
- works as long as …?
Additional Claims are related
Supplemental Jurisdiction - Diversity
- works as long as …?
Defendants = Broadly / Cross + Compulsory Counter - STOO
Plaintiffs = Narrow / Voluntarily joinder w/ 1 Def
Personal Jurisdiction -
2 Things Needed =
1) State Long Arm Statute
2) Due Process
Personal Jurisdiction - Due Process requires what ?
Minimum Contacts w/ def + forum state..
–such that it is consistent w/
Notions of Fair Play and
Substantial Justice –
- Def must have Purposely Availed Himself of the Forum State’s Laws *
> Foreseeable that could be sued there
Can you waive PJdx?
Yes - unlike Subj M Jdx
When must you raise Lack of Pers Jurisdiction?
What happens if you don’t ?
- 1st responsive reply
- It’ll be waived - snooze ya loose !
(same as Venue)
General Personal Jurisdiction
vs.
Specific
Gen = can raise any claim - arises out of the Voluntary Contacts w/ the state = domicile / presence
Specific = ONLY suits that arise out of the Contacts w/ the forum
Gen Pers JDX - Business
Place of Incorp or Principal Place of Business
Specific Pers JDX - Business
Did something OUTSIDE the state and injured someone INSIDE the state b/c they Introduced Goods into the Flow or Commerce ..flowed to the state and hurt the person
~OR~
Activities here in the state
Personal JDX where / how far -
- Fed Impleader
- Implead 3rd Party
- Join Necessary Party
- Nationwide
- 100 mile Bulge
- 100 mile Bulge
Service of Complaint - 4 ways (people) / (business)
- Personal Delivery,
- Dwelling w/ person of suitable age + discretion,
- Authorized Agent,
- Foreign - registered mail
Biz = Officer , Director managing agent , appointed agent
- 1st Responsive Pleading *
Is service by Publication allowed ?
Only - In Rem / Quasi In Rem = when unable to ID
Venue - failure to object = when + what happens ??
- 1st Responsive pleading
- If not ~ then Waived
(same as Personal Jurisdiction)
Venue is Proper when (3) –
- Where ANY defendant resides - as long as ALL live in the same state
- Where the Claim Arose - substantial part of the events or property is located
- Any where Def subject to Personal JDX
Removal - where is Proper Venue?
Venue is proper in the Fed Dist Ct where the state ct sits
** Even if it would NOT have been proper originally**
Where can you Transfer to ?
Wherever Venue is proper or ALL parties consent
When can you Transfer (2)?
- When it is Convenient
2. When it is brought in an Improper Venue - can either be Transferred to Proper or Dismissed
Transfer Law used (2)
Original Ct was
- Proper = use 1st Ct law
- Improper = use transfer Ct law
Erie Doctrine / Choice of Law
Use State Substantive Law
State Statute of Limitations
(Home Team Rules)
Erie - Procedure
Anything covered in FRCP = Procedural
even if the substance of the claim is covered by state law!
Erie - Twin Aims RULE
To Avoid:
- Forum Shopping - advantages of fed / state court based on laws of each
- Inequitable Administration of Justice - situations where different results would occur in fed / state court
If the choice of law (Erie) would be Outcome Determinative then which law ?
- State Law to prevent forum shopping
What law controls the Jury in Fed Ct ?
Fed Law
Well Pleaded Complaint contains 3 things
- Statement of Subject Matter JDX
- Showing Entitled to relief
- Relief sought
Complaints only need Particularity when –
It is Special or Specific damages
- Special Damages
- Fraud / Mistake
Plausible Complaints means -
- Must not be Conclusory or State Legal Conclusions
- No factual detail - Disregard those and see if the rest of the claim is Plausible
- Judge may dismiss obviously unfounded complaint
Affirmative Defenses require ?
Notice bc it is fair
- Anything with a name
Time Allowed for filing - Answer or Amendment
21 days
2 Types of Amendments
- As of Right
- By Leave of the Court - can be more than 21 days …Must be Freely given !
(Only not when Prejudice other)
Relate back Amendment - SOL - has it run and if so is amendment allowed
- SOL has run - then allowed back if same transaction or occurrence as original pleading
(Key = Notice that they might be sued)
Joinder: Permissive (R 20)
Plaintiffs -
Defendants -
Same for both:
Any Number may join if the assert Same Transaction or Occurrence
+
Common question of Law and Fact
*Must Still be = SMJ and Complete Diversity *
Joinder - Compulsory
Defendants (R19)
Necessary Party - must be impleaded if risk of prejudice to absentee
(if feasible - SMJ ~ Diversity + Pers JDX or Bulge)
(if not feasible - continue w/o or dismiss)
Intervention - Plaintiffs
2 Kinds
- Intervention Of Right - interest in subject matter that would be compromised w/o them
- Permissive Intervention - freely given if common question of law + fact
- if Diversity ~ then NO Supplemental JDX
(means = MUST satisfy all of the diversity rules ..amount etc) - Fed Question = There is Supplemental JDX
Interpleader is ?
2 Kinds
Competing Claims to same Property
- Multiple claims on same property -
- Rule Interpleader - R 22
- Statutory Interpleader -
$500 / Minimum Diversity / Venue is Anywhere Claimant resides/ Nationwide service
Counter Claim - 2 kinds
1 - Compulsory - same transaction occurrence / Supplemental Jdx
2 - Permissive - Independent Subj JDX - Fed question or Diversity
Cross Claim
Must arise out of same transaction occurrence as original or counter claim that is the subject matter of the original action
Impleader 2 reasons
- Contribution - another contributed to the event liability
- Indemnification contract - Sub contractor
Impleader - Supplemental JDX apply ?
Yes - but NOT by Orig Plaintiff against new Defendant
Class Actions - 4 requirements
- Numerous Plaintiffs to be separate
- Common question of law or fact
- Typicality of claims / claims like the representatives
- Adequacy of representation
Subj Matter JDX - Representatives must be completely diverse form Def + at least one over $75,000
- over 100 plaintiffs = $5 million + minimal diversity
Discovery - Work Product Doctrine Protects ?
Documents and things prepared in anticipation of litigation by or for another party - lawyer’s mental impressions
Plaintiff’s Vol. Dismissal w/o Prejudice can be anytime before ??
Answer
~or~
Motion for Summary Judgement
Involuntary dismissal WITH prejudice is every time EXCEPT..(3)
1) Lack of JDx
2) Improper Venue
3) Failure to Join Indispensable Party
Invol Dismissal - Effects / Standard of Review
Is a decision on the Merits
- so Res Judicata applies (can’t relitigate Same Claim)
- May be for failure to prosecute
- Standard = abuse of discretion
Summary Judgement
No Genuine Dispute as to any material fact + moving party entitled to JMOL
- supported by particular materials on the record
Civil Trial Right to Jury
7th Amend
- for issues of legal (money) damages
- will try jury part 1st
- made w/in 14 days after last pleading served
JMOL - evidence
View evidence most favorable to other party
- evidence cannot support a verdict for that other party
- Credibility of a witness - if this is the issue then there IS a Dispute thus DENIED
Motion for New Trial (4)
Legal errors / New Evidence / Misconduct (can be based on prejudicial misconduct of a juror)
Verdict is wrong - damages too high - the jury’s verdict was clearly against the weight of the evidence and a miscarriage of justice.
- -> within 28 days after entry of judgment
- -> Unlike a JMOL, a court is not required to view the evidence in the light most favorable to the party opposing the motion, but can weigh the evidence itself
- > a question regarding the overall fairness of the proceedings
- –> It would likely change the outcome
Appeals - Available when and for how long
After Final Judgement
30 days
Appeals of Interlocutory (during the case) Orders
a) Which 2 As of Right?
b) When Discretionary?
c) Which Court Must approve the appeal
a) Injunction or Anything affecting possession of property
b) Any is discretion of court
c) Both Trial and Appeals
Forum Non Conveniens – Appeal
Collateral Order and can appeal right away
Standard of Review:
- Question of Law
- Findings of Fact
- Anything made by discretion (motions)
- De Novo
- Clearly Erroneous
- Abuse of Discretion
Preclusion - 2 Step Analysis
- Is there Claim Preclusion (Res Judicata)?
2. Is there Issue Preclusion (Collateral Estoppel) ?
Claim Preclusion (Res Judicata) - 3 requirements
- Judgment on Merits (includes - default, summary, w/ prejudice)
- Same Parties (or Successor)
- Same Claim / Cause of Action RAISED or SHOULD HAVE Been raised but were not
Claim Preclusion (Res Judicata) - Installment sales
Can ONLY sue for amount due
- Some terms say all is due w/ 1 missed payment - then can sue for Whole Amount
Issue Preclusion (Collateral Estoppel) - 3 requirements
- SAME Issue of FACT
- Issue MUST have been actually DECIDED in 1st Suit (litigated) + decided)
- Party to be Precluded - MUST have been party in 1st
Joinder of Necessary Party - 3rd Party Defendant -
Over an Objection by Plaintiff - 3 ways authorized
1) Complete relief cannot be provided to existing parties w/o that party
2) Disposition in the absence of that Def may impair that Def’s ability to protect his own interest
3) The absence of that party would leave the existing parties subject to a substantial risk of inconsistent or multiple obligations
How can one be a Necessary Party??
How to Deal w/ it ?
Plaintiff injured possibly by more then 1 Def but only brings claim against 1 Def .
- Must Join 3rd Party
- b/c def 2 is NOT LIABLE to Def 1 for anything (for indemnification)
- Def 2 might only be liable to P BUT NOT ANYTHING to Def 1
How can you challenge Service of Complaint?
1st Responsive Pleading
A challenge to service of process - a motion to dismiss for insufficiency of service of process (Rule 12(b)(5))…
It attacks the adequacy of the method used by the plaintiff to give the defendant notice of the action
