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Bar Exam Del Law > Con Civ > Flashcards

Con Civ Flashcards

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1
Q

Subject Matter Jurisdiction

- State Cts vs. Fed Cts

A 
State = Unlimited SMJ
Fed = Limited SMJ
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2
Q

Pleading SMJ

A

Must be affirmatively pleaded

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3
Q

Can you waive SMJ ?

A

Can NEVER BE WAIVED !

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4
Q

When can you Object to SMJ ?

A

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
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5
Q

2 ways Fed Cts get Jurisdiction

A
  1. Federal Question / arising under Federal Law

2. Diversity

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6
Q

What creates Federal Question Jurisdiction ?

A

The Plaintiff’s claims - must be based on federal law

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7
Q

What creates Diversity Jurisdiction?

A
  1. Plaintiffs and Defendants - Must be from different states (Complete Diversity - either side of the “v”)
  2. Amount in controversy must be over $75,000
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8
Q

Minimal Diversity (only 3 ways) =

A

Any plaintiff diverse from any defendant

ONLY Allowed 3 times:

  • Federal statutory interpleader
  • Class action over $5 million
  • 75 + persons ~ plane crash, etc
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9
Q

When is Diversity determined?

A

Time the complaint Filed only

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10
Q

Citizenship for Individuals =

A

Domiciled (can only be 1 at a time)

Citizen of US
~and ~
Permanent Residence + Intent to remain indefinitely

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11
Q

Citizenship for Aliens =

A

1) Foreign Citizenship = ok

2) Permanent US citizen = state where Domiciled

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12
Q

Weird Citizenships

1) Dead Guy
2) infant / Incompetent
3) Class Action

A

1) Dead guys place
2) Incompetent’s Place
3) Named Representative’s Place

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13
Q

Citizenship Business / Corp =

A

1) Where it’s Incorporated
~and~
2) Principal Place of Business

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14
Q

Diversity - Assignment of Claim ..

A

Assignor State ONLY if he gets Whole Claim

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15
Q

SMJ - Amount 2 ways to get to $75,000+

A
  1. Single claim for over
  2. Multiple claims by ** 1 Plaintiff** add up to more / aggregation
  • can’t add low amount + multiple defendants
  • can’t add multiple low plaintiff claims
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16
Q

Supplemental Jurisdiction - 2+ Def Jointly Liable - how treated for amount ?

A

Treated as 1 Def

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17
Q

Removal is proper ONLY if ..?

A

Case could have originally been brought in Fed Ct

  • Would the Ct have SMJ ?
    Was the Motion Properly granted ??
  • Fed Question or Diversity -
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18
Q

Who Removes Case?

A

Defendant

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19
Q

If more then one Def - Removal consent time -

A

w/in 30 days of Service

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20
Q

Removal of Diversity case - Defendants MUST ..?

A

NOT be citizen of the Removal State

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21
Q

Removal is Automatic …and then ??

A

Fed Ct decides if it was proper

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22
Q

Supplemental Jurisdiction Rule

A

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

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23
Q

Supplemental Jurisdiction -

Is the Ct required to hear it?

A

NO - discretionary

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24
Q

Supplemental Jurisdiction - Diversity cases
- No Supplemental Jurisdiction over
(Plaintiff situations)

A

Multiple Parties +

Diversity Case = hard for Plaintiff to get Sup JDX

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25
Q

Diversity Counter-Claim - does it have to be $75,000+ ??

A

Not Compulsory !

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26
Q

Permissive Counter-Claim : Rule

A

Only if Independently satisfies - Diversity + Amount

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27
Q

Compulsory Counter -Claim

A

Arises form same transaction or occurrence

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28
Q

Cross - Claim / Supplemental Jurisdiction - to qualify ?

A

Same transaction or occurrence as the anchor claim

- the action or the counter-claim

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29
Q

Supplemental Jurisdiction - Diversity ..several Plaintiff’s vs. 1 Def / 1 P = $75,000+ ..then can the other Ps join together voluntarily w/ less $$?

A

Yes - as long as same transaction or occurrence

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30
Q

Supplemental Jurisdiction - Fed Questions

- works as long as …?

A

Additional Claims are related

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31
Q

Supplemental Jurisdiction - Diversity

- works as long as …?

A

Defendants = Broadly / Cross + Compulsory Counter - STOO

Plaintiffs = Narrow / Voluntarily joinder w/ 1 Def

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32
Q

Personal Jurisdiction -

2 Things Needed =

A

1) State Long Arm Statute

2) Due Process

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33
Q

Personal Jurisdiction - Due Process requires what ?

A

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

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34
Q

Can you waive PJdx?

A

Yes - unlike Subj M Jdx

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35
Q

When must you raise Lack of Pers Jurisdiction?

What happens if you don’t ?

A
  • 1st responsive reply
  • It’ll be waived - snooze ya loose !
    (same as Venue)
36
Q

General Personal Jurisdiction
vs.
Specific

A

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

37
Q

Gen Pers JDX - Business

A

Place of Incorp or Principal Place of Business

38
Q

Specific Pers JDX - Business

A

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

39
Q

Personal JDX where / how far -

  1. Fed Impleader
  2. Implead 3rd Party
  3. Join Necessary Party
A
  1. Nationwide
  2. 100 mile Bulge
  3. 100 mile Bulge
40
Q

Service of Complaint - 4 ways (people) / (business)

A
  1. Personal Delivery,
  2. Dwelling w/ person of suitable age + discretion,
  3. Authorized Agent,
  4. Foreign - registered mail

Biz = Officer , Director managing agent , appointed agent

  • 1st Responsive Pleading *
41
Q

Is service by Publication allowed ?

A

Only - In Rem / Quasi In Rem = when unable to ID

42
Q

Venue - failure to object = when + what happens ??

A
  • 1st Responsive pleading
  • If not ~ then Waived
    (same as Personal Jurisdiction)
43
Q

Venue is Proper when (3) –

A
  1. Where ANY defendant resides - as long as ALL live in the same state
  2. Where the Claim Arose - substantial part of the events or property is located
  3. Any where Def subject to Personal JDX
44
Q

Removal - where is Proper Venue?

A

Venue is proper in the Fed Dist Ct where the state ct sits

** Even if it would NOT have been proper originally**

45
Q

Where can you Transfer to ?

A

Wherever Venue is proper or ALL parties consent

46
Q

When can you Transfer (2)?

A
  1. When it is Convenient

2. When it is brought in an Improper Venue - can either be Transferred to Proper or Dismissed

47
Q

Transfer Law used (2)

A

Original Ct was

  1. Proper = use 1st Ct law
  2. Improper = use transfer Ct law
48
Q

Erie Doctrine / Choice of Law

A

Use State Substantive Law
State Statute of Limitations
(Home Team Rules)

49
Q

Erie - Procedure

A

Anything covered in FRCP = Procedural

even if the substance of the claim is covered by state law!

50
Q

Erie - Twin Aims RULE

A

To Avoid:

  1. Forum Shopping - advantages of fed / state court based on laws of each
  2. Inequitable Administration of Justice - situations where different results would occur in fed / state court
51
Q

If the choice of law (Erie) would be Outcome Determinative then which law ?

A
  • State Law to prevent forum shopping
52
Q

What law controls the Jury in Fed Ct ?

A

Fed Law

53
Q

Well Pleaded Complaint contains 3 things

A
  1. Statement of Subject Matter JDX
  2. Showing Entitled to relief
  3. Relief sought
54
Q

Complaints only need Particularity when –

A

It is Special or Specific damages

  • Special Damages
  • Fraud / Mistake
55
Q

Plausible Complaints means -

A
  1. Must not be Conclusory or State Legal Conclusions
    - No factual detail
  2. Disregard those and see if the rest of the claim is Plausible
    - Judge may dismiss obviously unfounded complaint
56
Q

Affirmative Defenses require ?

A

Notice bc it is fair

- Anything with a name

57
Q

Time Allowed for filing - Answer or Amendment

A

21 days

58
Q

2 Types of Amendments

A
  1. As of Right
  2. By Leave of the Court - can be more than 21 days …Must be Freely given !
    (Only not when Prejudice other)
59
Q

Relate back Amendment - SOL - has it run and if so is amendment allowed

A
  • SOL has run - then allowed back if same transaction or occurrence as original pleading
    (Key = Notice that they might be sued)
60
Q

Joinder: Permissive (R 20)
Plaintiffs -
Defendants -

A

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 *

61
Q

Joinder - Compulsory

Defendants (R19)

A

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)

62
Q

Intervention - Plaintiffs

2 Kinds

A
  1. Intervention Of Right - interest in subject matter that would be compromised w/o them
  2. 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
63
Q

Interpleader is ?

2 Kinds

A

Competing Claims to same Property
- Multiple claims on same property -

  1. Rule Interpleader - R 22
  2. Statutory Interpleader -
    $500 / Minimum Diversity / Venue is Anywhere Claimant resides/ Nationwide service
64
Q

Counter Claim - 2 kinds

A

1 - Compulsory - same transaction occurrence / Supplemental Jdx
2 - Permissive - Independent Subj JDX - Fed question or Diversity

65
Q

Cross Claim

A

Must arise out of same transaction occurrence as original or counter claim that is the subject matter of the original action

66
Q

Impleader 2 reasons

A
  1. Contribution - another contributed to the event liability
  2. Indemnification contract - Sub contractor
67
Q

Impleader - Supplemental JDX apply ?

A

Yes - but NOT by Orig Plaintiff against new Defendant

68
Q

Class Actions - 4 requirements

A
  1. Numerous Plaintiffs to be separate
  2. Common question of law or fact
  3. Typicality of claims / claims like the representatives
  4. 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
69
Q

Discovery - Work Product Doctrine Protects ?

A

Documents and things prepared in anticipation of litigation by or for another party - lawyer’s mental impressions

70
Q

Plaintiff’s Vol. Dismissal w/o Prejudice can be anytime before ??

A

Answer
~or~
Motion for Summary Judgement

71
Q

Involuntary dismissal WITH prejudice is every time EXCEPT..(3)

A

1) Lack of JDx
2) Improper Venue
3) Failure to Join Indispensable Party

72
Q

Invol Dismissal - Effects / Standard of Review

A

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
73
Q

Summary Judgement

A

No Genuine Dispute as to any material fact + moving party entitled to JMOL

  • supported by particular materials on the record
74
Q

Civil Trial Right to Jury

A

7th Amend

  • for issues of legal (money) damages
  • will try jury part 1st
  • made w/in 14 days after last pleading served
75
Q

JMOL - evidence

A

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
76
Q

Motion for New Trial (4)

A

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
77
Q

Appeals - Available when and for how long

A

After Final Judgement

30 days

78
Q

Appeals of Interlocutory (during the case) Orders
a) Which 2 As of Right?

b) When Discretionary?
c) Which Court Must approve the appeal

A

a) Injunction or Anything affecting possession of property

b) Any is discretion of court
c) Both Trial and Appeals

79
Q

Forum Non Conveniens – Appeal

A

Collateral Order and can appeal right away

80
Q

Standard of Review:

  1. Question of Law
  2. Findings of Fact
  3. Anything made by discretion (motions)
A
  1. De Novo
  2. Clearly Erroneous
  3. Abuse of Discretion
81
Q

Preclusion - 2 Step Analysis

A
  1. Is there Claim Preclusion (Res Judicata)?

2. Is there Issue Preclusion (Collateral Estoppel) ?

82
Q

Claim Preclusion (Res Judicata) - 3 requirements

A
  1. Judgment on Merits (includes - default, summary, w/ prejudice)
  2. Same Parties (or Successor)
  3. Same Claim / Cause of Action RAISED or SHOULD HAVE Been raised but were not
83
Q

Claim Preclusion (Res Judicata) - Installment sales

A

Can ONLY sue for amount due

- Some terms say all is due w/ 1 missed payment - then can sue for Whole Amount

84
Q

Issue Preclusion (Collateral Estoppel) - 3 requirements

A
  1. SAME Issue of FACT
  2. Issue MUST have been actually DECIDED in 1st Suit (litigated) + decided)
  3. Party to be Precluded - MUST have been party in 1st
85
Q

Joinder of Necessary Party - 3rd Party Defendant -

Over an Objection by Plaintiff - 3 ways authorized

A

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

86
Q

How can one be a Necessary Party??

How to Deal w/ it ?

A

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
87
Q

How can you challenge Service of Complaint?

A

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

Bar Exam Del Law (21 decks)

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