Deck 1

Question 1

What is a Long Arm Statute?

Answer 1

A Long Arm Statute is a state law to assert personal jurisdiction over non-residents.

Many state’s Long arm Statutes cover any civil wrong within the state, as long as jurisdiction is Constitutional.

Question 2

What are the Constitutional requirements of a Long-Arm statute?

Answer 2

Under the Constitution, a Long Arm statute must be based on sufficient minimum contacts, showing a defendant purposefully availed himself of forum state laws and knew/should have known activities in the state could lead to bring brought to court.

Question 3

How is fairness considered for Specific Jurisdiction?

Answer 3

Specific Jurisdiction must be in “fair play and substantial justice”

Factors considered are: the burden on the defendant, the interest of the forum state, interest of the plaintiff, interstate efficiency, interstate policy interests.

Question 4

What is general jurisdiction?

Answer 4

General jurisdiction occurs when the claim may not arise from defendant contact with the forum. General JD applies when the defendant is at home in the forum state.

Question 5

How is domicile determined for personal jurisdiction?

Answer 5

Domicile for a person is where they live. Domicile for a business is place of incorporation or principle place of business.

Question 6

What other circumstances can create personal jurisdiction?

Answer 6

Consent, Personally served in forum state, voluntary appearance, contracts can create personal jurisdiction.

Question 7

What is the general requirement of Notice?

Answer 7

Notice must be “reasonably calculated under all the circumstances to apprise interested parties of the action.”

Question 8

What is the difference between legal notice and actual notice?

Answer 8

Actual notice is where the defendant is actually notified. Legal notice may be acceptable in limited circumstances, where the plaintiff takes efforts to actual notice. State laws establish legal notice.

Question 9

Who can serve process and what is required to be included?

Answer 9

Any non-party over the age of 18 may give service of process. Proper process must include the Summons and the Complaint.

Question 10

What is the time limit to give service of process?

Answer 10

Service of process must be within 90 days of filing generally.

Question 11

How can service of process be accomplished?

Answer 11

Service can be personal service, substituted by delivery to place of residence & left with resident of suitable age and competency, or service on defendant’s agent.

Service in accordance with state law (state of service or forum state) is also acceptable.

Question 12

What is the time frame for waiver of service?

Answer 12

A request for waiver of service must be sent via first-class mail and answered within 30 days. A waiver extends the response time from 21 days to 60 days.

Question 13

What is the result of not waiving service on request?

Answer 13

If the defendant refused a request for waiver, the defendant will be responsible for the cost of serving.

Question 14

What is subject matter jurisdiction?

Answer 14

Subject matter jurisdiction gives federal courts the authority to hear a case. Subject matter jurisdiction can be created by Diversity Jurisdiction, Federal Question jurisdiction, and Supplemental jurisdiction.

Question 15

What are the requirements of Diversity Jurisdiction?

Answer 15

Diversity jurisdiction requires diversity of citizenship and amount in controversy over $75k.

Question 16

What is complete diversity?

Answer 16

Complete diversity means that no plaintiff is from the same state as any defendant. For purposes of diversity, domicile is residence with intent to return or remain.

Diversity domicile is for corporations is the state of incorporation or principal place of business. Unincorporated organizations is the domicile of every member.

Question 17

What is included for amount in controversy?

Answer 17

The damages must exceed $75,000 not including interest and costs. The amount actually recovered is irrelevant.

For injunctions or non-monetary claims, amount is based on the value to the plaintiff or loss to defendant.

Question 18

What can be aggregated for amount in controversy?

Answer 18

A single plaintiff can combine claims against a single defendant, whether related or not.
Multiple plaintiffs can aggregate amounts if from a common act or undivided interest.

Question 19

What is a Federal Question for subject matter jurisdiction?

Answer 19

A question that ‘arises under’ federal law, Constitution, or a Treaty. The federal question must be substantial to the federal system.

Question 20

What is the Well-Pleaded Complaint rule and Artful Pleading?

Answer 20

Well-Pleaded Complaint is the rule that the federal question must be on the face of the complaint. Artful pleading is an attempt to gain federal jurisdiction and is prohibited.

The Well-Plead complaint must be the claim, not a counter-claim or defense pleading.

Question 21

What is Supplemental Jurisdiction?

Answer 21

Supplemental jurisdiction allows claims that wouldn’t otherwise meet subject matter jurisdiction when coupled with a claim that has subject matter jurisdiction.

Question 22

What is required for supplemental jurisdiction?

Answer 22

Supplemental jurisdiction requires the claims arise from the same case or controversy and share a common nucleus of operative fact of the claim with original jurisdiction.

Question 23

*If jurisdiction is based on diversity, what is required for supplemental jurisdiction of joinder or intervening parties?

Answer 23

For supplemental jurisdiction, joinder or interpleader, necessary or permissive parties and intervening parties must have independent diversity jurisdiction.

Question 24

When can a court’s discretion decline supplemental jurisdiction?

Answer 24

A court may decline based on: novel or complex state law issues; when the state law claim predominates; when original claims have been dismissed; and, exceptional circumstances.

Question 25

What is removal?

Answer 25

When a claim that qualifies for federal jurisdiction is filed in state court, the defendants can remove the claim to federal court.

Question 26

Who must agree to remove a case to federal court?

Answer 26

All named, properly joined, and served defendants must agree to remove a case generally.

Exceptions for Class Action claims under CAFA.

Question 27

What is the required to file for removal?

Answer 27

Filing within 30 days of service or when the claim becomes removable with the following:
Ground for removal, Signed by all parties (R11), All documents from service, it should be copied to all adverse parties and the state court.

Question 28

What can waive the right to removal?

Answer 28

Proceeding in state court may waive removal. Also, failing to file within 30 days of a change making the case removable, or after 1 year on diversity-based claims.

Question 29

What is the court’s action if removal is improper?

Answer 29

The federal court can remand an improper removal. Motion to remand must be filed within 30 days of notice of removal. If the motion for remand contests subject matter jurisdiction then the district court will decide.

Question 30

When can remands be reviewed?

Answer 30

Remands are only reviewable upon a final judgment.

Question 31

What is the premise behind venue rules?

Answer 31

Venue is based on a sensible and convenient location to litigate. Multiple venues may be proper.

Question 32

Where is a proper venue?

Answer 32

Venue is proper in a district where any defendant resides if all defendants reside in the same state, or a district where a substantial part of the claims occurred.

If neither of the above are available, then any district with personal jurisdiction of the defendant.

Question 33

Where is ‘resides’ for venue considerations?

Answer 33

A natural person resides where domiciled. Corporations reside in any state where it is subject to personal jurisdiction.
Non-citizen person or entity is proper in any judicial district.

Question 34

What is required for a change of venue under 1404(a)?

Answer 34

The new venue must be proper. Courts may transfer to any venue where proper or consented for the convenience of the parties or interest of justice.
The transfer must be to a venue “where [the claim] might have been brought.

Question 35

What are the standards considered for a change of venue?

Answer 35

The availability and convenience of the parties & witnesses.
The location of counsel and of records/books/evidence.
Cost of bringing witnesses.
Possible delay and/or prejudice.
The place of the alleged wrong.
The plaintiff’s choice gets great deference.

Question 36

Which law is applied when venue is transferred to another jurisdiction?

Answer 36

Under Van Dusen, state claims transferred under 1404(a) are governed by the original (transferror) court. This rule doesn’t apply to cases transferred due to an improper venue transfer under 1406.

Question 37

What will the court do if a claim is filed in the wrong (improper) venue?

Answer 37

The court may dismiss a claim for wrong venue on a 12(b)(3) motion or may transfer to a proper venue if in the interest of justice.
Improper venue is waived if not plead in the answer.

Question 38

What is forum non conveniens?

Answer 38

Forum non conveniens can move a case to another court under common law, purely on the court’s discretion that there is an adequate alternate forum.

Question 39

What is the Erie Doctrine?

Answer 39

The Erie Doctrine decides what law is used in diversity or supplemental cases at the federal court. Generally, courts apply Federal procedural laws and state substantive laws.

Question 40

To decide what law applies-

Answer 40

1. If a federal law directly conflicts with state law, federal law will apply.
2. If not 1 and a state law has been clearly determined as substantive, state law will apply.
3. If neither 1 or 2, the court will apply law that is least likely to promote forum shopping and avoids inequitable administration of law.

Question 41

What are some examples of clearly determined substantive state law?

Answer 41

Laws to the elements of a claim or defense, laws about statute of limitations and tolling or relating back, and choice of law rules have been clearly determined as substantive.

Question 42

How many forms of action are there?

Answer 42

There is 1 form of action, the civil action. (FRCP2)

Question 43

What is the purpose of pleadings?

Answer 43

The purpose of pleadings is to provide notice. The court generally accepts factual allegations in pleadings as true.

Question 44

What is required in a complaint filing?

Answer 44

A complaint requires the following:
A short plain statement of jurisdiction grounds,
A short plain statement of claim and entitlement to relief,
A demand for relief sought.

Question 45

What is needed to support a plausible claim?

Answer 45

Sufficient facts are needed to support a plausible claim. They need not be particularly detailed but give the defendant fair notice of the claim and grounds. Conclusory allegations are disregarded as against the well-pleaded complaint.
Plausible means more than possible, but not necessarily probable. The plaintiff must plead what he has the burden of proving.

Question 46

Once the defendant is served, when must an answer be filed?

Answer 46

An answer is required within 21 days of service unless service was waived. A waiver of service extends the response time to 60 days.

Question 47

When does a defendant file any 12(b) defense motions?

Answer 47

12(b) motions can be filed by independent motion prior to the answer or can be included in the answer. Several 12(b) defenses are waived if not filed in the first responsive pleading [12(b)(2-5)]. 
If 12(b) defenses are filed before the answer, the answer must be filed within 14 days of any denial.

Question 48

What are the Rule 12 issues of form?

Answer 48

Issues of form (of complaint) are 12(c), 12(e), and 12(f).

(c) is for judgment on the pleadings, and is only allowed after pleadings are closed.
(e) is for more definite statement, required before response and must be answered within 14 days.
(f) is a motion to strike, required before response to remove defenses or redundant/immaterial claims/facts. 12(f) may be filed by any party.

Question 49

What are the Rule 12 defenses?

Answer 49

Rule 12(b) contains the defenses. 
(1) is subject matter jurisdiction, (2) is lack of personal jurisdiction, (3) is improper venue, (4) is insufficient process, (5) is insufficient service of process, (6) is failure to state a claim upon which relief can be granted, and (7) is failure to join indispensable party.

Question 50

What is the result if additional information or documents is filed with a 12(b)(6) or a 12(c) motion to dismiss?

Answer 50

If additional filings are included with a 12(b)(6) or 12(c), the motion is treated as a Rule 56 motion for summary judgment under 12(d).

Question 51

What is required of the responses in the answer filing?

Answer 51

Each claim or fact filed must be answered with either an admission, denial, or lack of information or belief (treated as a denial).
The answer can not lack info if info is public knowledge or in defendant’s control.

Question 52

What is the result of improper denials in a responsive pleading?

Answer 52

Improper denials result in an admission, unless it is about damages.

Question 53

What other defenses must be included int he answer?

Answer 53

the answer must include any defenses the defendant intends to raise, including affirmative defenses under Rule 8(c).

Question 54

What is a counterclaim?

Answer 54

A counter claim is a claim against the opposing party. Counterclaims may be permissive or compulsory. Compulsory counter claims arrive fro the same transaction or occurrence and are waived if not filed. Compulsory counterclaims also relate back to the original claim. Permissive counterclaims are not waived and must have subject matter jurisdiction.

Question 55

What is a cross claim?

Answer 55

A cross claim is a claim against a co-party. These arise from the same transaction or occurrence or relate to the property in original actions. Cross claims need subject matter jurisdiction and and never compulsory.

Question 56

What is a third-party claim?

Answer 56

A third-party claim is also called interpleader, where a defendant brings a claim of indemnity or contribution against a non-party.

Question 57

When may a plaintiff amend a complaint?

Answer 57

A plaintiff may amend 1 time before a response is filed. or with the leave of the court if justice requires.
Once amended, the defendant must respond in the longer of 14 days or time left on original 21 days.

Question 58

Can a pleading be amended during trial?

Answer 58

Generally amendments are granted during trial if needed to match evidence shown, unless it will result in prejudice.

Question 59

When do amended pleadings relate back?

Answer 59

Amended pleadings relate back when:

1) A statute allows, OR
2) Same conduct/transaction/occurrence relates back, OR
3) Changes a party, IF #2 above and knew or should have known but for mistake would be included.

Question 60

Is a lack of knowledge about a party’s identity a mistake for relation back?

Answer 60

No. Not knowing a party does not qualify to relate back. A party named must be the wrong party sued because of reasonable mistake to identity.

Question 61

What rule establishes that all pleadings must be signed?

Answer 61

R11 says all pleadings, except discovery documents, must be signed. The signature is certifying that after reasonable inquiry and to the best knowledge and belief of the atty, the pleading is not for an improper purpose and legal contentions are warranted.

Question 62

Can a Rule 11 motion be filed with an answer?

Answer 62

No. R11 motions must be filed independently of any other motion, first served under R5 for 21 days before filing.

Question 63

What is the safe harbor period under R11?

Answer 63

The safe harbor period provides the party a R11 motion is against 21 days after service of the motion to correct the action. The safe harbor is not required if the R11 action is sua sponte.

Question 64

When can parties be joined permissively?

Answer 64

Permissive party joinder is allowed when the action is from the same transaction/occurrence and relates to a common question of law or fact.
The court must have subject matter and personal jurisdiction over all parts.

Question 65

What makes a party necessary under Rule 19?

Answer 65

A party is necessary if: Complete relief is not available in the party’s absence, OR a judgment may impair his ability to protect his interest, OR absence may expose a party to multiple or inconsistent obligations.

Question 66

What makes a party indispensable under R19?

Answer 66

A party is indispensable if that party if not feasible and the court dismisses the case. Based on:
Prejudicial to existing or non-joined,
Extent prejudice lessened by protective procedure, shaping relief,
If judgment in absence would be adequate,
If plaintiff could get adequate remedy without party.

Question 67

What is impleader?

Answer 67

An impleader is bringing a third party claim against one for indemnity or contribution. The court must have personal jurisdiction over the impleaded. The right to implead expires after 14 days of answer unless leave granted.
Impleader is never compulsory.

Question 68

Who has a right to intervene under Rule 24?

Answer 68

The court must allow a party who has an unconditional right by statute, OR if the intervenor has an interest not represented by an existing party.

Question 69

What is permissive intervention?

Answer 69

The court has discretion to allow intervention when there is a question of common law or fact AND it won’t delay or prejudice the original claim. The court must have subject matter jurisdiction.

Question 70

What is interpleader?

Answer 70

Interpleader will combine multiple claimants into one suit, with the purpose to avoid multiple or inconsistent judgments. There are two types of interpleader, Rule Interpleader and Statutory Interpleader.

Question 71

What are the differences between statutory and rule interpleader?

Answer 71

Rule Interpleader, under Rule 22, requires complete diversity and amount in controversy over $75k.
Statutory Interpleader only requires diversity between any to claimants, and amount in controversy of $500 or more, with nationwide personal jurisdiction and venue where any claimant resides.