Fed Civ Pro Flashcards
Federal courts have SMJ over ___ under 28 U.S.C. § 1331.
Claims that assert federal law as the basis for the claim and relief sought. Although a plaintiff does not need to cite the specific statutory basis for federal question jurisdiction, she must plead sufficient facts to establish jurisdiction. [F22]
[F16] E.g., although the Federal Declaratory Judgment Act is a federal statute, it merely creates a remedy and thus cannot on its own serve as a basis for subject matter jurisdiction.
In federal court, citizenship of an LLC for diversity purposes is determined by…
…the citizenship of each member of the LLC.
[F22]
A federal court has supplemental jurisdiction over claims…
…arising from the same common nucleus of operative fact as a claim over which the court has proper SMJ. [F22]
How can a case be sent to state court under the federal removal statute?
If the case originated in state court, was removed to federal court, and was remanded to state court due to defective removal.
(Removal only goes from state to federal.)
[F22]
Under Rule ___, a defending party can move to dismiss for failure to join an ___ party.
12 (failure to join party under Rule 19); indispensable.
Under Rule 19:
A party subject to service of process whose joinder will not defeat SMJ must be joined if:
-in its absence, the court cannot accord complete relief among existing parties, or
-that party claims an interest relating to the subject of the action and is so situated that disposing of the action in its absence may impair or impede its ability to protect the interest or may leave an existing party subject to substantial risk of incurring multiple or inconsistent obligations because of the interest.
Not waivable and can be raised at any time including trial.
[F22]
In diversity jx and supplemental jx over state-law claims, federal courts should use ___ model jury instructions.
Virginia. [F22]
On a motion to dismiss, a federal court may consider an unsworn declaration if…
…”I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date). (Signature)”. [F15]
In federal court, D must file a response to a complaint within…
…21 days of service of process (starting the day after service). [J15]
SMJ ___ be waived.
Cannot. Even in state court (and there is no special pleading that must be used). [J16]
Federal Rule of Civil Procedure 35 allows the court to order a party to submit to…
…a physical or mental examination by a suitably licensed examiner when the party’s mental or physical condition . . . is in controversy. [J17]
FRCP 32(a) provides for a trial deposition of a witness who is unavailable…
…who at the time of the trial is dead, is beyond a 100 mile radius from the place of trial or outside the U.S., is unable to attend trial because of “age, illness, infirmity or imprisonment,” and/or the party offering the deposition could not procure the witness’ testimony by subpoena, or other extraordinary reasons.
Under 32(b), depositions are subject to the rules of evidence.
Similar provision in Virginia, applies where witness is not in the state (and other situations) but party against whom depo is being offered must have been present or represented at the depo. [J17]
If after removal to fed court the plaintiff seeks to join additional defendants whose joinder would destroy subject matter jurisdiction, the court…
…may deny joinder, or permit joinder and remand the action to state court. [F17]
Fed removal statute
D can remove a case originally filed in state court to fed. court if the fed. court would have had SMJ (i.e., diversity or FQJ)
Removal rules:
1. Can only remove if the case could have been filed in fed. court
2. Only D can remove and all Ds must agree to removal
3. Can remove only to the fed. district embracing the state court in which the case was originally filed
4. D who files a permissive counterclaim (transaction or occurrence) in state court waives the right to remove
- D must remove within 30 days of service of the first removable document (usually service of process)
- D must file notice in fed. courts. Notice must contain grounds for removal and copies of documents served in state court; must be signed. All parties and state court must receive notice of removal.
No removal if any D is a citizen of the forum state.
If removal is improper, court can remand to state court
- P can move to remand within 30 days
- Lack of SMJ-P can move to remand at any time [F17]
In federal court, a highly waivable Rule 12 defense is preserved as long as…
any such defenses is raised in the FIRST defensive filing within 21 days of service on the defendant.
includes: PJ, venue, insufficient process, insufficient service of process. [J18]
For diversity purposes, a corporation with offices in more than one state is deemed to have its principal place of business…
where the corporation’s high-level officers direct, control, and coordinate the corporation’s activities. [J20]
If diversity jx exists when a case is removed, the plaintiff after removal, by stipulation, by affidavit, or by amendment of the pleadings to reduce the claimed amount below the AIC threshold ___ deprive the federal court of jurisdiction.
Does not. [J20]
A case can be removed to federal court under diversity jx where diversity was not complete but has become complete within…
1 year of the commencement of the action.
Removal must be filed within 30 days of the change. [F19]
For diversity, an individual is a citizen of the state in which they are ___, which is…
Domiciled.
…a) where the individual has a physical residence, and (b) the intent to make the residence his or her permanent physical residence.
May a plaintiff aggregate damages from claims against multiple defendants to meet the amount in controversy requirement for diversity jdx?
Not unless those defendants’ negligence jointly contributed to a single injury, such that they are jointly liable.
How to calculate amount in controversy where an injunction is sought?
Cost of compliance with injunction.
In federal court, can transfer be made to a venue that would have been improper in the first instance?
No.
How to determine venue in federal court?
a. In any district in which any D resides (provided all Ds also reside in the same state),
b. In any district in which a substantial part of the claim arose or in which a substantial part of property that is subiect to the action is situated, or
c. If no district can satisfy a) or b) above, venue is proper in any district in which any D is subject to PJ
Residency for venue purposes:
- People: determined by domicile
- Entity with the capacity to sue or be sued in its common name, whether or not incorporated: resides in any state in which it is subject to PJ.
In fed court, appeal may only be taken from a…
…final judgment, meaning trial court has made an ultimate decision on the merits of the entire case.
There are exceptions (“interlocutory appeals”), most notably for injunctions.
Long arm statute categories:
- Causes tortious injury instate by act or omission instate
- Causes tortious injury instate by act or omission out of state (must regularly solicit or do business in VA or engage in a persistent course of conduct from which it derives substantial revenue from goods used in VA)
- Contracts to supply services or things in Virginia
- Has an interest in, uses or possesses realty in Virginia
- Transacts any business in Virginia
- Causing injury in Virginia by breach of warranty where sale was out of state (where seller could reasonably foresee effect in Virginia and the seller regularly does or solicits business in Virginia or engages in a persistent course of conduct from which it derives substantial revenue from goods used in VA)
- Domestic relations [F20]
The long arm statute provides Personal Jx for causing injury in this Commonwealth to any person by breach of warranty expressly or impliedly made in the sale of goods outside this Commonwealth when…
…the seller could reasonably foresee effect in Virginia and the seller regularly does or solicits business in Virginia or derives substantial revenue from goods consumed in Virginia. [J18]
A personal jx defense is preserved in federal court so long as…
… the defendant files a timely motion to dismiss for lack of personal jurisdiction in the first-filed challenge to the plaintiff’s Complaint, such as in the first motion filed. [F20]
Diversity has two requirements:
(1) complete diversity of citizenship - every party on the plaintiff’s side must be a citizen of a different state from every party on the defendant’s side.
(2) amount in controversy must exceed $75,000 exclusive of interests and costs.
A case will meet the requirement unless the court can say, to a legal certainty, that the plaintiff cannot recover more than $75,000 exclusive of interest and costs. [J21]
Personal Jx has two requirements:
Long arm statute; due process. [J21]
The long arm statute’s provision for business transactions in VA is satisfied if ___ or more transactions occurred in VA.
One.
D does not have to step foot in VA to qualify. [J21]
Due process for Personal Jx requires…
…that the defendant have such minimum contacts with the forum so jurisdiction does not offend traditional notions of fair play and substantial justice.
Contacts analysis considers foreseeability and purposeful availment. Not enough to place product in stream of commerce, must target the forum.
Contacts must be specifically related to the claims unless:
The defendant is “at home” in the forum state: Domiciled state (persons) or the state in which it was incorporated and the state in which it has its principal place of business OR every state in which the company’s activity is so systematic and continuous that the company is at home in the forum (corporations). Also service of process. [J21]
Federal law rules about insufficient pleadings:
Formulaic assertions of facts and conclusions would not suffice to allege a viable complaint.
Complaints lack plausibility when the allegations are consistent with conduct for which defendants would not be liable. [F21]
Under FRCP 32, a party can be sanctioned where electronically stored information that…
should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery. [F21]
Plaintiff could bring a ___ based on newly discovered evidence.
motion for relief or motion to vacate the judgment under FRCP 60(b). [F21]
