Fed Civ Pro Flashcards
PJ Requires satisfaction of
(1) Satisfy State statute AND
• Each state free to have own statutes for PJ. Content not testable for MBE
• Statute reaches full extent of const in most states
(2) satisfy the Constitution (due process clause): Does d have such minimum contacts w/ forum so jurisd does not offend traditional notions of fair play and substantial justice
3 requirements to satisfy const statute of personal jurisd
Does d have such minimum contacts w/ forum so jurisd does not offend traditional notions of fair play and substantial justice
contact
relatedness
fairness
constitutional requirement of pj requires: contact
relatedness
fairness.
define contact & requirements of contact
purposeful avail & foreseeability; must be relevant contact btwn D and forum state
o 1-contact must result from purposeful availment (D’s voluntary act to reach out to forum) . can purposefully avail w/out setting foot in forum => by causing effect in forum
o 2-foreseeability: foreseeable that D could get sued in forum
constitutional requirement of pj requires: contact
relatedness <= define
fairness.
general v. specific jursidx; btwn this conduct and P’s claim. Once we have contact between D and forum,
o ask: does P’s claim arise from D’s contact w/ forum
If yes => Specific Jurisdiction
If no => need general Personal jurisdiction, D can be sued there for a claim that arose anywhere in world
• D must be essentially at home in forum (domiciled) OR
• served w/ process in that state even if not domiciled
o Corporation: corp activity must be so systematic and continues that company is at home in forum. Corps always at home where
1-where incorporated
2-state w/ ppb
constitutional requirement of pj requires: contact
relatedness
fairness <= define
only assessed in SPECIFIC personal jurisdiction cases
o burden on def and witnesses: even if hard for D to travel to forum, unless it puts her at sever disadvantage in litigation. Relative wealth of parties not determinative
o state’ interest: may want to provide courtroom for its citizens who are harmed by out of staters
o Plaintiff’s interest: maybe injured and wants to sue at home
Service: documents required
D entitled to notice that she has been sued.
o Notice must be reasonably calculated under all circumstances to apprise interested parties of the action
o Two documents
(1) Summons: formal notice of suit and time for response; get from clerk of court AND
(2) copy of complaint
Process = Summons + Complaint
when must process be served
w/in 90 days of filing complaint
service on person
• Personal service – papers given to D personally anywhere
• Substituted service – left w/ person at D’s usual palce of abode/home & w/ someone who is of suitable age and discretion who lives there
o D must not reside there every day of year
o Person on whom service made need not be related – just reside there
• Service on D’s agent: ok if receiving service is in scope of agency (i.e. appointment by contract to be agent)
o In federal court, P can use substituted service even if personal service possible
• State law methods of service: can use methods of serving process permitted by state law of state where
o (1) fed court sits OR
o (2) where service is made
service on corporation
• Officer, managing or general agent
• State law methods: can use methods permitted by state law of state:
o (1) fed court sits OR
o (2) where service is made
service of minor or incompetent person
• Use any method permitted by state where service is to be made
foreign service
may use method allowed by international agreement OR if no agreement:
• As Directed by American court
• If reasonably calculated to give notice:
o Method allowed by foreign contry’s law
o Method directed by foreign official in response to letter of request (letter rogatory) from American court
o Personal service in foreign country (unless prohibited by law) OR
o Mail sent by clerk of Am Court requiring signed receipt (unless prohibited by foreign country’s law)
waiver of service
Mail to D notice & request ot waive formal service, icnlduing copy of complaint and two copies of wavier form w/ prepaid menas of returning form
If D executes and amils wavier form to P w/in 30 days, D waives formal service of process
• D does not waive any defense like lack of PJ
• Upon receipt of signed waiver, P files waiver in court & effective upon filing
• If d doesn’t have good cause to waive, must P for personal or sub service
immunity of service
if D present in State X to appear as party, witness, or attorney in different civil case in State X. D can’t be served w/ process for civil case in federal court in state X bc immune from service
equitable relief calculation for diversity of citizenship
as opposed to money damages): either test must be met
• (a) p’s viewpoint: does blocked view decrease value of P’s prop by more than $75k
• (b) D’s viewpoint: would it cost D more than $75k to comply w/ injunction
diversity/alienage requirement (SMJ federal court)
(a) between citizens of diff US states OR (b) between citizen of US state and citizen of foreign country (alienage) AND
No good if any P is a citizen of same state as any D
No good if p and d are both foreign
Alien can’t be citizen of US state for purposes of div of citizenship, but might be alienage
• Special rule: prohibits alienage if green card alien is domiciled in same US state as litigant on other side of case
If P US citizen domiciled out of country, can’t be alienage and no diversity
how to establish new domicile (SMJ - diveristy)
• Establish new domicile:
o 1-intent to remain indefinitely (job, buying house, civic organ member, register to vote, qualifying for instate tuition)
o 2-physical presence
• Test: we test for diversity @ time case is filed, and don’t are what happens to citizenships before or after case is filed
citizenship of unincorporated associations
(partnership, LLC): look to citizenship of all members, even of limited partners
SMJ - federal exclusion
even if requirements for div or alienage case are met, fed courts decline to hear: divorce, alimony, child custody, probate (not all family cases)
removal
: P sues in state court. D would prefer to litigate in fed court. D might be able to remove case to federal court.
o Removal transfers case from state trial court to fed trial court. P can NEVER remove
remand
if removal improper, fed court can remand case back to state court
- P moves to remand to state court
•if p thinks removal was improper for some reason other than lack of SMJ, must move to remand no later than 30 days from removal
o no time limit for moving to remand on lack of SMJ
• if she doesn’t, she waives right to hve case remanded to state court
removal time frame
D must remove case w/in 30 days of service (not filing) of first paper that shows case is removable (normally process)
30 day clock begins anew w/ service of each defendant
how to remove (from state court to federal court)
D files notice of removal in federal court, stating grounds of removal, which means fed SMJ (diversity or FQ)
D must attach all docs served on her in state action. Serves copy of notice of removal on adverse parties.
Then Files copy of notice of removal in state court
Supplement jurisdiction
Div & FQ get cases into fed court. Supplemental jurisdx doesn’t.
Gets claims into federal case even though claims do not invoke diversity of jursidx or FQ
o Starting point: case already in fed court.
supplemental jurisdiction (federal rule) test
non-federal, non-diversity claim can be heard in fed court if it meets the common nucleus test, UNLESS:
1-asserted by P
2-in diversity of citizenship case AND
3-there is not a second P w/ an amount < $75k
discretionary factors for supplemental jurisdx
if state law claim is complex or
state law issues would predominate case or
fed claim is dismissed early on in case
erie doctrine - what issue does it decide
o Diversity of citizenship case in federacl court and judge must decide an issue – does she follow state law or is she free to ignore state law?
erie doctrine approach
Step 1: is there some federal law? (federal constitution or FRCP or Fed rules of evidence) on point that directly conflicts w/ state law?
• If so, apply federal law as long as valid (Supremacy clause)
• FRCP: must be arguably procedural and presumptively valid
Step 2: if no federal law on point, federal judge must apply state law if issue to be determined is substantive. Four issues that are substantive:
• 1-elements of claim or defense
• 2-statute of limitations
• 3- rules for tolling statutes of limitations, and
• 4- conflict or choice of law rules
Step 3: if no fed law on point and issue is not one of four listed, fed judge must determine whether issue is substantive. Factors:
• Outcome determinative: would applying or ignoring state rule affect outcome of case?
o If so, probably substantive rule so use state law
• Balance of interests: does either federal or state system have strong interest in having its rule applied?
• Avoid forum shopping: if federal court ignores state law on issue, will it cause parties to flock to federal court?
o If so, apply state law
basic choices for venue (which federal district)
A-All defendants reside OR
B- District where substantial part of claim arose
Special Rule: if all Ds reside in different districts of the forum state, P can lay venue in the district where any D decides.
when do venue choices not apply
**provisions do nto apply if case was removed from state to fed court. There, venue is fed district embracing state court where action was filed.
• These rules apply to cases initially filed in federal court
** If def doesn’t reside in US, venue is okay in any federal district. If another def does reside in US, venue must be proper as to her in accordance w/ rules above
forum statute 1 (original jurisdx is proper venue)
if original dist is proper venue, that court can order transfer on convenience of parties and witnesses and in interest of justice
o Bc transfer overrides P’s choice of forum (and P chose a proper venue), burden is on person seeking transfer (usually D)
o Factors court looks to in deciding wehther to transfer: public and private interest factors showing that the other court is the center of gravity for this dispute
Public: things like what law applies, what community should be burdened w/ jury service, desire to keep local controversy in a local court
Private: convenience (location of witness and evidence)
• Existence of valid forum selection clause prescribing venue in other federal district establishes that private factors support transfer.
o Choice of Law: when transfer for convenience of parties/witnesses, choice of law is that of transferor court
o Forum-Selection Clause: provision in which parties agree that a dispute between them will be litigated in a particular palce
If one party sues other in violation of forum selection clause, D may seek to enforce clause through motion to transfer (assuming forum selection clause called for litigation in fed court)
• Fed law enforces forum selection clause if not unreasonable. Some states do not. Federal law governs transfer.
• Federal court may enforce forum selection clause even though state court in that state would not
venue statute 2 (original jurisdx improper venue)
if original district is improper venue, court may transfer in interest of justice OR dismiss case
o Transferee applies own choice of law rules and not choice of law for transferor court
forum non-conveniens (relates to venue)
another court that is center of gravity that makes more sense than present court but court does nto transfer to more convenient court (bc foreign or different court system)
Court will dismiss case or hold in abeyance bc different judicial system so transfer impossible. Gives p opp to file suit in other court
requirements for pleadings
1-statement of grounds of SMJ
2-short and plain statement of claim, showing pleader entitled to relief
• Notice pleading (old rule) – only need enough detail of other side to be on notice
• New standard- P must plead enough facts to support plausible claim
o Challenge: 12(b)(6)
o To determine plausibility, judge uses her own experience and common sense
3-demand for relif sought (damages, injunction, declaratory judgment)
3 matters to be stated with particularity with pleadings
1-fraud
2-mistake
3-special damages
ways to respond to complaint
Two ways Under Rule 12
• (1) by motion or
• (2) by answer
To avoid default, must do one of those two things no later than 21 days after being served with process
• Waiver of service: you get 60 dasy from when P mailed you waiver form
o 90 days if waive outside of us
issues of form with pleading
• (12e) motion for more definition statement
o complaint so vague or ambiguous D simply cannot respond. Must make motion before answer
• (12f) motion to strike- asks court to remove redundant or immaterial things from pleadings; any party may move for this
12(b) defenses
- (1) lack of SMJ
- (2) Lack of PJ
- (3) improper venue
- (4) Improper process
- (5) improper service of process -w ay process was erved
- (6) failure to state claim
- (7) failure to join indispensable party
waivable 12b
lack of PJ, improper venue, improper process, improper service of process
o Must be contained in D’s first rule 12 response (motion or answer) or theyr’e waived
rule 11
o When laywer or pro se party signs doc including pleading, she certifies that ot best of her knowledge and belief, after reasonable inquirty
1-Paper is not for improper purpose and
2-Legal contentions are warranted by law (nonfrivolous argument for law change) and
3-Factual contentions and denials of factual contentions have evid support (or are likley to after further investigation)
process of rule 11
If other party violates rule 11, serve motion on other parties but
party in violation has safe harbor of 21 days to fix problem and avoid sanctions
If she doesn’t then motion can be filed for court to decide
Court may raise on own – court issues “order to show cause” why sanctions should not be imposed
• Court must give a chance to be heard before imposing sanction on anyone
Against whom may rule 11 sanctions be ordered
law firm, party, attorney
Gen rule: law firm is jointly responsible with its attorney
Purpose of rule 11 sanctions: deterrence
Non-monetary sanctions: professionalism class
Monetary sanctions: paid to court, not other party
right to amend complaint or answer when
P has right to amend her complaint once within
def has right tot amend her answer once within 21 days of serving his answer
• Can still assert waivable defenses and affirmative defenses not in original answer
