Federal Civil Procedure

Question 1

A federal court has SMJ only if the claim

Answer 1

arises in federal law (i.e., presents a federal question on the face of the complaint), if the claim arises in diversity, or if the court can exercise supplemental jurisdiction.

Question 2

Although the Federal Declaratory Judgment Act is a federal statute,

Answer 2

it merely creates a remedy and thus cannot on its own serve as a basis for subject matter jurisdiction.

Question 3

Complete diversity requires that

Answer 3

every defendant be of diverse state citizenship from each plaintiff.

Question 4

Diversity SMJ exists when

Answer 4

there is complete diversity and the amount in controversy exceeds $75,000.

Question 5

There must be complete diversity when

Answer 5

when action commenced.

Question 6

For the purposes of Federal Diversity Jurisdiction, a corporation is a citizen of:

Answer 6

Both the state in which it is incorporated and the state in which it has a principal place of business

Question 7

A corporation’s principal place of business is the state where:

Answer 7

the corporation’s high level officers direct, control, and coordinate the corporation’s activities (the “nerve center test.”)

Question 8

Amount in controversy does not include

Answer 8

interest and costs or counterclaims.

Question 9

The amount-in-controversy requirement follows what test?

Answer 9

The amount-in-controversy requirement follows the legal certainty test, under which 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.

Question 10

A federal court sitting in diversity will apply the choice of law rules of the state

Answer 10

in which it is sitting.

Question 11

The Test for Supplemental Jurisdiction

Answer 11

The claim we want to get into federal court must share a “common nucleus of operative fact) with the claim that invoked federal SMJ (the claim that got the case into federal court).

The test is always met when a claim arises from the same transaction or occurrence as the underlying case.

Question 12

Even if the requirements for supplemental jurisdiction are met, the court has

Answer 12

discretion to decline it.

Question 13

Supplemental Jurisdiction Limitation (even though it meets the test)

Answer 13

Limitation applies only in diversity cases (Not FQ cases)

When there are multiple plaintiffs, and the claim by one of them does not meet the amount in controversy requirement

Any other time P has an additional claim in a diversity case, it will not invoke supplemental jurisdiction. So it must satisfy diversity of citizenship or FQ. It cannot invoke supplemental jurisdiction.

Question 14

In Virginia, choice of law provisions in contracts for the sale of goods will be enforceable so long as

Answer 14

the transaction bears a reasonable relationship to the state chosen.

Question 15

A sales contract to sell chemicals which can be used on existing structures is not a

Answer 15

“construction contract” relating to the construction, alternation, repair or maintenance of a building, so Va. Code § 11-4.1 does not invalidate the indemnity clause.

Question 16

The removal statutes provide only for

Answer 16

removing a case filed in state court.

Under the statute, the only way that a case could be sent to state court is (1) if the case originated in state
court, (2) had been removed to U.S. District Court, and (3) was then remanded because of some defect in the removal process.
However, even that is not called “removal” (instead called “remand.”)

Question 17

Rule 12(b) defenses:

Answer 17

(1) lack of subject matter jurisdiction (SMJ);
(2) lack of PJ;
(3) improper venue;
(4) improper process (problem with the papers);
(5) improper service of process;
(6) failure to state a claim;
(7) failure to join indispensable party.

Question 18

If the plaintiff has failed to sue a person who
is subject to service of process and whose joinder will not deprive the court of subject-matter jurisdiction, that person must be
joined as a party if:

Answer 18

[i] In that person’s absence, the court cannot accord complete relief among existing parties, or
[ii] That person claims an interest relating to the subject of the action and is so situated that disposing of the action in the person’s absence may impair or impede that person’s ability to protect the interest, or leave an existing party subject to a substantial risk of incurring multiple or inconsistent obligations because of the
interest.

Question 19

Federal Rule of Civil

Procedure 14 provides that a defending party may, as a third-party plaintiff, serve a complain on a non-party who

Answer 19

is or may be liable to it for all or part of the claim against it.

Question 20

The Erie Doctrine: Step 1

Answer 20

Ask: is there some federal law (like federal constitution or statute or FRCP or FRE) on point that directly conflicts with state law? If so, apply the federal law, as long as it is valid.

FRCP are presumptively valid and are OK if they are “arguably procedural”. None has ever been held invalid.

Question 21

The Erie Doctrine: Step 2

Answer 21

If there is no federal law on point, the federal judge must apply state law if the issue to be decided is “substantive.” Five issues are clearly “substantive”:

(1) Elements of a claim or defense;
(2) statute of limitations;
(3) Rules for tolling statutes of limitations;
(4) Conflict (or choice) of law rules; and,
(5) Standard for whether to grant a new trial because a jury’s damages determination is excessive or inadequate.

Question 22

The Erie Doctrine: Step 3

Answer 22

If there is no federal law on point and the
issue is not one of the five just listed above, the federal
judge must determine whether the issue is “substantive.”
The law is very unclear, consisting of
some factors that no one knows how to weigh:
a. Outcome determinative: Would applying or ignoring
the state rule affect outcome of case? If so,
it’s probably a substantive rule, so should use state
law.
b. Balance of interests: Does either federal or
state system have strong interest in having its rule
applied?
c. Avoid forum shopping: If the federal court ignores
state law on this issue, will it cause parties to
flock to federal court? If so, should probably apply
state law.

Question 23

What two requirements must be met for a VA federal court to exercise personal jurisdiction over a nonresident defendant?

Answer 23

First, one of the grounds under
the Virginia Long Arm statute must be satisfied.

Second, even if the Long Arm is satisfied, the exercise of personal jurisdiction over the nonresident defendant must not violate due process of law.

Question 24

The Virginia Long Arm provides that if the claim in the suit arises from a number of specified activities, then that allows
a court in Virginia to exercise personal jurisdiction over a nonresident defendant. The claim must arise from defendant’s doing one of the following things in Virginia:

Answer 24

a. Causes tortious injury instate by act or omission instate.
b. Causes tortious injury in state by act or omission out of state.
c. Contracts to supply services or things in Virginia.
d. Has an interest in, uses or possesses realty in Virginia.
e. Transacts any business in Virginia. Virginia is a “single transaction” state. PJ is OK if the claim arises even from just one business contact with the Commonwealth.
f. Causing injury in Virginia by breach of warranty where sale was out of state.
g. Domestic relations.

Question 25

Personal Jurisdiction - Due Process

Answer 25

The test here, typically called the “minimum contacts” test, requires that the defendant have sufficient
minimum contacts with the forum (Virginia) that the defendant could reasonably anticipate being sued in the forum.

Purposefully availing oneself of the state puts the defendant on notice of the potential to be sued there.

Question 26

Plaintiff may lay venue in any district where:

Answer 26

All defendants reside OR
A substantial part of the claim rose.

Note: The provisions above do NOT apply if the case was REMOVED from state to federal court. There, venue
is in the federal district embracing the state court where the action was filed. These rules are for cases initially filed in federal court.

*****If all Ds reside in different districts
of the forum state: P can lay venue in the district where any D resides.

Question 27

Where the plaintiff files suit in a proper forum, the presumption

Answer 27

favors the plaintiff’s choice of district.

Question 28

Where does a human reside for venue purposes?

Answer 28

The district where they are domiciled

Question 29

Where does a business (corporation or unincorporated) reside for venue purposes?

Answer 29

All districts where subjected to PJ

Question 30

If the original district is a proper venue, that court can transfer based on

Answer 30

convenience of parties and witnesses and in the interest of justice.

Convenience e.g. where the evidence and witnesses are

Question 31

If the original district is an improper venue, what may the court do?

Answer 31

It may transfer in the interest of justice or dismiss

*usually the court will transfer if possible. When it does,
the transferee applies the choice-of-law rules of the state in which it sits (in a diversity case), and NOT the choice-of-law rules of the transferor district.

Question 32

How does the court analyze a motion to dismiss for failure to state a claim? (FRCP 12(B)(6))?

Answer 32

This is about whether the case belongs in the litigation
stream at all. If P’s complaint fails to state a claim, the
case can be dismissed.

In ruling on this motion, the court ignores P’s legal
conclusions. It looks only at P’s allegations of fact in
the complaint and asks:

Assuming these facts are true, do they state a plausible claim?

If the answer is no—P has not stated a plausible
claim—there is no sense letting the case proceed,
because the law does not recognize a claim on these
facts. The court might let P amend to try to state a
claim, though.

Remember, the judge uses her experience and common
sense to see if the facts state a plausible claim.

In ruling on this motion, does the court look at evidence?
No, looks at the face of the complaint

Question 33

Under Federal Rule of Civil Procedure 37(e),

Answer 33

if 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, the court can enter a variety of sanctions, including the entry of judgment in favor of the party who is deprived of evidence.

Question 34

What happens when a federal court has SMJ on the basis of DJ when the plaintiff filed their original complaint, but the complaint is amended to no longer meet all the requirements for SMJ?

Answer 34

Federal courts have long held that if diversity jurisdiction 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 amount-in-controversy threshold does not deprive the federal court of jurisdiction.

Question 35

Under FRCP 12, is a defendant required to either make a special appearance before or simultaneously with a motion to dismiss for lack of personal jurisdiction?

Answer 35

Under Federal Rule of Civil Procedure 12, a defendant is not required to either make a special appearance before or simultaneously with a motion to dismiss for lack of personal jurisdiction. 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, then the personal jurisdiction defense is preserved. The D, under Rule 12, even raise other issues under other
subparts of Rule 12(b), so long as the Rule 12(b)(2) challenge is included in the initial motion timely filed in response to the Complaint.