Federal Civil Procedure Flashcards
Under Federal Civ Pro Rules, what declaration has the same force and effect as a sworn declaration, verification, certificate, statement, oath, or affidavit in writing as required by any law of the US or rule, regulation, order, or requirement pursuant to law to establish a matter?
An unsworn declaration, certificate, verification, or statement, in writing of such person who wrote in substantially the following form,
(1) In the US, “I declare under the penalty of perjury that the foregoing is true and correct. Executed on (date). (signature).”
FQ JX: must a plaintiff plead the specific federal law that was violated or that the claim arises under?
No, but she must allege sufficient facts giving rise to a claim under federal law. E.g., alleging “discrimination” is insufficient. She must allege the protected class she is apart of, and the discrimination must be based on that classification.
Requirements for Diversity Jurisdiction?
- Complete diversity
- AIC (courts accept allegations of damages unless it appears “to a legal certainty” to be incorrect)
Conflict of Laws: What does virginia’s UCC state about choice of law clauses?
VA. Code § 8.1A-301(b) that “Except as otherwise provided in this section, when a transaction bears a reasonable relation to this state and also to another state or nation the parties may agree that the law either of this state or such other state or nation shall govern their rights and duties.”
Diversity
What is the standard for determing whether the amount in controversy is met?
The test for whether the amount in controversy is met is the legal
certainty test. That test provides that, unless to a legal certainty on reviewing the complaint the district court can say that there is no way the plaintiff can recover more than $75,000 exclusive of interests and costs, the plaintiff will have satisfied the amount in controversy requirement
Removal
Where should a defendant file the notice of removal and when?
Under 28 U.S. Code Section 1446, the defendant(s) shall file in the district court for the district and division within which such action is pending. It should state the grounds for removal. It should be filed within 30 days of service (generally; see (1)).
(1) The notice of removal of a civil action or proceeding shall be filed within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within 30 days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.
Removal
Is filing in the wrong venue a jurisdictional defect? Implications?
No, it is a procedural defect. Therefore, it must be objected to or else it is waived. It can also be cured simply by transferring the case to the proper venue.
Remand
When should a plaintiff object to improper removal?
Within 30 days of removal, or procedural defects will be waived. Jurisdiction defects should be addressed sua sponte obviously.
Joinder Upon Removal
P moves to amend complaint to join a SMJ-destroying D, how should the court address this?
The Motion to Amend would hinge on the court’s discretionary call under 28 U.S.C. § 1447(e), which states: “If after removal 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.”
Often hinges on whether the court thinks that the joinder was fraudulent (meant to destroy SMJ) or not.
Motion for Sanctions
Rule 11 requires the an attorney make the following certifications in submitting any pleading, motion or other pleading: (3)
(1) it is not being presented for any improper purpose, such as
to harass, cause unnecessary delay, or needlessly increase the cost of litigation;
(2) the claims … and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; [and]
(3) the factual contentions are warranted on the evidence or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.
Violating any one can be grounds for sanctions
Motion for Sanctions
What the Rule 11 “safe harbor” provision?
A party cannot simply file a motion for sanctions, as defense counsel did here. Instead, he must serve the motion on opposing counsel prior to filing it and give the party who counsel maintains to have violated any certifications 21 days to withdraw the pleadings.
