Federal Civil Procedure

Question 1

What is the two step analysis for Personal Jurisdiction (in state or federal court)?

Answer 1

(1) the exercise of PJ must fall within a state statute; and (2) the exercise of PJ must satisfy the constitution.

Question 2

What does a PJ long arm statute do?

Answer 2

It grants PJ over nonresidents who perform or
cause certain things within the state

Question 3

How do we evaluate the state statute step of PJ on the MEE?

Answer 3

if the statute is provided, just apply it. If the
statute is not provided, just note that you need a state statute and
that you’re going to assume the statutory requirement has been
satisfied. Then move on to the constitutional analysis

Question 4

How do we evaluate the constitutional step of PJ?

Answer 4

Does the defendant have
such minimum contacts with the forum so jurisdiction does not offend traditional notions of fair play and substantial justice?

Question 5

What are the factors we use to determine minimum contacts with the forum in the constitutional test for PJ?

Answer 5

Contact, relatedness, and fairness

Question 6

What factors do we use to determine that there were adequate minimum contacts?

Answer 6

(1) Purposeful Availment. The contact must result from Defendant’s purposeful availment, that is, from her voluntary act.

(2) Foreseeability. After finding that the defendant arguably availed herself of the
forum, we must assess foreseeability: Is it foreseeable that Defendant could be sued in the forum?

Question 7

What do we ask to determine relatedness?

Answer 7

For relatedness, we ask: Does Plaintiff’s claim arise from
or relate to Defendant’s contact with the forum? If the answer is “yes,” the case involves “specific PJ” and we jump to the “fair and reasonable analysis. If the answer is “no,” the only way to proceed is if the court has “general PJ.”

Question 8

When can a court have general PJ over a defendant?

Answer 8

To have general PJ, the defendant either
must be at home in the forum or must have registered to
do business in the state and have appointed an agent for
service of process there. Also if the defendant is served with process while in the state.

Question 9

Where is a human always “at home”?

Answer 9

where she is domiciled.

Question 10

Where is a corporation subject to general PJ?

Answer 10

Where is a corporation always “at home”? (1) The state in which it is incorporated; and (2) the state in which it has its principal place of business (“PPB”)

Question 11

Do you assess fairness for specific PJ or general PJ?

Answer 11

Only specific PJ

Question 12

What do we look to in evaluating fairness in specific PJ?

Answer 12

level of Burden on the D and witnesses; State’s interest in providing a courtroom for its citizens that are being harmed by out of state defendants; Plaintiff’s interest in suing at home

Question 13

What do states require for statutory in personam jurisdiction?

Answer 13

The D…
1. Is present in the forum state at the time of service;
2. Is domiciled in the forum state;
3. Has given express or implied consent to jurisdiction; or
4. Meets the requirements of the forum state’s long arm or other statute.

Question 14

What are the constitutional restraints on in personam jurisdiction?

Answer 14

There must be sufficient minimum contacts so that the exercise of in personam
jurisdiction over the defendant is fair.

1. Contacts
   The contacts must show that the defendant:
   a. Purposefully availed herself of the forum state’s laws; and
   b. Knew or reasonably should have anticipated that her activities in the forum
   made it foreseeable that she may be “haled into court” there.
2. Relatedness
   a. If the claim is related to the defendant’s contact with the forum, a court is
   more likely to find that jurisdiction as to that claim (“specific jurisdiction”) is fair
   and reasonable; or
   b. If the claim is unrelated to the defendant’s contact with the forum, the court
   must have “general jurisdiction” over the defendant, which requires the
   defendant to have registered to do business or be “at home” in the jurisdiction.
3. Fairness
   The court will also consider:
   a. Whether the forum is “so gravely difficult and inconvenient” that the
   defendant is put at a severe disadvantage;
   b. The forum state’s legitimate interest in providing redress for its resident;
   c. The plaintiff’s interest in obtaining convenient and effective relief;
   d. The interstate judicial system’s interest in efficiency; and
   e. The shared interest of the states in furthering social policies.

Question 15

What does notice / process consist of?

Answer 15

(1) a summons, which is formal court notice of suit and the timing
for response; and (2) a copy of the complaint

Question 16

Who can serve process? (different than CA)

Answer 16

Any person who is at least 18 years old and not a party to the action

Question 17

When must process be served?

Answer 17

service must
take place within 90 days of the filing of the complaint. This period
may be extended for good cause.

Question 18

How is processed served on an individual w/in the US?

Answer 18

(1) personal service, (2) substituted service, (3) service on agent, (4) state law approved methods

Question 19

What is personal service?

Answer 19

For personal service, process is given to the defendant personally
anywhere

Question 20

What is substituted service?

Answer 20

Substituted service means serving a substitute for the defendant.
Substituted service can be done only (1) at the defendant’s usual place of abode; (2) with someone of suitable age and discretion; (3)
who resides there.

Question 21

How is service made on a business or organization w/in the united states?

Answer 21

A business or organization may be served by:
* Delivering to an officer (for example, president, treasurer) or a
managing or general agent a copy of the summons and of the
complaint, or
* Using a method permitted by the state: (1) where the federal
court sits or (2) where service is to be made

Question 22

How is service made to a minor or incompetent person in the US ?

Answer 22

Service on a minor or incompetent person may be made only by a
method permitted by the law of the state in which service is to be
made

Question 23

How may service be made on a party in a foreign country?

Answer 23

• As directed by the American court; or
• Method allowed by the foreign country’s law; or
• Method directed by foreign official in response to a letter of request (letter rogatory) from the American court; or
• Personal service in the foreign country (unless prohibited by its
  law); or
• Mail sent by the clerk of the American court, requiring signed
  receipt (unless prohibited by the foreign country’s law).

Question 24

How may a defendant waive service of process?

Answer 24

To request this waiver, the
plaintiff mails the defendant a notice and request to waive service.
The plaintiff must include a copy of the complaint and two copies of a
waiver form, with a prepaid means of returning the form (for example,
self-addressed, stamped envelope). If the defendant executes and
mails the waiver form to the plaintiff within 30 days (60 days if the
defendant is outside the U.S.

Question 25

When a defendant waives service of process, do they waive any defenses (like lack of PJ)?

Answer 25

No

Question 26

When does waiver become effective?

Answer 26

If the defendant signs and mails the waiver form back to the plaintiff,
the plaintiff files the waiver in court; the waiver is effective then.

Question 27

What happens if the D fails to waive service when P requests it?

Answer 27

If the defendant did not have good cause for failing to return
the waiver form, the defendant must pay the costs of service

Question 28

When is a D immune from being served?

Answer 28

If the defendant goes to State X to appear as a party, witness, or
attorney in a different civil case in State X, the defendant cannot be
served with process for a civil case in federal court in State X. The
defendant is immune from service of process.

Question 29

What is SMJ?

Answer 29

Subject matter jurisdiction - court’s power over the case, not the parties

Question 30

What types of cases may be held in federal court?

Answer 30

(1) federal question cases and (2) diversity of citizenship cases

Question 31

Can a lack of SMJ be waived?

Answer 31

No.

Question 32

What are the requirements for diversity / alienage cases?

Answer 32

The case is either
(a) between citizens of different U.S. states
(diversity); or
(b) between a citizen of a U.S. state and a citizen of a foreign
country (alienage); and
* The amount in controversy exceeds $75,000.

Question 33

When is diversity established?

Answer 33

when the case is filed

Question 34

How does a natural person establish a new domicile?

Answer 34

It takes two things: (1) physical presence in
the new domicile and (2) the intent to make that place your home for
the indefinite future.

Question 35

What is the citizenship of a corporation?

Answer 35

A corporation is a citizen of any state or country in which it is incorporated and of the one state or country in which it has its principal place of business (“PPB”).

Question 36

What is the citizenship of an unincorporated association (Partnership, LLC, etc.)?

Answer 36

An unincorporated association takes on the citizenships of all of its
members. If it’s a limited partnership, you include the citizenships of
general and limited partners.

Question 37

What is the citizenship used for class actions?

Answer 37

For class actions, the citizenship of the named representative(s) of
the class is used.

Question 38

What is necessary for a case to be a FQ case?

Answer 38

the plaintiff’s claim
must “arise under” federal law (for example, the claim must arise
under the federal constitution or federal legislation)

Question 39

Where should notice of removal be filed and what else does a party have to do to remove?

Answer 39

The removal statute provides that the notice of removal should be filed in the federal district court that geographically encompasses the state court where the action was filed. A copy must be served on the plaintiff, and another copy should be filed in the state court from which the action is being removed.

Question 40

What level of detail must a claim for fraud or mistake have to survive a motion for for failure to state a claim?

Answer 40

there are certain special pleading rules that require a party to state more detail under special circumstances, including claims that assert fraud or mistake. Under such special circumstances the federal rules specifically require that a plaintiff assert the claim for relief with particularity.

Question 41

Personal jurisdiction (rule)

Answer 41

does the defendant have sufficient
contacts with the forum state so that the exercise of personal jurisdiction is fair and reasonable

Question 42

Issue Preclusion

Answer 42

Issue preclusion prevents a party from re-litigating an issue in a case if that issue was resolved in a prior case. In order for a party to be bound by issue preclusion,
(1) there must have been a final judgment in the prior case;
(2) the same issue must have been actually litigated and determined in the prior case;
(3) the issue must have been essential to the judgment; and
(4) as a due process concern, the party to be bound by the prior judgment must have been a party to the prior action or in privity with a party to the prior action.

Question 43

What standard of review will an appellate court use to review a judges grant of summary judgement ?

Answer 43

When an appellate court reviews a trial court’s grant of a motion for summary judgment, it employs a de novo standard of review.

It uses this standard because the denial or grant of a summary judgment motion is an issue of law. In reviewing a trial court’s decision, the appellate court reviews the same paper record as the trial court and determines for itself whether the movant is entitled to judgment as a matter of law.

Question 44

What standard of review will an appellate court use to review findings of fact in a bench trial?

Answer 44

Findings of fact in bench trials, whether based on oral or other evidence, may not be set aside unless clearly erroneous, and the appellate court must give due regard to the trial court’s opportunity to judge the witnesses’ credibility.