Federal Civil Procedure Flashcards

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1
Q

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

A

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

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2
Q

What does a PJ long arm statute do?

A

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

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3
Q

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

A

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

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4
Q

How do we evaluate the constitutional step of PJ?

A

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

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5
Q

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

A

Contact, relatedness, and fairness

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6
Q

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

A

(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?

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7
Q

What do we ask to determine relatedness?

A

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.”

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8
Q

When can a court have general PJ over a defendant?

A

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.

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9
Q

Where is a human always “at home”?

A

where she is domiciled.

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10
Q

Where is a corporation subject to general PJ?

A

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”)

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11
Q

Do you assess fairness for specific PJ or general PJ?

A

Only specific PJ

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12
Q

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

A

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

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13
Q

What do states require for statutory in personam jurisdiction?

A

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.

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14
Q

What are the constitutional restraints on in personam jurisdiction?

A

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.
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15
Q

What does notice / process consist of?

A

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

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16
Q

Who can serve process? (different than CA)

A

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

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17
Q

When must process be served?

A

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

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18
Q

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

A

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

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19
Q

What is personal service?

A

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

20
Q

What is substituted service?

A

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.

21
Q

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

A

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

22
Q

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

A

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

23
Q

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

A
  • 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).
24
Q

How may a defendant waive service of process?

A

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.

25
Q

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

A

No

26
Q

When does waiver become effective?

A

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.

27
Q

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

A

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

28
Q

When is a D immune from being served?

A

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.

29
Q

What is SMJ?

A

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

30
Q

What types of cases may be held in federal court?

A

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

31
Q

Can a lack of SMJ be waived?

A

No.

32
Q

What are the requirements for diversity / alienage cases?

A

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.

33
Q

When is diversity established?

A

when the case is filed

34
Q

How does a natural person establish a new domicile?

A

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.

35
Q

What is the citizenship of a corporation?

A

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”).

36
Q

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

A

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.

37
Q

What is the citizenship used for class actions?

A

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

38
Q

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

A

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

39
Q

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

A

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.

40
Q

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

A

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.

41
Q

Personal jurisdiction (rule)

A

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

42
Q

Issue Preclusion

A

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.

43
Q

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

A

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.

44
Q

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

A

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.

45
Q
A