Federal Civil Procedure Flashcards
What is personal jurisdiction?
Power over the parties. It is necessary for a court to take jurisdiction.
How is personal jurisdiction assessed?
Same as in state court.
What is subject matter jurisdiction (SMJ)?
Power over the case. Federal courts hear only two types of suits: diversity of citizenship and federal question.
What are the requirements for diversity of citizenship?
(1) The case is either between citizens of different states or between a citizen of a state and a citizen of a foreign country AND (2) amount in controversy exceeds $75K.
What is the complete diversity rule?
No diversity if any P is a citizen of the same state as any D.
What is the citizenship of a natural person?
State of domicile i.e. where (1) present in state and (2) intent to make it her permanent home. Can only have one domicile at a time.
When do we test for diversity?
When the case is filed. We don’t care about what happens before/after.
What is the citizenship of a corporation?
(1) State where incorporated AND (2) state where the corporation has its one and only principal place of business. Can be a citizen of two states at once.
What is the corporation’s principal place of business?
Where managers direct, coordinate, and control corporate activities. NERVE CENTER RULE.
What is the citizenship of an unincorporated association (i.e. partnership, LLC)?
Use the citizenship of all members (that includes general and limited partners). Don’t care where business was formed or where it has its PPB.
What is the citizenship of decedents, minors, or incompetents?
Use their citizenship, not the citizenship of their representative.
What is the rule in diversity jurisdiction for amount in controversy?
Claim must EXCEED $75K. Whatever the P alleges in GF is OK unless it is clear to a legal certainty (stat cap) P can’t recover more than $75K.
What if P wins less than the amount in controversy minimum?
What P wins is irrelevant to jurisdiction, but if P wins less than 75K, P may have to pay D’s litigation costs but not attorney’s fees (despite fact that usually loser pays).
What is aggregation?
Adding 2+ claims to meet the amount in controversy requirement. There is no limit to the number of claims that may be aggregated as between 1P and 1D. Claims don’t even have to be related.
When can you aggregate claims with more than 2 parties to satisfy the amount in controversy?
Usually never unless there are joint tortfeasors and the total value of the claim by 1P against 3D is greater than 75K. With joint claims, the number of parties is irrelevant.
How do we determine amount in controversy when equitable relief (injunction) is sought?
Either (1) the injunction is worth more than 75K to P or (2) the injunction will cost more than 75K to D if granted.
When will diversity jurisdiction never be granted?
Cases of divorce, alimony, or child custody decree or to probate an estate.
What are federal question cases?
Complain must show a right or interest founded substantially on a federal law such that the claim arises under federal law.
What is the rule for determining if the complaint contains a federal question?
Well pleaded complaint rule. Ask: is P enforcing a federal right? Not enough that some federal issue is raised by the complaint.
Once you have FQ or DivJ for a claim in a case, are all claims automatically in federal court?
NO! For each claim, test whether it invokes DivJ, FQ, or SuppJ.
What is Supplemental Jurisdiction?
When case is already in federal court through some claim that satisfies FQ or diversity and additional claim doesn’t meet either test, supplemental jurisdiction allows claim to get into federal court if it “shares a common nucleus of operative fact.”
What is a common nucleus of operative fact?
Always met by claims that arise from the same transaction or occurrence (T/O) as the underlying claim.
What is the limitation on Supp.J?
In a diversity case, P can’t use supp.j to overcome a lack of diversity of citizenship. Limit doesn’t apply to FQ or problems with amount in controversy.
What is the solid gold summary for supplemental jurisdiction?
A non-federal, non-diversity claim can be heard in federal court if it meets “the nucleus test” UNLESS asserted by P in diversity case and is against a citizen of the same state as P.
Does the court have to hear the supplemental claim?
No. It has discretion not to hear if 1) federal question is dismissed early in proceedings or 2) state law claim is complex or 3) state law issues would predominate.
What is removal?
D sued in state court might be able to remove the case to federal court. This moves the case from a state trial court to a federal trial court.
When may a D remove?
W/in 30 days of service of the first paper that shows the case is removable (usually 30 days after service of process).
Can a case be removed if there are multiple Ds?
Yes, but all Ds who have been served with process must join in removal.
When multiple Ds must be served, when does the 30 day deadline for removal run?
30 days after the last D is served.
Can a P ever remove?
No!
What cases can be removed?
Any case that meets the requirements for diversity of citizenship or FQ.
What are the exceptions to the removal rule?
If removing on the basis of diversity, (1) no removal if any D is a citizen of the forum (in state D rule) and (2) no removal if more than one year after the case was filed in state court.
Where does the case get removed to?
The federal district court embracing the state court where the case was filed.
What is the procedure for removal?
D files notice of removal in federal court stating grounds for removal, signed under Rule 11. Attach all documents served on D in state action and serve a copy on all adverse parties. File copy of notice in state court.
When is removal waived?
When D files a permissive counterclaim in state court. Filing a compulsory counterclaim does not waive the right to remove.
What if P wants to object to removal?
Must move to remand to state court w/in 30 days of removal if federal SMJ. If no federal SMJ, P can move to remand at any time.
What is the Erie doctrine?
In diversity cases, the federal court must apply state substantive law.
What is Erie step 1?
Ask: is there federal law on point that directly conflicts with state law? If yes, apply federal law so long as it’s valid. Rule is valid if “arguably procedural” and doesn’t modify substantive rights. Why? Supremacy Clause.
What is Erie step 2?
If no federal law on point and rule relates to 1) elements of claim or defense, 2) SOL, 3) rules for tolling SOL, or 4) conflict or choice of law, apply state law because these are substantive per SCOTUS.
What is Erie step 3?
If no federal law and not one of the step 2 issues, if the issue is substantive, judge must follow state law.
What are the tests to know if an issue is “substantive”?
Outcome determinative (will applying or ignoring rule affect outcome? If yes, substantive); Balance of interests (does fed or state have a strong interest in having rule applied?); Avoid forum shopping
What is the basic idea of venue?
Tells us which federal court to use when we have SMJ.
Where may the case be brought?
Any district where (1) all Ds reside OR (2) a substantial part of the claim arose.
What is the special rule if all Ds reside in different districts of the same state?
P can lay venue in the district in which any D resides.
Where do Ds reside for venue purposes?
If a human, in the district where domiciled. If a business, in all districts where subject to PJ for this case.
What is transfer of venue?
A federal district court may transfer the case to another federal district court WHERE THE CASE COULD HAVE BEEN FILED i.e. to a proper venue that has PJ over D.
What is the exception to the transfer of venue rule?
The court can transfer to any district (even improper) if all parties consent AND court finds cause for the transfer.
In deciding whether to transfer venue, what does a court do?
It has discretion, considering public and private factors showing that the other court is the “center of gravity” for the case, to transfer. Courts are wary of this because it overrides P’s choice of forum.
What are the public factors in transfer of venue considerations?
What law applies, what community should be burdened with jury service, keeping local controversy in local court.
What are the private factors in transfer of venue considerations?
Where are the Ws and the evidence? Think convenience.
What law applies if the venue is transferred?
Transferee court applies the choice of law rules of the original court.
What if venue in the original district is improper?
Court may transfer in the interest of justice or dismiss.
What is forum non conveniens?
When there is another court that is the center of gravity but the court does not transfer, it may dismiss or stay the case. Why? Transfer is impossible because it is in a different judicial system.
What is the forum non conveniens decision based on?
The same public and private factors as in transfer of venue. Need a VERY strong showing and is almost never granted if P is a resident of the present forum. The other court must be available and adequate.
What is service of process?
Must give notice of suit to D by delivering 1) a summons and 2) a copy of the complaint. These two docs TOGETHER are called process.
When must you serve D?
W/in 120 days of filing case or dismissed w/o prejudice unless P shows good cause for delaying in service.
Who can serve process?
Any nonparty who is at least 18 years old.
How can process be served?
Personal service anywhere; substituted service; service on D’s agent; methods permitted by state law; waiver by mail.
What is substituted service?
Process is left at (1) D’s usual abode AND (2) someone of suitable age and discretion who resides there received the service.
What is service on D’s agent?
Process can be delivered to D’s agent if receiving service is in the scope of agency.
What is the state law rule for service?
Can use methods of service permitted by state law of the state where the federal court sits or where service is made.
What is waiver (of service) by mail?
Mail D a copy of complaint and 2 copies of waiver form w/ a prepaid means of returning the form. If D executes and returns w/in 30 days, D waives formal service (not defenses). P then files the waiver and it becomes effective.
What if D does not return the waiver form?
P must formally serve D but if D did not have good cause for failing to return the waiver form D must pay the cost of service.
What is the immunity from service rule?
If D is instate to be a W or party in another civil case, D is immune from service for another federal civil case.
How are documents other than service delivered?
Deliver or mail (or email if parties consent) document to party’s attorney (or pro se party). If mailed, add 3 days for any required response.
What does Rule 11 make true of all documents (except discovery)?
When parties sign documents, they certify that to the best of their knowledge and belief, after reasonable inquiry, that (1) the paper is not for an improper purpose, (2) the legal contentions are warranted by law, and (3) the factual contentions and denials of factual contentions have evidentiary support.
When does the Rule 11 certification end?
It doesn’t. It’s a continuing certification every time you present a position to the court.
What is the penalty for violating Rule 11?
Sanctions may be ordered against attorney, firm, or party. The court must give a chance to be heard before imposing sanctions. The goal of sanctions is deterrence not punishment.
When can a party move for sanctions once Rule 11 has been violated?
You must serve a motion on parties but can’t file it. Opposing party gets a 21 day safe harbor to correct the violation and avoid sanctions.
Does one of the parties have to file for Rule 11 sanctions?
No the court can issue an “order to show cause” sua sponte requiring a party to show why sanctions should not be imposed.
