Federal Civil Procedure Flashcards
What are the three issues to address when determining whether the case is in the right court?
- Personal jurisdiction 2. Subject matter 3. Venue
What is the issue in addressing whether there is personal jurisdiction?
Can plaintiff sue defendant in this state?
What two steps must be met for PJ?
- Satisfy state’s long arm statute (usually stated as the limit of the U.S. constitution) 2. Satisfy Due Process
What are the three traditional methods of meeting due process for PJ?
- D is domiciled in the forum 2. D consents to PJ 3. D is present in the forum when served with process.
What are the three factors in the due process analysis when the three traditional methods for PJ can’t be met and there’s no general PJ?
Specific PJ requires: 1. Contact: purposeful availment and forseeability 2. Relatedness of claim to the contact: even if few contacts, satisfied where directly related to claim 3. Fairness: must not offend traditional notions of fair play and substantial justice
What are the two factors to determine whether D’s contact with the forum is sufficient to meet the due process requirements for specific PJ?
- Purposeful availment (voluntary act, such as used roads, tried to make money there, caused some effect there) and; 2. Foreseeable that would get sued there.
What question is asked to determine whether D’s contact with the forum is sufficiently related to P’s claim to meet the due process requirements for specific PJ?
P’s claim arises from D’s conduct in the forum.
Where is a corporation domiciled for purpose of establishing general PJ?
- place where incorporate; or 2. principal place of business.
What is the RI long arm statute?
the limit of the U.S. constitution and federal law
What is general PJ and what are the two main consequences of having general PJ?
D is domiciled in the jurisdiction. If have general PJ 1) don’t need to go through contacts and fairness analysis required for specific PJ and 2) there’s PJ against D for claims arising anywhere in the world.
What three questions are asked to determine whether jurisdiction over D would be sufficiently fair to meet the due process requirements for specific PJ?
- Burden on D and witnesses is so great as to place D at a severe disadvantage in the litigation (difficult burden to meet; due process doesn’t guarantee the most convenient forum for all) 2. State’s interest in providing a forum for its citizens. 3. Plaintiff’s interest (e.g., injured and wants to be at home).
What is SMJ all about?
Court’s power over the case (not over the parties, that’s PJ)
What’s the SMJ of a state court? federal court?
State court: General jurisdiction. Can hear any case under state or federal law, except for patent, bankruptcy, federal securities, and antitrust. Federal court: Limited jurisdiction: can hear only cases where there’s either 1) diversity of citizenship or alienage or 2) federal question.
What are the two diversity of citizenship SMJ requirements?
- Case is either (a) between citizens of different states (diversity) or (b) between a citizen of a state and a citizen of a foreign country (alienage) and 2. Amount in controversy exceeds $75k.
What is the complete diversity rule?
There’s no diversity of citizenship (and no SMJ) if ANY P is a citizen of the same state as ANY D.
P from Spain sues D from Canada in federal court. Is there SMJ?
No. No alienage because not between alien and a citizen of U.S. No diversity because no litigant is a citizen of the U.S.
How is a green card holder treated for purposes of being either an alien or citizen to meet the diversity or alienage requirements for SMJ?
Green card holders are considered aliens. However, if they are domiciled in the same state as a U.S. citizen who is an opposing party, there’s no alienage SMJ. (There’s also no diversity SMJ because controversy isn’t between two U.S. citizens. E.g., A, citizen of NY, sues B, a green card holder (permanent resident alien) domiciled in NY. No SMJ.
What’s the status of a U.S. citizen domiciled abroad? P (a U.S. citizen domiciled in Japan) sues D (CA). Is there SMJ?
Not treated as a citizen of any state and also not treated as an alien. There’s no alienage because P is a U.S. national. There’s no diversity because P isn’t treated a citizen of the U.S. because of P’s domicile.
How does an individual establish a new domicile?
- Physical presence in a state different than the current state of domicile (not sufficient to merely leave current domicile state); and 2. Intent to remain there permanently (don’t presume intent; look at factors like taking job, buying house, etc)
At what stage of litigation is diversity or alienage determined for SMJ?
Filing of compliant. After-filing change to parties’ diversity or alienage is irrelevant.
What is the citizenship of a corporation for purposes of SMJ?
Corporation is domiciled in all states in which: 1) incorporated; AND 2) has its principal place of business (PPB)
Where is a corporation’s PPB for purposes of determining its alienage or citizenship?
Where its managers direct and control corporate activities (“nerve center” or headquarters).
What’s the citizenship of a limited or general partnership or LLC?
It’s a citizen in the states of ALL of its members or partners.
P (WI) sues LLC which is formed in WI and has its PPB in MI. LLC’s members are 1) an individual (NY) and 2) a corporation incorporated in TX with its PPB in CA? Is there SMJ?
Yes. LLC is citizen in NY, TX, and CA, but not WI or MI because it’s not a corporation.
What is the citizenship of decedents, minors, or incompetents?
While such persons must sue or be sued through a representative, the representative’s citizenship is irrelevant. Only the citizenship of the person being being represented is relevant.
P sues for exactly $75k. Is there SMJ? What P if sues for $74k together with legal costs and interest running from date of judgment that will clearly exceed $1k?
No. No. Must be in pleading; costs and interest don’t count towards >$75k requirement.
P sues D for $50k and $60 of punitive damages. Relevant authority holds that punitive damages cannot be recovered. Is there SMJ?
No. P’s good faith pleading is sufficient (even if in final judgement damages aren’t >$75), unless it’s clear to a legal certainty that cannot recover >$75k.
What are the aggregation rules for meeting the >$75k requirement for SMJ?
Can add two or more claims to meet the >$75k, even if factually unrelated, provided they are asserted by a single P against a single D (joint tortfeasors are considered a single D).
How is the >$75k met for equitable claims?
Either: 1) Cost to P if relief isn’t granted 2) Cost to D if relief is granted
Even if the >$75k requirement is met and there’s diversity or alienage, what cases will the federal courts not hear?
Child custody, divorce, alimony, and probate of an estate.
What’s the main question to ask in determining whether there’s federal question (FQ) SMJ?
Is the P enforcing a federal right? Ignore D’s defenses, amount in controversy, diversity or alienage, or anything else.
Do additional claims by P, counterclaims, and crossclaims need to have diversity (or alienage) or FQ SMJ if the original claim has SMJ?
Yes, unless the federal court has supplemental jurisdiction (SJ) over the claim. P (NC) sues D (SC) for $100k damages from car crash. D files a state law counterclaim against P in the case for $125k. No SJ needed. If D’s claim were a $50k federal claim, again no SJ needed. If the $50k claim were a state law claim, SJ would be needed.
What’s the two step test for SJ?
There’s SJ for supplemental claims if: 1) the claim arises from the same transaction or occurrence as the underlying claim (T/O); and 2) the claim is not (a) asserted by a P in (b) supplementing an original diversity case (c) to overcome a diversity of citizenship problem.
P1 (VA) and P2 (VA) sue D (PA) on state law claims. P1 sues for $100k and P2 sues for $50k. Does a federal court have SMJ to hear both claims?
P1 gets in on diversity. P2’s claim isn’t >$75k so no diversity. But P2’s claim gets in on SJ because same T/O and P2’s claim isn’t against a co-citizen.
Even if requirements for SJ met, when will a federal court decline to accept SJ?
- Underlying claim dismissed early in case; or 2. State law claim is complex 3. State law issues would predominate
What’s removal?
Transfers case from a state trial court to a federal trial court.
When must removal occur?
Within 30 days of service of the first paper showing that the case is removable (usually service of process).
Who must join in a removal motion?
All Ds that are served process.
P sues D1 and D2 on June 1. D1 served process on June 1 and doesn’t remove within 30 days. D2 is then served with process on August 1. Can the case be removed?
Yes, because 30 days starts again with service on a new D.
P sues D in state court. D files counterclaim against P. Can P remove?
No. Ps can never remove.
What kinds of cases can be removed?
Any case where federal court has SMJ unless SMJ is based upon diversity AND 1) if any D is a citizen of the current forum; or 2) more than 1 year after case was filed in state court.
Where does a case get removed to?
Only to the federal district that embraces the state court where the case was filed.
What process must D do to get case removed and when?
- File a “notice of removal” in federal court, stating that the court has diversity or FQ SMJ and attaching all documents that were served on her in state action 2. Serve copy of the notice of removal on adverse parties. 3. File a copy of the notice of removal in state court.
If P thinks removal was improper, what does P do and when?
Move to remand to state court: 1) if removal was procedurally improper, within 30 days 2) if improper because federal court lacks SMJ, anytime
In federal court what substantive law applies in a diversity case?
- If there’s a federal law on point that directly conflicts with state law (preemption), apply the federal law based upon the Supremacy Clause. 2. If no federal law on point, apply the following “substantive” state laws: (a) elements of claim or defense (b) SOL and tolling of SOL and (c) conflict or choice of law rules. 3. If no federal law on point and issue isn’t one of three listed above, apply state law if either (a) choice of law would be outcome determinative or (b) applying state law would cause flock to federal court; if neither (a) or (b), then apply law of system with greater interest.
Is there any federal common law?
No. So, State common law of contracts, torts, and property governs in federal court on diversity SMJ.
What is the question that venue is trying to answer and what is the basic rule?
Is this particular federal court a proper court to hear the case? P may lay venue in any district where either: 1) a substantial part of the claim arose; or 2) all Ds reside (unless all Ds reside in the same state, in which case any of the districts in which Ds reside).
Is venue an issue if there’s been removal?
No, because removal can only be made to the federal district court in which the state court lies.
Where does a D “reside” for purposes of venue?
For individual: domicile For corporation or non-corporate entity: where its subject to PJ (general or specific)
To where can venue be transferred?
At the request of any party, federal district court may transfer a case only to another federal district court 1) that would have been a proper venue and 2) that has PJ over D, independent of waiver.
When will a court exercise its discretionary right to transfer from a proper venue?
Weighing public and private interests, the convenience of parties and witnesses and interests of justice center the forum elsewhere.
What may a court do if venue is improper?
Transfer or dismiss
When does a court determine forum non conveniens?
If there’s another court that is the center of gravity but it’s another judicial system, the court may either dismiss or stay the case if the more convenient court is inadequate.
What is service of process and who can make it?
Summons and complaint (notice of suit) served by any nonparty who is at least 18 years old.
What are the four ways in which process can be served?
1) Personal service: papers given to D anywhere 2) Substituted service: papers left at D’s usual abode with someone at least 18 who lives there. 3) Service on agent of D 4) Any other method permitted by state law of the state in which the federal court sits or where service is made (e.g., mail).
How can service be waived?
1) P mails D with complaint and 2 waiver forms with prepaid means of returning them. 2) D executes and returns within 30 days. Not a waiver of D’s defenses (including lack of PJ).
What are the major pleadings?
- Complaint 2. Response by motion or answer (including counterclaims) 3. Crossclaims 4. Additional claims 5. Amended pleadings 6. Supplemental pleadings
What is required in the complaint?
Unless claim of fraud, mistake, or special damages: 1. statement of grounds of subject matter jurisdiction 2. short and plain statement of claim showing entitled to relief that “pleads facts supporting a plausible claim” 3. demand for relief sought
What’s required by Rule 12 in D’s response and by when?
Respond within 21 days of SOP (or 60 days if waived) with either: 1. Motion (not a pleading unless part of answer) (i) for more definite statement or to strike; or (ii) to dismiss for: (a) lack of SMJ or PJ (b) improper venue or SoP (c) failure to state claim or join indispensable party 2. Answer (a pleading): (i) Admit, deny, or state lack sufficient info to admit or deny; or (ii) raise affirmative defenses (e.g., SoL, SoF, self-defense, res judicata).
What are the three waivable defenses and what does “waivable” mean?
- lack of PJ 2. improper venue 3. improper service of process must all be put in first Rule 12 response (motion or answer) or else they’re waived.
P sues D. D files a motion to dismiss for improper service of process, which the court denies. D then files D’s answer where D asserts lack of PJ and improper venue. Presuming that, in fact, there’s no PJ, will the court allow the defenses?
No. D waived both defenses because they weren’t in the first Rule 12 response.
When can a motion to dismiss for lack of SMJ be made?
Anytime, even after conclusion of trial.
If a case was removed from state court and it later turns out that the federal court didn’t have SMJ, what will the court do?
It won’t dismiss. Rather, it will remand to state court.
What two things must a Rule 12 answer do?
- Respond to allegations of the compliant by either a) admitting b) denying or c) stating lack of sufficient information to admit or deny; and 2. Raise affirmative defenses (SOL, statute of frauds, self defense, etc). These defenses don’t go in Rule 12(b), as a motion to dismiss. Rather they go in the answer.
P sues D for breach of contract. D answers, only denying material allegations. At trial, D brings evidence that P procured contract by fraud. What should P do?
Object that D has waived the affirmative defense by not raising in under Rule 12 in the answer.
What is a counterclaim, when is it raised, and what are the two types of counterclaims?
A claim against an opposing party (even if became opposing only because of crossclaim) that’s raised in D’s answer. 1. Compulsory: arises from same T/O as P’s claim and must be filed in the pending case or it’s waived. 2. Permissive: doesn’t arises from same T/O as P’s claim and may be filed in the pending case or in a separate case.
