Federal Jurisdiction

Question 1

SUBJECT MATTER JURISDICTION

Answer 1

The power of a court over the subject matter of an action, over the nature or kind of action that you have. WAIVER AND OBJECTIONS: Parties May never waive their objections to the lack of SMJ; may never consent to the lack of SMJ. The court on its own must dismiss for the lack of.

Question 2

STATE COURTS SMJ

Answer 2

The state courts are Courts of general jurisdiction Therefore as a rule, state courts have subject matter j’n over all kinds of actions. Except if if there is exclusive j’n in some other forum.

Question 3

FEDERAL COURTS SMJ

Answer 3

FEDERAL COURTS ARE COURTS OF LIMITED J’N. Therefore there must be a jurisdictional basis for every claim filed in Federal Court.

Question 4

Two primary alternative jurisdictional bases.

Answer 4

1. Arising under Federal Law

2. Diversity Jurisdiction

Question 5

A claim arising under

Answer 5

• A claim does arise under federal law if the claim is either
  a) created by federal law, or

b) the claim is created by state law but depends on a substantial Federal (constitutional) question.

Note: the Federal issue must appear on the face of the Plaintiff’s well pled complaint as part of the Plaintiff’s own claim and not merely by way of a defense.

Question 6

Diversity Jurisdiction in Federal Court

Answer 6

is only allowed over claims in which there is

a) complete diversity and in which
b) the amount in controversy exceeds $75K.

No single plaintiff may be a citizen of the same state as any single defendant.!

Question 7

A person’s domicile (for Diversity)

Answer 7

1) their true home, plus

2) where they intend to remain or return - at the time the law suit is Filed

Question 8

Aliens & Fed. Ct. Diversity (Pure, Resident & American Abroad)

Answer 8

a) PURE ALIENS (not admitted as perm. resident) CANNOT sue other pure aliens, but CAN sue or be sued by a non-alien and there will be diversity
b) RESIDENT ALIENS may not sue an American citizen domiciled in that same state;
c) AMERICAN citizen domiciled ABROAD may never sue or be sued based on diversity

Question 9

Supplemental Jurisdiction

Answer 9

FC has discretion to assert supplemental power over both claims if it derives from a “common nucleus of operative fact”

• 28 USC 1367 - conferring supplemental jurisdiction over claims by statute

(a)

(b)

(c)

Question 10

Supplemental J’n (Narrow) Exception

Answer 10

If the only primary jurisdictional basis is diversity, plaintiffs cannot use supplemental jurisdiction to bring in additional claims against non diverse parties.

Question 11

use of supplemental jurisdiction to bring in additional claims

Answer 11

a. D’s can use against non-diverse parties, even if the only primary jurisdictional basis is diversity.
b. P’s can use against non-diverse parties, if there is an “Arising under” claim.
c. P’s can use against diverse parties, even if the additional claims do not exceed $75, 000.
- Plaintiff’s anchor federal claim must assert a fed claim that has substance sufficient to confer SMJ on the court.

Question 12

Removal to Fed. Ct.

Answer 12

Defendants may remove an action from state court to the federal court that geographically embraces the state court by: all consenting to filing a notice of removal in the Federal court within 30 days of the service of the state court complaint. But the Plaintiffs may file a motion to remand the action back to state court within 30 days of the filing of the notice

Question 13

Remand from Fed. Ct.

Answer 13

Federal court must remand particular claims back to state court if: there was no federal jurisdiction over those removed claims. (looking for arising under, or diversity and supplemental)

Question 14

Removal Exceptions

Answer 14

If the only primary jurisdictional basis is diversity, there can be no removal if: either

1) the notice of removal was filed more than one year after the original state court action is filed, or
2) if any single defendant was a citizen of the state where the action was filed.

Question 15

Choice of Law in Federal Court

Answer 15

1. If the conflict between federal and state law involves a Federal Statute, a Federal Rule of Civil Procedure, a Federal Rule of Evidence or the issue of Trial by Jury, FEDERAL Law Governs.
   2) If the conflict does not involve a Federal Statute, a Federal Rule of Civil Procedure, a Federal Rule of Evidence or the issue of trial by Jury, THEN State law governs where the difference between State and Federal Law would alter the outcome. (not likely give Q unless w/b change outcome). Therefore, STATE LAW GOVERNS UNLESS Federal Statute, Federal Rule or Trial by Jury.

Question 16

Full Faith and Credit

Answer 16

A FEDERAL Court must recognize and enforce a valid judgment entered by any other Federal or State Court. The Federal Courts are Generally Prohibited from Enjoining ANY pending state court actions. Therefore, it is possible in life /bar exam that a Fed Ct may engage in litigation also pending in state court.

Question 17

Doctrine of abstention

Answer 17

a Federal Court will refrain from interpreting state law or deciding the constitutionality of a State statute and may stay its own action until the state court has ruled on these issues.

Question 18

Temporary Restraining Order

Answer 18

emergency order for 14 days to prevent irreparable harm and preserve the status quo. Notice to the adversary may be excused if it would be impractical to provide notice before the harm occurs.

Question 19

Preliminary Injunctions

Answer 19

, by contrast to a TRO, is granted only upon notice to maintain the status quo and to prevent irreparable harm before a trial on the merits.

Question 20

Personal Jurisdiction is

Answer 20

The power over the court over the DefendantÌs person or property. (The Q of whether or not involves two major analytical hurdles)

Question 21

Requirements for Personal Jurisdiction

Answer 21

1) The law of the forum must grant personal jurisdiction (in Fed Ct, there could be a Fed StÌt granting, but more likely Ò they may always borrow the personal jÌn law of the state where it sits); AND ALSO
2) the forums law must be constitutional

Question 22

Bases for Personal Jurisdiction under forum’s law

Answer 22

1) CONSENT; 2) PRESENCE; 3) LONG ARM STATUTE in the state;

Question 23

2 forms of consent

Answer 23

1) Express Consent Ò the Defendant will make any expression of consent to personal jurisdiction over it (neither ever a valid basis for SMJ); or
2) Implied Consent Ò the Defendant will fail to object to PJ in the first response to the complaint (waiver), by the failure to object in the first response (woven in as a timeframe); D must respond within 21 days of service, but within 60 days if it waives formal service of process Ò if there is no evidence of consent you must still assess ->

Question 24

3 forms of presence

Answer 24

PRESENCE

a) Actual voluntary physical presence of the D in the state while served w/ process (c/b in state for a micro-second);
b) Domicile DÌs true home is in the state and she intends to return;
c) D is doing business in the state means the regular, systematic and continuous in-state business

Question 25

Court may assert personal jurisdiction under the Long-Arm Statute

Answer 25

chosen by the state where the federal court sits and which generally provides: that there is specific personal jurisdiction over Defendants who do an act in the state from which the lawsuit derives.

Question 26

Even if the forum’s own law grants personal jurisdiction, the assertion of the forum’s personal jurisdiction law must also be:

Answer 26

CONSTITUTIONAL

Question 27

Personal Jurisdiction is constitutional if

Answer 27

1) the defendant engaged in such minimum contacts that it would be fair to make it defend in the forum. (look for contacts and for fairness)
2) The issue becomes whether the defendant: the Defendant has purposefully availed itself of the benefits of the forum state or has targeted consumers in the forum state

Question 28

In questions re Personal Jurisdiction look for

Answer 28

Consent; Presence; Long-Arm; contacts; fairness; availment or targeting

Question 29

Who is authorized to serve?

Answer 29

Any 18 year old non-party may serve within 120 days of the filing of the complaint.

Question 30

Process is proper if both are true

Answer 30

1) the method of process was proper under the forum’s own rules (Federal rules) and also
2) the method was constitutional (constitooootional)

Question 31

Abode Service

Answer 31

the authorized server leaves the process at the defendantÌs last and usual abode with somebody of suitable age and discretion residing therein. (teenagers are okay)

Question 32

Waiver

Answer 32

The plaintiff simply mails the complaint to the defendant with a request that the defendant waive formal process methods (upside is more time to respond >21 to 60 days)

Question 33

Ageny service

Answer 33

Must make personal service on or mail a request to waive to any authorized agent or any managing agent of the defendant (but no abode svc on an agent-watch out)

Question 34

State methods

Answer 34

a federal court can always use any method of process allowed in the state where it sits

Question 35

Personal Service

Answer 35

the authorized server makes in-hand delivery to the defendant

Question 36

Constitutionality of Service of Process

Answer 36

Process is constitutional if it was reasonably calculated to apprise parties of litigation.

Question 37

Venue is proper in a district when

• Three situations
• Transfer if venue proper

Answer 37

1) where any defendant resides, if all defendants reside in that same state (congress talking so just remember the weird test - reside means for people where they are domiciled and organizations is anywhere there would be personal jurisdiction over them/minimum contacts is enough); or
2) where any substantial part of the claim arose or the property at issue is located. (notice these do not include PlaintiffÌs residence
3) If no district anywhere in U.S. satisfies 1. or 2., a district in which any defendant is subject to personal jurisdiction with respect to the action.
- If venue proper, a court may nonetheless transfer for the convenience of the parties or witnesses to any court where it could have originally been filed.

Question 38

Remedy for Improper Venue

Answer 38

Defendants may move to transfer venue in their first response and the court has discretion to transfer a lawsuit to a proper venue for the convenience of the parties and witnesses and in the interest of justice.

Question 39

Pleadings in Federal Court generally,

Answer 39

complaints must now contain sufficient facts to place the adversary on notice of plausible claims. Moreover, fraud claims require more particularity.

Question 40

Responsive Pleadings

Answer 40

1. Responsive Motions; 2. Answers; 3, Affirmative Defenses

Question 41

Responsive Motions

Answer 41

The following responsive motions will be WAIVED unless they are filed in the First Responsive Pleading (either an Answer or a Motion):

a) a Motion to Dismiss for the lack of personal jurisdiction is waived if not in the first response; and Moreover
b) a motion to Dismiss for improper service of process is also waived if not in the first response; and
c) any Motion challenging Venue must also be in the first response or else waived; no other motion need be in that first response

Question 42

Answers

Answer 42

must fairly and precisely admit or deny each allegation unless there is insufficient information from which to do so

Question 43

Affirmative Defense

Answer 43

Defenses that are affirmative must be in the answer or else they are waived.

Question 44

One Free Shot in Pleadings means

Answer 44

Generally, in Federal court the pleader has the right to amend its pleading within 21 days of its service (one free shot); afterwards, amendments shall be granted by the court freely to justice and to serve the merits. When claims are missed in initial compliant consider the Relation Back of Amendment to Conform to the Statute of Limitations Period.

Question 45

An amendment adding new claims

Answer 45

relates back to the date of a timely filed complaint if the new claims derived from the same transaction or occurrence as the earlier timely filed claims.

Question 46

An amendment adding new parties

Answer 46

relates back to the date of a timely filed complaint if two things are true:

1) if the claim against that new party derived from the same transaction or occurrence as the earlier timely filed claims and;
2) the brand new party must have acquired knowledge that but for a mistake in name it would have been sued within 120 days of the filing of a timely complaint Ò even if after the SOL has run.

Question 47

Joinder of Claims

Answer 47

As you have against an adversary regardless of any connection between those claims (free joinder, but remember to find Federal Jurisdiction over those joined claims)

Question 48

Joinder of Parties

Answer 48

If the claims involving those parties derive from the same transaction or occurrence or at least the same series of transactions or occurrences.

Question 49

2 Kinds of Counterclaim

Answer 49

1) Permissive; 2) Compulsory

Question 50

A Permissive counterclaim is

Answer 50

is a counterclaim that does not derive from the same transaction or occurrence as the plaintiffÌs claim and therefore it may be filed as a counterclaim, but it need not be filed as a counterclaim. (Assuming jurisdiction, you could file later as part of some separate action)

Question 51

A Compulsory counterclaim is

Answer 51

a counterclaim that does derive from the same transaction or occurrence as the plaintiffs claim and therefore it must be filed as a counterclaim or else it is waived.

Question 52

Impleader

Answer 52

A Defendant may implead a brand new claim against a brand new third party if that new party maybe liable to defendant for all or part of the defendants same liability to the plaintiff. (on exam theyÌll say the D wants to bring a brand new claim for either indemnity or contribution)

Question 53

Interpleader

Answer 53

The holder of a common fund may file a lawsuit as a plaintiff and Interplead, which means to name/join as defendants all the rival claimants to its common fund. (the holder of the common fund takes action to join others (

Question 54

Congress has given two alternative bases for Federal Jurisdiction

Answer 54

Congress has given two alternative bases for Federal Jurisdiction

Question 55

Under statutory interpleader diversity the rules have changed

Answer 55

there must be $500 or more and only minimal diversity is enough. If any two of the rival claimants are from different states, it is enough to establish minimal diversity.

Question 56

Intervention

Answer 56

the act of a non-party in moving to intervene to become a party in an ongoing lawsuit.

Question 57

Two considerations whether Judge allows intervention

Answer 57

1) As of Right; 2) Permissive

Question 58

Intervention as of Right

Answer 58

the intervenor has a right if he has an interest, which as a practical matter will be adversely affected by the lawsuit and not protected by the parties.

Question 59

permissive intervention

Answer 59

If Intervention As of right is unclear, the judge has discretion to grant intervention if there is a commonality of issues between those in the ongoing lawsuit and those affecting the intervenor.

Question 60

Indepensible parties

Answer 60

1. A nonparty is necessary and must be joined if its absence would be prejudicial to any parties right to a full and fair adjudication;
   - Necessary when
   a. Complete relief cannot be given to the existing parties in his absence.
   b. Disposition in the party’s absence may impair the absent party’s ability to protect an interest in the controversy
   c. The party’s absence would expose existing parties to substantial risk of double or inconsistent obligations.
2. But, if the nonparty cannot be joined, because there is no jurisdiction over that non-party or its claims, the Court must decide in equity and good conscience whether to proceed without the party or to dismiss the entire lawsuit for failure to join an indispensible party.

Question 61

Class Action

Answer 61

an action in which a named plaintiff represents a class of commonly situated absent plaintiffs.

Question 62

Class Action Fairness Act

Answer 62

the federal courts also have jurisdiction over class actions in which there are 100 or more plaintiffs who together seek an amount exceeding $5M if any single plaintiff if from a different state than any single defendant. A Federal judge will consider in whether to grant a Motion to certify the class, if all four of the core certification requirements are met

Question 63

Four Elements Required under Class Action Fairness Act

Answer 63

1) Commonality means there must be common issues of fact or law including common injury and common damages;
2) Adequacy means the named plaintiff and class counsel must fairly and adequately represent the class;
3) Numerosity means the class must be so numerous that joinder of them all would be impracticable (40 or more usually good enough on bar);
4) Typicality means the claims of the named plaintiff are typical of the class.

Question 64

Under Class Action Fairness Act actions seeking money must

Answer 64

show predominance, which means that the common issues must predominate over the individual issues and superiority, which means the class action device is a superior method of adjudicating multiple claims. ALSO, class actions seeking money must provide notice of the class and the right to opt out:

Question 65

Case management

Answer 65

requires that the Federal Court must hold a scheduling conference to establish a schedule for pre-trial matters and a final pre-trial conference to establish a final pre-trial order for trial

Question 66

Material is discoverable if these two things are true

Answer 66

a) the method of discovery must be proper and

b) the material sought must be within the proper scope of discovery.

Question 67

Certain discovery is

Answer 67

Mandatory and must be disclosed

Question 68

Discovery Plan requirements

Answer 68

the parties must meet to discuss a discovery plan and, before any other discovery method may be used, each side, without awaiting any request, must disclose the following

1) all potential supporting/helpful witnesses must be disclosed;
2) all relevant supporting documents must also be automatically disclosed without request;
3) a damages computation must also be disclosed and
4) relevant insurance coverage

Question 69

Presumptive Limits on Traditional Methods of Discovery

Answer 69

1) The Deposition is the only discovery method that can be used on a non-party, moreover, no other method may be used on a non-party, therefore there is a limit to only 10 per side and only 7 hours each;
2) A Request for Physical or Mental Examination is the only discovery method that requires a court order, which will be granted only upon good cause shown, which means there is no other way to get it;
3) (Electronic Discovery) A party need not initially produce any electronically stored information if it can show an undue burden, but the court nonetheless may order production upon good cause shown.

Question 70

Duty to Supplement

Answer 70

Each side must automatically supplement its prior disclosures within a responsible time of discovering any new information.

Question 71

Material is within the Scope if it is

Answer 71

a. Relevant to any part of any claim or defense and need not be admissible at trial; and
b. if material is privileged it is not discoverable. Work Product Not Privileged if it is any material that has been prepared for litigation and not in the ordinary course of business.

Question 72

Two types of work (privileged) product

Answer 72

a) an attorneyÌs mental impressions (absolutely privileged);
b) all other kinds of work product and generally not discoverable unless you make a showing of substantial need plus undue hardship. (You cannot get the material any other way)

Question 73

three categories of Sanctions to consider

Answer 73

First, after first certifying a good faith attempt to obtain discovery, a party then may more to compel production and will receive its costs and fees in doing so (For failing to respond to a discovery request). For failing to disclose, as part of Automatic Prompt Disclosure, parties who do not disclose may not use the undisclosed information unless there was substantial justification for their non-disclosure. If you fail to abide by/violate a court order, the court can bar you from presenting evidence or from presenting an entire claim or defense

Question 74

Motion for Summary Judgment

Answer 74

Up to 30 days after the close of discovery this may be made/will be granted if there is no genuine issue of material fact for trial; such that judgment becomes proper as a matter of law.
- After the motion has been filed, the burden transfers to the non-moving party to demonstrate a genuine issue of fact for trial.

Question 75

Motion for Judgment as a Matter of Law

Answer 75

After the adversary has rested its case this may be made/will be granted if there is a legally insufficient evidentiary basis from which any reasonable jury could find for the non-moving party

Question 76

Renewed Motion for Judgment as a Matter of Law

Answer 76

If a party has made original JML before jury deliberation they may within 28 days of a judgment and it will be granted by the same standard as the original motion. If the court denies that motion, you can ask for a new trial.

Question 77

Motion for New Trial

Answer 77

within 28 days of judgment, parties may make/will be granted in the courtÌs discretion for either 1) errors at trial effecting the parties substantial trial rights, or 2) the verdict was merely against the manifest weight of the evidence

Question 78

In order to have a Trial By Jury you must

Answer 78

a) Must file written demand within 14 days of service of the Complaint or Answer; and you must have the Constitutional Right if your claim seeks primarily monetary damages you may get a trial by jury

Question 79

How many Premptory Challenges are allowed

Answer 79

3 for each side

Question 80

Offer of Judgment

Answer 80

A defendant in Federal court may serve the plaintiff - to settle the case in a certain amount, up to 14 days before trial. And if the plaintiff fails to accept the offer, the plaintiff will be sanctioned unless it does better than the offer at trial.

Question 81

Default Judgment

Answer 81

Suffered by defendants who fail to respond to the complaint in a timely manner (w/in 21 days of svc in Fed ct, but 60 if waived)

Question 82

Federal Procedure for default judgments.

Answer 82

If the damages are a sum certain an affidavit is enough, but if not the plaintiff must then prove up its damages at a prove up hearing giving DÌs 7 days notice of same.

Question 83

Motion to Vacate Default Judgment

Answer 83

may be filed and will be liberally granted for good cause shown when filed in a reasonable time of the judgment

Question 84

Motion for Relief from a Judgment

Answer 84

may be filed up to one year after the judgement, if all four elements

1. Merit to your claim or defense; and
2. Equity demands relief because there was fraud or perjury tainting the judgment; and
3. New Facts have come to light since the judgment which cast doubt on that judgment; and
4. Despite your Due Diligence you could not discover those new facts until after the judgment. (Mnemonic= you may MEND a broken judgment)

Question 85

Finality Rule

Answer 85

the parties are barred from re-litigating claims or issues which they have already fully and fairly litigated to a final judgment on the merits.

Question 86

Res Judicata

Answer 86

a claim which has been fully and fairly litigated to a final judgment on the merits cannot be re-litigated by the parties.

Question 87

Collateral Estoppel

Answer 87

an issue which has been fully and fairly litigated as part of a final judgment on the merits cannot be re-litigated by the parties.

Question 88

Appellate Courts are courts of appellate jurisdiction and therefore

Answer 88

therefore have jurisdiction only over appeals.

Question 89

Exceptions to the general rule that only final orders can be brought before Appellate courts

Answer 89

Partial Final Orders or Discretionary Appeals of Interlocutory Orders

Question 90

Partial Final Order

Answer 90

resolves some claims, but not all claims and may be appealed if the lower court finds no just reason to delay the appeal

Question 91

Discretionary Appeals of Interlocutory Orders

Answer 91

if both the trial court and the appellate court find:

1) Doubt on whether or not the order is correct,
2) for a controlling issue of law; such that
3) Appelate review would materially advance the litigation

Question 92

The Time Requirements for Appeals

Answer 92

indicate that in order to Appeal something you file a Notice of Appeal in the district court within 30 days of the entry of a judgment or the order from which you are appealing

Question 93

Applicable substantive law to be applied by a transferee court

Answer 93

• If venue was proper in the transferor court, apply the law of the transferor court.
• If venue was improper, court will transfer to a district where venue proper, and must apply the law of the state where the transferee court sits.

Question 94

Rule 11

Answer 94

• Not presented for an improper purpose
• Contentions warranted by existing law or non-frivolous argument
• fact contentions are at least likely to have evidentiary support

Question 95

Pretrial disclosures

Answer 95

• At least 30 days before trial, must disclose
  a. witnesses expected to call
  b. witnesses to call if needed
  c. depositions to be presented as witness testimony
  d. transcript of the pertinent portions of those depositions
  e. list of documents or exhibits might offer.
• NOTE - Objections must be made w/n 14 days or waived

Question 96

Appellate Standards of review

Answer 96

• Abuse of discretion - applies to rulings on legal rules (evidence, objections) within the court’s discretion
• Clearly erroneous - Applies to judge’s finding of fact
• de novo - applies to pure issues of law challenges
• harmless error -