Federal Jurisdiction and Procedure

Question 2

Claims which always have 1367 supplemental jurisdiction

Answer 2

1. Compulsory counterclaim
2. Cross-claim
3. Impleader claim by a defendant who brings a 3rd party defendant
4. Claim by impleaded 3rd party against Pl.
5. Intervention of right under rule 24

Question 3

Procedure for removal to federal court

Answer 3

1. Determine if removal is timely!
   - Defendant/s have 30 days from the complaint (calculated by date of last defendant served)
2. Obtain consent of all defendants to remove
3. Prepare and sign notice of removal stating grounds for Federal SMJ & attach all state court documents to notice
4. File in federal court
5. Provide plaintiff with a copy of the notice, state docs & memo explaining reasons for removal
6. File notice and attachments (state court docs and memo provided to plaintiff) in state court.

Removal is effective as of filing in state court

Question 4

Joinder requires

Answer 4

Same transaction or occurrence

Question 5

Hertz test (re: corporations - jurisdiction)

Answer 5

Nerve center - principal place of business where corporation’s officers “direct, control and coordinate”

Question 6

Merrel Dow case

Answer 6

Pl can get 1331 w/ state COA but must must prove “substantial proposition of federal law”

Question 7

1367 (supplemental jurisdiction) language

Answer 7

Claim must be
1. So related

2. Forms part of the same case or controversy
3. Demonstrated by how it shares CNOF
4. b/c it arises out of STO

Question 8

Rule 50 Judgment as a matter of law

Answer 8

No reasonable jury could find for non moving party

• moved for after party has been fully heard on the issue

Question 9

Rule 56 Motion for Summary Judgment (MSJ)

Answer 9

• Filed after close of discovery- judge cannot weigh credibility/evidence
  1. No genuine issue of material fact
  2. Movant entitled to judgment as a matter of law
• attach: affidavits - based on personal knowledge, by competent witnesses, that would be admissible at trial

Question 10

Rule 12(b) Motion to Dismiss (standards)

Answer 10

Requires:
1. A claim that is cognizable as a matter of law

2. Must meet the Twombley standard:
   a: sufficient facts must be alleged to raise a claim that is “plausible” and establishes an “entitlement to relief.”

b: pleaded facts must be sufficient to
create a “reasonably founded hope that the discovery process will reveal relevant evidence”

federal court must accept Plaintiff’s pleaded allegations in the Complaint as true, and must view the Complaint in a light most favorable to the plaintiff.

Question 11

Rule 54 Entry of Final Judgment

Answer 11

1. Judge makes express determination that there is no just reason for delay
2. Makes an express direction for the entry of judgment

Question 12

Statutory interpleader

Answer 12

Minimal diversity

Amount in controversy = $500

Usually stakeholder is disinterested, but need not be

Question 13

Intervention

Answer 13

3d party wants to join suit

Intervention OF RIGHT when:
1. interest of 3d party may be harmed

PERMISSIVE when:
common question;
allowed unless would cause delay

Question 14

Impleader

Answer 14

Complaint can be filed by a Defendant to bring in a third party who may be liable

Question 15

Interpleader

Answer 15

Allows person (stakeholder) to compel litigation so two other parties can settle dispute

Rule interpleader (FRCP 22)
1. stakeholder and 
2 parties diverse; 
3. $75K; 
4. normal venue rules 

Statutory interpleader (§ 1335)

1. 2 parties diverse;
2. $500;
3. venue is proper wherever a claimant resides

Question 16

Declaratory judgment

Answer 16

Federal ct is authorized to declare rights and other relations of any interested parties

Must show:

1. Dispute is definite, concrete and immediate
2. Declaratory Judgment will resolve dispute
3. No further factual development of the claim will occur in the future

• does not create SMJ
• has force and effect of final judgment

Question 17

Fraudulent Joinder doctrine

Answer 17

1. no reasonable basis for liability against non diverse party
2. File a notice of removal in federal court alleging fraudulent Joinder to defeat removal

Question 18

Amount in controversy (standard)

Answer 18

Facially apparent

Plaintiff may rely on inferences from facts

Prove by preponderance of evidence

Question 19

compulsory counterclaims

Answer 19

arise from the same transaction or occurrence as the original claim;

• entitled to use supplemental jurisdiction if there is not an independent basis for federal SMJ.

Question 20

§ 1983 purpose and remedy

Answer 20

give remedy if a state actor acting under apparent color of law (meaning statute or custom) violates

Remedy: damages against state actor acting in private capacity;

injunction/declaratory judgment against state actor acting in official capacity

Question 21

Pullman abstention

Answer 21

federal courts should abstain from interpreting unclear issue of state law

Question 22

Buford abstention

Answer 22

federal courts should abstain if 1. important state interest, and
2. sufficient state regulatory scheme

Question 23

Younger Abstention

Answer 23

abstain from exercising jurisdiction when the plaintiff seeks an injunction or prospective declaratory relief against an ongoing state criminal proceeding or quasi-criminal proceeding (like contempt)

Question 24

Elements of class action (NCTFO)

Answer 24

Joinder impractical because -  (NCTFO)
(1) Numerosity – the class is so numerous that joinder of all members is impracticable 

(2) Commonality – questions of law and fat common to the class
(3) Typical Claims or Defenses – the c and d of the representatives are typical of c or d of the class
(4) Fair and Adequate Protection of Interests – the representative parties will fairly and adequately protect the interests of the class; and
(5) Objectively Defined Class – the class may be defined objectively in terms of ascertainable criteria

Question 25

time and method for appealing

Answer 25

file notice of appeal with the clerk of the district court w/in 30 days from the entry of anappealable judgment.

Question 26

motion for new trial

Answer 26

only granted when the judgment is against the clear weight of the evidence;

must move for w/in 10 days from the entry or judgment.

Question 27

Work product doctrine

Answer 27

protects the mental impressions of the parties and their agents and documents prepared by them in anticipation of litigation;

To obtain evidence protected by the work product doctrine, must show: 1. substantial need and
2. inability to obtain by any other means;

• cannot discover information that is the work product of the party’s attorney; - have to give notice that withholding the evidence b/c of the work product claim.

Question 28

Rule 11

Answer 28

signing certifies that to the best of the signor’s knowledge, information, and belief formed after reasonable inquiry, the paper being filed is

1. not being interposed for an improper purpose,
2. the claims and/or defenses are warranted by existing law or by a nonfrivolous argument for its extension, modification, or reversal,
3. allegations have evidentiary support.
4. Each denial is based on evidence or reasonable lack of information or belief

Question 29

12(c) motion for judgment on the pleadings

Answer 29

• cannot be filed until all pleadings are filed;

12(c) motion alleges that the pleadings warrant a judgment for the moving party as a matter of law;

if the motion refers to matters outside of the pleadings, then treat as a MSJ

Question 30

requirements of pleadings (7)

JEDCNOS

Answer 30

any pleading stating a claim must contain:

1. jurisdictional statement, (J)
2. short and plain statement showing entitlement to relief, (E)
3. demand for judgment; (D)
4. caption, (C)
5. name of the parties, (N)
6. organized in paragraphs, and (O
7. be signed by an attorney or party. (S)

Question 31

Time to answer complaint

Answer 31

must be filed and served w/in 20 days of service and summons and complaint or

60 days from mailing waiver of service

Question 32

1331 federal question jurisdiction

Answer 32

federal courts have jurisdiction over cases arising under the Constitution, laws, or treaties of the United States;

there is no jurisdictional amount.

Question 33

well pleaded complaint rule (Motley)

Answer 33

look at the face of the Pl’s complaint to see if there is a claim that arises under federal law;

the D’s answer is irrelevant and a potential federal defense does not supply federal SMJ

Question 34

“Arising under”

Answer 34

complaint alleges an expressed or implied federal cause of action or a state law claims where the Pl alleges a right or interest that is substantially founded on federal law.

Question 35

Erie Doctrine

Answer 35

requires that state law apply in federal court in the absence of controlling federal law on point;

the Erie rule says that you apply the state’s statutory and decisional law;

to determine choice of law, use the choice of law rules of the state in which the federal diversity court sits.

Question 36

Citizenship of corporation

Answer 36

1. citizen of the state(s) of incorporation; 2. citizens of principal place of business; total activity test – 1. “nerve center” of the corporation and 2. “place of director and officer activity”

Question 37

unincorporated business entities

Answer 37

citizenship of all of the entity’s members (so either apply the natural person test or the corporation test);

** special rules: 1. a business trust is a citizen of where it’s trustee is a citizen; 2. national banks are citizens of the state where it’s head office is; 3. political subdivisions are citizens of the state.

Question 38

Natural persons (citizenship)

Answer 38

place of fixed and permanent residence (domicile) Look to:

1. physical presence, and
2. intent to remain indefinitely

Question 39

permissive counterclaims

Answer 39

do not arise from the same transaction or occurrence as the original claim.

**MUST have independent subject matter jurisdiction - supplemental jurisdiction will not attach.

Question 40

analysis for a personal jurisdiction issue

Answer 40

1. whether or not there is a state or federal statute authorizing personal jurisdiction; if there is not, then the inquiry ends;
2. whether or not exercising jurisdiction violates the 14th Amendment due process clause.

Question 41

constitutional standard for due process

Answer 41

1. minimum contacts

**purposeful availment: contacts must be a result of intentional conduct and not a mere accident;

Look to :

1. conducted activities w/in the forum state and availed themselves of the benefits of the state’s laws;
2. placed an item within the stream of commerce (but may need more);
3. activities of D make it foreseeable that he would be amenable to suit in the forum.**
4. exercise of jurisdiction must not violate notions of fair play and substantial justice

Question 42

Temporary Restraining Order (TRO)

Answer 42

ex parte relief must show:
1. irreparable injury will occur before the D can be notified and

2. reasons why notice should not be required;

expires by operation of law in 10 days and Pl must post security.

Question 43

Preliminary injunction (1983)

Answer 43

must show:
1. no adequate remedy at law;

2. irreparable injury will occur if the PI does not issue and have to wait for the trial of the permanent injunction; and,
3. probability of success on the merits on the claim for the permanent injunction.

Question 44

Necessary party

Answer 44

1. cannot afford complete relief in their absence;
2. Interest and Absence may impair/impede their ability to protect the interest; and
3. absence would leave the other parties subject to multiple and inconsistent obligations.

Question 45

Indispensable party

Answer 45

necessary party AND must dismiss if:

1. in equity and good conscience
2. the suit cannot proceed in the absence of the nonjoined party, and 3. joinder is not feasible.

Question 46

Time period for service of complaint

Answer 46

120 days

Question 47

required disclosures/initial disclosure (discovery)

Answer 47

initial disclosure w/in 14 days of the discovery conference and

pretrial disclosure at least 30 days before trial;

disclose identity of witnesses and documents that the disclosing party may use to support its claims or defenses;

do not have to disclose if used solely for impeachment purposes;

duty to disclose is continuing;

failure to comply is automatic exclusion;

Question 48

Objections to jury instructions

Answer 48

must make objections and state them on the record before the jury retires for deliberation

failure to object timely waives objection unless the instructions are plain error.

Question 49

General Jurisdiction requires:

Answer 49

A: Minimum contacts -

1. Continuous, and
2. Systematic

B: doesn’t offend traditional notions of fair play and substantial justice -

1. burden imposed on D. to defend in the forum state;
2. convenience to be obtained by the plaintiff
3. the interests of the forum state
4. location of witnesses and evidence; and
5. advancement of fundamental social policy, considering the availability of alternate forums.

Question 50

Specific Jurisdiction requires

Answer 50

A: Contacts with State -
1. “purposefully availed” itself of the forum state,

2. derived benefits from the forum state, and
3. whether the defendant reasonably expects to be haled into court in the forum state.

B: doesn’t offend traditional notions of fair play and substantial justice -

1. burden imposed on D. to defend in the forum state;
2. convenience to be obtained by the plaintiff
3. the interests of the forum state
4. location of witnesses and evidence; and
5. advancement of fundamental social policy, considering the availability of alternate forums.

Question 51

Discovery request requirements

Answer 51

1. relevant
2. non-privileged,
3. described with reasonable particularity, and
4. reasonably calculated to lead to the discovery of admissible evidence.

Question 52

Defects to removal

Answer 52

1. Timeliness
   a: 30 days from receipt of paper from which it can be ascertained an issue is removable.
   b: removal w/in 1 year of suit being filed
   (exception - bad faith o/b/o pl. which prevented timely removal)
2. Failure to join with other served defendants in removal.
3. Jurisdiction based - a diversity suit may not be removed when any defendant is a citizen of the state forum in which the state claim was filed.

Question 53

“Fairness” factors

Answer 53

1. Burden on D
2. P interest in convenient & effective relief
3. Forum state interest
4. Efficiency of interstate judicial resolution
5. Social policy

Question 54

Preliminary injunction

Answer 54

1. no adequate remedy at law;
2. irreparable injury will occur if injunctive relief not granted and have to wait for the trial for permanent injunction; and,
3. probability of success on the merits on the claim for the permanent injunction.

Question 55

Joinder not feasible factors: (4)

Answer 55

1. Extent judgment rendered against absent individual will prejudice remaining parties
2. Extent prejudice can be avoided or lessened
3. If judgment will be adequate among remaining parties
4. If plaintiff will have adequate remedy if dismissed