Final Exam Prep Flashcards

1
Q

Personal Jurisdiction automatically exits when dealing with

A

Tagging, personal service on someone in the state, consent, voluntary appearance, and domicile

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2
Q

Three Steps of Shoe

A

Follow these steps when automatic requirements are not met
(1) Minimum Contacts: Are there minimum contacts between the defendant and the forum that are sufficient to establish jurisdiction?
(2) Relatedness: does the claim arise from or relate to contact with the forum?
(3) Reasonableness: What is the burden on the defendant, what are the forum state’s interests, what is an efficient resolution of controversy (evidence/witnesses), what are the shared interests of state in furthering substantive policies (balance interests of competing forums)

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3
Q

Passive Consumers

A

Order by mail, telephone, sales person, and simply accept terms. They do not establish minimum contacts

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4
Q

Active Consumers

A

Dictate terms, vigorously negotiate, and inspect consumers. They establish minimum contacts

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5
Q

Stream of Commerce Plus

A

No minimum contacts exist if there is a placement of product into a stream of commerce and nothing more. Awareness of where the item could end up is not enough and there must be intent or purpose to serve the market within the forum state (ex. designing product for the market in forum state, advertising, providing channels for consumers to reach out to you, etc.)

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6
Q

Stream of Commerce Pure

A

Minimum Contacts exist if you can reasonably anticipate the product will flow into forum state. Putting the product into the stream is enough.

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7
Q

Minimum Contacts/Effects test of Intentional Torts

A

Minimum contacts exist involving intentional torts when the defendant has knowledge the conduct will cause harm to plaintiff in the forum and something about the facts shows that the defendant expressly aimed or targeted the forum state

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8
Q

General Jurisdiction

A

When contacts are so extensive and substantial (continuous and systematic) that the defendant can be said to be at home in the jurisdiction. A person is considered at home when: they’re incorporated, they have a principal place of business (HQ) - no reasonableness check

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9
Q

Specific Jurisdiction

A

What you have to find when contacts in the forum are not considered general (at home)
You must: show that claim arises out of or relates to the defendant’s contacts with the forum and there is a significant connection between the claim and contacts

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10
Q

When conducting the reasonableness check for personal jurisdiction

A

You must show that it is very unreasonable to exercise jurisdiction, not that another would be better

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11
Q

Reasonableness of Notice

A

Consider: how effective, how burdensome, alternatives, and the interests of the state/parties

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12
Q

What Rule governs Notice?

A

Rule 4 - only concerned with 4(c)(e)(h)

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13
Q

Federal Courts borrow state service rules of state where

A

action is brought and service has been made

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14
Q

Opportunity to be Heard for private parties

A

3 prongs:
(1) what are the private interests of the person whose things are being taken
(2) What is the risk of erroneous deprivation/probable value of additional safeguards?
(3) What is the size of the plaintiff’s interest and how costly will it be for the government to use or change procedure?

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15
Q

When there is no pre-attachment hearing,

A

attachment can only occur if exigent circumstances exist

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16
Q

Facts and contexts dictate opportunity to be heard and how much process is due

A

movable/non-movable considerations are important

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17
Q

Federal Courts have _______ jurisdiction

A

Limited

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18
Q

State courts have _______ jurisdiction

A

General

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19
Q

Federal Subject-Matter Jurisdiction is concurrent

A

If you conclude something can be filed in federal court, you can assume it can be filed in state court as well

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20
Q

Federal Question SMJ

A

Must have constitutional and statutory basis. Constitutional (some potential federal issue) is always going to be met. Statute is 28 USC 1331 “arising under.” Satisfied in two ways
(1) Creation Test: someone bringing federal cause of action (assume it is not federal unless it is said that the cause of action was created by a federal statute)
(2) Essential Federal Ingredient Test: trying to figure out if a state cause of action can go to federal court

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21
Q

Essential Federal Ingredient Test for SMJ

A

Does state law claim involve a federal issue that must be resolved?
Is federal issue disputed by the parties?
Is federal issue substantial (big enough of an interest to the federal system as a whole - taxes, protect environment, etc. - not torts or contract disputes)
Would granting jurisdiction upset the federal/state balance?

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22
Q

Diversity SMJ

A

28 USC 1332
Between citizens of different states
Domicile is determined at the time of filing - things that happen after are only relevant if they bear on the intent at the time of filing

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23
Q

Citizenship of corporations is determined

A

In states where they’re incorporated and in states of their principal place of business

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24
Q

Partnerships are determined by citizenship of ___ of the partners

A

all

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25
Q

Dropping a party from a case can cure diversity failure, but

A

a change in a party’s citizenship post-filing cannot cure diversity failure

26
Q

Complete diversity

A

No plaintiff can have the same citizenship as ANY defendant

27
Q

Alienage

A

28 USC 1332(a)(2)
Foreign subjects in which there is ALL US citizens on one side and ALL aliens to the other
28 USC 1332(a)(3)
US citizens on one side and aliens as parties as well

28
Q

Amount in Controversy

A

Not a constitutional requirement, gatekeeping measure to keep small disputes out of federal court, must exceed $75,000
Sum claimed by the plaintiff controls if the plaintiff at the time of filing alleged the amount in good faith

29
Q

Good Faith in AIC exists unless

A

It is legally impossible for plaintiff to recover statutory minimum; AND the plaintiff knew or should have known it was legally impossible
(if something is legally impossible, assume the plaintiff knew or should have known unless you can point to some reason why they could not have known)

30
Q

Aggregation of Claims

A

Plaintiff only, cannot aggregate claims against different defendants to satisfy amount in controversy unless there is joint and several liability
Separate plaintiffs cannot aggregate claims against one defendant

31
Q

Removal

A

28 USC 1441
When a defendant removes a matter originally filed in state court to federal court
Can only work where the plaintiff could have originally brought the case to federal court (requires SMJ analysis)

32
Q

Unanimity Rule

A

A case can only be removed to federal court if all properly served defendants agree

33
Q

28 USC 1441(c)

A

Applies when you have at least one federal question claim and at least one claim outside of original/supplemental jurisdiction - you can remove the whole case (claims outside of original and supplemental get severed and sent back to the state)

34
Q

Test for Tagalong Claim

A

Whether or not there is a common nucleus of operative fact with the anchor claim

35
Q

Swift –> Erie

A

Federal courts are bound by state legislative and decisional law on matters of substance except where a federal statute or constitution applies

36
Q

Horizontal Choice of Law

A

Use choice of law rules of the forum state to determine which state law applies when looking at Erie

37
Q

Which decisional law counts?

A

Federal courts are bound by decisions of highest courts in the state, otherwise they are supposed to look to lower court decisions to predict what the state supreme court would do

38
Q

Forum Selection Clause

A

With a contractual agreement for jurisdiction - When conflict between federal statute and state law in question exists, the court applies federal statute because if the federal statute is a constitutional exercise of Congress’ power and conflicts with state law, it wins under Supremacy Clause
Congress has properly exercised power if the law is classified as procedural and it is classified as substantive

39
Q

Federal Rules v. State Law

A

Federal rules are valid if they comply with the Rules Enabling Act: regulate procedure, doesn’t modify, abridge, or enlarge substantive rights
If something does not satisfy REA, state law wins

40
Q

Judge-Made Law v. State Law

A

Hanna/Byrd Combo
If applying federal law will not lead to forum shopping or inequitable administration of justice, apply federal law
If it does lead to these things, apply state law unless there are countervailing federal interests that outweigh state interests at stake

41
Q

Summary Judgment

A

Rule 56
Appropriate when there is no dispute of material fact and no reasonable jury could find for one side of the the undisputed issues

42
Q

For a plaintiff to win summary judgement

A

There must be no genuine dispute of material fact in respect to plaintiff’s claim

43
Q

For a defendant to win summary judgement

A

There must be no genuine dispute of material fact in respect to only one element

44
Q

Twiqbal Affirmative defenses

A

You have to plead enough facts to state a claim of relief that is plausible on its face. Facial plausibility exists when the plaintiff pleads enough factual content to support claim alleged. Plaintiff has to plead facts that make it seem like guilty explanation is either more plausible than the innocent explanation OR in the same ballpark of plausibility as the innocent one

45
Q

Attorney-Client Privilege

A

Absolute protection of communications and conversations

46
Q

Work Product Privilege

A

Attaches to information gathered by parties’ agents in anticipation of litigation

47
Q

Fact work product privilege can be overcome with

A

undue hardship to obtain

48
Q

Attorney’s opinion on a case has

A

absolute protection

49
Q

Joinder

A

(1) must be procedurally allowed under FRCP
(2) Must satisfy any jurisdictional requirements

50
Q

Supplemental Jurisdiction when not all plaintiffs meet AIC

A

Courts allow this as long as the other requirements of § 1367 are satisfied.
One exception: when complete diversity is not satisfied - otherwise jurisdiction is destroyed

51
Q

Rule 18

A

You can assert any claim against an opposing party (does not have to be related). Applies to plaintiffs and those making counterclaims, crossclaims, and third-party claims

52
Q

Rule 13(a)

A

Compulsory counterclaims must be raised or they are waived - if it arises out of the same transaction or occurrence and there is a logical relationship

53
Q

Rule 13(b)

A

Permissive counterclaim can be brought against a person even if it is not related to the original transaction or occurrence - can be brought with a compulsory claim

54
Q

Rule 13(g)

A

Crossclaim can be brought by parties on the same side of the v (permissive)
When a coparty brings a claim against you, unless it is solely for contribution and indemnity, the coparty becomes an opposing party and your obligation to bring a compulsory counterclaim kicks in

55
Q

You can add a party to a counterclaim or crossclaim under 13(h) if

A

Rule 19 or Rule 20 is satisfied

56
Q

Impleader Rule 14

A

Joinder of a party who is or may be liable to the defendant party for all or part of the claim against it
Takes place when:
Plaintiff is accusing someone and someone else has the blame or has to pay - person adding is the third-party plaintiff and the person being added is the third-party defendant

57
Q

Rule 20

A

Permissive Claim - Plaintiffs or defendants when claims arise out of the same transaction or occurrence and raise at least one common question of law or fact

58
Q

Rule 19

A

Compulsory Joinder - Courts look at 3 things
(1) Is there some party that is necessary or required that is wanted in the litigation?
(2) If the party is necessary, the court has to join them if feasible
(3) Should show go on? - will prejudice occur

59
Q

Rule 24

A

Permissive Intervention says there must be a claim or defense that share a common question of law or fact and the judge should find good reason to get you involved
Intervention by Right is granted when a statute says you can intervene

60
Q

Well-Pleaded Complaint Rule

A

Goes with Federal Question SMJ: when trying to find federal question, do not consider actual or anticipated defenses the defendant might offer - just essential elements because issues that “could come up” is not enough

61
Q

Conley Rule for Pleading

A

A complaint only needs some facts to avoid dismissal. Failure to state a claim only exists when there are no facts to support a claim which would entitle someone to relief

62
Q

Should Show Go on provision questions

A

How much prejudice will the existing parties or absent parties suffer? Is there some way to limit or shape relief so that prejudice is minimized?
Is litigating the case without the absent party a good use or resources?
What happens if the case is dismissed? Does the plaintiff has any adequate remedy otherwise?