Final Exam Prep Flashcards
Personal Jurisdiction automatically exits when dealing with
Tagging, personal service on someone in the state, consent, voluntary appearance, and domicile
Three Steps of Shoe
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)
Passive Consumers
Order by mail, telephone, sales person, and simply accept terms. They do not establish minimum contacts
Active Consumers
Dictate terms, vigorously negotiate, and inspect consumers. They establish minimum contacts
Stream of Commerce Plus
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.)
Stream of Commerce Pure
Minimum Contacts exist if you can reasonably anticipate the product will flow into forum state. Putting the product into the stream is enough.
Minimum Contacts/Effects test of Intentional Torts
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
General Jurisdiction
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
Specific Jurisdiction
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
When conducting the reasonableness check for personal jurisdiction
You must show that it is very unreasonable to exercise jurisdiction, not that another would be better
Reasonableness of Notice
Consider: how effective, how burdensome, alternatives, and the interests of the state/parties
What Rule governs Notice?
Rule 4 - only concerned with 4(c)(e)(h)
Federal Courts borrow state service rules of state where
action is brought and service has been made
Opportunity to be Heard for private parties
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?
When there is no pre-attachment hearing,
attachment can only occur if exigent circumstances exist
Facts and contexts dictate opportunity to be heard and how much process is due
movable/non-movable considerations are important
Federal Courts have _______ jurisdiction
Limited
State courts have _______ jurisdiction
General
Federal Subject-Matter Jurisdiction is concurrent
If you conclude something can be filed in federal court, you can assume it can be filed in state court as well
Federal Question SMJ
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
Essential Federal Ingredient Test for SMJ
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?
Diversity SMJ
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
Citizenship of corporations is determined
In states where they’re incorporated and in states of their principal place of business
Partnerships are determined by citizenship of ___ of the partners
all
Dropping a party from a case can cure diversity failure, but
a change in a party’s citizenship post-filing cannot cure diversity failure
Complete diversity
No plaintiff can have the same citizenship as ANY defendant
Alienage
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
Amount in Controversy
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
Good Faith in AIC exists unless
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)
Aggregation of Claims
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
Removal
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)
Unanimity Rule
A case can only be removed to federal court if all properly served defendants agree
28 USC 1441(c)
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)
Test for Tagalong Claim
Whether or not there is a common nucleus of operative fact with the anchor claim
Swift –> Erie
Federal courts are bound by state legislative and decisional law on matters of substance except where a federal statute or constitution applies
Horizontal Choice of Law
Use choice of law rules of the forum state to determine which state law applies when looking at Erie
Which decisional law counts?
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
Forum Selection Clause
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
Federal Rules v. State Law
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
Judge-Made Law v. State Law
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
Summary Judgment
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
For a plaintiff to win summary judgement
There must be no genuine dispute of material fact in respect to plaintiff’s claim
For a defendant to win summary judgement
There must be no genuine dispute of material fact in respect to only one element
Twiqbal Affirmative defenses
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
Attorney-Client Privilege
Absolute protection of communications and conversations
Work Product Privilege
Attaches to information gathered by parties’ agents in anticipation of litigation
Fact work product privilege can be overcome with
undue hardship to obtain
Attorney’s opinion on a case has
absolute protection
Joinder
(1) must be procedurally allowed under FRCP
(2) Must satisfy any jurisdictional requirements
Supplemental Jurisdiction when not all plaintiffs meet AIC
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
Rule 18
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
Rule 13(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
Rule 13(b)
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
Rule 13(g)
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
You can add a party to a counterclaim or crossclaim under 13(h) if
Rule 19 or Rule 20 is satisfied
Impleader Rule 14
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
Rule 20
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
Rule 19
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
Rule 24
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
Well-Pleaded Complaint Rule
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
Conley Rule for Pleading
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
Should Show Go on provision questions
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?
