Jurisdiction, Venue, Pleadings Flashcards
What are the requirements to plead SMJ?
Affirmatively
No Waiver permitted (parties cant agree to waive or no waiver is permitted by failing to object)
When can you object to SMJ?
any party and any time
even on appeal
What is Federal Question JD?
exist for a claim that arises under federal law
must appear in the complaint not defense - well pleaded complaint rule
What is Federal Question JD?
exist for a claim that arises under federal law
must appear in the complaint not defense - well pleaded complaint rule
Diversity JD arises when?
cases between different states or citizens of a state and foreign citizen, if amount EXCEEDS 75k.
All P’s and D’s must be completely diverse
requirements must be met at the time the complaint if filed
What is the complete diversity requirement?
every citizen from the plaintiff must be completely divers from defendants
What is minimal diversity?
any plaintiff is diverse from any defendant
permitted in:
interpleader act
class actions (over 100 Plaintiffs, 5 million in controversy)
interstate mass torts (harmed of 45 plaintiffs)
What is the citizenship of parties requirements for JD purposes?
must be a citizen of US and
domiciled in the of the relevant state
Domiciled
means permanent residency with the intent to remain indefinitely
How to determine domicile when there is a representative?
The state where the rep. domiciled controls
How to determine domicile for a corporation?
states where the place is incorporated AND the state or country where there is their principal place of business (nerve center)
How to destroy diversity
Moving
Assignment of claim
as long as neither are a sham
what are requirements for amount in controversy?
good faith allegation that the amount if 75k
cant aggregate claims UNLESS there is one defendant and one plaintiff, or if the defendants are being held jointly liable
types of personal jurisdiction
in personam
in rem
quasi in rem
In personam JD
ask whether sufficient contacts between defendant and forum state that it would be fair to sue the Def, there
How to determine minimum contacts?
if D has purposely associated himself with the forum
types of in personam JD
general:
specific
When is service by publication?
only appropriate for in rem actions when that is the best that the serving part can do
if have the ability to know or find out where they stay
Default rule for service of process
service in federal court is okay as long as it followed the state which it sits
General Rule for process under FRCP
personal delivery
leaving at defendants home with the suitable person of age
delivery to agent
How to serve minors or incapacitated person?
serve them and guardian
Service of process for Property?
make diligent effort to locate claimants to process
if cant, then can settle for publication as notice
Waiver of Service
D has duty to avoid unneccessary expensive of serving summon by waiving service
P can request that D waive
Accomplish by first class mail D has 60 days to respond if out of the county 90
What is an injunction?
form of relief that requires defendant to do something or not to do something
What does a preliminary injunction require?
issued prior to a full hearing on the merits:
notice to D
hearing to determine if injunction should be granted
What does venue determine?
Whether it is the proper court
What is the defendants responsibility to object?
object at the first opportunity or it is waived
can be accomplished in motion to dismiss, or defendants answer
Where is venue proper?
Where D resides and all D live in the state or
where the claim arose (substantial party of the events or omission occurred or substantial part where the property is located)
if neither of the two is met anywhere where the D is subject to PJD
What is Venue for business entities?
every district where PJD exist
What is proper venue when case is removed to federal court?
automatically proper in federal district where state court sits even if District wold not have been proper originally
Can you transfer venues?
yes, only with a district with proper venue
UNLESS all parties consent
What Law governs if you transfer courts?
if the proper venue, the first court controls
if the improper venue, the second court control (you cant take your law with you)
What instances limit the federal courts asserting diversity jurisdiction over a case?
Probate Matters & Domestic Relations issue
What is the bulge rule and how does I work
allows federal courts to acquire SMJD over party who is
added through imp leader (3rd party practice) or required joinder AND
served with process within 100 miles of the federal court
When will PJD not apply?
When a judgement is entered by federal court that had PJD, the judgement can be enforced by a federal court in another state
When is in rem jurisdiction appropriate?
when the suit is about the property
suit can’t be based on tort or contract
What does AIC not apply to and what will apply to AIC
AIC excludes interest, cost, or collateral effects of damages
Attorneys fees & putative if recoverable by contract or statute
