MBE Federal Civ Pro Flashcards
Bar Prep
Subject Matter Jurisdiction
A Courts competence to hear and determine cases of general class and subject to which proceedings in question belong
Federal Question
District Courts have jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the US.
Including Sec. and Exchange Act cases, patent, trademark, copyright, bankruptcy, maritime(?)
Concurrent/Exclusive Jurisdiction
State Courts and Federal Courts have concurrent Jurisdiction of FQ claim, except when Congress expressly provides that Jurisdiction of the Federal Courts is exclusive
Scope of FQ (Express)
Federal Question exists if the COA in question is expressly created by Federal Law and Federal Law provides the underlying right
Scope of FQ (Implied)
Federal Question is likely to be found if right is created by Federal Law, and a COA can be fairly implied and was intended by Congress
Scope of FQ when not Express/Implied
The Complaint must involve REAL and SUBSTANTIAL issue of Federal Law and its determination must necessarily depend on resolution of a Federal Issue
Well Pleaded Complaint (Motley)
FQ exists ONLY when Federal Issue is presented on the face of the Complaint.
Must be FQ involved in the Plaintiffs COA and not the Plaintiffs defenses or answers to counterclaims.
Diversity Jurisdiction SMJ
Federal Courts have Jurisdiction when parties are:
1. Citizens of Different States (or citizens of a state and citizens of a foreign state) 2. AIC exceeds $75,000
Complete Diversity
There MUST be Complete Diversity for Diversity Juris. SMJ.
There is NO diversity if ANY Plaintiffs a citizen of the same state or citizen of the same foreign country as ANY Defendant in the case.
Citizenship
Citizenship for Individuals is DOMICILE.
Citizenship for Corporations is STATE OF INCORPORATION and PRINCIPAL PLACE OF BUSINESS
Domicile
- The State in which an individual is PRESENT and INTENDS to reside for an INDEFINITE PERIOD;
- Determined when the ACTION IS COMMENCED (it can change after the action is commenced and it won’t affect Diversity)
A person can only have 1 Domicile
Citizenship of Corporations
Corporation Citizenship is determined by BOTH:
1. State of Incorporation
2. Principal Place of Business
NerveCenter from which the high-level officers direct, control and coordinate the activities of the Corporation
A Corporation can have Citizenship in 2 different States
Citizenship of Partnerships
An Unincorporated Association (A Partnership) is considered a citizen of EVERY STATE in which EACH of its Members is Domiciled.
A Partnership can be a citizen of all 50 states
Factors to Consider for Domicile
Factors include:
- exercising civil and political rights
- registering to vote
- paying taxes
- owning real and personal property
- employment in a state
- intent to remain doesn’t have to do with duration in a location.
Creating/Destroying Diversity
- Assignment of Claims
- Failure to name an Indispensable Party
- Voluntary change of Citizenship
- Replacement of Parties
Standard of Proof for AIC
The Plaintiff’s GOOD FAITH assertion in the Complaint is sufficient for the AIC, unless there is a Legal Certainty that Plaintiff cannot recover alleged amount
Aggregation of Claims
Permitted when there are
1. Multiple Plaintiffs
- Common/Undivided Interests
- Enforcing a single title or right
2. Single Plaintiffs
- The TOTAL value of the Plaintiffs claims are calculated to determine the AIC
AIC for Counterclaims
Permissive Counterclaim –> AIC must be met
Compulsory Counterclaim –> NO AIC NEDDED
Supplemental Jurisdiction
Fed. Ct with Jurisdiction MAY exercise Supplement Juris. over:
1. Additional claims where the Ct would not independently have SMJ
(typically State Law claims w/ Non-diverse Defendants),
2. That arose out of a CNOF - COMMON NUCLEUS OF OPERATIVE FACT
3. Sop that all claims should be tried in a SINGLE PROCEEDING
Supplemental Jurisdiction for FQ
Additional Claims against the SAME PARTY can be heard through Supp. Juris id the CNOF Test is met.
- CNOF Test - if the claim arises out of the same common nucleus of operative facts
Supp. Juris for Diversity Juris. - PERMISSIVE JOINDER
Supp. Juris. for Permissive Joinder:
- Addition of a Plaintiff asserting an additional claim
CANNOT VIOLATE
- Complete Diversity Rule
Doesn’t need the AIC either
Supp. Juris for Diversity Juris. - COUNTERCLAIMS
Supp. Juris. for Counterclaims:
Compulsory Counterclaims -
DO NOT NEED:
1. AIC
BUT NEED
2. Complete Diversity
Permissive Counterclaims -
NEED BOTH:
1. AIC and
2. Complete Diversity
Supp. Juris. for Diversity Juris. - CROSSCLAIMS
Supp. Juris. for Crossclaims:
- May be asserted by a Defendant against another Defendant/Plaintiff against another Plaintiff if:
- Cross-claim arises out of the SAME TRANSACTION OR OCCURRENCE as the Initial Claim
- No AIC or Citizenship Necessary IF Ct has SMJ.
Removal
Removal is when the Defendant removes a case from the State Ct to Fed. Ct that has SMJ.
ONLY the Defendant can’t remove a case.
Removal must be to the Fed. District Ct. in the State where the State Ct is pending
Removal to the wrong District Ct. is subject to a Motion to Remand (back to State Ct.) or Transfer to the proper Fed. Ct.
Removal based on Diversity Jurisdiction
Claim may be removed only if No Defendant is a Citizen of the State in which the Action was Filed.
If multiple Defendants, All Def. must agree to the Removal
Removal based on Fed. Question
If FQ claims are joined with claims that aren’t independently removable, the entire case may be removed.
Notice of Removal
Defendant MUST:
-File Notice within 30 DAYS after the Defendant gets service or receives the initial Pleading
Removal based on Diversity CANNOT occur more than ONE YEAR after the action is commenced (unless Plaintiff acted in Bad Faith
Remand for Lack of SMJ
Remand is sending the case back from Fed. Ct. to State Ct.
Remand for lack of SMJ can occur ANY time Before the Final Judgement is Rendered
Remand for anything other than SMJ
Motion to Remand for any defect other than SMJ MUST be pithing 30 DAYS after filing of Notice of Removal
Personal Jurisdiction
Courts ability to exercise judicial power over the persons or property involved in the cases or controversies before it.
PJ is governed by the FRCP, state statutes (Long Arm Statutes) and the Due Process Requirements of the Constitution
Fed. Ct. looks to the Long Arm Statutes to determine if it has PJ over the Parties
Types of Personal Jurisdiction
- In Personam
a. Specific Jurisdiction
b. General Jurisdiction - In Rem Jurisdiction
- Quasi-In Rem Jurisdiction
Consent to PJ
A party may expressly, impliedly or voluntarily consent to Personal Jurisdiction
Defenses to PJ
- Lack of Personal Juris.
- Insufficiency of Process or Service of Process
- Must be asserted at the 1st opportunity (usually the first responsive pleading- the answer to the complaint or a motion to dismiss for lack of PJ) and failure to object will waive the objection
In Personam
Required whenever judgement is sought that would impose a personal obligation on a Defendant.
Voluntary In Personam Jurisdiction
Appearance alone does not waive the right to object to Personal Jurisdiction
- If a person appears in the state to object to PJ they are not voluntarily availing themselves to PJ nor are they waiving their right to object to PJ.
Domicile In Personam Jurisdiction
If Authorized by Statute, a State has Jurisdiction over a person domiciled in the state
Consent In Personam Jurisdiction
Defendant can expressly consent to Juris. by
1. Contract or once an action is brought, 2. Implicitly though conduct, or 3. Voluntarily though appearance in court (unless that appearance is to object to Juris.)
Long Arm Statute
Authorizes PJ over NON-Residents who engage in some activity in the state or cause some action to occur within the state to the extent permissible under the Due Process Clause
Attachment of Property
If a claim is NOT related to Ownership of Attached Property, there MUST be MINIMUM CONTACTS between the Def. and the Forum State to establish PJ.
Due Process Requirements of PJ
Due Process Requirements are satisfied if the NON-Resident Def. has certain:
- Minimum Contacts - With the Forum State, such that - Maintenance of the Action - Does NOT offend TRADITIONAL NOTIONS OF FAIR PLAY AND SUBSTANTIAL JUSTICE
Minimum Contacts
Minimum Contacts are satisfied when the Defendant PURPOSELY AVAILS himself such that the Def. should reasonably anticipate (foresee) being taken to court there.
This can be satisfied from just driving through a state for a few hours
Specific Jurisdiction
When a COA arises out of the Defendant’s contact with the Forum State (even if it’s the only contact Def. ever had in the state).
-Specific Juris. would be for the action in the forum state only.
General Jurisdiction
Requires that the Defendant be:
1. Domiciled in the Forum State 2. Have CONTINUOUS and SYSTEMATIC contacts with the Forum State
And Confers PJ even when the COA has no relationship with the Defendant’s contacts with the State.
Fair Play and Substantial Justice
Minimum contacts MUST NOT OFFEND TRADITIONAL NOTIONS OF FAIR PLAY AND SUBSTANTIAL JUSTICE.
Factors include:
- Interest of Forum State in Adjudicating the matter
- Burden on the Def. of Appearing in Ct.
- Interest of resolution of controversies
- Shared interests of the states in promoting common social policies
In Personam Juris. over Resident Corporations
Corporations Incorporated in the Forum Stat can have any action brought against them if they are a resident corporation.
In Personam Juris. over Foreign Corp.
A Foreign Corp. is one NOT incorporated int he Forum State.
Foreign Corps. must have:
1. Minimum Contacts in the Forum State
- Minimum Contact test is --> Whether a Corps. affiliations with the Forum State are so "CONTINUOUS AND SYSTEMATIC" as to render the Corp. essentially "AT HOME" in the Forum State.
A Corp. Def. is ALWAYS AT HOME in the state of Incorp. and the state of it’s Principal Place of Business
PJ for Internet Websites
PJ over a NON-Resident’s website is based on the degree of interactivity between the website and the Forum state.
Ranges from Passive Sites to those that are integral to the Def.’s business
PJ on Suits based on Contracts
Contracts can be a significant factor in determining whether Minimum Contacts exists.
Choice of Law Provisions
Choice of Law provisions are enforceable and can establish that the NON-resident purposely availed himself to benefits of the Forum State’s laws
In Rem
Gives the Court authority to determine issues concerning rights to REAL/PERSONAL PROPERTY
In Rem Due Process
In Rem Proceedings against Property must:
1. Satisfy the Due Process requirements for PJ 2. Property MUST be in the Forum State
Quasi In Rem
Determines ONLY the interests of the Parties to the Action regarding property located in the Forum State and is NOT personally binding against the Def.
(determines interests such as in lien foreclosure or quiet title action)
Quasi In Rem Due Process
If Disputes are unrelated to ownership of property and no close relationship is formed, in addition to having property located in the Forum State. minimum contacts must be shown between the Defendant and the Forum State.
Notice
Notice must be reasonable calculated, under all the circumstances, to appraise interested parties of pending action and afford them the opportunity to object
Forms of Notice
- In Person Delivery
- Registered Mail
- when the identity/address is known or obtainable through reasonable efforts
Venue
Venue is Proper in the Judicial District where
1. ANY Defendant resides, in the State where ALL Defendant's reside 2. Where a SUBSTANTIAL PART of the events/omissions occurred; or 3. Where PROPERTY that the Subject of the action is located
Otherwise where any Defendant is subject to Personal Jurisdiction
Change of Venue - Orig. Venue Proper
When the Original Venue is PROPER a transfer is Permitted to:
1. ANY district where the case might have been brought originally; or 2. To a Venue which all parties consent
Change of Venue - Original Venue Improper
When the Original Venue is IMPROPER the case can be:
1. Dismissed; or 2. Transferred to the Proper district if its in the interest of justice
Forum Non Conveniens
Only used when the Forum that is deemed most appropriate for the action is a foreign court
Erie Doctrine - Choice of Law
FQ - FEDERAL SUBSTANTIVE and PROCEDURAL law controls, as well as Fed. Common Law
Diversity - STATE SUBSTANTIVE law and FEDERAL PROCEDURAL law
Time for Service of Process
Within 90 DAYS after Filing the Complaint
Methods of Service for Individuals
- Personal Service
- At Def.’s usual place of abode/18yrs+ who lives there/knows content of document
- Delivery to the Def.’s Agent
Service on Corporations
Service can be made to:
- Officers
- Agents
- Or anyone OK’d by State Law
Waiver of Service
Request for a Waiver of Service must be:
1. In Writing 2. Addressed to the Def./Officer/Agent 3. Give Def. Reasonable time (AT LEAST 30 DAYS) after the request to return the waiver
Why have a Defendant Waive Service?
This extends the time to serve an answer from 21 DAYS - 60 DAYS (90 if foreign)
Types of Injunctions
- Temporary Restraining Order
- Preliminary Injunction
- Permanent Injunction
Temporary Restraining Order
- Preserves the Status Quo until an opportunity for a full hearing
- Effective for short time (no longer than 14 DAYS)
- Not immediately appealable
- May be issued without notice if injury will result and Movant’s attorney certifies efforts made to give notice
Motion to Dissolve
If a TRO is issued WITHOUT Notice, the Adverse party may appear and move to dissolve or modify the TRO
Preliminary Injunction
- Issued Prior to a Full Hearing on the merits, upon notice of the Defendant.
- May be issued to a Plaintiff IF:
a. Plaintiff is likely to succeed on the merits
b. Plaintiff is likely to suffer irreparable harm in the absence of relief
c. Balance of Equities
