Midterm April 2 Civ Pro bar Flashcards
Tell me about Federal SMJ in general
Federal SMJ is inherent power for federal court system to exercise power over a CLAIM…
[Context - but that’s not all…for particular federal court to have Original Jurisdiction over a civil claim, it must have not only Federal SMJ but Federal PJ and Federal Venue for that Claim]
Note:
Federal SMJ cannot be waived (unlike PJ)
Federal SMJ cannot be stipulated
For a federal court to have OJ over a civil claim, what must be satisfied?
Must satisfy Federal SMJ AND Federal Personal Jurisdiction AND Federal Venue
Tell me about Federal Question Jurisdiction
FQJis a subtype of Fed SMJ, along with DJ, Supp J and Other J
“arises under Constitution or federal law” per Art III sec 2 cl 1 and 28 USC 1331 test via - Mottley, Holmes, Wellworks
The complaint (not defense, etc) is on its face…
created by federal law
or
created by state law w/ required federal element
NOTES
FQJ, if the basis of the Federal SMJ, means the court must use federal procedure
FQJ does NOT have AIC reqt cf. DJ
Tell me about Federal Exclusive Jurisdiction
Art III sec 2 cl 1
bankruptcy law
patent law
copyright law
securities
maritime law
some federal statutes
don’t confuse with SCOTUS OJ under Art III sec 2 cl 2
Tell me about Concurrent Jurisdiction - OJ
OJ State Jurisdiction AND OJ federal jurisdiction
employment discrim
other statutes
Tell me about State Exclusive Jurisdiction
state contract law
state tort law
family law
state property law
state other statutes
but CAN bump up to federal SMJ via Diversity Jurisdiction or Supplemental Jurisdiction
What is the policy reason, and what are the two main elements required for Diversity Jurisdiction?
The policy reason is to avoid homefield disadvantage against OUT of STATE defendant
Two elements must be satisfied for Federal SMJ of a claim to be based on DJ
AMOUNT IN CONTROVERSY
and
DIVERSITY of CITIZENSHIP
Presumption is that PLAINTIFF, being the party to initiate civil action, will choose to initiate in a plaintiff-friendly forum.
DJ is limited by the “forum-defendant rule” i.e. removal from state to fed court on Diversity Jurisdiction grounds ALONE is not available to IN-STATE defendant b/c DJ is intended for OUT-OF-STATE defendants not in-state defendants.
What is Federal Supplemental Jurisdiction?
Federal SMJ of a claim based on Supplemental Jurisdiction
General:
Common for adding claim
e.g. negligence claim added to breach of contract claim
Common for crossclaim, or counterclaim
Claim 2, having NO independent Federal SMJ
MAY BE ADDED, via Supplemental Jurisdiction to
Claim 1, having independent Federal SMJ
As long as Claim 2 and Claim 1 have “common nucleus of facts”
Yes, even if Claim 2 is based purely on state law
Yes, even if parties of Claim 2 otherwise would destroy Claim 1 Diversity Jurisdiction (unless DJ is SOLE basis of claim 1 Federal SMJ)
How is AIC satisifed for Federal SMJ - Diversity Jurisdiction?
AIC must be GREATER than $75,000
Calc is based on alleged claims, not actual award. CAN include intangibles e.g. humiliation…
Multiple P can aggregate dollar values of their claims agaisnt a single defendant IF
in good faith
AND
“enforcing a common right”
Actual amount awarded is less than or equal to $75,000? All good, DJ still exists
“enforcing a common right” DOES NOT mean similar claims of 2 Ps from 2 totally separate but similar contracts
“enforcing a common right” DOES mean SAME common right of 2 Ps
Single P can always aggregate dollar value of unrelated claim(s), in good faith, against single D
Aggregated claims DO NOT have to be “enforcing a common right”
e.g. ok to aggregate dollar value from two unrelated sets of facts/laws b/c same single P and same single D
Actual amount awarded is less than or equal to $75,000? All good, DJ still exists.
What are the general rules of Diversity Jurisdiction?
Depends on if NATURAL PERSON is a party or ORGANIZATION is a party (see other slides)
Citizenship as of WHEN?
Citizenship of all parties as of** DATE of FILING of ORIGINAL SUIT (DoFLOS)**…∴ don’t be fooled by parties’ locations later at time of filing a “stemming from” suit AFTER DoFLoS (Hudson Q3)
e.g. if State A state court is where divorce decree/alimony claim was made,
Then State A state court retains jurisdiction over not just the divorce/alimony decree, but any later “stemming from” alimony suit challengint the original alimony amount…
∴ don’t be fooled by parties relocating AFTER DoFLoS t (Hudson Q3)
Complete Diversity Required (general rule)!
All Ps and All Ds must have citizenship different from All Ps and All Ds
Exception to “Complete” for Class Action
Named P and Named D must have citizenship different from Named P and Named D (lower bar to achieve DJ)
Exception to “Complete Diversity Required” for Alienage Diverse Citizenship (page 21 Barbri)
[think of LPR in State X the same as US Citizen in State X]
[think: if both parties are non-LPR non-US Citizen, it kills Diversity i.e. state court only
Think of non-LPR non USC as a citizen of state 51]
Diverse citizenship DOES exist for dispute of US citizen vs. non-citizen non-LPR 28 USC § 1332(a)(2)
Diverse citizenship DOES NOT exist for dispute of
non-citizen non-LPR vs. non-citizen non- LPR 28 USC § 1332(a)(2) ??
Diverse citizenship DOES NOT exist for dispute of US Citizen w/ State X residence vs. non-citizen LPR w/ State X residence 28 USC § 1332(a)(2)??
Where does NATURAL PERSON CITIZENSHIP EXIST?
Note: includes LPRs, i.e. citizenship for DJ does not mean actual citizenship. Don’t confuse with in personam PJ.
State where natural person is physically domiciled (objective)
AND
State where natural person is intending to make permanent home (subjective)
Where does natural person citizenship exist (for party acting as executor of decedent as defendant)?
State where executor is representing decedent as defendant 28 USC § 1332(c)(2)
Where does natural person citizenship exist (for party acting as legal rep of infant)?
State of natural person citizenship of infant
Where does natural person citizenship exist (for party acting as legal rep of incompetent)?
State of natural person citizenship of incompetent
Where does ORGANIZATIONAL CITIZENSHIP EXIST for Diversity Jurisdiction purposes?
Where does organizational citizenship exist (general)?
Note: Yes, having citizenship in MULTIPLE states means it will be harder to find Complete Diversity for a case
For an LLC
State(s) where each member has natural person citizenship (like unincorporated association)
For a partnership
State(s) where each partner has natural person citizenship
For a corporation
State(s) where corporation is incorporated
AND
State(s) where corporation has PPoB [from where activities are directed, controlled, coordinated]
How does REMOVAL work and how does REMAND work?
DEFENDANT (not plaintiff) removes
PLAINTIFF (not defendant) remands
Removal by Defendant
General: Allows case to bump from state court to federal court for valid “basis of removal” i.e. fed court has jurisdiction
Removal IS NOT available to Plaintiff
Removal IS available to a Defendant
Exception when Removal IS NOT available to Defendant? When SOLE basis of attempted removal is diversity AND ANY defendant is citizen of forum state in which original state action is pending [reason: DJ is designed to protect OUT-OF-STATE defendant]
Removal is OF RIGHT
i.e. Removal Notice is not subject to state court review or Plaintiff challenge (but see Remand option for Plaintiff)
Requirements of REMOVAL
Removal Notice By Defendants
If attempted with multi-defendant case, requires consent of ALL defendants
Removal Notice By Defendant
Must be filed within 30 days of service of complaint
Removal By Defendant
Must actually occur (actual bump to fed court) not later than 30 days after service of first “removable” document
Remand by Plaintiff
General:
Allows case to bump from federal court to state court after INVALID REMOVAL
Requirements
Must be filed by Plaintiff within 30 days of Defendant filing of Removal Notice
After that period, Remand is waived by Plaintiff
When is Federal Venue Proper and how does Federal Venue Transfer work?
General
§ Venue is Subset of jurisdiction <—not about fed vs. state…more like WHICH district
§ Venue Interacts with Defendant residency
§ Venue Interacts with Personal Jurisdiction
§ Transfer to another Venue can occur for
** interests of party convenience
AND
interests of justice**
Requirements
Opt 1 Proper federal venue is in any district in State X where a defendant RESIDES (if ALL defendants reside in State X)
OR
Opt 2 Proper federal venue is in any district where a SUBSTANTIAL PART of EVENTS LEADING TO LAWSUIT OCCURRED
OR
Opt 3 (Katie Ray ) if option 1 and 2 yield ZERO VENUES, then Proper federal venue is in any district where PERSONAL JURISDICTION exists over the DEFENDANT
BUT Venue selection clause in contract or Forum selection clause in contract can TRUMP all these 3
What is Federal Personal Jurisdiction and what are 4 types?
PJ defined: Inherent power for a federal court system to exercise power over a PERSON or PROPERTY
PJ usually revolves around FAIRNESS and DUE PROCESS to out-of-state defendant
PJ for a federal court is analyzed for federal court as if it were a state court in the state in which the federal court is located (FRCP Rule 4)
PJ can generally be waived
4 types of PJ:
1) In Personam Jurisdiction: power of court over the person of a particular defendant
2) In Rem Jurisdiction: power of court over all persons in the world for a particular piece of property
3) Quasi in Rem Type 1 Jurisdiction: power of court to determine ownership issue of a particular piece of property wrt particular individuals
4) Quasi In Rem Type 2 jurisdiction: power of court to determine non- ownership issue of a particular piece of property wrt particular individuals
Don’t confuse with Natural Person Citizenship with respect to diversity jurisdiction!
How is in personam jurisdiction satisfied?
In personam jurisdiction is one of 4 TYPES of Personal Jurisdiction: power of court over the person of a particular defendant … (other 3 types are in rem, quasi in rem type 1, quasi in rem type 2)
Five ways to satisfy in personam jurisdiction:
Personally serve defendant while defendant is IN STATE
Domicile of defendant is IN STATE
Consent of defendant to be sued IN STATE
Long-arm state statute exists to establish PJ over OUT-OF-STATE defendant
Minimum Contacts by defendant with state establishes PJ over OUT-OF-STATE defendant
2 elements of Minimum Contacts: <—MASSIVE ESSAY TOPIC
Purposeful Availment: Defendant purposefully availed themselves with forum state
e.g. reached out to do business with forum state DOES SATISFY Purposeful Availment
e.g. used roads in forum state DOES SATISFY Purposeful Availment
e.g. made money doing sales in forum state DOES SATISFY Purposeful Availment
e.g. franchisee attended several training sessions and weeklong conference in State X DOES SATISFY Purposeful Availment in State X (burger king!)
e.g. contract clause saying “governed by law of State X” clause alone DOES NOT SATISFY Purposeful Availment (but maybe foreseeability?)
Website Purposeful Availment
systematic and continuous contact DOES SATISFY Purposeful Availment
seeking business DOES SATISFY Purposeful Availment
passive (e.g. informational website w/o sales) interaction DOES NOT SATISFY Purposeful Availment
one-time sale DOES NOT SATISFY Purposeful Availment
AND
Foreseeability: Defendant had notice, or reasonably could have foreseen that defendant’s activities with forum state would “hale [them] into court” of that state
e.g. contract clause saying contractual relationship “is established in State X” and “governed by law of state X” DOES SATISFY Foreseeability of being haled into court of state X
What is the required content of Service of Process documents?
Required Content of SoP x 10
1. Summons
§ COURT issues summons
§ COURT gives defendant 21 days to respond
2. Directed to D
3. Court Name
4. Parties’ Names
5. P Attorney (or P if pro se) Name and Address (or P if pro se)
6. Time and Date to Appear
7. Failure to Appear will result in DJ for P for requested relief
8. Clerk Signature
9. Court Seal
10. Complaint <–important exact Date of Filing of Complaint b/c it affects Required Notice
How long to respond to a summons?
- Summons
§ COURT issues summons
§ COURT gives defendant 21 days to respond
How long to serve process in a civil case?
Within 90 days of Date of Filing of Complaint, must provide notice of lawsuit + copy of complaint
P is responsible for SoP timeliness
P is responsible for providing copies to “person making service”
Acceptable “person making service” and method of serving process in a civil case?
By (“person making service”) Server
18 years old
AND
Not a Party
Court can appt person to serve e.g. marshal or deputy marshal, if requested by P
Court can order “in forma pauperis” i.e. waive fees for P
Reasonable Method (FRCP Rule 4)
To Defendant (i.e. personal service)
OR
To Defendant’s Abode w/competent party (usually 14 yr old resident) aka sub service
OR
To Defendant’s Agent
OR
To Defendant’s Mail (if D previously waived SoP at P’s request)
OR
To State Rule
Defendant out of State?
Registered/Certified Mail (i.e. requiring signature)
If failing –> constructive notice via publication
Defendant is business?
To Defendant Agent
Or
To Defendant Officer
What content (3 things) is required in complaint by Plaintiff?
Required Content (FRCP 8)
Statement of jurisdiction for court
Statement of facts showing plausible claim for relief (more than just possible - Twiqbal) …NOTE that a statement of facts which is “just enough to supportpossible claim “ is NOT plausible
Statement of demand for relief
What are the 7 types of 12(b) pre-answer motions by defendant?
Lack of SMJ <–raise anytime
Lack of PJ <–must raise Before Answer, With Answer, or With Answer Amendment Matter of Right. If not, WAIVED ∴ cannot raise later!
Improper Venue <–must raise Before Answer, With Answer, or With Answer Amendment Matter of Right. If not, WAIVED ∴ cannot raise later!
Insufficient Process <–must raise Before Answer, With Answer, or With Answer Amendment Matter of Right. If not, WAIVED ∴ cannot raise later!
Insufficient Service of Process <–must raise Before Answer, With Answer, or With Answer Amendment Matter of Right. If not, WAIVED ∴ cannot raise later!
Failure to State a Claim upon which Relief Can be Granted aka 12(b)(6) – [Evaluate by Making All Inferences in Favor of Plaintiff] <–must raise before trial or at trial. If not WAIVED ∴ cannot raise later
Failure to join a party necessary for a just adjudication <–must raise before trial or at trial. If not WAIVED ∴ cannot raise later
What is a12(e) pre-answer motion by defendant and how much time does it create?
Pre-Answer Motion by Defendant per 12(e) <–Type of Pleading
Motion for More Definitive Stmt: “pleading…is so vague or ambiguous that party cannot reasonably prepare a response”
Motion for More Definitive Stmt, if granted
gives 14 days – otherwise the pleading is struck
What is the required timing of an 8(b) Answer by Defendant?
What is the required content of an 8(b) Answer by Defendant, and what are the effects?
Required Timing
If Defendant does NOT file pre-answer 12(b) motion
Defendant must Answer with 21 days after complaint
If Defendant WAIVES service of process
Defendant must Answer within 60 days after complaint
Required Content of Answer
(Answer must address Claims and Allegations)
To Each Claim in Complaint:
Raised Defenses
AND
Raised Affirmative Defenses
[Effect of Failing to Raise A Defense]
Waiving of That Defense
To Each Allegation in Complaint:
Admit Allegation
OR
Denial of Allegation
* General Denials FRCP 8(b)(2)
* Specific Denials FRCP 8(b)(3)
* Lacking Knowledge (in effect a denial) FRCP 8(b)(5)
[Effect of Failing to Deny Allegation FRCP 8(b)(6)]
If responsive pleading is required?
Failing to Deny = In Effect Admitted [<–think : responsive pleading requirement penalizes evasiveness]
Exception: allegation relating to amount of damages
If responsive pleading is NOT required
Failing to Deny = In Effect Denied
Whether to file Counterclaims with 8(b) Answer?…
if ARISING out of same transaction or occurrence as Complaint, MUST be filed with Answer aka “compulsory counterclaim”
if NOT ARISING out of same transaction or occurrence as Complaint, MAY be filed with Answer
How and when can a pleading be amended?
Amending a Pleading FRCP 15
Pleading may be amended…
Within 21 days of serving it, one time
OR
By WRITTEN consent of opponent
OR
By Leave of Court upon motion
“Leave of Court” = when court allows something not usually allowed
How do affirmative defenses fit into the initial answer?
Affirmative Defense
Certain affirmative defenses must be raised in initial answer, or those affirmative defenses are automatically waived!
How do default and default judgment work?
Default and Default Judgment
DEFAULT
if Defendant does not Answer within time period, clerk may enter default
Action cannot proceed until Default set aside
Defendant CANNOT contest liability until actual default judgment
Defendant CAN contest amount of damages until actual default judgment
DEFAULT JUDGMENT
may be entered by clerk on request of Plaintiff
What does Rule 11 hold?
Rule 11
Attorney or pro se party is certifying to court that…
The filing is not for improper purpose (harassment, delay, etc.)
The filing has legal contentions that are
warranted by existing law
OR
Non-frivolous arguments for modification of existing law or creation of new law
The filing has allegations that do, or will have evidentiary support after discovery
The filing has denials that will have evidentiary support or reasonably based on lack of information
Filings can BECOME sanctionable
Rule 11 Does NOT apply to Discovery or Disclosures
How does a Rule 11 violation work?
Court may initiate a show cause order upon alleged attorney/firm violator of Rule 11
Opponent may initiate motion to sanction (must serve motion to sanction on opponent AND court) alleged
on attorney/firm violator of Rule 11, and alleged attorney/firm violator has 21 days to withdraw filing
Court can sanction attorney AND attorney’s firm
Court can impose sanctions PRIOR to trial!
Court can impose sanctions for money paid to court!
What is Discovery and what is generally required for an acceptable Discovery request?
Exchange of information or documentation that is…
Non-privileged
AND
Proportional to needs of case
AND
Relevant to claim or defense
Party usually has 30 days to respond to Discovery Request
What are questions of law, questions of fact, mixed questions, and the corresponding appeal review stds?
