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Civil Procedure > Pg 8 > Flashcards

Pg 8 Flashcards

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Civil Procedure 1L flashcards
1
Q

What is required for proof of service of process?

A

If the defendant doesn’t make a general appearance, an affidavit must be promptly filed with the court after the service was completed explaining that it was properly made. This gives a rebuttable presumption that service was proper.

It can be controverted by proof that the information was inaccurate.

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2
Q

When is service of process unnecessary?

A

If service was waived

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3
Q

What are the situations that proof of service must be made?

A

Always, unless the service was waived, or the service was done by a Marshall

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4
Q

If you fail to prove service of process, does that have any effect on the validity of the service?

A

No

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5
Q

If a defendant gets actual notice of a lawsuit does that relieve the plaintiff of complying with the service of process rules?

A

No, the rules always apply

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6
Q

If a defendant’s secretary is served with notice for the defendant, does that count as proper service of process?

A

Not unless she is his authorized representative

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7
Q

How do you serve someone that is outside of the United States?

A

The proof has to be according to the applicable treaty or convention, the receipt must be signed by the defendant or other acceptable evidence must be provided

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8
Q

What is the time limit for service of process?

A

Service must happen within 120 days after filing the complaint. If the plaintiff can show cause for his failure, the court can extend the time.

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9
Q

What is sewer service?

A

When the process server throws away the summons or complaint and files an affidavit saying that he delivered it. This is a problem that led to crack downs in procedure and currently involves GPS information

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10
Q

Can you specially appear in court to challenge service of process without submitting to the jurisdiction?

A

Yes

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11
Q

What are different ways that you can challenge service of process?

A

– motion to quash service of summons
– motion to dismiss for insufficient service of process
– motion to dismiss because of failure to serve summons
– motion to set aside default judgement

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12
Q

What is involved in a motion to quash service of summons?

A

This can be filed up to the last day that the person has to respond to the complaint, and the defendant can simultaneously answer, demure, move to strike or cross complaint without making a general appearance. If he files an answer and doesn’t quash, that is a waiver of the jurisdiction objection. The burden is then on the plaintiff to show that service was proper

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13
Q

If a defendant makes a motion to quash service of summons and that is denied, what has happened?

A

The defendant has made a general appearance unless he gets immediate appellate review. While that motion is pending, the defendant must be careful not to participate in the action in any way, or it will be a general appearance

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14
Q

What is involved in a motion to dismiss for insufficient service of process?

A

This happens when the method of service was improper, but it has nothing to do with personal jurisdiction

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15
Q

What is involved in a motion to dismiss because of failure to serve summons?

A

If service is not completed in two years that is a discretionary dismissal, if it is not completed in three years that is a mandatory dismissal

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16
Q

What is involved in a motion to set aside a default judgment?

A

The service was defective and there was no actual notice, but the plaintiff got a default judgment, so the defendant can specially appear

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17
Q

Is it possible for a defendant to choose not to appear and then to appeal from a default judgement by challenging defective service or lack of personal jurisdiction?

A

Yes, but that is risky

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18
Q

What is involved in subject matter jurisdiction?

A

This is the power of a court to hear a particular type of case. This is not waivable. Lack of subject matter jurisdiction can be raised any time by any party or by the court sua sponte.

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19
Q

Is it possible to consent to subject matter jurisdiction?

A

No. The parties cannot agree to file federally instead of in the state if there is no subject matter jurisdiction

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20
Q

When can an objection for lack of subject matter jurisdiction be brought?

A

Any time by any party or by the court sua sponte

21
Q

How is subject matter jurisdiction determined for state courts?

A

By the state constitution, the state statutes, and judicial decisions

22
Q

What do state statutes decide with regard to subject matter jurisdiction for the states?

A

The types of cases that its courts can hear and it gives broad subject matter jurisdiction to hear most cases, including all state law claims and all federal ones unless they are exclusively federal claims

23
Q

What are some examples of things that a state would have subject matter jurisdiction over?

A

Torts, contracts, property, wills, etc. Most cases arise under state law

24
Q

Is it possible for a state court to hear cases that arise under another state’s laws?

A

Yes, in that case you just apply the other state’s own laws to the case

25
Q

What is involved in subject matter jurisdiction for federal courts?

A

This is limited jurisdiction that is defined by article III of the Constitution. Anything that is not granted to the federal courts is reserved for state courts.

This allows federal courts to hear cases that “arise under“ federal law, treaty, federal statutes, and judicial decisions. It also allows the federal court to hear federal question and diversity issues

26
Q

What do federal courts have the power to hear?

A

Actions involving states, against the federal government, ambassadors, foreign governments, etc.

27
Q

Do treaties preempt state law?

A

Yes, and they create a federal right

28
Q

What are the different types of subject matter jurisdiction?

A
  • Original subject matter jurisdiction
  • Concurrent subject matter jurisdiction
  • Exclusive subject matter jurisdiction
29
Q

What is original subject matter jurisdiction?

A

The court has the authority to hear a claim from the beginning

30
Q

What is concurrent subject matter jurisdiction?

A

When federal and state courts have overlapping jurisdiction in certain areas and the plaintiff chooses which court system to file the suit in

31
Q

Article III gives jurisdiction over some cases to federal courts, but it does not withdraw jx over those for state courts unless what?

A

Unless Congress created exclusive jurisdiction for the claim

32
Q

State courts hear many claims that come under federal law, but do federal courts also have concurrent jurisdiction over state law actions?

A

No, unless there is diversity, because federal courts can only hear cases that are specifically given by article III or a jurisdictional statute

33
Q

What are the ways that you can get a case into federal court?

A

You can either file the case there or you can remove it there

34
Q

If a federal statute does not specify where a suit can be brought, where can it be brought?

A

In either state or federal court

35
Q

What is involved in exclusive subject matter jurisdiction?

A

Only certain designated federal courts can hear the case

36
Q

What are the four situations when a case can be heard in federal court under federal subject matter jurisdiction?

A

– federal question
– diversity
- removal
– supplemental

37
Q

What is involved in federal question jurisdiction?

A

Article III allows federal courts to hear all cases that arise under a federal law, federal statute, federal Constitution, act of Congress, or US treaty.

If the fact pattern says “suing under an act“ then it is a federal question case

38
Q

Is there an amount in controversy requirement for federal question jurisdiction?

A

No

39
Q

Is federal question jurisdiction waivable?

A

No. Subject matter jx cannot be waived, so it can be raised any time during the proceeding, even for the first time on appeal or sua sponte, and then the court must dismiss if there is no subject matter jurisdiction

40
Q

If there is a state claim that turns on the construction of federal law, does that case have federal subject matter jurisdiction?

A

Yes

41
Q

If there is a claim that turns on the construction of state law, is there federal subject matter jurisdiction?

A

No. Having a many state claims and one federal claim is not enough

42
Q

What are things that are included in federal question jurisdiction?

A
  • anti-trust
  • federal security
  • copyright/patent
    – due process
    – civil rights
    – bankruptcy
    – admiralty
43
Q

If Star Wars has a copyright and movie theatres that are showing it are not sending the money they owe, would federal courts have jurisdiction over this?

A

No, because this is a breach of contract case and it is unrelated to the copyright. Even if the reason for not paying is that the companies thought the copyright was not valid, that is still a contract case with a copyright defense

44
Q

If there is a state law malpractice claim that is about a federal patent case, would that give federal question jurisdiction?

A

No because this is about malpractice.

45
Q

When deciding if a federal issue is substantial enough for federal question jurisdiction, what should you look at?

A

Do not look at the importance of the issue to the parties, but look at the importance of the issue to the federal system as a whole

46
Q

If someone sues in federal court under a federal act, is that enough for federal question jurisdiction?

A

Yes

47
Q

What are the two ways that an issue can “arise under“ federal law in order to get federal question jurisdiction?

A

– The Holme’s Creation Test: requires a federal claim with a federal COA that has a federal remedy
– Embedded Federal Question: a state law claim that raises a federal issue that is actually disputed, significant, and doesn’t disrupt the balance between federal and state judicial responsibilities

48
Q

What is involved in the Holme’s creation test to determine federal question jurisdiction?

A

There must be a federal claim with a federal cause of action [source of the claim is federal law], that has a federal remedy, that comes from the plaintiff’s complaint. Must look at where the cause of action comes from and ask if federal or state law gives the remedy. The federal claim must come from the plaintiff’s complaint.

Ie: case with an underlying patent issue but the cause of action is really contract law, so that this is state law based. If state law provides the cause of action or remedy, it doesn’t arise under federal law.

Civil Procedure (44 decks)

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