Pjx Smjx Venue Flashcards

You may prefer our related Brainscape-certified flashcards:
1
Q

What is the complete diversity rule?

A

Diversity jx requires COMPLETE diversity between the ALL πs & ALL ∆s Citizenship= domicile Natural person = presencein the state at some pointPLUSintent (subjective)to make that state your permanent or fixed home Can have ONLY 1 domicile Corporation = domicile of (1) state of incorporation; AND (2) principal place of business (“nerve center”) Can have MORE than 1 domicle Unincorporated associations (partnerships, etc) = domicile of ALL states of constituent members/partners Can have MORE than 1 domicile ————— US citizen & permanent resident - citizen of state where domiciled US citizen domiciled abroad - NOT a citizen of a state (NO diversity w/ US citizen & NO alienage) NO: π (US domicile in canada) vs. ∆ (citizen of france) NO: (US domicile in canada) vs. ∆ (domicile of NY) Decedents, minors, and incompetents - look to citizenship of the person being represented (NOTthe citizenship of rep.) NOTE: Parties must be diverse when the claim is FILED IRRELEVANT if not diverse when issue arose IRRELEVENT if not diverse after case is filed

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

What is the necessary amount in controversy AND how do you calculate the amount?

A

You need AT LEAST $75,000.01 NOT including interest/costs of litigation Valid unless it is “clear to a legal certainty” that P cannot recover $75k+ Ultimate recovery amount IRRELEVANT to jurisdiction (it could be $5) NOTE: if π recoveres LESS that $75k, then she MAY have to pay ∆’s litigation (even tho she won!) ———— Aggregation = π adds 2 or more claims to meet AIC If 1 π vs. 1 ∆, can be unrelated & no limit to # of claims aggregated CANNOT aggregate unrelated claims for 2+ ∆s, BUT you can for 2+ JOINT tortfeasors ———— Value of injunction (discuss both viewpts on exam): 1) Majority view (π’s viewpoint) - does conduct hurt π by more than $75,000? 2) Minority view (∆’s viewpoint) - would it cost ∆ more than $75,000 to comply with the injunction?

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

What types of cases are excluded EVEN IF diversity reqs. are met?

A

Federal courts will not hear cases involving: 1) issuance of a divorce, alimony or child custody decree 2) probate of a decedent’s estate.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

What is the Erie DoctrineAND how does it work?

A

RULE: “In DIVERSITY CLAIMS (or supp jx claims), federal court must apply state substantive law” STEP 1: If federal law on point & directly conflicts w/ state law →apply fed. law as long as it is valid NOTE: FRCP are ALWAYS applied STEP 2: No federal law on point: ask if state law is one of the following→ apply it, if so Elements of a claim/defense SOLs Rules for tolling SOL Conflict (or choice) of law rules STEP 3: if not valid per STEP 2, ask: Would ignoring state law be outcome determinative? YES →apply state law Balance of state and federal interests in having their rule applied Is there a risk of forum shopping by applying federal law

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

What is the well-pleaded complaint rule?

A

Well-pleaded complaint rule – complaint on its face, w/o extraneous material, must ENFORCE a federal RIGHT π’s claim must “arise under” federal law (e.g. Fed. Cons, legislation) Exclusive federal jurisdiction in patent, BK cases Ex – RR gives Gomer a lifetime free pass but then says he can’t use it b/c federal statute prohibits it. Gomer sues, saying federal statute does not apply. NO federal jurisdiction b/c he is not suing to enforce a federal right – he is suing to not enforce the statute.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

How is pjx assessed in fed cts?

A

Same as w/ NY state ct. See NY Practice flash cards

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

What is removal?

A

∆ (and ONLY ∆)can remove to federal courtIF case could have been filed in Fed. Ct. (diversity, alienage, FQ) A “one way street”→ ∆ can only remove TO fed ct, never FROM (if improper, a fed judge will remand) π can NEVER remove based on ∆’s counterclaim (as if he is now ) All ∆’s MUST agree to removal PURE DIVERSITY CASE: ∆ CAN’T remove IF: (i) any ∆ is a citizen of the forum; OR (ii) tries to remove more than 1 yr after case was filed in state ct (unless there is some bad faith by π) Waiver of Removal Rights A ∆ who files a permissive counterclaim in STATE court probably waives the right to remove; BUT A ∆ who files a compulsory counterclaim in STATE court - probably doesn’t waive right.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

What is the procedure for a properremoval?

A

1) ∆ must remove within 30 DAYS of service of the first removable pleading on ∆ If NEW ∆ is joined, the “clock starts anew w/ ∆2” 2) ∆ must… File notice of removal in federal court, setting forth grounds of removal, signed under Rule 11; Attach all documents served on ∆ in the state action; Send a copy to all adverse parties;AND Then file a copy of the notice of removal in state court 3) Removal is to a federal district court empracing the state ct where filed (BK state ct→EDNY) 4) If removal was procedurally improper - π must move to remand to state court within 30 days of removal BUT, if there is no smjx, π can move to remand anytime

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

What are the 2 kinds of cases that can be heard in fed ct?

A

1) Diversity of citizenship= Diverse citizenship (State A vs. State B) + Amt in controversy ($75k) Includes Alienage jx (State A vs. Country B) 2) Federal question = claim based on federal law/constitution

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

What is supplemental jx AND when can it be used in fed cts?

A

Once case is in fed. ct. (DIVERSITY or FED Q)→allows fed ct. to hear claims over which it has no INDEPENDENT basis of SMJ. TEST = target claim must share a “common nucleus of operative fact”(i.e. from same “trxn or occurance”) with the underlying case (irrelevant if claim involves different ∆) In a PURE DIVERSITY case, a π cannot use supplemental jx to overcome a LACK of diversity, BUT…can use to overcome lack of AIC In a FED Q case, a lack of diversity does NOT matter; can use supp jx EVEN on a state law claim If the ∆ brings a claim, it does NOT matter (only binding on the π) π (NY) sues ∆ (NY) for (1) violation of fed antitrust laws, and joins a trxnly related claim for (2) violation of a STATE antitrust law→π can bring BOTH claims under supp jx (even the state antitrust case) NOTE: Ct. has discretion NOT to hear supp jx claim IF Fed. Q. dismissed early State law claim is complex; OR State law claim would predominate

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

Which federal court must the case be filed in?

A

RULE: π may lay venue in any district where: either ALL ∆s reside; OR If ∆’s don’t SHARE a district, BUT are from the SAME state→ can lay venue in the distict where ANY of them live “Residence” → humans “reside” in their domicile; corporations “reside” in all districts that can get pjx over corp a substantial part of the claim arose Make sure to discuss BOTH ways to lay venue

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

How can venue be transfered?

A

Can only transfer to a district court that has proper venue and pjx over the ∆ (w/o waiver by D) 1)If venue in original forum is proper→ may transfer to another federal district court based on (1) convenience of parties or witnesses (“center of gravity”); OR (2) interests in justice Ct. applies the choice of law rules of the original court, even if π initiated the transfer. 2) If venue in original forum is improper→ court may transfer in the interests of justice OR dismiss

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

What is service of process?

A

Delivering to ∆: (1) a SUMMONS (formal notice of suit and time for response); AND (2) copy of the COMPLAINT Needs to be served w/in 120 DAYS after filing case (OTHERWISE, case is dismissed w/o prejdice unless π shows good cause) Can be served by any NON-PARTY who’s 18+ Method = any method allowed by (i) FCRP [personal service (delivered to ∆ in person; or substitute service (left w/ someone of suitable age/discretion who resides at usual abode) or agent service (service ∆’s agent)]; (ii) state law (NY); OR (iii) the law of the state in which service is effected ∆ can waive service by sending in waiver form thru mail Even tho ∆ waived formal service, he HASN’T waived pjx defense If ∆ fails (without good faith) to return waiver form, SHE has to pay for service that π has to NOW effect A fed ct in NY can serve process OUTSIDE NY only if a NY state ct could also (i.e. it has pjx)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly