Questions Flashcards
P files complaint based on fed law and a state law claim for 20k. Fed court dismisses the fed law claim. Can it still hear the state law claim ?
Yes, a federal court that dismiss a claim that gives it SMJ may exercise supplemental JDX over a claim arising out of same transaction of controversy
Citizen of A sues Citizen of B in state B for 120k. 50 days after service the P amends the complaint adding a Citizen of C as a defendant and asserts a federal law claim. Twenty five days later, citizen of C files for removal and B consents. What result ?
Removal is proper because SMJ also arises from Fed Q.
(the home state rule does not apply when SMJ is other than diversity)
Can a Defendant amend her answer to later a include a lack of PJ ?
Yes, PJ is not waived if made
1) in the original answer or
2) in the amended answer without the courts permission within 21 days after the oringal answer was served
The Bulge (100 mile rule) only applies to
1) Parties added to suit through impleader or required joinder; and
2) served with process within 100 miles out that court
If a Defendant fails to waive service and does not respond
P Still have to property serve process before the defendant must respond
After servicing process, server needs to file proof of service affidavit but
failure to file it does not impact the services validity
A district court can transfer venue for the conveience of parties or witnesses
1) where the suit could have originally been brought or
2) where all parties have consent
Venue is proper where
1) Any D resides, if all D’s reside in the same state
2) a substantial part of the events that gave rise to the suit occurred
3) any D is subject to the courts PJ (if neither above applies)
When Venue is improper the DC must
1) dismiss case or
2) transfer to proper venue
A preliminary injunction must
1) notice of hearing
2) State reasons issued, reasonably describe acts required, specify terms
a TRO must
1) Attorney must show notice to D was not necessary or why notice not given
2) State reasons issued, reasonably describe acts required, specify terms
3) state date and hour issued, why injury is irreparable, state why issued without notice
4) must be promptly filed with clerk and entered into record
An amended complaint is treated as filed on day of original complaint (relates back). However, an amendment or changes a party relates back only if SOL allows or:
1) The amendment concerns same T or O
2) the new party received notice of the suit within 90 days after the original complaint was filed; and
3) the new party knew or should have known that the suit would have been brought against it but for a mistake concerning the proper party’s identity
When a party wants to appeal after it fails to preserve an objection and is relying on “plain error” then
That error must have affected the D’s substantial rights
P may dismiss a suit without a court order when
1) notice of dismissal is filed before D serves answer or SMJ motion or
2) all parties sign stipulation of dismissal
P has to dismiss a suit with court order when
D’s counterclaim cannot be independently adjudicated
