Review Session

Question 1

Initial Question for Essays

Answer 1

1st

Assess Long Arm Statute
“Because STATE Long Arm Statute is to extent of the Constitution, the analysis collapses into a single question of whether the exercise of PJ is constitutional.”
*If long arm is “short” separate inquiry

2nd
-International Shoe Test
Due Process requires “minimum contacts” with forum “such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice”
(Divides JD into In Rem and In Personam [until Shaffer v. Heitner])
a. Volume of Activity
- Systematic and continuous v. sporadic and occasional

b. Quality and nature of activity
- Gravity, purposefulness, effect on others, whether they give rise to claim

c. Interest of the forum state in hearing dispute
- Would the forum have an interest in how the case is decided? (e.g. Does it involve their citizen(s)? Is one or more of their laws alleged to be violated? etc.)

d. Inconvenience to defendant of suit there (Not as big a factor anymore)
- Purposeful availment of privilege of doing business in forum

Specific v. General Jurisdiction

Question 2

Rule 4(k) Territorial Limits of Effective Service

Answer 2

In general, serving a summons or filing a waiver of service establishes personal jurisdiction over a defendant:

a. Who is subject to the jurisdiction of a court of general jurisdiction in the state where the district court is located;
b. Who is a party joined under Rule 14 or 19 and is served within a judicial district of the US and not more than 100 miles from where the summons was issued;
c. When authorized by a federal statute
3. State needs PJ before Feds can step in

Question 3

1331 and 1332 (Subject Matter Jurisdiction)

Answer 3

1331
“The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.”

1332
Diversity of parties, 75k

Question 4

1441 (Removal)

Answer 4

Any civil action brought in a State court of which the district courts of the US have original jurisdiction may be removed by the defendant or the defendants, to the district court of the US… where such action is pending.

Question 5

Erie!!!

Answer 5

Except in matters governed by the Federal Constitution or by Acts of Congress, the law to be applied in any case is the law of the State.

In other words, when you are in federal court based on diversity (or supplemental jurisdiction), state “substantive” law applies, whether it is statutory or judge-made.

“Law” includes case law.

There is no federal common law. There is no “general” substantive law.

“The line between procedural and substantive law is hazy but no one doubts federal power over procedure.”

Procedure / Substance

Question 6

1367 (Supplemental Jurisdiction)

Answer 6

Supplemental jurisdiction is the means through which one can bring into federal court claims over which a federal court would normally not have subject matter jurisdiction. Essentially, a claim over which the court does not have original subject matter jurisdiction is attached to a claim over which the court has original subject matter jurisdiction.

Question 7

Byrd Test

Answer 7

1. Is the state rule “bound up with the definition of the rights and obligations of the parties”?
   - If so, the state rule applies. If not, . . .
2. Is the rule outcome-determinative?
   - If so, . . .
3. Are there “affirmative countervailing considerations” in favor of the federal rule?
   If they outweigh the interest in uniformity, apply federal rule.

Question 8

Pleading

Answer 8

Rule 8a

(1) Short and plain statement of grounds for SMJ
(2) Short and plain statement of claim showing pleader is entitled to relief
(3) Demand for judgment for the relief the pleader seeks

Rule 9b - Circumstances constituting fraud or mistake shall be stated with particularity; state of mind may be averred generally

Remember Twiqbal

Question 9

Rule 11 - Ethical Limitations

Answer 9

Every pleading, written motion, and other paper shall be signed by the party’s attorney, or if not represented, by the party, and the signature certifies that the submission is not for an improper purpose, is warranted by law, and that facts have evidentiary support.

Purpose (Improper)

Law (Applicable)

Alleged (Facts)
Denied (Facts)

Question 10

Responding to the Complaint

Answer 10

Rule 8(b): state in short and plain terms defenses to each claim, and admit or deny the averments upon which the adverse party relies, or state “without information or belief”

Rule 8(c) affirmative defenses

Rule 12(a): time limits for answer or responsive motion

12(b) allows you to raise 7 defenses by motion: (1) lack of SMJ; (2) lack of PJ; (3) improper venue; (4) insufficiency of process; (5) insufficiency of service of process; (6) failure to state a claim upon which relief may be granted; (7) failure to join party under Rule 19.

Beware of waiver

Question 11

Amendments

Answer 11

Rule 15(a): (1) pleading may be amended once 21 days after service or 21 days after service of responsive motion; (2) otherwise pleading may be amended only by leave of court or by written consent of adverse party

Relation back: (c) amendment relates back to the date of the original pleading (A) when permitted by law; (B) when the new claim or defense arose out of the transaction or occurrence in the original claim; or (C) when the amendment changes the party, must ALSO show that new party received notice within 90 days and not named by mistake.