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Rules Flashcards

1
Q

Rule 12(b): Dismissal

A

A defendant may motion for dismissal on the grounds of
1. Lack of subject-matter jurisdiction
2. Lack of personal jurisdiction
3. Improper venue
4. Insufficient process
5. Insufficient service of process
6. Failure to state a claim upon which relief can be granted
7. Failure to join a party

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2
Q

§1391(b): Choice of Venue

A

Venue choices:
1. * Judicial district in which any defendant resides as long as all defendants reside in the same state
2. Judicial district in which a substantial part of the events occurred or in which the relevant property is situated
3. If no judicial district falls into these categories then the defendant can be sued anywhere there is jurisdiction over him

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3
Q

§1404(a): Proper Venue

A

The venue may be proper but, in the interest of justice, the case can be transferred to another venue.

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4
Q

§1406(a): Improper Venue

A

If it is found that a district court is an improper venue, the case shall be dismissed or transferred to an appropriate venue.

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5
Q

§1331

A

District courts have original jurisdiction over actions arising under the US’s constitution, laws, or treaties.

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6
Q

§1332(a)

A

To be tried in federal court the amount in controversy must be greater than $75,000 and be between:
1. Citizen A v. Citizen B
2. Citizen A v. Foreign Citizen
3. Citizen A and Foreign Citizen v. Citizen B OR Citizen A v. Citizen B and Foreign Citizen
4. Foreign State v. Citizen A

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7
Q

Rule 8(a)

A

A complaint must contain a short and plain statement of (1) grounds for jurisdiction, (2) claim showing plaintiff is entitled to relieve, (3) demand for relief

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8
Q

Rule 11

A

Rule 11(a): signature on paper
Rule 11(b): certification that (1) not improper purpose, (2) warranted by law, (3) supported by evidence, (4) denials supported by evidence
Rule 11(c): sanctions

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9
Q

Responses to a Complaint

A
  1. Default Judgment
  2. Default Plus Collateral Attack
  3. Answer
  4. Pre-Answer Motion
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10
Q

Full Faith and Credit Clause

A

State courts are obligated to carry out the valid judgments of other states’ courts

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11
Q

Due Process Clause

A

All people born and naturalized in the US are citizens of the US and their state of residence.

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12
Q

Rule 4(c): Who can serve a complaint and summons?

A
  • Must be at least 18 years old
  • Cannot be a party in the lawsuit
  • Can be a marshal or specially appointed person
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13
Q

Rule 4(a): What must the summons include?

A

A. Name of court
B. Name of parties
C. Directed to the defendant
D. Name and address of the plaintiff or the plaintiff’s attorney
E. Time at which the defendant must appear and defend
F. Notice that failure to appear will result in in absentia judgment against the defendant
G. Signed by a clerk
H. Bear the court’s seal

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14
Q

Rule 4(b): How is a summons issued?

A
  1. File the complaint
  2. Present the complaint to the court
  3. Clerk signs, seals and issues the summons to the plaintiff to be served to the defendant
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15
Q

Rule 4(e): How can you serve individuals inside the US?

A
  • Deliver to the defendant personally
  • Leave a copy at the defendant’s residence with someone of suitable age and discretion who also resides there
  • Deliver a copy to an authorized agent
  • Follow state law in forum state or state in which the defendant is served
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16
Q

Rule 4(f): How can you serve individuals outside the US?

A
  • “Internationally agreed means of service reasonably calculated to give notice” or method reasonably calculated following the foreign authority’s rules
  • Deliver to the defendant personally
  • Send by verified mail
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17
Q

Rule 4(h): How can you serve corporations inside the US?

A
  • Operate as per 4(e)(1)
  • Deliver to an office or managing agent personally
  • Mail to defendant
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18
Q

Rule (4)(h): How can you serve corporations outside the US?

A

Operate as per 4(f) except no personal service

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19
Q

Rule 4(g): How can you serve a minor or an incompetent?

A

Follow state law or foreign authority’s law

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20
Q

Rule 4(d)(1): Waiver of Service

A
  • Defendant can waive formal service
  • Defendant has 30 days (inside US) or 60 days (outside US) after request was sent to return the waiver
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21
Q

Rule 4(d)(2) and (3): Failure to Waive

A
  • Defendant incurs expenses of service
  • If defendant waives they have 60 days (inside US) and 90 days (outside US) to answer
  • Failure to waive is not grounds for default judgment
22
Q

Rule 4(m): Time Limit for Service

A

Action dismissed without prejudice unless there is good cause if the defendant is not served within 90 days of the complaint being filed

23
Q

Title 28, §1391(b): Venue Choices

A
  1. Judicial district where all defendants reside
  2. Judicial district in which a substantial portion of events or occured or in which relevant property located
  3. If no judicial district satisfies these then anywere there is jurisdiction over defendant
24
Q

Title 28, §1406: Improper Venue

A

If the district court is improper the case will be dismissed or transferred

25
Rule 12(b): Motion to Dismiss
1. Lack of subject-matter jurisdiction 2. Lack of personal jurisdiction 3. Improper venue 4. Insufficient process 5. Insufficient service of process 6. Failure to state a claim 7. Failure to join a party
26
Title 28, §1404: Proper Venue Transfer
In interest of justice, a case may be transferred even if the venue is proper
27
Rule 4(k)(1): Long Arm Statute
Must satisfy the forum state's long arm statute
28
Title 28, §1331: Federal Question Jurisdiction
District courts have original jurisdiction over actions arising from the constitution, laws or treaties.
29
Title 28, §1332: Diversity Jurisdiction
District courts have jurisdiction over cases with complete diversity and a value greater than $75,000
30
Title 28, §1441(a): Removal
Defendant may remove a civil case from state court to federal court
31
Title 1441(b)(2): Hometown Defendant Rule
Defendant cannot remove if they are a citizen of the forum state
32
Title 28, §1446(a): Removal Notice
* Removal notice must contain a "short and plain statement of the grounds for removal" * Defendant who provides untrue information risks Rule 11 sanctions
33
Title 28, §1446(b)(1) and (3)
* Defendant must file removal notice within 30 days of receiving complaint or * Within 30 days of receiving amended pleading
34
Title 28, §1446(c)(2)
Amount a plaintiff sues is the amount in controversy, even if could sue for more
35
Rule 8(a): Complaint
Must contain a "short and plain statement" of: 1. Grounds for jurisdiction 2. Claim showing there are grounds for relief 3. Demand for relief
36
Rule 11(b): Certification of Papers
Every paper must be certified that: 1. Not for improper purposes 2. Claims warranted by existing law or arguing for law change 3. Factual allegations supported by evidence (known now or will be uncovered in future discovery) 4. Denials of factual allegations supported by evidence or lack of information
37
Rule 11(c): Sanctions
See notes
38
Rule 15(a): Amending as a Matter of Course
A party may amend as a matter of course (not requiring permission) once if within 21 days of service or response, otherwise the opposing party or court must give written permission.
39
Rule 15(b): Amending During and After Trial
A party may amend if they object to evidence admitted because it is not within the scope of the issue or to include issues not raised in the initial pleading but which are being litigated regardless.
40
Rule 15(c): Relation Back
A party can amend a pleading after the statute of limitations has run if it relates back to the original pleading. Relates back if: 1. Law which applies the statute of limitations allows relation back 2. Amendment asserts a claim which arose from the original transaction or occurrence 3. Opposing party given proper notice and knew that a suit would be brought against it
41
Rule 18(a): General Claims Joinder
A party can join any claims, counterclaims or crossclaims as it has against the opposing party.
42
Rule 13(a): Compulsory Counterclaims
1. Compulsory counterclaims must be stated at the time of service and must (A) arise from the same occurrence or transaction as the original claim and (B) does not upset jurisdiction - and not being litigated elsewhere.
43
Rule 13(b): Permissive Counterclaims
Permissive counterclaims do not arise from the same transaction or occurrence as the original claim and may be raised at any time.
44
Rule 13(g): Crossclaims
Crossclaims made against co-parties. Crossclaims between co-defendants must arise from the same transaction or occurrence as the original claim; crossclaims between co-plaintiffs must arise from the same transaction or occurrence as the counterclaim.
45
§1367(a): Supplemental Jurisdiction
If a court has jurisdiction over the original (anchor) claim, they also have supplemental jurisdiction over all claims (including state law claims) related to the original case or controversy.
46
§1367(b): Supplemental Jurisdiction in Complete Diversity
In cases where complete diversity is the basis of original jurisdiction, courts lack supplemental jurisdiction unless subject-matter jurisdiction is still proper.
47
§1367(c): Declining Supplemental Jurisdiction
Courts may decline supplemental jurisdiction if: 1. There is a new or complex issue of state law they do not feel equipped to handle 2. The supplemental claim is predominant 3. The court has dismissed all federal claims 4. Other exceptional circumstances
48
Rule 19(a): Parties Required to Join
A party under jurisdiction must be joined if feasible if: 1. (A) The court cannot offer relief to the existing parties without their presence or (B) the party's claim is so related to the dispute that not joining would impede the ability of the required party to protect their interest or leave an existing party subject to multiple or inconsistent liabilities.
49
Rule 19(b): Courts Discretion over Non-Required Parties
If a party is not required to join the court should consider (1) whether the absense would prejudice the judgment, (2) if the prejudice could be lessenemed, (3) whether the judgment in absense would be adequate, (4) whether the remedy would be adequate in absense
50
Rule 20(a): Permissive Joinder of Parties
* Plaintiff can be joined if (A) they assert a right to relief over the same transaction or occurrence or (B) there is a question of law common to all plaintiffs. * Defendants can be joined if (A) the right to relief asserted against them arises from the same transaction or occurrence and (B) thereis a question of law or fact common to all defendants.
51
Rule 14(a): Impleader
A defendant (third party plaintiff) may serve a third party (third party defendant) who is liable for the claim against the original defendant.

Civil Procedure (15 decks)

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