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CivPro > Rules- Midterm > Flashcards

Rules- Midterm Flashcards

1
Q

where do businesses reside for venue?

A

all districts where its subject to PJ (may be several districts)

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2
Q

what does the domicile depend on?

A

what the domicile was when the action was commenced.

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3
Q

what does rule 4(k)(1)(a) allow?

A

we can serve process throughout the state in which the federal court sits.

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4
Q

what is the order to attack a PJ question?

A

1) traditional bases
2) long-arm statute
3) minimum contacts- Purposeful avail and foreseeability
4) relatedness- spec and general (continuous and systematic)
5) fairness

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5
Q

what does rule 1391 represent?

A

venue

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6
Q

what are the 2 transfer statutes?

A

1404(a) and 1406(a)

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7
Q

what must the affidavit allege that the plaintiff gives to allow possibility of pre judgement of seizure of prop?

A

specific facts showing that the plaintiff is entitled to the company

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8
Q

what must be true with relatedness?

A

the claim must arise or relate to def contact with forum

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9
Q

who can service be made by?

A

any non-party who is at least 18 4(c)(2)

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10
Q

can transfer cross state lines?

A

yes

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11
Q

why would a def waive service of process?

A

then they have longer to reply with defensive response

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12
Q

steps to assessing if there’s a fed question?

A

1) look only at the complaint (nothing from the def) and in the complaint you ignore everything except the claim itself and that claim must arise under fed law.
2) is the plaintiff endorsing a federal right? (if yes, fed question case, if no, not fed question)
3) Mottley

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13
Q

what is irrelevant to rule 1331?

A

citizenship of parties and amount in controversy

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14
Q

what is used to determine the center of gravity in transfer cases/

A

public and private factors

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15
Q

if there’s no specific jur what must you look for?

A

general jurisdiction when the def is “at home”

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16
Q

what is the first question to ask with 1367?

A

does 1367(a) grant supplemental jur over this claim?

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17
Q

what do you need to get supplemental jur

A

common nucleus of factors (CNOF)

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18
Q

What must controversy be?

A

Quantified in some way

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19
Q

does 1391(b)(3) apply for removal cases?

A

no

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20
Q

when can we serve process outside the forum?

A

IF a state court can do so as well

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21
Q

in order to have Quasi in Rem full faith and credit in another state what do you need?

A

minimum contacts

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22
Q

where is transferred allowed?

A

within courts of the same judicial system (from one fed court to another fed court)

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23
Q

what is the second question to ask with 1367?

A

does 1367(b) take away supplemental jurisdiction?

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24
Q

Can you aggregate the claims of multi plaintiffs against a single def

A

No

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25
Q

Under 1441, 1446 and 1446, what is the general rule?

A

a def can remove if the case could have been brought into federal court

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26
Q

what is the result if 1367(a) DOES grant supplemental jur over the claim?

A

it meets Gibbs (CNOF)

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27
Q

what is the split in Burnham?

A

4 justices say because of its historical pedigree- shoe irrelevant
4 justices say must apply shoe test- history doesn’t matter but they all agree that CA had jurisdiction just for different reasons

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28
Q

what rule is 1331?

A

federal question jurisdiction

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29
Q

does someone waive PJ if they waive service of process?

A

no just formal service

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30
Q

what does process consist of?

A

a summon (official court notice of suit) and a copy of the complaint (tells the def what the claims are)

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31
Q

what if the court is in a foreign country under forum of non convenient

A

dismiss in the US and let them go litigate there

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32
Q

what should you mention if one of the 4 traditional bases apply?

A

the Burnham split

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33
Q

what kind of cases do you look at fairness and reasonableness?

A

specific jur only

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34
Q

what are the private factors of transfer?

A

all about convenience (witnesses, evidence)

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35
Q

how do you serve a business?

A

1) serve an office or managing or general agent 4 (h)(1)

2) 4(e)(1) applies here too

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36
Q

what is supplemental jur?

A

the case is in fed court already but in the case there may be additional claims

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37
Q

what is the split in Asahi?

A

4 justices said it is a contact and purposeful availment and 4 justices said that they need more than that. That + an intent to serve the market in the forum state (advertising etc.)

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38
Q

what is forum non convenience

A

where a court dismisses a case because there’s another court that the center of gravity

39
Q

what does 1367 come out of?

A

Gibbs

40
Q

if a plaintiff attaches land and sells it to satisfy a judgement when must it be done?

A

before the suit is commenced

41
Q

what does 4(d) represent?

A

waiver of service by mail by first class mail

42
Q

What is an exception to the rule that the ultimate outcome of a case on the merits is not the determining factor in whether FQJ exists?

A

If the federal claim is “wholly insubstantial and frivolous” it cannot provide the basis for FQJ

43
Q

what does 1391 (b)(3) represent? (almost never applies)

A

can lay venue wherever there is PJ over every defendant

44
Q

when is notice by publication (constructive notice) allowed?

A

should be used as a last resort, if some other method is available, you have to do that. you can use when you can’t find a person or identify them.

45
Q

where is the only place a case could be removed to?

A

only to the federal court that geographically embraces the state court where the case was filed

46
Q

what are the commonalities between 1404(a) and 1406(a)?

A

both statutes, the transferee must be proper venue and hav PJ over def (true without waiver by the def- Hoffman)

47
Q

what case should you mention if the claim arises from def contact with forum?

A

Bristol Meyers squib

48
Q

what does removal jurisdiction do?

A

give the def a choice

49
Q

Does 1367(a) grant supplemental jur if it meets Gibbs?

A

Yes if that supplemental claim shares a CNOF

50
Q

when does 1406(a) apply?

A

when the transferor is an improper venue

51
Q

if someone doesn’t give you process is service still constitutional?

A

yes because it was reasonably calculated

52
Q

when does 1404 say you MAY transfer to any district?

A

if all the parties agree and the court thinks that the transfer is a good idea- minor because the plaintiff will never agree to that

53
Q

what must a removal case meet before it’s removed?

A

meet the requirements of div or fed question

54
Q

what does waiver of service consist of?

A

plaintiff mails to the def process and 2 copies of waiver form and self-addressed envelope

55
Q

when does 1391(b)(3) apply?

A

when there is no district anywhere in the US that will meet either of the 2 choices. (fall back venue) (only work if the event occurred overseas completely)

56
Q

what was the test of continuous and systematic contacts replaced with?

A

where the def is at home (domiciled) like Pennoyer

57
Q

who must join in removal?

A

all defendants that are served

58
Q

does the person who serves process need to be appointed by the court?

A

no

59
Q

does transfer involve state court to state court?

A

NO

60
Q

why would you dismiss a case and not transfer

A

dismiss because transfer is impossible because the other court is in a different judicial system and cannot transfer and cannot transfer to another judicial system.

61
Q

what must the plaintiff give to allow possibility of pre judgement seizure of property?

A

an affidavit of claim (sworn statement) and there must be an order from the judge

62
Q

can a defendant get their property back after a seizure of prop?

A

may get that property back pending litigation if he posts a bond.

63
Q

before assessing fairness what must you have in PJ?

A

a contact

64
Q

what does 1391(b)(1) and (b)(2) represent?

A

to lay venue in a district under one of those

65
Q

does removal jurisdiction require permission?

A

no

66
Q

when may the court transfer to another district under 1404(a)?

A

based on convenience of the parties and witnesses and the interest of justice.

67
Q

what does rule 4(e)(1) represent?

A

allows you to use methods of service under state law (often this is where we get to use notice by certified mail)

68
Q

how long does the def have to request removal?

A

you must remove within 30 days from service of process

69
Q

does supplemental jurisdiction get you into fed court?

A

no, only fed question and diversity

70
Q

can you move from state to federal?

A

no only federal to state

71
Q

what does 1406(a) allow?

A

gives court choice: may transfer in interest of justice or dismiss.

72
Q

does the 30 days for removal start fresh for each newly served def?

A

yes

73
Q

for every single claim in fed case what must there be?

A

SMJ

74
Q

what rule is 1332?

A

diversity of citizenship

75
Q

if all the defendants live in the save state where can you lay venue?

A

in any one of the places where the def reside as long as its the same state

76
Q

what are the two choices that 1391 gives the plaintiff?

A

1) any district where all defendants reside

2) plaintiff may lave venue in any district where a substantial part of the claim arose

77
Q

what happens in diversity cases under 1367(b)?

A

it kills supplemental jur only over certain claims by the plaintiff not claims by the def

78
Q

what happens if a def doesn’t return the waiver of process?

A

if they don’t have a good cause, the def must pay cost of service

79
Q

how long does the def have to answer waiver of process?

A

process requires 21 days to answer, with waiver you have 60.

80
Q

what are the requirements for substituted service?

A

1) only can be served at the defendant’s dwelling or usually abode
2) must serve someone of suitable age and discretion who resides there (baby-sitter will not work) (but butler can work)

81
Q

what are some fairness factors you should look at?

A

1) if the def is “at home” the fairness factor is irrelevant- daimler
2) burden on the def (so gravely inconvenient)
3) forum state interest (McGee)
4) plaintiff’s interest (may be badly injured and difficult to travel to def home state)
5) legal system’s interest in efficiency
6) shared substantive policies of state- kulko- reject jurisdiction because of family harmony

82
Q

if there’s no SMJ can a claim still be a fed case?

A

yes, they may be able to get into fed court with supp jur

83
Q

what happens if the def mails back the waiver of service?

A

they waived formal service of process

84
Q

what rule supports how to serve process?

A

4 (e)(2)

85
Q

what must the plaintiff usually do to cover the defendant’s cost if defendant wins?

A

post a bond

86
Q

does 1367(b) take away from the supplemental claim for a case like Gibbs?

A

no, does not apply to fed question

87
Q

when is CNOF always met?

A

if these claims arise from the same transaction or occurrence

88
Q

what are the public factors of transfer?

A

which court ought to be burdened with this case?

89
Q

when does 1367(b) apply?

A

only in diversity of citizenship cases, not federal question

90
Q

what can a def do during removal?

A

they can have the case transferred to the federal court system

91
Q

what are the ways to serve process?

A

1) personal service (anywhere)
2) substituted service
3) serve defendant’s agent

92
Q

what does 1404(a) represent

A

transferor is a proper venue

93
Q

what rule is 1367?

A

supplemental jur

94
Q

what is fed rule 4?

A

service of process

CivPro (10 decks)

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