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Civil Procedure > Selecting a Forum > Flashcards

Selecting a Forum Flashcards

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Civil Procedure 1L flashcards
1
Q

When does a court have personal jurisdiction over a defendant?

A

A court has personal jurisdiction when the defendant consents to personal jurisdiction, or when the defendant has sufficient contacts with the forum state such that the exercise of personal jurisdiction is fair and reasonable.

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2
Q

What is the two-step analysis for personal jurisdiction?

A

The exercise of personal jurisdiction must fall within a state’s long arm statute and it must satisfy due process.

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3
Q

Is there a difference in the analysis for personal jurisdiction between federal and state courts?

A

No.

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4
Q

When does the exercise of personal jurisdiction meet the requirements of due process?

A

The exercise of personal jurisdiction satisfies due process if the defendant has such minimum contacts with the forum so that jurisdiction does not offend the traditional notions of fair play and substantial justice.

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5
Q

What are the factors to determine if an exercise of jurisdiction is constitutional?

A

Minimum Contacts
Relatedness
Fairness

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6
Q

What factors are considered for the minimum contacts requirement in personal jurisdiction?

A

(1) Purposeful Availment - Defendant must reach out to the forum and the contact must result from this targeting
(2) Foreseeability - Whether it is foreseeable that Defendant could be hailed into court there

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7
Q

When is a plaintiff’s claim related to a defendant’s contacts with a forum state?

A

A plaintiff’s claim arises out of and relates to a defendant’s conduct in the forum state if Defendant’s conduct caused the harm.

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8
Q

Can a forum exercise personal jurisdiction if a plaintiff’s action is not related to the defendant’s contacts with the forum?

A

Yes, if the forum has general jurisdiction over the defendant.

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9
Q

What are the 3 ways a forum has general jurisdiction over a defendant?

A

A forum has general jurisdiction if the defendant is at home in the forum state, is served with process within the state, or is registered to do business in the state and has appointed an agent for service of process there.

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10
Q

For the purpose of general jurisdiction, when is a defendant at home?

A

If the defendant is a human, she is at home in her state of domicile. If the defendant is a corporation, it is at home in both the state in which it is incorporated and the state in which it has its principal place of business.

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11
Q

When is fairness assessed as a factor for personal jurisdiction?

A

Fairness is assessed only in cases of specific personal jurisdiction (not general jurisdiction).

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12
Q

What are the factors for determining if an exercise of specific personal jurisdiction is fair?

A

The factors for determining if an exercise of personal jurisdiction is fair are the burden on the defendant and witnesses, the state’s interest, and the plaintiff’s interest.

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13
Q

What is is notice of a claim (process) comprised of?

A

Notice consists of a summons and a copy of the complaint.

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14
Q

Who can serve process?

A

Anyone who is at least 18 years old and not a party to the action.

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15
Q

When must process be served?

A

Process must be served within 90 days of filing the complaint, but the period may be extended for good cause.

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16
Q

How is process served on an individual?

A

(1) personal service
(2) substituted service
(3) service on agent
(4) state law methods

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17
Q

What is substituted service?

A

Substituted service means serving a substitute for the defendant. This can be done only at the defendant’s usual place of abode, with someone of suitable age and discretion, who resides there.

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18
Q

What is service on agent?

A

Process can be served on a defendant’s agent, so long as receiving service is within the scope of agency.

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19
Q

What state law methods for serving process are permitted in federal courts?

A

Methods permitted by (1) the state where process is served or (2) the state where the federal court sits are permitted in federal court.

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20
Q

How is process served on a business?

A

A business may be served by delivering process to an officer or a managing or general agent or using methods permitted by state law.

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21
Q

How may a minor or incompetent person be served?

A

A minor or incompetent person may only be served according to the laws of the state in which service is to be made.

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22
Q

How may a party in a foreign country be served?

A

Parties in a foreign country may be served by a method allowed by international agreement. If there is none, then
- as directed by the American Court
- a method allowed by the foreign country
- a method directed by a foreign official in response to a letter request from the American court
- personal service in the foreign country (unless prohibited there)
- mail sent by the clerk of the court requiring signed receipt

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23
Q

May service of process be waived? If so, how?

A

Yes, if the plaintiff mails a form to the defendant and the defendant mails it back to the plaintiff within 30 days (60 if outside the US).

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24
Q

Does waiver of service waive defenses?

A

No.

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25
Q

When is waiver of service of process effective?

A

Waiver is effective when the plaintiff files the waiver in court.

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26
Q

When a defendant waives service, when is he considered to have been served?

A

When service is waived, the defendant is considered served on the date the plaintiff filed the form with the court.

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27
Q

What is the penalty for failure to waive service?

A

If the defendant does not have good cause, the defendant must pay the costs of service.

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28
Q

When is a defendant immune from service of process?

A

A defendant cannot be served when the defendant is in the forum state to appear as a witness, party, or attorney in a different civil case.

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29
Q

What is subject matter jurisdiction?

A

Subject matter jurisdiction is the court’s power to hear the case.

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30
Q

What type of subject matter jurisdiction do state and federal courts have?

A

States have general subject matter jurisdiction. Federal courts have limited subject matter jurisdiction.

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31
Q

Can states hear cases arising under federal law?

A

Yes, unless the case is patent infringement, bankruptcy, federal securities, or antitrust.

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32
Q

What cases can federal courts hear?

A

Federal courts can hear cases arising under federal question jurisdiction or diversity of citizenship jurisdiction.

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33
Q

Can subject matter jurisdiction be waived?

A

No, and a judgment is void if there is no subject matter jurisdiction.

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34
Q

What are the requirements for diversity of citizenship cases?

A
  1. The case is between citizens of different US states (or a citizen of a US state and a citizen of a foreign country); and
  2. The amount in controversy exceeds $75,000.
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35
Q

When does diversity of citizenship exist?

A

Diversity of citizenship exists if any plaintiff is not a citizen of the same state as any defendant when the case is filed.

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36
Q

When is alienage jurisdiction withdrawn?

A

Alienage jurisdiction is withdrawn when the alien is a green card holder who is domiciled in the same state as a party on the other side of the case.

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37
Q

What is the citizenship of a natural person?

A

A natural person is a citizen of the state in which she is domiciled.

38
Q

What is a domicile?

A

Domicile is physical presence in a state and the intent to remain there indefinitely.

39
Q

What is the citizenship of a corporation?

A

A corporation is a citizenship of any state in which it is incorporated and the one state that is its principal place of business.

40
Q

What is a corporation’s principal place of business?

A

The principal place of business is the “nerve center” - the place where the corporation’s managers direct, coordinate, and control business activities.

41
Q
A
42
Q
A
43
Q
A
44
Q

What is the citizenship of an unincorporated association or LLC?

A

An unincorporated association is a citizen of every state where its members are citizens.

44
Q

Where is the citizenship of a party who sues through a representative (decedent, minor or incompetent)?

A

The representative’s citizenship is irrelevant. The citizenship is that of the decedent, minor, or incompetent.

45
Q

What is the citizenship of a class action?

A

A class action shares the citizenship of the named representatives of the class.

46
Q

How is the amount in controversy determined?

A

The amount in controversy is the amount of the claim, not including any costs or prejudgment interest.

47
Q

Is there any limit to the plaintiff’s claimed amount in controversy?

A

No. Whatever the plaintiff claims in good faith will be used, unless it is clear to a legal certainty that she cannot recover more than $75,000.

48
Q

May a plaintiff aggregate claims to meet the amount in controversy requirement?

A

Any single plaintiff may aggregate all of her claims against any single defendant, whether or not those claims are related.

49
Q

What is the amount in controversy for joint claims?

A

The amount in controversy in joint claims is the total value of the claims.

50
Q

When is the amount in controversy satisfied for equitable relief claims?

A

The amount in controversy is satisfied when either (1) from the plaintiff’s viewpoint, the equitable relief would have a value of more than $75,000 to the plaintiff or (2) from the defendant’s viewpoint, the equitable relief would cost the defendant more than $75,000.

51
Q

What cases are excluded from diversity jurisdiction?

A

Federal courts will not hear cases for divorce, alimony, child custody, or probate.

52
Q

May a plaintiff change citizenship to create diversity?

A

Yes, so long as the change in citizenship is genuine.

53
Q

What is federal question jurisdiction?

A

Federal question jurisdiction exists when a plaintiff’s claim arises under federal law.

54
Q

What is the well-pleaded complaint rule?

A

The well-pleaded complaint rule requires the claim to arise under federal law. It is not enough that some federal issue (like a defense) is raised by the complaint.

55
Q

What is removal?

A

Removal transfers a case from state court to federal court.

56
Q

What is remand?

A

Remand transfers a case from federal court to state court.

57
Q

When may a case be removed?

A

An action originally filed in state court may be removed to federal court if the case could have been filed in federal court.

58
Q

Does a state court need to have jurisdiction for valid removal?

A

No.

59
Q

How is a case removed?

A

The defendant files a notice of removal in federal court stating the grounds for removal and then promptly serves a copy on the adverse parties and files a copy with the state court.

60
Q

How long does a defendant have to remove a case?

A

30 days from when the case first became removable.

61
Q

Who must join in removal?

A

All defendants who have been served with process must join.

62
Q

Can a plaintiff ever remove a case?

A

No.

63
Q

When is a properly removable case nonetheless not removable?

A

In diversity jurisdiction cases, a case is not removable if any defendant is a citizen of the forum state or if more than one year has passed since the case was filed in state court.

64
Q

What is the venue for removal?

A

The proper venue s the federal court embracing the state court where the case was filed.

65
Q

When must a plaintiff move to remand a case?

A

If the basis for remand is something other than a lack of subject matter jurisdiction, the plaintiff must move no later than 30 days after the filing of the notice of removal.

There is no time limit if the basis for remand is lack of subject matter jursidiction.

66
Q

What is supplemental jurisdiction?

A

Supplemental jurisdiction gets claims into court when the claims do not have federal question or diversity subject matter jurisdiction.

67
Q

What test is used to determine if supplemental jurisdiction is appropriate?

A

The test is whether the claim shares a common nucleus of operative fact with the claim that satisfied subject matter jurisdiction.

68
Q

When is the common nucleus of operative fact test always met?

A

When the claims arise from the same transaction or occurrence.

69
Q

When is supplemental jurisdiction not available?

A

Supplemental jurisdiction is not available for additional claims made by a plaintiff in diversity cases.

70
Q

What is the exception to the limitation on the use of supplemental jurisdiction by plaintiffs in diversity cases?

A

When there are multiple plaintiffs where the claims share a common nucleus of operative fact and the claim by one of them does not meet the amount in controversy requirement.

71
Q

May a court decline to exercise supplemental jurisdiction?

A

Yes.

72
Q

What is the first step of the Erie doctrine?

A

Determine if there is some valid federal law (Constitution, statute, FRCP) that directly conflicts with state law. If so, then apply federal law.

73
Q

What is step two of the Erie doctrine?

A

If there is no federal law on point, apply state statute to the issue if the issue to be decided is “substantive.”

74
Q

What are examples of substantive law for the purpose of the Erie doctrine?

A

-conflict or choice of law rules
-elements of a claim or defense
-statutes of limitation
-rules for tolling the statutes of limitation
-standard for granting a new trial due to excessive or inadequate jury award

75
Q

What is step 3 of the Erie doctrine?

A

If there is no federal law on point and the issue is not one of the enumerated substantive laws, the judge must determine if the issue is substantive.

76
Q

What are the factors considered in determining if an issue is substantive under the Erie doctrine?

A

(1) whether the issue is outcome determinative
(2) balancing state and federal interests
(3) avoid forum shopping

77
Q

What is venue?

A

Venue is which federal court the case should be brought in.

78
Q

What are the choices for venue?

A

Venue lays in
(1) any district where all defendants reside (or any district where one defendant resides, if they all reside in the same state) (2) any district where a substantial part of the claim arose or where a substantial part of the property involved is located, or
(3) any federal district, if all defendants reside outside of the United States.

79
Q

Where does a defendant reside for the purpose of venue?

A

A human resides in the state where he is domiciled. A business resides in any state where it is subject to personal jurisdiction.

80
Q

What is transfer?

A

Transfer is when a case goes from one court in a judicial system to another.

81
Q

When is transfer proper?

A

Transfer is proper when the transferee court is a proper venue and has personal jurisdiction over the defendant. It is also proper if all parties consent to transfer and the transferor court finds good cause.

82
Q

When should a court transfer a case from a proper venue?

A

The court should transfer the case based on convenience of the parties and witnesses and in the interest of justive.

83
Q

Who has the burden of proving a case should be transferred from a proper venue?

A

The party seeking transfer has the burden to prove the case should be transferred.

84
Q

What factors will a court consider in determining if a case should be transferred from a proper venue?

A

The court will consider public factors (desire to keep the case in the local community, which court should be burdened with jury service, what law applies) and private factors (convenience).

85
Q

Which law applies when a case is transferred from a proper venue?

A

The transferee court must apply the choice of law rules of the transferor court, unless the transfer is to give effect to a valid forum selection clause.

86
Q

What is the effect of a valid forum selection clause on transfer from a proper venue?

A

(1) federal courts will enforce forum selection clauses so long as they are not unreasonable
(2) the court will only consider public factors in determining whether to transfer
(3) the transferee court will apply its own choice of law rules

87
Q

What may a court do if a case was originally filed in an improper venue?

A

The court may dismiss the case or it may transfer the case to a proper venue.

88
Q

What choice of law rules apply when the transferor court was an improper venue?

A

In diversity cases, the transferee court applies its own choice of law rules.

89
Q

When does forum non conveniens apply?

A

Forum non conveniens applies when there is anther court that is the center of gravity for the case.

90
Q

What is the requirement for the other court in forum non conveniens?

A

The other court must be available and adequate. A forum is adequate unless the plaintiff cannot get any remedy there.

Civil Procedure (4 decks)

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