VENUE

Question 1

Summons substantive requirements?

Answer 1

1. Signed by the clerk
2. Identify court and parties
3. Directed towards defendant
4. Name and address of plaintiff or attorney
5. Notify defendant of time to file an answer and the potential for default judgement if defendant fails to appear
6. Seal of the court

Question 2

Summons delivery requirements

Answer 2

1. Delivered by someone over 18 years of age and not a party of suit

Case can be dismissed for failure of service

Process can occur to a natural person by delivering:

1. To the defendant himself
2. Leaving process at defendant’s household with suitable age and discretion
3. Registered agent

Process can occur to corporation by delivering:

1. Officer
2. Managing Agent
3. An agent authorized to receive process

Question 3

Where is venue proper

Answer 3

1. District where the defendant resides if all reside in the same state
2. District where substantial amount of events occurred OR substantial amount of property is located

IF VENUE IS NOT PROPER UNDER THOSE TWO

3. District where defendant would be subject to PJ, if there is no other jurisdiction.

Question 4

Transfer of Venue

Answer 4

Even if action was brought in the proper venue, a federal court can transfer the action to another suitable venue for:

1. CONVENIENCE (Most Used) - of parties and witnesses in the interest of justice if the case could have been filed there initially
2. AGREEMENT - All parties agree to transfer
3. INTEREST OF JUSTICE - If case was filed in improper venue, court can dismiss case or transfer where it could have been filed intially

Question 5

Forum non Conveniens

Answer 5

If the most convenient forum is not in the US, the court cannot transfer the case but can dismiss it without prejudice so plaintiff can refile

Question 6

Law applied in which state law claims rest on federal law?

Answer 6

Court should apply state law to state law issues and federal law to federal law issues

Question 7

Federal Common Law

Answer 7

Body of federal legal precedent that is generally confined to:

1. Maritime
2. Foreign Relations
3. Commercial rights and Liabilities of Federal Government
4. Property Rights and liabilities of the Federal Government

In these areas court will apply federal common law and ignore state law that would apply

Question 8

Erie Analysis with Diversity cases

Answer 8

Test used to determine what law is used in diversity cases:

1. Follow congress or constitution if valid and on point
2. Do what should be done to avoid unfairness and forum shopping

If step 2 requires the use of state law then the rule is “SUBSTANTIVE”

If step 2 requires the use of federal law then the rule is “PROCEDURAL”

GENERALLY:

1. STATUE OF LIMITATIONS IS SUBSTANTIVE
2. CHOICE OF LAW RULES ARE SUBSTANTIVE