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Federal Civil Procedure > Venue, Removal & Choice of Law > Flashcards

Venue, Removal & Choice of Law Flashcards

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Civil Procedure 1L flashcards
1
Q

What does venue dictate?

A

The region within a particular state where a suit can occur

  • In federal court, this region is called a judicial district
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2
Q

Define Proper Venue

A

Which Federal Court parties may litigate before within a jurisdiction

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3
Q

Proper Venue - individuals

A

Any district where:

  1. all ▵s reside or where substantial portion of claim arose,
  2. Theres SMJ over the claim, and
  3. PJ over the parties
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4
Q

Where all Defendants Reside

A

Judicial District where:

  • Residence for Natural Persons ➞ Domicile, where they are citizens
  • Exception:
    1. All ▵s reside in different districts within the same state = Venue is proper in Any district where any ▵ resides
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5
Q

Judicial District where Substantial Part of Claim Arose

A

Judicial District where Substantial Part of Claim Arose or substantial part of property that is the subject of the action is located

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6
Q

What is the effect if there is no district where the action can be brought?

A

If No District, where the action can be brought

  • Diversity - Any district where ▵ is subject to personal jurisdiction
  • Federal Question - District where the ▵ can be found
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7
Q

Proper Venue for Corporations

A

Corporations - Any district where corp. is subject to personal jurisdiction

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8
Q

Transfer of Venue Rule & What are the requirements ?

A

There is a Presumption that Plaintiff’s choice of venue stays (Transfer is the exception not the rule)

  • Requirements for Transfer - Transferee court where action could have originally been brought
    • Must Have Subject Matter Jurisdiction
    • Personal Jurisdiction over the ▵
    • Must have Proper Venue
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9
Q

Transfer of Venue - Original Venue is Proper

A

Court can still transfer based on:

  1. Convenience of the parties, AND
  2. Interests of Justice - ∏s choice is entitled to deference & should not be disturbed w/out compelling reasons of fairness
    • Public Factors
      • Court Congestion
      • Local Interests in having local control decided “at home”
      • Forum Familiarity with Substantive Law
      • Unfairness to Forum - unfairness of burdening citizens w/ jury duty for case unrelated to forum

Private Factors

Ease of Access to evidence

Availability of witness subpoenas

Cost of getting witnesses to forum

Possibility of viewing premises related to the action

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10
Q

Interests of Justice - Plaintiff’s choice is entitled to deference & should not be disturbed w/out compelling reasons of fairness

Public Factors

A
  1. Court Congestion
  2. Local Interests in having local control decided “at home”
  3. Forum Familiarity with Substantive Law
  4. Unfairness to Forum - unfairness of burdening citizens w/ jury duty for case unrelated to forum
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11
Q

Interests of Justice - Plaintiff’s choice is entitled to deference & should not be disturbed w/out compelling reasons of fairness

Private Factors

A
  1. Ease of Access to evidence
  2. Availability of witness subpoenas
  3. Cost of getting witnesses to forum
  4. Possibility of viewing premises related to the action
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12
Q

Original Venue Improper

A

Ct. can either:

  1. grant dismissal of action or
  2. order that venue be transferred if transfer is in the interest of justice
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13
Q

Transfer of Venue - Choice of Law ?

A

Transferor Court ➞ Change of court not change of law

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14
Q

Removal - General Test

A

Case originally filed in state court can be removed to federal by ▵ only if case could have orig. been filed in federal court

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15
Q

Who can remove?

A

Defendant Only - Removal allows ▵ to veto Plaintiff’s choice of forum (i.e.State Court)

  • Multiple ▵s - All ▵s must consent to removal
  • Waiver of Removal Right:
    • If ▵ files a permissive counterclaim in st. court ➞ YES, waiver of right to remove
    • If ▵ files compulsory counterclaim ➞ NO waiver
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16
Q

To which court may a defendant remove ?

A

Vertical Removal Only

  • Only to federal district court that geo. embraces the state court
  • Diversity Exception - Diversity case can’t be removed if any ▵ is a resident of state in which action was brought
17
Q

What are the grounds for removal?

A

A defendant can remove a case from state to federal court if:

  • Orig. well-plead complaint by the P
  • Could have been filed in federal court (FQ, Div., Supp)
18
Q

When can a defendant not remove a case?

A

Home state defendant rule

  1. Fed. juris. would be grounded only in diversity juris. AND
  2. D is a citizen of the state where the action is filed
19
Q

Removal - State Claims Laws

A

State action joins fed. statutory claim & st. law claim

  • State claim falls within original or supp. juris. - Both claims come up to fed. & remain in fed. ct.
  • State Law Claim Doesn’t Fall w/in Orig. or Supp. Juris. of Fed. ct. - Federal judge must severe the state law claim & remand to the state court
20
Q

Removal - Timing

A

Notice of removal must be filed within 30 days after notice that case is removable

  • usually 30 days after service of process - 30 days after ▵ knows case is removable
  • Diversity Case Exception - 1 yr. limitation
    • Removal can only happen w/in 1 yr after claim is filed
21
Q

Procedure for Removal

A
  1. Notice of removal filed by ▵ in federal court stating the grounds for removal
  2. Signed under Rule 11
  3. Attach all documents served on ▵ in the state action
  4. Copy all adverse parties, and
  5. File a copy of the notice in state court
22
Q

If the removal to federal court would be based on diversity of citizenship, how long does the defendant have to remove the case ?

A
  • W/in 1 year of when the case is filed
  • Usually happens when the P makes a changes to suit that create diversity
  • 30 day window of when the rounds for removal became apparent still applies
23
Q

Motion to Remand

A
  1. Procedural Defect - Motion to remand on basis of any defect other then SMJ must be made w/in 30 days after ▵ files notice of removal
  2. Lack of SMJ - Anytime before the final judgment
  3. No appeal - ▵ can NOT appeal an order to remand
24
Q

Forum Non Conveniens

A

What to do when can’t transfer?

  • Court can dismiss if far more appropriate & convenient forum exists elsewhere
  • Court Considers:
    • Convenience of the Parties,
    • Witnesses and
    • interests of justice
25
Q

Forum Non Conveniens - Requirements

A
  1. There must be an Alternative Forum (More logical forum)
  2. Case dismissed under forum non conveniens because transfer is not possible
  3. Plaintiff’s recovery is irrelevant
  4. Plaintiff is not resident of current forum
26
Q

Forum Non Conveniens - Intersts of Justice

Public Factors

A
  • Court Congestion
  • Local Interest - e.g. Crash may have occurred in alt. forum
  • Forum familiarity with substantive law - greater familiarity w/ foreign law is w/ the foreign country not the U.S.
  • Unfairness to forum - Unfair to USA forum for case that is very British that it should be litigated there (Unfair to use our resources)
27
Q

Forum Non Conveniens - Intersts of Justice

Private Factors

A
  1. Ease of access to evidence
  2. Availability of witness subpoenas - e.g. can’t use US subpoena in Scotland
  3. Cost of getting witnesses to forum
  4. Possibility of viewing premises related to the action if needed
28
Q

In diversity cases, what determines the law to apply?

A

The erie analysis

29
Q

Choice of Law & Erie Doctrine

A

Fed. Ct. sitting in Diversity Juris. must apply substantive State law & Fed. Procedural law

30
Q

What is substantive law?

A

Any law that would cause forum shopping

  • If federal law is preferred, then call the law procedural
31
Q

Substantive State Law

A

Matters of clearly substantive law:

  • Elements of claim or defense
  • Statute of limitations & Tolling of statue of limitations
  • Conflict or Choice or Law rules
32
Q

Federal Law on Point in Direct Conflict w/ State

A

Under supremacy clause Fed. ct. must apply Fed. law

33
Q

Federal Procedural Law

A

If FRCP is arguably procedural & valid, it will be applied (No FRCP has been found to be invalid under the Erie Doctrine)

34
Q

What if it is unclear if Procedural or Substantive ?

A

Unclear if Procedural or Substantive - Apply 3 part test:

  1. If st. law subst. determines the outcome
    • its substantive & must be applied by fed. ct. sitting in div.
  2. Balance St. interests v. Federal interest in application of particular rule
    • Does either have a strong interest that its rule be applied?
  3. Avoid Forum Shopping
    • Judge considers if application of particular rule promotes forum shopping
35
Q

What is the rule for removal when there are mult. defendants ?

A

All must agree to removal

36
Q

Transferring venue by agreement requires?

A

If all parties consent, then the parties can go anywhere

37
Q

When is invoking forum non conveniens appropriate?

A

When the most convenient court in which to litigate a suit is not in the united states

38
Q

What does a court do when forum non conveniens is appropriate?

A

Dismiss the suit without prejudice so that the Plaintiff can refile the suit abroad if she desires

39
Q

What are the steps in the Erie Analysis?

A

For Diversity Cases only:

  1. If a valid fed. statute or const. provision is on point - fed. ct. must apply it
  2. If there is no fed. statutory or const. law on point - Do what would avoid unfairness and forum shopping
    • If determined state must be applied to avoid unfairness, it’s called substantive law

Federal Civil Procedure (9 decks)

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