SMJ Federal Question, Removal, SOP CA and Fed,

Question 1

28. U.S.C. 1331

Answer 1

Federal courts shall have original jurisdiction over claims that arise under the Constitution, laws or treaties of the United States.

Question 2

Well-pleaded Complaint

Answer 2

Mottley rule: A suit arise under federal law if the federal issue appears on the face of the well-pleaded complaint and not in anticipated defenses or counterclaims

Question 3

Holmes Creation Test

Answer 3

Second test to determine FQ jdx

A suit arises under that the law that creates the cause of action (what law creates right to sue, source of right to relief)

Question 4

28. U.S.C 1338

Answer 4

Federal courts have exclusive jurisdiction over civil action arising under act of Congress relating to patents, plant variety protection, or copyright

Question 5

28 U.S.C §1367

Answer 5

Supplemental JDX: Federal court shall have supplemental jdx over all other claims that are related to the claims (arising from same transaction or event) with original jdx

Judicial economy: more practical and cost-efficient to hear related claims at once “on-stop shop”

Question 6

Declaratory Judgement

Answer 6

A party can ask the court to declare the rights and relationship of the parties

Question 7

Embedded Federal Question

Answer 7

When a state cause of action cannot be resolved unless there is a special resolution/relief or understanding of a federal ingredient Grable

Question 8

28 U.S.C. § 1441(a)-(b)(1)

Answer 8

Removal [NOTICE]: Defendant (s) may remove a case from state to federal court if the case could have been filed initially in federal court by the plaintiff to the federal court within the district and division where the suit is brought, within 30 days of receiving initial pleading.

Question 9

Removal (1441) Analysis Framework

Answer 9

1.) Does court have original jurisdiction? FQ or Divi
2.) Is Removal Proper: Timely, Consent and no forum-state D(if no FQ and only div)
3.) Is remand proper: Timely remand? Was removal proper(defect)?

Question 10

28 U.S.C §1441 (b) (2) forum state defendant

Answer 10

For removal analysis:

Forum-state exception (solely div): cases may not be removed by the defendant if the defendant is from the state where the action was brought.

Question 11

28 U.S.C §1446 (b)(2)(A)

Answer 11

Removal analysis:

Consent: All defendants sued in state court must [agree to] remove to federal court w/in 30 days of receiving the initial pleading.

Question 12

28 U.S.C §1446 (b)(3)

Answer 12

Removal Analysis: Removal after amending:

Defendant can remove 30 days after receiving amended pleading (now with federal issue or diversity), if the case stated by the initial pleading is not removable.

Question 13

28 U.S.C. § 1447(c)

§ 1446(a)

Answer 13

Remand Analysis:

Remand [MOTION]: Remanding a case back to state court based on technical defects(objections) other than SMJ must do so within 30 days after removal

1446 (a) “You snooze, you lose.” waive right to remand

Applied to div and fq

Amoco: not Well-pleaded complaint, remove improper, and remand proper

Question 14

Remand for SMJ

Answer 14

unlimited because SM cannot be waived

Question 15

Forum Shopping

Answer 15

Structure case to find a way to get into/stay out of a specific court of law if it is beneficial for the client

Question 16

SOP functions

Answer 16

1.)Notify defendant: Goal is actually to notify D so they may defend themselves in court.

2.) Empower the court to issue (or not issue) binding orders over defendants (depending on SMJ or PJ):

Question 17

SOP Methods

Answer 17

1.) Actual: in hand, personal delivery, >18, not party in claim

2.) Substitute +Mail: serving to another person at defendant work, home, etc, and mailing a copy

3.) Constructive (w/court order): Publication in newspaper (last resort), judge crafted alternative→ must be approved by court order

Question 18

CCP § 415.10: Personal

Answer 18

Personal Service (hand to hand):

A complaint and summons (C&S) may be served by personal delivery to the person to be served. Any person who is 18 years or older and is not a party to the action may serve the defendant. Service deemed complete at time of such delivery.

May affix date of delivery on S&C or not.

(Same FC)

Question 19

CCP § 415.20: Substitute

Answer 19

Substitute Service: If lieu of personal service (after reas diligence), a defendant can be served by:

1.)Leaving the C&S at defendant’s office during usual business hours, with a person in charge and over 18, and thereafter mail a copy of C&S to same address by first-class mail and postage prepaid. Service deemed complete on 10th day after mailing. (30 days to respond from service completion, 40 days); OR if not

Leaving S&C defendant’s home with a competent member of the household, over age 18, informing them of the contents, thereafter mail a copy of S&C to the same address by first-class mail and postage prepaid. Service deemed complete on 10th day after mailing.

Question 20

CCP § 415.30: N&A

Answer 20

Alternative, Service by Mail: Notice & Acknowledgement (N&A): Waive sop

If D accepts, defendant may be served by mailing (any type of mail) S&C with

-TWO copies of the notice & acknowledgement form and a postage prepaid return envelope addressed to sender

-Complete at NA signing
20 days to sign, 30 days from then to respond to complaint

Question 21

CCP § 415.40: Persons Out of State

Answer 21

Service on Persons out of state:

A summons may be served by personal, substitute, or N&A, or by mailing a copy of S&C by first-class mail, postage prepaid, and requiring a return receipt. Deemed complete 10 days after mailing.

Question 22

CCP 415.50: Constructive

Answer 22

Constructive Service (publication):

A summons may be served by publication if upon affidavit it appears that the party cannot with reasonable diligence be served in another manner
***need court order

-Baidoo: divorced couple; ex-wife cannot contact husband → court granted permission to serve through FB message

-Mullane: DP requires reasonable effort, not mere gestures. Service by publication not allowed if there are more efficient methods

Question 23

CCP 416.10: Serving Corp

Answer 23

Corporation Service:
A summons may be served by delivering a copy of S&C to:
-agent of SOP
-president or other head of the corporation or other authorized
-personal, substitute, N&A, service by mail (if out of state only)

Question 24

CCP 418.10 Motion to Quash
Direct challenge

Answer 24

Motion to Quash: “specially appear”
A defendant may file a motion to quash service of summons on the ground of lack of subject matter jurisdiction, lack of PJ, or stay/dismiss the action on the ground of inconvenient forum within 30 days of service.

Quashing must be done before filing answer, otherwise waives SOP, PJ

Question 25

FRCP 4(c): Generally

Answer 25

A summons must be served with a copy of the complaint by a person over the age of 18 and not a party to the action, or by a marshall, or someone specially appointed to serve

-any method allowed in state court where FC is located or of the state corut where Δ lives : personal, substitute (HOME only, NO office), N&A, constructive

-Corporation: in any way allowed in state court; by delivering S&C to officer/manager/agent + mailing copy to each Δ

Question 26

FRCP 4(d) Waiving Service /N&A

Answer 26

An individual has a duty to avoid unnecessary expenses of serving summons.
A plaintiff may serve by :

Writing to the defendant, Naming the court where the complaint was filed, Attaching a copy of the complaint and 2 copies of the waiver form with prepaid means for return, Stating the date of request (at least 30 days (or at least 60 days outside of the U.S.) after the request was sent to return the waiver

Question 27

FRCP 4(e) Service

Answer 27

A person may be served by following state law for serving summons, or by:

-Personal service “golden standard”
-Substitute service (home only, not office!)
-Delivering S&C to an agent authorized by appointment or law to receive service of process

Question 28

FRCP 4(h) - Serving Corporation, partnership, association

Answer 28

A corporation may be served by:

-Following state law for serving summons
-Delivering S&C to an officer, manager, or agent authorized by the appointment or by law to receive SOP and mailing a copy to each defendant

Question 29

Collateral Challenge Federal/CA

Answer 29

Collateral damage: Defendant will take default judgment by doing nothing; (1) not appearing in action (2) allowing judgment to be entered; (3) challenging judgment afterwards when P comes to D state by the claim service was never accomplished and legal notice was not given/ lack of PJ

Question 30

FRCP 12(b)(5): Challenge SOP

Answer 30

Motion to dismiss or answer with SOP objection
-Must be made at the outset and within 21 days
-If defendant answers without objecting, SOP is waived

Question 31

PJ

Answer 31

Power of a court to compel a person to appear in court and participate in lawsuit

→ Court must have SMJ and PJ to issue binding orders over defendant, but there is no PJ until the defendant has been served with process. Proper service does not automatically confer PJ.

→ Constantly-evolving concept, not settled. Lawyers are expected to anticipate and know the trend

→ PJ is related to defendants only. There is is always PJ for defendants in-state, the problem is “hailing” out-of state defendants

Question 32

General JDX

Answer 32

state defendant is domiciled/resides in state; corporations PPB and POI

Pennoyer: stated have power of ppl and property within territorial limit

Question 33

Transient Presence “Tag JDX”

Answer 33

A defendant served with process while voluntarily and intentionally(not airspace) present in the forum state is subject to PJ.

Can trick into SOP if already in state.

Exceptions: fraud, duress, cannot be lured into state for SOP reasons, in-state for court proceeding, corporations

Burnham: Father (NJ) visiting kids in CA was served with family lawsuit while in CA→ voluntary visit can establish PJ →There is PJ over non-residents who are voluntarily present in state. CA has PJ over Δ

Question 34

Consent JDX

Answer 34

-Defendant can affirmatively decide no to raise issue

-Forum selection clauses→ decide ahead of time

-State statutes: require companies to appoint agent for SOP in state

Question 35

Waiver JDX

Answer 35

Defendant fails to object
-E.g. doesn’t object by a deadline, did not appear specially to challenge PJ, collateral attack, or answers w/o affirmative defenses

-Failure to object to jdx defects = waiver “snooze you loose”

Question 36

Specific jurisdiction

Answer 36

1.) Defendant has certain minimum contacts (deliberate/purposeful) with forum state
2. ) the suit arises out of or related to those contacts, and
3. ) exercise of PJ is fair and reasonable under the 14th amendment:
Factors: (1) Burden on defendant: to require D to defend suit in forum state
(2) State interest in adjudicating dispute
(3) Plaintiff interest in obtaining convenient and effective relief
(4) Interstate judicial system interest in obtaining most efficient resolution
Shared state interest in furthering fundamental substantive social policies

Question 37

Long Arm Statute

Answer 37

Necessary for a forum state to exercise PJ over an out-of-state defendant. All states have some form of long arm. “Enabling statute.”

-CA long arm statute: exercise PJ on any basis not inconsistent with CA pr U.S. constitution → Broad long-arm statute

-Federal long arm statute FRCP 4(k)(1)(a): Federal court could exercise jdx if the courts in the state where the federal court sits could do so

Question 38

Pennoyer v. Neff

Answer 38

Facts: Neff returned home and sued Pennoyer for occupying land claiming no PJ

Holding: No PJ over Neff’s property bc Mitchell did not sue “in rem” but “in personam”

Rule: power over persons and property within their territorial limits, thus limiting the power over out-of-state defendants, unless they were present and served with process within state

Question 39

International Shoe v. Washington

Answer 39

Facts: WA seeking unemployment money for fund, WA served IS in-state, IS domiciled out of state

Holding: Yes, PJ →presence of a salesman and magnitude of business with the state was enough to confer PJ because the contacts were continuous, systemic and substantial.

Rule: A defendant is not subject to PJ in a state where it is not “at home” unless it has minimum contacts with that state, the subject incident arises out of those contacts, and the exercise of jurisdiction is fair.

Question 40

McGee v. Int Life Insurance

Answer 40

Holding: Yes PJ, single contact with forum was ok bc contact was substantial.

Rule: A single contact with the forum state is enough for minimum contacts

Facts: Mother tried to recover for her son’s death from TX insurance corp. K was delivered in CA, premiums were mailed from CA and insured a resident in CA when died.

Question 41

Hanson v. Denckla

Answer 41

Holding/Rule: purposeful availment of the privileges and benefits of doing business in a state established minimum contacts with forum state and was sufficient to establish PJ

Question 42

Worldwide VW v. Woodson

Answer 42

Holding: No PJ because WV did not purposefully conduct activity in OK. Selling a product, foreseeability of a product might end up in a state is not sufficient to est minimum contacts and confer PJ when the defendant doesn’t purposefully avail themselves of doing business in the state. WWVW didnt sell, market or advertise in OK, only occurence is the accident, which Woodson drove into OK.

Rule: 1). purposeful or deliberate contacts
2.) plaintiff’s claim arose out of those contacts
3.) Exercise of PJ is reasonable: factors: (1) Burden on defendant: to require D to defend suit in forum state
(2) State interest in adjudicating dispute

Facts: Car bought from defendant’s dealership in NY was crashed in Oklahoma, Plaintiffs not from OK, only crash occurred there

Question 43

Calder v. Jones

Answer 43

Effects Test

Holding: PJ bc defendant purposefully caused a contact in CA bc they know the effects on the audience. Effects were directed at CA resident and state; CA was focal point of story and where harm was suffered.

Rule: 1.) expressly aimed at CA
2.) knew it would have a potentially devastating impact on P
3.) knew of brunt that injury would be felt by P in forum state.”

Facts: Libelous story about CA actress by FL writer and editor. Lawsuit in CA

Question 44

Burger King v. Rudzewicz

Answer 44

Holding: K arises out of negotiations in state. Defendant purposefully directed activities/contacts (20 year affiliation with BK, FL choice of law, etc. constitute minimum contacts→substantial connection→ purposeful availment → foreseeable and fair to hale them to forum→ does not offend DPC

Rule: K can stand for contact→ entering into K in state is purposeful contact; when determining minimum contacts courts should looks to purposefully directed activities of defendant towards forum state

Facts: Defendant (MI) signed franchise with Burger King (FL)

Question 45

Asahi Metal v. Supreme Ct

Answer 45

Holding: Placement of a product into the stream of commerce does not necessarily establish PJ, there has to be purposeful contacts. Consider burden on defendant.

Rule: stream of commerce, placing in SOC does not suffice contacts must be purposefule

Facts: Husband filed a products liability case for tube manufactured by Cheng Shin (Taiwan) with Asahi’s (Japan) tube valve

Question 46

Bristol-Meyers Squibb

Answer 46

Holding: NO PJ over nonresident claims because all conduct giving rise to those claims occurred in another state nor did they relate to Bristol’s relationship to CA. The related activity in Bristol occurred in a forum outside of CA therefore it did not arise out of contacts with CA.

Rule: A claim must arise out of the defendant’s sufficient minimum contacts with the forum or relate to the relationship with the forum state. A connection is required between the forum and the underlying controversy, principally an activity or occurrence that occurs in the forum state.

Facts: BMS moved to quash suits by non-CA residents, but there was PJ over CA residents

Question 47

Ford v. Montana

Answer 47

Holding: Yes, PJ. Ford advertises, sells, solicits, repairs, markets and promotes products in forum state it purposefully availed itself
if purpose avail of car market –> subject to liability of MO accidents caused by defects of vehicles

Rule: “invitation to drive into state” If an automobile manufacturer has extensive contacts with a state, an accident involving one of its cars in that state may be said to “arise out” of those contacts, if the contacts were intended to encourage consumers to drive their cars in the state, even if the particular auto that caused harm was not purchased within the state

Facts: Plaintiff drove truck into MO and died bc of defect in ford. Car wasnt purchased in MO

Question 48

FRCP 12(h)

Answer 48

Defenses and Objections: Party waives any defense under 12(b) for failure to make it by this motion under this rule or failure to raise lack of PJ as defense in answer.

-21 days minimum

Question 49

FRCP 12(b) (2) Challenge PJ

Answer 49

Lack of PJ
-Pre Answer motion (MTD) or in answer, must be in first responsive pleading

Question 50

Venue

Answer 50

The particular court w/in system that plaintiff can file lawsuit. A case must be filed in the correct court
→ State courts are separated by districts (often by county)
→ Federal courts also separated by districts (larger states have multiple)

Question 51

Significance of Venue

Answer 51

Emphasis on relationship between defendant/action to district/county

Ensure a case is litigated in court that is conveniently located and has some connection to lawsuit/parties
1.) Convenient given location of evidence, witnesses, defendant, plaintiff, court connection to cases

-Strategy for attorneys: jury poo, judges, convenience lawyers/parties, inconvenience of parties, expense, getting witnesses

Question 52

CCP 395: CA State Venue

Answer 52

venue is proper where any defendant lives at the time of filing

-Dissolution of Marriage: in county where either party lived for more than 3 months before filing

-Breach of K: where obligation is to be performed, where defendant lives, where K was entered, unless special K stating the contrary (forum selection clause

Question 53

CCP 392

Answer 53

venue is proper in the superior court where the real property is located for:
Recovery of real property, determination of that right or interest or injuries to real property
Unlawful detainer

Question 54

28 USC 1391: Federal Venue

Answer 54

1.) District in which any defendant resides, if all defendants are residents in the state which the district is located: a.) individual= domiciled
b. ) business/corps= District PPB, district POI, in district incident occurred (min contacts)
c. ) (c)(3) if D is not U.S. resident they can be sued in any judicial district , including where Plaintiff resides→ established PJ

2. ) District in which a substantial part of the events or omissions giving rise to the claim occurred; OR
3. ) If no option under (1) or (2) any judicial district in which any defendant is subject to the courts PJ with respect to such action

Question 55

28 USC 1406: Improper Venue

Answer 55

A judge can dismiss or transfer to another district/division in which it coudlve been brought in the first place (keep SMJ and PJ)

-Must challenge at outset
-courts will usually conclude transfer is in interest of justice when proper federal venue exists.
- Only to another court w/in system

Question 56

28 USC 1404: Change/Inconvenient Venue

Answer 56

Proper venue but transfer to more convenient federal district/division

Convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district/division where it may have been originally been brought in (proper venue, PJ and SMJ) to which all the parties have consent

Factors:

Private: (1) plaintiff choice of forum (2) defendant choice of forum (3) whether claim arose elsewhere (4) convenience of the parties (5) convenience of witnesses (6) ease of access to sources of proof

Public: (1) transferee’s familiarity with the governing laws (3) relative congestion of the calendars of potential transferee and transferor courts (3) local interest in deciding local controversy at home

Question 57

Consenting to Venue: Forum-selection clauses

Answer 57

Parties can choose to litigate in particular state or court in contractual clause before dispute arises. Courts can enforce even if no PJ, b/c parties can consent to PJ as well.

Question 58

Forum non-conveniens

Answer 58

Proper venue but more convenient outside of country]

Federal court can transfer to any other USDC, cannot transfer out of country→ can stay case

Piper Aircraft Co. v. Reyno: Non conveniens might be granted even though foreign law may be less favorable to plaintiff’s recovery. More evidence and more convenience found in Scotland

Guimei v. General Electric: Case able to be properly litigated in China, more evidence and enough legal abilities to resolve the issue accordingly

Question 59

FRCP 12(b)(3): Challenge to Venue

Answer 59

A party may assert to defenses by separate motion (before pleading) or within an answer for: Lack of SMJ, Lack of PJ, Improper venue