Civil Procedure Flashcards
1
Q
Personal Jurisdiction
A
- Traditional Bases
- Domicile
- Consent
- Presence in State
- Served as getting off the airplane
- In rem
- Long Arm Statute
- Alway needed to exercise jurisdiction over non-resident defendant in absence of traditional basis
- If not in eassay, state your assumption in answer
- Due Process/Minimum Contacts
- Due process requires the defendant to have such minimum cntacts with teh forum so that the exercise of personal jursdiction does not offend traditional notions of fair play and substantial justice (International Shoe)
2
Q
Due Process
A
- Two Types of Minimum Contacts:
- General Jurisdiction
- Contacts are systematic and continuous so as to render defendant “essentially at home” BUT “essentially at home” limited usually to state of incorporation or PPB
- Specific Jurisdiction
- Purposeful availment (“stream of commerce plus”)
- Foreseeable to defendant they might be haled into forum court
- Relatedness – cause of action arises from contacts
- Fairness (discuss at least the first three):
- Trial in forum not gravely difficult and inconvenient
- Forum state has an interest in providing redress
- Plaintiff’s interest in convenient releif
- Interstate judicial system interest in efficient resolution
- Share interest of state furthering fundamental substantive social policies
- General Jurisdiction
3
Q
Subject Matter Jx
A
- Introductory sentence:
- SMJ includes BOTH Federal Question AND Diversity Jurisdiction
-
Federal Question
- Where the plaintiff pleads in his complaint a claim or cause of action arising under the US Constituttion, Federal Law, or a Treaty.
-
Diversity
- No π is a citizen of the same state as any ∆
-
Requires:
-
Complete Diversity
- Citizenship of Person = Domicile
- Citizenship of Corporation =
- State of Incorporation
- Principal Place of Buisness (nerve center test)
-
Amount in Controversy > $75,000, set forth in a good faith pleading.
- Consider aggregation:
- π can aggregate all claims against one ∆ and all claims against jointly and severally liable multiple ∆ BUT NOT separate claims against multiple ∆s
- Multiple πs canot aggregate their claims against a single ∆ unless they are enforcing a single title or right in a common and undivided interest.
- Cannot aggregate claim and counterclaim
- Consider aggregation:
-
Complete Diversity
4
Q
Supplemental Jurisdiction
A
- A fed court may hear claim otherwise lacking SMJ if such claim shares a common nucleus of operative facts with the claim that does invoke court’s Jx
-
Pendent Jx
- State claim arising from same facts as federal claim
- Supplemental Jx over any added party that does not destroy diversity (such as additional plaintiff who doesn’t meet amount in controversy requirement)
- Compulsory counterclaims = supplemental jx
- Third-party π/Third-party ∆ whoa re diverse
- Supplemental jx even if original π not diverse, so long as original π not party to third-party claim
5
Q
Venue
A
- Determin whether original venue AND proposed venue are EACH proper
- Venue is proper in any distrcit where:
- One ∆ resides IF all ∆ reside in same state; OR
- A substantial part of the events or omissions giving rise to the claim occured; BUT
- If NEITHER 1 or 2 apply, any district where **ANY **∆ would be subject to PJx – treating district as state.
- Venue is proper in any distrcit where:
-
THEN discuss the rules for changing venue
- Was original venue proper?
- Is proposed new venue proper?
- Does balance of factors favor new venue?
6
Q
Venue - California
A
- Venue relates to the proper COUNTY in which to bring an action
- Local actions - Title/Harm to property
- Transitory Actions:
- Any county in which any ∆ resides; AND
- Contract actions: County in which the oligation is to be performed of the K was entered into; AND
- Personal Injury: County in which the injury occurred.
- Transfer of Venue
- Even if venue is proper, court may transfer when:
- No judge qualified
- convenience of witnesses
- ends of justice promoted by change
- balance convenience
- Even if venue is proper, court may transfer when:
- Forum Non Conveniens (Federal or State)
- Public Factors
- Availability of forum
- π’s choice
- Forum’s interests
- Private Factors
- Convenience
- Location of evidence
- Public Factors
7
Q
Eerie Doctrine
A
- Question is whether to apply State or Federal law in a diversity case
- Approach:
- Is there a Federal rule on point? If no – use state rule
- If FRCP/Federal statute enacted under Rules Enabling ACt (1934), it applies
- If conflict between a Federal rule not enacted under Rules Enabling ACt, and a State rule, is the use of one or the other outcome determinative?
- If yes, the rule is substantive and you often use the state rule
-
Would use of the Fed rule so likely affect the outcome that it would violate significant federalism or state sovereignty concerns?
- If yes, use state law
-
Would failing to follow state law encourage forum shopping in federal court?
- If yes, use state law UNLESS the choice is not so signficant that it would influence a litigant’s choice of forum.
-
Elements of claim and defenses (statutes of limitations, presumptions, and burdens) are substantive.
- Use state law.
8
Q
Removal
A
- Requires federal jx, therefore raises SMJx issues
- Only a ∆ can remove a case to Federal Court
- All ∆ must join in removal
- Removal must be timely (within 30 days after service of complaint)
9
Q
Remand
A
- Reverse removal
- Only granted if the federal court lacked Jx in the first place
- NOW discuss SMJx
10
Q
Abstention
A
- Federal court retains jurisdiction over constitutional challenge to state law, but refrains from deciding the question until the state courts interpret the state law.
-
EXCEPTION: where there is:
- Potential for great and immediate irreparable injury
- Bad faith in the prosecution of the state action, or
- Harassment
11
Q
Federal - Notice Pleading
A
- A pleading which sets forth a claim for relief, whether an original claim, counterclaim, cross-claim, or Third Party claim, shall contain:
- Short and plain statement of the grounds upon which the court’s Jx depends
- A short and plain statement of the claim showing that the pleader is entitled to relief; and
- A demand for judgment for the relief the pleader seeks.
- Court imposed requirement pleading must be “plausible”
12
Q
California - Fact (Code) Pleading
A
- A “statement of facts constituting the cause of action, in ordinary and concise language”
- Must plead “ultimate facts”
- Facts that raise the issues upon which the right to recover depends.
- Legal conclusions/evidentiary facts may be stricken
- Exception: Common counts
- Watch for negative pregnant
13
Q
Doe Amendments
A
- California “relation back” for statute of limitations, if:
- Original complaint is timely filed and contains charging allegations against all ∆, incluing Doe ∆;
- The π is genuinely ignorant to:
- The identity of a fictitious ∆,
- The facts giving rise to a cause of action, or
- Of the fact that the law provides a cause of action
- π’s ignorance must be pleaded in the complaint
- π must amend complaint promptly once identity is learned, and must serve with summons/complaint
14
Q
Demurrers - CA
A
- A Demurrer is a PLEADING not a motion.
-
Two Types:
-
GENERAL
- Equivalent to a Federal 12(b)(6) motion
- Complaint fails to state facts that constitute a cause of action
- On its face, is barred by statute of limitations, etc.
- Equivalent to a Federal 12(b)(6) motion
-
SPECIAL - Grounds:
- π lacks capacity to sue
- There is another action pending between the same parties on the same cause of action
- Failure to Join Necessary Party or Misjoinder
- Pleading is uncertain
- Complaint fails to allege whether the contract is oral or written.
-
GENERAL
15
Q
Motions to Strike - Anti-SLAPP
A
-
Elements
- ∆ must show:
- Challenged conduct arises from exercise of ∆’s first amendment rights
- If so, π must then prove probability of prevailing
- If π fails to do so, motion to strike complaint is granted.
- ∆ must show:
-
Possible Cross over:
- __Torts
- Constitutional law
25
Q
Claim Preclusion (res judicata)
A
