Chapter 4 - Parties and Jurisdiction - Concepts Flashcards Preview

LAS109 - Civil Pro I > Chapter 4 - Parties and Jurisdiction - Concepts > Flashcards

Flashcards in Chapter 4 - Parties and Jurisdiction - Concepts Deck (62):
1

Parties to an action may consist of (1), (2), (3), (4), (5) and (6).

1. individuals
2. partnerships
3. unincorporated associations
4. sole proprietorships
5. corporations
6. public bodies

2

Entities can be named without naming individuals because they have an (1) from the individuals who compose them. With (2) and (3), however, it is a good idea to name individuals as well so judgment will be binding on them as well as the entity. Corporations should not be sued as individuals because (4), and the same goes for governmental bodies because (5).

1. existence separate
2. sole proprietorships
3. unincorporated associations
4. shareholders are not liable
5. the public officials who compose them are not liable

3

6 questions to consider to ascertain whether you have the proper parties and whether any should be added

1. Who is the real party in interest?
2. Does the party have the capacity to sue?
3. Is joinder of the parties required?
4. Is joinder of the parties permitted?
5. Do any special pleading rules apply?
6. Is joinder of claims permitted?

4

Rule 17 of FRCP requires action be brought in the name of the real party in interest, or the one whose (1) the lawsuit seeks to (2). Potential issues can arise when (3) are named parties, though an exception is made for guardians, executors, etc., which has largely eliminated controversy, except in areas of (4) and (5).

1. rights
2. enforced
3. personal representatives
4. assignments
5. subrogation

5

A challenge can be brought against capacity under Rule 9 FRCP. This applies to both capacity to (1) and (2), and generally includes everyone except (3), (4) and (5).

1. sue
2. be sued/defend an action
3. infants
4. incompetents
5. suspended corporations

6

Modern joinder rules, 19 and 20 FRCP, focus on the competing interests which are (1) while (2), against (3).

1. legal/social interests in giving every party a chance to litigate
2. avoiding multiple lawsuits over the same issues
3. interests in permitting some claims to be adjudicated rather than none

7

As a practical matter, a plaintiff should join any (1) who can be (2), but only if that party's joinder will not defeat (3).

1. potentially liable party
2. served
3. subject matter jurisdiction

8

2 tests of rule 20 FRCP, regarding who may be optionally joined as a party (permissive joinder)

1. Question of law or fact common to all parties arising out of the action
2. Each plaintiff has a right of relief, jointly, severally, or alternatively, against each defendant based on the same occurrences or transactions

9

Two drawbacks to permissive joinder and reason courts regulate it (Rule 21 FRCP covers improper joinder, which simply drops the misnamed party)

1. May be unfairly expensive to certain parties
2. May delay litigation

10

Federal courts are courts of (1), which means that a party must (2) and (3) proper subject matter jurisdiction. This basis for jurisdiction MUST appear on the face of the (4) and not anticipated defenses. Although other parties or the court usually raise jurisdiction objections in (5), they may do so at any time during the trial. If the case does not fit in federal court, it must be filed in the (6).

1. limited jurisdiction
2. affirmatively plead
3. demonstrate
4. complaint
5. a Rule 12 motion to dismiss
6. appropriate state court

11

State courts also have (1) determined by the (2) or the (3).

1. subject matter jurisdiction
2. amount in controversy
3. nature of the action

12

5 questions to consider before bringing a claim in federal court

1. Is there a case or controversy?
2. Doe the case fall under specific federal question jurisdiction, either general or specific?
3. If the claim does not have federal question jurisdiction, can you sue based on diversity jurisdiction?
4. Does ancillary jurisdiction apply?
5. Has the case already been filed in state court, so that filing in federal court will require removal?

13

Courts must have actual "case or controversy"; in other words, they will not hear (1) or (2) case, render (3), or hear controversies that are essentially (4) or (5) issues.

1. moot
2. collusive
3. advisory opinions
4. administrative
5. political

14

Related to case or controversy is the issue of (1). Both of these issues are commonly seen in (2), but rarely in (3).

1. standing
2. public interest litigation
3. private litigation

15

Problems rarely arise with regard to (1) jurisdiction of federal courts, but often come into question under USC Title 28's (2). Under Section 1331, jurisdiction can arise "under (3), (4) or (5) of the United States.

1. specifically granted
2. general grants
3. Constitution
4. laws
5. treaties

16

7 examples of specifically granted jurisdiction to federal courts

1. admiralty
2. bankruptcy
3. Interstate Commerce commission
4. commerce/antitrust
5. patent/copyrights/trademark/unfair competition
6. postal
7. IRS/customs

17

In addiction to provisions in Title 28 USC, there are also (1) that grant federal jurisdiction, such as the Civil Rights Act. Sometimes federal and state courts have (2).

1. statutory provisions
2. concurrent jurisdiction

18

(1) is acceptable if the federal and state issue are based on the same facts. This allows courts to hear both/all claims at once instead of splitting claims, and is called (2).

1. Joinder of claims
2. pendent jurisdiction

19

Because of (1), a plaintiff suing the United States must demonstrate the (2) under which the government has consented to be sued. The same applies for (3) or (4).

1. sovereign immunity
2. statutory basis
3. federal officials
4. federal administrative agencies

20

3 most common statutes under which the US government is sued

1. Court of Claims Act
2. Tucker Act
3. Federal Tort Claims Act

21

4 categories of actions, set out by Title 28, for which diversity of citizenship jurisdiction is proper

1. Between citizens of different states
2. Between citizens of a state and citizens or subjects of a foreign state
3. Between citizens of different states and in which citizens or subjects of foreign state are additional parties
4. Between a foreign state as plaintiff and citizens of a state or different states

22

Diversity of jurisdictions not apply to (1) and (2) which are local matters raised only in state courts.

1. domestic relations
2. probate matters

23

3 requirements for diversity jurisdiction

1. Citizenship
2. Complete diversity
3. Jurisdictional amount

24

The citizenship of natural persons is the (1), or (2). No person can have more than one at a time. For a corporation, this is the (3) and where it has its (4). The citizenship of a liability insurer is the state in which the (5) is domiciled. Unincorporated associations are considered citizens in each state in which (6).

1. state of permanent residence
2. domicile
3. state where it is incorporated
4. principal place of business
5. insured plaintiff
6. its members are citizens

25

Complete diversity means that each (1) must have (2) from each (3) in order for the federal district courts to have jurisdiction. This can be manipulated by (4). If a representative is (5), the citizenship of the represented counts; otherwise the representative's citizenship is used. (6) used solely to create diversity are ignored.

1. plaintiff
2. different state citizenship
3. defendant
4. dropping joined parties
5. nominal
6. Collusive assignments

26

Complete diversity depends on citizenship of the parties at the time the (1).

1. complaint was filed

27

For diversity of citizenship, the value in controversy must be (1) or more, and this is dependent solely on the (2). Controversy surrounds whether to use valuation from the (3) or (4) and can get tricky with (5), which is measured by the value of the right sought to be enforced or by the value of the avoided injury.

1. $75,000
2. plaintiff's complaint
3. defendant
4. plaintiff
5. equity

28

Claims can be aggregated to meet jurisdictional DoC requirements in four ways:

1. One plaintiff, one defendant, multiple claims of separate, unrelated contracts
2. One plaintiff, multiple defendants, multiple claims, but the claims are joint (eg, joint liability of partnered defendants)
3. Multiple plaintiffs, one defendant, multiple claims, but a single title/right is involved (such as partnership of the plaintiffs)
4. 2 and 3 with regard to multiple plaintiffs and multiple defendants

29

(1) and (2) are usually excluded from DoC value requirements. This includes (3) unless a contract or statute states otherwise. An exception is (4).

1. Interest
2. Costs
3. Attorney's fees
4. if the basis of the action is actually the interest

30

Closely related to pendent jurisdiction is the matter of (1), which deals with, for example, (2), (3) and (4) unrelated against proper original complaints, that themselves do not carry basis for federal jurisdiction. The case-by-case determination of this is dependent on whether subsequent claims (5) from the original claim.

1. ancillary jurisdiction
2. counterclaims
3. cross-claims
4. third-party complaints
5. logically arise

31

Removal is the process in which the defendant may (1) already filed in state court, to the federal court in the same district in which the (2)

1. transfer a case
2. state case is pending

32

Four requirements for removal

1. Case already has been filed in state court
2. The state court in which the action is pending must have subject matter over action and personal jurisdiction over defendant
3. Notice of removal must be filed within 30 days of defendant's reception of the initial pleading in state court, or summons
4. Original complaint could have been filed in federal court

33

Three basic grounds for removal

1. diversity
2. federal question
3. special removal status

34

Two limitations to ability to remove based on diversity of citizenship

1. Removal cannot happen if a defendant of the state claim is a citizen of that state
2. Complete diversity of citizenship must exist both when original action was filed in state and when removal petition is filed

35

Civil rights actions and foreclosure against the US are examples of the (1) of removal. Actions under state worker's comp acts and actions against railroads are examples of (2). At any time if it is found that the district court lacks subject matter jurisdiction, a case can be (3) to state court.

1. special circumstances basis
2. nonremovable actions
3. remanded

36

Constitutional concepts of (1) underlie personal jurisdiction, so there is a lot of overlap between (2) and (3) in this area. A judgment is not enforceable against a party unless that party can (4) and has received (5).

1. due process
2. state
3. federal
4. lawfully be brought into court
5. notice of the lawsuit

37

Jurisdiction to adjudicate can be (1), (2) or (3).

1. in personam
2. in rem
3. quasi in rem

38

If a court has (1) over a person, the defendant can be sued on any matter--for example, action brought in which the person resides. If the court has (2), the claim must rise out of (3) the defendant has in the forum state--for example, if a resident of CO sells goods and has a contract in AZ, he can be sued in AZ over the contract only.

1. general jurisdiction
2. specific jurisdiction
3. contacts

39

Jurisdiction in rem exists over (1) and becomes jurisdiction over the party because of (2). Quasi in rem allows the plaintiff to use (3) to (4).

1. property
2. ownership
3. defendant's property within the state
4. satisfy a claim

40

What 2 questions should be asked regarding in personam jurisdiction?

1. Can the def. constitutionally be subject to the court's jurisdiction? (due process)
2. Was service of process on the defendant proper? (Rule 4 FRCP)

41

Due process is a constitutional doctrine requiring (1). Due process issues do not arise for (2) who are said to enter jurisdiction voluntarily. Due process issues also do not arise for (3) who reside in the (4). A nonresident defendant may choose not to (5) to jurisdiction of a court.

1. fairness in judicial proceedings
2. plaintiffs
3. defendants
4. forum state
5. consent

42

International Shoe co. vs. State of Washington established the (1), which requires that there be sufficient activities of the defendant in the forum state to subject the defendant to the jurisdiction of the court. This is part of (2). World-Wide Volkswagon Corp v. Woodson found that (3) alone does not meet the minimum contacts standard.

1. minimum contacts standard
2. due process
3. foreseeability (of an accident in another state)

43

Jurisdiction over a person is independent of (1). If a party is not (2) to process, any service will have no effect unless that party (3) to the service.

1. service of process
2. constitutionally amenable
3. waives objection

44

Rule 4 FRCP permits service by (1) in which the the district court is sitting or by the (2), which allows out-of-state defendants to be served under (3).

1. any method of state law
2. law of state where defendant is served
3. long-arm statutes

45

4 ways service may be made upon a defendant

1. personal delivery
2. leaving the legal document with an adult at the residence or business of the defendant, and then mailing a copy to the same address
3. mailed notice and acknowledgment of receipt (not dependable because def. might isn't compelled to return receipt)
4. publication in a paper of general circulation (limited by requirements and court order)

46

5 considerations in choosing state or federal court (differences between the two)

1. shorter wait between filings and trial
2. one judge to hear all aspects of the case in federal court -- makes the process quicker since he is familiar with the facts
3. jury pool is bigger/different in federal court
4. law may be interpreted differently by a federal than a state judge, even if it is a state statute
5. Procedural rules in federal court may be stricter/more formal/more technical

47

Venue deals with which (1) a lawsuit is properly heard. By rule 12 FRCP, the defendant has a time period to (2) for the sake of fairness; otherwise that rise is deemed (3),

1. geographic district
2. raise improper venue
3. waived

48

Under 28 USC, if jurisdiction is based solely on diversity, venue may be chosen by these three standards: (1), (2). (3). If it is based other than solely on diversity, 1 and 2 apply.

1. if all defendants live in the same state, where any defendant resides
2. where a large part of the events or property in question were
3. where any defendant is subject to personal jurisdiction at the time the action was commenced

49

For purposes of venue, "residency" is viewed much the same way as (1).

1. citizenship

50

A change of venue can be based on (1) or (2). Proper venue is a (3) and if an action is filed in an improper venue, it is considered waived. If filed in an improper venue, a case also risks being (4).

1. improper venue
2. inconvenient venue
3. personal right
4. dismissed by the court

51

Four considerations for deciding the actual court to file in, if many have jurisdiction over the case

1. Practicality - cost and convenience to plaintiff, lawyer and witnesses
2. choice-of-law - which laws and court procedures are most favorable to your client?
3. Subpoena power of witnesses (generally limited to geographical borders)
4. Various other factors (judges, jury pools, timeliness)

52

Lecture: When interviewing for a job, asking about (1)--1600 hrs. billable hours is overtime! Abbreviation: pi stands for the (2) and delta stands for the (3). Try to capture all time to a file if possible, but otherwise make sure to capture (4) time.

1. billing requirements
2. plaintiff
3. defendant
4. administrative/nonbillable

53

Lecture: 9 examples of backers that may be found in a file

1. correspondence
2. pleadings (if litigated)
3. minute entries
4. attorney notes (from very first correspondence)
5. research
6. costs (bills, receipts)
7. Client documents (keep separate folder for originals)
8. Plaintiff and defendant disclosure statements
9. Plaintiff and defendant discovery responses

54

Lecture : Per Rule 7, 6 types of pleadings allowed

1. Complaint
2. Answer
3. Reply to counterclaim
4. Answer to cross-claim, if applicable
5. 3rd party complaint, if summoned
6. 3rd party answer, if complaint is served

55

Lecture : (1) are also put on pleading paper and is sometimes called a pleading, but it is not!

1. discovery

56

Lecture : 3 elements of a pleading, per Rule 8

1. address jurisdiction
2. claim showing entitlement to relief
3, Demand for judgment for relief

57

Lecture: An (1) is a paragraph within a pleading. Each should be (2) and (3).

1. averment
2. concise (1-2 sentences)
3. direct

58

Lecture : Per Rule 8, Separate avements by (1), (2) and (3).

1. counts
2. defendants
3. alternative pieces of info

59

Lecture : What is the advantage of separating avements by topic?`

Keeps the def. from being able to deny more than one piece of info when only one is incorrect.

60

Lecture : A contract term for a definite amount of money is a (1). Do not put (2) in pleadings.

1. sum certain
2. dollar amounts

61

Lecture : (1) or (2) must be stated in specific terms, but (3) like malice cane be general.

1. fraud
2. mistake
3. frames of mind

62

Lecture : Pleadings do not need to aver (1) to sue or be sued, only (2). If the wrong party is sued, they must state why in the (3). As such, (4).

1. capacity
2. jurisdictional requirements
3. answer
4. when in doubt, list!