Civ Pro I Formats Flashcards
(23 cards)
Notice Mullane
use if method of notice is at issue; court must ask if notice conveyed sufficient inofmraiton as to -how -when to respond, if the notice allowed reasonable time to appear, and if the most reasonable means available was employed
notice: Matthews and Doehr
if timing is at issue: 3 prong test (nature of the property, risk of erroneous deprivation, and the interest of the party seeking prejudgment remedy.
how do you examine risk of erroneous deprivation under the matthews and doehr notice test
(1) the more P has to show to support his claim the lower the risk of erroneous deprivation (2) the higher the bond requirement, the lower the risk of erroneous deprivation (3) If a judge is involved in the decision rather than a non-judicial court official, the risk of erroneous deprivation is lower (4) if strict document case, the less likily erroneous deprivation. ALSO if P’s interest in the proeprty is less speculative and more pre-existing the risk is erroneous deprivatio is lower
describe diversity
- Under 1332(a) the claim needs to exceed $75k and the P and D can’t be from the same forum. 13329(c)(1) is citizenship of individuals is determined by their domicile while corporations are determined by their place of corporation or their principle place of business
what does 1331 require
requires the claim to contain an essential federal element that arises under federal law and that this federal element appear on the face of P’s well-pleaded complaint
what does the Motley test do?
is the plaintiff enforfcing a federal right
what does the Holmes creation test
does the suit arise under the federal law that creates the cause of action?
if not satisfied go to Grable test
what does the Grables Test
4 questions: federal issue necessarily raised; federal issue actually disputed; substantial federal interest; cannot disturb balance between federal/state juducual resopnsibilities
claim has to meet all 4 parts
what does 1367 look at
requires that the two claims are
“so related” that they form the same case and also allows joinder parties
Gibbs test
what does the Gibbs test look at under 1367(a)
(1) constitutional/common nucleus (2) substnatial (3) ordinarily tried together
what does 1367(b) do
requires exercising supplmental jurisdiction over the second claim would not negate the diversity statute requirement of 1332.
what does 1367(c) look at
court has discretion to decline supplemental jurisdiction over a claim under (1) state claim raises a novel and complex state law issue (2) state claim substantially predominates over the federal claim (3) court has dismissed the federal claim and only the state claim remains (4) exceptional circumstances the court may choose to decline jurisdiction
describe 1447(c)
both claims are remanded and cannot be brought in federal court
what does federal rule 14 cover
third party defendants
what does federal rule 20 cover
joinder of parties
describe 1441(a)
a defendant can remove a suit to federal court if it could ahve been brought in federal court to begin with
describe 1446(b)
give D 30 days within service of process to remove case
what happens if 1441 a and b are met
removal is allowed for FQ basis. removal will be allowed for div. basis under 1441b so long as the D is not a citizen of the forum state
describe 1441(c)
allows removal of a FQ and non-supplemental claim but 1441(c)(2) requires sever and remand of the non-supplemental claim
describe 1391(b) 1,2,3
(1) may lay venue in district any D resides in as long as all D are residents of that state (2) may lay venue in district in which a substantial part of the events or omissions giving rise to the claim took place or where the property that is the subject of the action is located (3) if there is no district in which any action may otherwise be brought, any district in which any D is subject to the court’s PJ with respect to such action
describe 1391(c) 1,2,3
(1) D resides where he is domicled (2) D resides where he is subject to personal jurisdiction (3) If non US resident or US citizen who now does not reside in the US can be subject to suit anywhere
describe 1404(a)
applies where the transferor is a proper venue
describe 1406(a)
applies when the transforer is an improper venue; D may remove for dismissal under rule 12(b)(3) however court has authority to dismiss or transfer to a proper venue in interest of justice
