Civ Pro Redux

Question 1

How to determine proper venue

Answer 1

(1) Place where any defendant resides and all defendants reside in same state
or;
(2) Substantial part of the events occured
and if not 1 and not 2;
(3) Any place where any defendant resides

Question 2

What two approaches do courts have in deciding whether or not something was a substantial part of events occuring

Answer 2

(1) That an event is an “important part of the sequence of events”
or;
(2) I. that the defendant is responsible(proximate cause) for the forum-related event and II. that the event is in dispute

Question 3

What does it mean to be “an important part of the sequence of events”

Answer 3

It is a historical predicate(But for + a little)

Question 4

Where does a defendant reside?

Answer 4

(1) If they are a natural person, including an alien lawfully admitted for permanent residence in the U.S, resides in the district they are domiciled
or;
(2) if they are a corporation, where they are subject to PJ if the district(s) they reside in were treated as states

Question 5

What is a natural person

Answer 5

A person who is a human being, not a corporation

Question 6

When will a party be subject to a state’s PJ?

Answer 6

If the state has (1) general or (2) specific personal jurisdiction
and;
(3) Their conduct is covered by the long arm statute

Question 7

What are the ways one may be subject to general PJ?

Answer 7

Tag Jurisdiction
or;
Being at home in the forum state

Question 8

How will a corporation be at home in a forum state?

Answer 8

(1) Domicile
or;
(2) Following Daimler, affiliations w/ the forum state are so constant & pervasive as to render it essentially at home

Question 9

When will a natural person be at home in a forum state?

Answer 9

Where they are domiciled

Question 10

When will a party be subject to specific personal jurisdiction

Answer 10

(1) Where they consent
or;
(2) where they have minimum contacts (Shoe)

Question 11

What ways may a party consent to Specific PJ?

Answer 11

(1) Expressly
or;
(2) By waiver, if they answer the claim or let time run out without a special appearance to contest PJ

Question 12

What elements constitute minimum contacts?

Answer 12

(1) Purposeful Availment
(2) Claim arises from those contacts
and;
(3) It is fair and reasonable to give PJ based on those contacts

Question 13

What are the 5 “fair and reasonable” factors

Answer 13

(1) Forum state’s interest in adjudicating the dispute
(2) The plaintiffs interest in obtaining convenient and effective relief
(3) The interstate judicial system’s interest in obtaining the most efficient resolution of controversies.
(4) The shared interest of the several states in furthering - need clearer fundamental substantive policies
(5) The burden on the defendant

Question 14

What are the two ways which a court might decide a claim “arises from contacts”

Answer 14

(1) Evidence test
or;
(2) But-for test

Question 15

What is the evidence test?

Answer 15

a claim arises out of the defendant’s in-state contacts only if “the defendant’s forum contact provides evidence of one or more elements of the underlying claim.”

Question 16

What is the but-for test?

Answer 16

claim arises out of a contact if the claim would not have arisen but for the defendant’s contact with the state.

Question 17

How can we prove Purposeful Availment

Answer 17

(1) By plain language, remembering McGee and Volkswagen
(2) By contract, considering Burger King factors
or;
(3) By stream of commerce, remembering Asahi and Mcintyre

Question 18

Facts of World-Wide Volkswagen

Answer 18

• The plaintiffs purchased a new Audi in New York state.
• The following year the plaintiffs were moving to Arizona and were involved in an automobile accident in Oklahoma.
• In the accident, the plaintiffs were rear-ended, and their Audi caught fire, burning two of their kids.

Question 19

Holdings of World-Wide Volkswagen

Answer 19

(1)The fact that is was possible and foreseeable that the products sold would travel to another state doesn’t satisfy the minimum contact with the seller and whatever state.

(2) Volkswagen’s acts from the end consumer do not create a “chain of commerce” type situation

Question 20

Mcgee Facts

Answer 20

• Franklin had a life insurance policy with Arizona company that was bought by this other company, which communicated with Franklin and assumed the Arizona companies’ obligations.
• Franklin paid premiums for life insurance by mail from his California home to Defendant’s office in Texas until his death in 1950.
• Mcgee the beneficiary tried to collect
• defendant life insurance company said no, since they had no office or agent in California.

Question 21

Mcgee holdings

Answer 21

a single sale can be enough to create minimum contacts given
(1) the defendant intentionally cultivated the sale
and;
(2) they maintained a relationship with the customer

A contract can give minimum contacts see Burger king for specific factors

Question 22

How can we show that a contract counts as purposeful availment?

Answer 22

Burger King factors
(1) Where contract negotiations took place
(2) Provisions in the contract
(3) Experience of the parties under the contract
(4) Duration of the contract
(5) Obligations to the forum state in the contract

Question 23

How can the stream of commerce show purposeful availment

Answer 23

If a product gets there through “the stream of commerce” or the supply chain, it may be enough to show purpose availment. depending on Asahi and Mcintyre.

Question 24

State the Asahi holding split

Answer 24

O’ conner: That one’s products end up in a state and nothing more does not show purposeful availment. You need action which corroborates intent to sell.

Brennan: You don’t need more, and the benefits of profit balance out the burdens of litigation

Question 25

McIntyre Facts

Answer 25

Defendant was British company that sold
machines through an independent distributor
located in Ohio

Distributor sold one machine to a customer
in New Jersey

Defendant’s sales representatives attended
trade shows in the United States (though not
in New Jersey)

Plaintiff was injured by machine in New Jersey,
sued defendant and lost

Question 26

State the Mcintyre split and holding

Answer 26

Kennedy: Holds O’ Conner Opinion
Ginsburg: Holds Brennan Opinion
Breyer: Corroborates winner, but nothing else
Therefore;

one cannot sue a foreign company over one sale based on stream of commerce PJ when they have not specifically targeted a state with advertising.

There is an argument to be made that changing any of these variables could create a different opinion.

Question 27

Transfer is for _________. Removal is for _________.

Answer 27

Transfer is for another court based on venue. Removal is for state to federal court based on SMJ.

Question 28

A case can be transferred when

Answer 28

(1) Both parties and the court consent
or;
(2) The case “originally could have been brought” in that court
and;
Under 1404(a) for proper to proper transfers
or;
Under 1406(a) for improper to proper transfers

Question 29

What tests control transfer under 1404(a)

Answer 29

(1) Convenience of parties
and;
(2) In the interest of justice

Question 30

How do you satisfy the “originally might have been brought” test

Answer 30

The transferee court must have SMJ, PJ, and be a proper venue.

Question 31

What are the convenience to parties and witnesses factors?

Answer 31

(1) Plaintiff’s choice of forum
(2) Defendant’s choice of forum
(3) Where the claim arose
(4) Where convenient for parties and witnesses
(5) Where convenient to get evidence

Question 32

What are the “Interest of Justice” factors?

Answer 32

(1) Courts familiarity with governing law
(2) Calendar availability of both courts
(3) local interest in deciding local controversy at home

Question 33

Transfer rules you learned are _________.

Answer 33

For federal courts to federal courts only.

Question 34

What tests control transfers under 1406(a)

Answer 34

(1) Interest of Justice

Question 35

Removal requires that

Answer 35

(1) Notice must be signed by all defendants under rule 11
(2) Notice of removal must state one’s grounds for removal

Question 36

One needs ______ in the target court to remove a case to federal court

Answer 36

Subject Matter Jurisdiction

Question 37

What is the timing rule in response to notice of a complaint

Answer 37

A defendant has 30 days to remove after getting notice of a complaint

Question 38

If a case becomes amended, and now there is federal SMJ…

Answer 38

The defendant has 30 days from the date of (notice?) of the amendment to remove to federal court.

Question 39

What precludes a defendant from removing in their home state

Answer 39

If SMJ is for diversity jurisdiction purposes.

If it is for FQJ purposes, then the defendant can remove

Question 40

If a defendant has SMJ with diversity jurisdiction and wishes to remove to federal courtin his home state.

Answer 40

Sorry bro, they can’t.

Question 41

Once a removal is filed with the court

Answer 41

The case is automatically removed

Question 42

How, and who, would respond to an automatic removal that they felt was improper by SMJ reasons?

Answer 42

A court or plaintiff can remand for lack of SMJ at anytime

Question 43

How would one respond to an automatic removal that htey feel was improper for administrative reasons?

Answer 43

A plaintiff must file a remand for administrative error within 30 days

Question 44

What two examples of administrative errors have you been given?

Answer 44

(1) Lack of consent from all defendants
(2) Missed 30 day window for removal

Question 45

Marks rule

Answer 45

If no majority opinion in the supreme court, then narrowest majority grounding becomes the law

Question 46

When can removal be based on an answer or counterclaim?

Answer 46

An answer shall not grand removal unless it is a counterclaim which falls under
(1) Patent
(2) Trademark
(3) Copyright
(4) Plant Variety
or;
(5) Maritime law
(6)

Question 47

What tests determine subject matter jurisdiction for a federal court?

Answer 47

(1)Diversity of citizens
or;
(2) Federal Question

Question 48

Who can diversity of citizenship be between? How do we show it exists, and what is it called otherwise

Answer 48

(1)(a) U.S citizens domiciled in different states
(1)(b) A State citizen and an alien
(1)(c) Any combination of the above, except aliens cannot sue without a state citizen plaintiff.

(2)Essentially, no plaintiff can have domicile where any defendant has domicile. Otherwise, there is minimal or no diversity rather than complete diversity.
and;
The amount in controversy exceeds 75,000

Question 49

The amount in controversy…

Answer 49

Must be a legally plausible amount to recover.
and;
Does not need to be the total actually recovered - other forms of recovery may be better in a particular case

Question 50

How do we determine domicile for a natural person?

Answer 50

The last place they were determined to stay indefinitely

Question 51

How do we determine domicile for a corporation?

Answer 51

(1) Their place of incorporation
and;
(2) Their nerve center, or principal place of business, or HQ

Question 52

How do we determine weather something is a federal question

Answer 52

Asking whether there is a “well pleaded complaint”

Question 53

What is a well pleaded complaint?

Answer 53

Where a federal question is “on the face of the complaint”

Question 54

What is the Grable test?

Answer 54

If a federal question is so essential to answering the complaint in question, then a court may choose to grant federal question jurisdiction