Civil Procedure Flashcards
(36 cards)
Traditional Bases
Personal Jurisdiction #1
There are four traditional bases of jurisdiction:
1. domicile (individual = where they permanently intend to reside; corporation = states of incorporation and PPOB)
2. presence in the state when served
3. consent (no special appearances) ; and
4. in rem jurisdiction (involving title to property).
Only need to satisfy one
Long-Arm Statute
Personal Jurisdiction #2
Since not stated, we can assume under CA Civ Pro, “a court of this state may exercise jurisdiction on any basis not inconsistent with the Constitution of this state or of the United States”
Always needed to exercise jurisdiction over non-resident defendant in absence of traditional basis
Due Process/Minimum Contacts
Personal Jurisidction #3
Due process requires the defendant to have such minimum contacts with the forum so that the exercise of personal jurisdiction does not offend traditional notions of fair play and substantial justice (International Shoe). There are two types of minimum contacts: general and specific jurisdiction.
General Jurisdiction
Due Process/Minimum Contacts
the contacts must be “systematic and continuous” or “constant and pervasive” as to render defendant “essentially at home” in the forum.
- essentially at home = court considers nearly equivalent to domicile
- claim need not be related to the contacts
Specific Jurisdiction
Due Process/Minimum Contacts
If GENERAL juridiction is NOT satisfied, apply this
- Purposeful availment of the privileges and benefits of the forum (either “stream of commerce” or “stream of commerce” plus …); and
- It was foreseeable to Defendant that they would be haled into the forum court; and
- That the claim or cause of action arose out of, or is related to, the contacts, which is the relatedness requirement for specific jurisdiction.
Fairness
Due Process/Minimum Contacts (PJ #4)
NEED to discuss regardless of general or specific
- Trial in the forum is not gravely difficult and inconvenient;
- The forum state has an interest in providing redress;
- Plaintiff’s interest in convenient relief;
- Interstate judicial system’s interest in obtaining the most efficient resolution; and
- Shared interest of states in furthering fundamental substantive social policies.
At least discuss first three factors
Service of Process
FEDERAL
Unless you see a Motion to Quash Service on the grounds of insufficient service, or a Motion to Dismiss for failure to properly serve, or the call of the question otherwise raises it, do not discuss the Notice requirement or the adequacy of service of process
Any person over the age of 18 who is not a party may serve a Summons and Complaint
Service effected by:
* personal service
* service left at the defendant’s usual abode with someone of suitable age and discretion,
* service on an officer, managing agent, or authorized agent of a corporation, partnership or similar entity
* according to state rule providing for service
Foreign Service:
* international agreement
* foreign law, or
* unless otherwise prohibited by foreign law, by personal service or mail, return receipt requested (except personal service is not permitted on a corporation in a foreign country)
Service of Process
CA
Any person over the age of 18 who is not a party may serve a Summons and Complaint
Service effected by:
* personal service;
* substituted service (leaving copy at authorized locations with specific individuals, plus mailing a copy);
* service by ordinary mail (BUT ONLY if the defendant returns a Notice and Acknowledgment of Service); and
* service by publication (4 weeks in a newspaper of general circulation)
If service is on an out of state defendant, service may also be accomplished by certified mail, return receipt requested.
Service in a foreign country may be by any of the methods otherwise stated, or by any method pursuant to international law or the law of the country in which service is effected, if the court finds that method is calculated to give notice.
Subject Matter Jurisdiction
SMJ includes both federal question and diversity jurisdiction
IRAC EACH
Federal Question
SMJ
the claim or cause of action “arises under” the U.S. Constitution, Federal law; or a Treaty.
Diversity
SMJ
(1) complete diversity between plaintiffs and defendants, and
* Citizenship of Person - domicile
* Citizen of Corporation – 1) state of incorporation and 2) its principal place of business (nerve center test)
* Citizenship of alien—resident or subject of foreign nation and not a legal resident of US in same state as other party (There is complete diversity between an alien and a U.S. resident, unless the alien is a permanent U.S. resident. If two aliens are suing each other, diversity jurisdiction does not apply to them.)
(2) an amount of more than $75,000 in controversy as set out in a good faith pleading.
* Plaintiff can aggregate all claims against one defendant and all claims against jointly and severally liable multiple defendants, BUT NOT separate claims against multiple defendants
* Multiple plaintiffs cannot aggregate their claims against a single defendant unless they are enforcing a single title or right in a common and undivided interest
* Cannot aggregate claim and counterclaim
Supplemental Jurisdiction
There is supplemental jurisdiction in Federal Court to hear a state claim arising out of the same transaction or occurrence as the Federal claim, which must be a claim that “arises under” the U.S. Constitution, Federal Law, or treaties. The test is that the two claims must derive from a common nucleus of operative fact and a plaintiff would ordinarily be expected to try them all in one judicial proceeding.
- supplemental jurisdiction as ancillary jurisdiction is allowed in a diversity case, if the defendant becomes a third-party plaintiff and sues a third-party defendant, so long as the claim arises out of a common nucleus of operative facts, and the original plaintiff does not become a party to the third-party claim in a way that would destroy diversity.
- Parties, other than plaintiffs, who assert claims (cross-claimants, counterclaimants) can also invoke supplemental jurisdiction as ancillary jurisdiction in any federal question or diversity case if the claims arise out of the same transaction or occurrence as the original claim—even if they are not diverse.
- Amount in controversy does not need to exceed $75,000 once Federal Jurisdiction is established.
- need to have SMJ to trigger this
Venue
FEDERAL
involves motion to transfer/change venue
- Determine whether original venue AND proposed venue are EACH proper venue
- THEN discuss the rules for changing venue
Venue in civil actions in federal courts is proper in a judicial district:
* where any defendant resides, if all defendants reside in the same state, or
* in a judicial district where a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of the property involved is situated.
If neither applies, then, for actions based solely on diversity, venue is proper in any district in which any defendant is subject to personal jurisdiction at the time the action is commenced and, for actions not based on diversity, any district in which any defendant may be found.
TRANSFER
Once you determine that venue is proper in both districts, then consider whether venue should be transferred. Venue may be transferred to another district where the action might have been brought if appropriate upon balancing the relative conveniences of the parties, witnesses and evidence.
- relates to the proper federal district in which to bring an action
- resides for CORPORATION = subject to personal jurisdiction
Venue
CA
PROPERTY: A local action is one involving title to property. Venue is appropriate in the county in which the property is located.
OTHER ACTIONS: All other actions are transitory, and venue is proper in any county in which any defendant resides at the commencement of the action.
CONTRACT: venue in contract actions is also proper in the county in which the obligation is to be performed or the contract was entered into
PERSONAL INJURY: venue in personal injury and wrongful death actions is also proper in the county in which the injury occurred.
TRANSFER
Even if the original venue is proper, the court may transfer venue when there is reason to believe that an impartial trial cannot be held in the original county, when there is no judge qualified in the county to hear the case, or when the convenience of witnesses and the ends of justice would be promoted by the change.
- Venue relates to the proper COUNTY in which to bring an action
Forum Non Conveniens
Venue
applies in federal and CA state courts
- Is there proper venue?
- PUBLIC (availability of alternative forum, plaintiff’s choice of forum, forum state’s interest) v. PRIVATE (convenienve of parties and witnesses, location of evidence where cause of action arose)
Erie Doctrine
whether the law or rule in question is substantive (state) or procedural (federal) law
- If there a Federal rule on point, do the state and federal rules/laws on the issue conflict? If they do not conflict, the inquiry is over and you use the Federal rule.
- If the rule is either in the FRCP or a Federal statute, was it properly enacted under the Rules Enabling Act of 1934? If so, the federal rule or statute applies.
- If the rule is not in the FRCP or a Federal statute enacted under the Rules Enabling Act, and the federal law and state law conflict, is the use of one or the other outcome determinative? If yes, the rule is substantive and, in most cases, you use the state rule or law. (York)
only really need to discuss first three
- If the use of either is not outcome determinative, however, on balance, will use of the Federal rule so likely affect the outcome that it would violate significant federalism or state sovereignty concerns? If so, use the state law. (Byrd)
- Finally, would failing to follow state law encourage forum shopping in federal court? (Hanna) Ultimately, even if the difference is outcome-determinative, if the choice is not so significant it would influence a litigant’s choice of forum, the rule is procedural, and the federal rule is applied.
- In any case, elements of a claim or defense, statutes of limitations, and choice of law rules are substantive—use State law.
Removal
Removal from state court to federal court requires federal subject matter jurisdiction, so a removal issue necessarily raises subject matter jurisdiction issues. Only defendants may remove a case to federal court, and where there are multiple defendants, all the defendants must join in the removal of the case.
UMBRELLA then SMJ
- A defendant who is sued in state court in their state of residence cannot remove a diversity case to the Federal Court in that state, and if such a defendant is one of multiple defendants, the multiple defendants cannot remove the case to Federal Court, even if the other defendants are from other states.
- Removal must be timely—within 30 days after service of the Complaint.
Remand
only granted if the moving party shows that the federal court lacked subject matter jurisdiction in the first place.
quickly state THEN SMJ
Abstention
doctrine by which the Federal Court will retain jurisdiction over a constitutional challenge to a state law but will refrain from deciding the question until the state courts have interpreted 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.
Pleading
FEDERAL
A pleading which sets forth a claim for relief, whether an original claim, counterclaim, cross-claim, or Third Party claim, shall contain
1. Short and plain statement of the grounds upon which the court’s jurisdiction depends,
2. A short and plain statement of the claim showing that the pleader is entitled to relief; and
3. A demand for judgment for the relief the pleader seeks
pleading must be plausible
Pleading
CA
Complaint or cross-complaint requires a “statement of facts constituting the cause of action, in ordinary and concise language”
Complaints and affirmative defenses must contain “ultimate facts,”—the facts that raise the issues upon which the right to recover depends—not the evidentiary facts, and not the legal conclusions.
Doe Amendments (Fictitious Defendants)
CA
California “relation back” for statute of limitations, if:
1. Original complaint is timely filed and contains charging allegations against all defendants, including Doe defendants;
2. The plaintiff is genuinely ignorant of the identity of a fictitious defendant, the facts giving rise to a cause of action, or of the fact that the law provides a cause of action; and
3. Plaintiff’s ignorance must be pleaded in the complaint
Plaintiff must amend the complaint promptly once identity is learned and must serve them with a summons and complaint.
Amendments Relating Back
FEDERAL
Defendant added after SOL has run, IF:
1. Amendment arises out of same conduct, transaction or occurrence as original complaint; AND
2. Within 90 days after filing complaint, new defendant (a) received notice of action such that no prejudice and (b) knew or should have known that, but for a mistake concerning identity, they would have been named originally.
Demurrer
CA
PLEADING NOT A MOTION
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.
SPECIAL
* Plaintiff 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
two types
