Civil Procedure Flashcards
(34 cards)
2 step analysis for specific PJ
- The exercise of specifc PJ must:
o 1) fall within a state long arm statute, and
o 2) satisfy the Constitution (due process 14th amendment).
constintutional due process requirement of PJ (international shoe)
- Primarily a fairness analysis
- Does the defendant have such minimum contacts with the forum so jurisdiction does not offend traditional notions of fair play and substantial justice?
- The contact must result from defendant’s purposeful availment
- Defendant can purposefully avail without setting foot in the forum by causing a foreseeable effect in the forum
- Mere accessibility of a company’s website in a state, without more, is usually insufficient contact
General PJ for legal entites
courts have General PJ over a corporation if it is
* the state in which it is incorporated;
* the state in which it has its principal place of business (“PPB”)
* registered to do business in the state and has appointed an agent for service of process there, or
* has been served with process in the state (tag jurisdiction)
Citizenship of a corporation for SMJ
A corporation is a citizen of every state or country in which it is incorporated and of the one state or country in which it has its principal place of business (“PPB”)
Citizenship of an Unincorporated Association
Takes on the citizenships of all of its members. If it’s a limited partnership, you include the citizenships of general and limited partners.
the FQ well pleaded complaint rule
- The plaintiff’s claim must arise under federal law, it cannot be anticipated in the answer.
- Ask if the plaintiff is enforcing a federal right (taking away doesn’t count)
Supplemental jurisdiction
- When the federal court has subject matter jurisdiction over one claim, it has discretion to exercise supplemental jurisdiction over related claims that derive from the same common nucleus of fact (“transaction or occurrence”) and are such that a plaintiff would ordinarily be expected to try them in a single judicial proceeding.
- In diversity cases, claims by plaintiffs cannot invoke supplemental jurisdiction.
- There is an exception to the limitation when there are multiple plaintiffs, and the claim by one of them does not meet the amount in controversy requirement.
The erie doctrine
Step 1. Is there some federal law (like the Constitution, federal statute, Federal Rule of Civil Procedure, or Federal Rule of Evidence) on point that directly conflicts with state law? If so, apply the federal law
Step 2. If there is no federal law on point, the federal judge must apply state law if the issue to be decided is “substantive.” Five issues are clearly “substantive”:
* Conflict of law rules;
* Elements of a claim or defense;
* Statutes of limitation
* Rules for tolling statutes of limitations;
* The standard for granting a new trial
Step 3. If there is no federal law on point and the issue is not one of the five just listed above, the federal judge must determine whether the issue is “substantive.” The law is very unclear. Factors include:
* Whether the choice of law would be outcome determinative
* Whether either the federal or state system have strong interest in having its rule applied.
* Whether utilizing federal law instead of state law will cause forum shopping toward federal court.
general rules for venue
The plaintiff may lay venue in any district where:
A) All defendants reside (residential venue) or
B) A substantial part of the claim arose or a substantial part of the property involved in the lawsuit is located (transactional venue).
- If all defendants reside in same state, you can choose the venue in which any of them reside.
- A substantial part of the claim can arise in more than one district. Any is appropriate.
- Improper venue may be waived by defendant
Transfer from a proper venue to a more appropriate venue
- If original venue was proper, court can order transfer based on convenience of parties and witnesses and in the interests of justice.
- Balancing test.
- Burden is on the person seeking transfer
- The transferee court must apply the choice of law rules of the transferor court
- Should be denied if the case could not have been filed in new venue to begin with.
a complaint must inlcude
- SMJ
- plausible claim with sufficient facts
- relief sought
when must a defendant respond to a complaint?
- Within 21 days of being served or within 60 days if waiving process
What are the waivable 12(b) defenses?
- A lack of personal jurisdiction;
- Improper venue;
- Improper process (a problem with the papers); and
- Improper service of process.
waived if not put in first response
what are the non-waivable 12(b) defenses
Motions that can be made as late as at trial.
* A failure to state a claim
* A failure to join an indispensable party.
Motions that can be made any time.
* A lack of subject matter jurisdiction
What are the classic affirmative defenses?
- statute of limitations
- Statute of Frauds
- res judicata
- self-defense
Court may considered them waived if not raised in first response
right to amend
- Plaintiff may amend once, no later than 21 days after Defendant serves rule 12 response.
- Defendant may amend once, no later than 21 days after serving Rule 12 response.
motion for sanctions
- If the other party violates Rule 11, the opposing party cannot immediately file a motion for sanctions. Rather, she serves the motion on other parties but does not file it with the court yet. The party in violation has a safe harbor of 21 days in which to fix the problem and avoid sanctions.
process for joining necessary or indispensible parties
Is the absentee necessary (or “required”)?
* Absentees interest will be harmed if not joined, or
* Without absentee, court cannot provide relief to other parties.
* joint tortfeasors are NEVER necessary
If the absentee is necessary, can the absentee be joined?
* There is PJ over the absentee; and
* There will be federal SMJ over the claim by or against the absentee.
If the absentee can’t be joined, can the case proceed anyway?
* is a better forum available?
* Can the court shape relief to avoid harm to absentee?
* If the court decides to dismss because of the absentee, the absentee is “indispensible”
Which claims are compulsory?
a counterclaim that arises from the same T/O
counterclaims
There must always be SMJ over the counterclaim
cross claims
Must arise from the same T/O as the underlying action.
impleader (third party)
- defendant brings in third party to contribute/indemnify them for plaintiff’s damages.
- supplemental jurisdiction allowed.
- PJ if third party is within 100miles of summons location, otherwise traditional PJ.
Where does a corporation reside for venue purposes?
Anywhere that it is subject to PJ
Motion for Summary Judgement (FRCP 56)
Summary judgement will be granted if moving party shows that:
1) There is no genuine dispute on a material fact; and
2) movant is entitled to judgment as a matter of law.
- Used after the case has been filed and the plaintiff has survived any Rule 12 motions. Appropriate at any time until 30 days after close of all discovery
- The court can look at “evidence” - usually (1) affidavits, (2) declarations, (3) deposition testimony, or (4) interrogatory answers provided under oath.
- The court views evidence in the light most favorable to the nonmoving party.
- if opponant bears burden of proof, movant doesn’t need to provide evidence.
