Civil Procedure Flashcards
(35 cards)
Personal Jurisdiction Analysis
Contact: purposeful availament (defendant reached out to state in some way) and foreseeable that defendant could be sued in forum
Relatedness: claim arises out of and relates to defendants contact with forum - two types: specific PJ (claim did arise out of and relate) and general pj (it did not so defendant must be at home or registered to do business if allowed
Fairness: only for specific PJ; look to the burden/convenience, states interest, and plaintiff’s interests
How to serve process
Must be 18 years or older and not a party to the action and can serve by
1. personal service
2. substituted service (defendant’s usual place of abode, suitable age and discretion, who resides there)
3. service on agent
4. state law methods
5. for business - an officer or method by state law
Service on a minor/incompetent has to be by a state law method
When must process be served?
90 days from filing of compliant; extended for good cause
waiver of service
plaintiff requests waiver by mainilg the defendant notice and request to waive service with copy of complaint, 2 waiver forms with way to mail back
If defendant executes and mails waiver back within 30 days or 60 if outside of the US she waives service
But plaintiff has to file waiver in court
Diversity of citizenship
case between citizens of different US states or between a US citizen and foreign national AND amount in controversy is over $75,000
Removal limitation for case based on diversity
case should not be removed if defendant is a citizen of the forum state or more than 1 year after the case was filed in state court
Timing of Removal
No later than 30 days after service of first paper showing case is removable
Remand timing
if no lack of SMJ 30 days after notice of removal
If lack of SMJ - anytime!
Supplemental Jurisdiction Test
check individual claim for SMJ first
If no SMJ - common nucleus test same transaction or occurrence as underlying claim
Limitation on use of supplemental jurisdiction in diversity cases
Plaintiff cannot invoke supplemental jurisdiction unless multiple plaintiffs and claim by one does not meet the amount in controversy
Erie doctrine analysis
- Federal law on point that conflicts directly with state law? – Yes? apply federal law; No? Step 2
- Is issue substantive? Yes? apply state law; no step 3
Substantive issue = conflict of law, elements of claim/defense, statute of limitations, rules for tolling of statute of limitations, standard for new trial - If not 1 or 2 ask
- Would applying or ignoring state law affect outcome
- who has a stronger interest in having rule applied
- Will parties flock to federal court if they ignore state law
Venue
Plaintiff can lay venue in any district where:
All defendants reside
Substantial part of the claim arose
Substantial part of property involved in lawsuit is located
Complaint requirements
Plaintiff must plead sufficient facts to support a plausible claims including
grounds for SMJ
statement of claim showing plaintiff is entitled to relief and
Demand for relief sought
If fraud, mistake, or special damages case nee to plead with particularity and specificity
Timing of defendants response to complaint
21 days from service or 60 if service is waived
Motions addressing issues of form
Motion for more definite statement: complaint so vague need more information
Motion to strike: remove redundant or immaterial things
Waiveable defenses
these are waived if not put in first response
lack of PJ
improper venue
Improper process
improper service
Defenses that can be raised after first response
failure to state a claim for which relief can be granted (at trial)
Failure to join a party (at trial) \
Lack of SMJ (anytime)
Right to amend
both parties have a one time right to amend no later than 21 days after defendant serves first response
if defendant omitted waivable defenses and their first response was an answer they can amend and add waivable defenses
variance
evidence at trial does not match what was pleaded and other party does not object the party can amend the complaint to conform to evidence
Amendment after statute of limitations has run to join a claim originally asserted
if statute of limitations ran but you want to join a claim not asserted in first place you can if it relates back - concerns same conduct, transaction, or occurrence as the OG pleading
Amendment after statute of limitations has run to change defendant
amendment concerns same conduct, transaction or occurrence as the OG
Defendant had knowledge of the case and
Knew she should have been named originally
Sanctions safe harbor provision
opposing party must service motion on other party before filing with court and give them 21 days to fix the problem to avoid sanctions
Joinder by plaintiff
plaintiff may join any additional claim she has against the adverse party so long as there is SMJ over that claim too
Joinder for multiple plaintiffs or defendants
Claims from multiple plaintiffs or defendants must
arise from same transaction or occurrence OR
raise at least one common question of law or fact
