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Texas Bar Exam: MBE > Civil Procedure > Flashcards

Flashcards in Civil Procedure Deck (250)
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1

What are the three things needed for a court to hear a case?

1) Subject Matter Jurisdiction - the power of the court to here a "kind" of case;

2) Personal Jurisdiction - the power of the court to decide the rights and liabilities of a defendant; and

3) Venue - Determining the appropriateness of deciding the case in a particular court which has subject matter jurisdiction and personal jurisdiction over the defendant.

2

What kind of subject matter jurisdiction do federal courts have? What about state courts?

Federal courts are courts of LIMITED JURISDICTION, where as state courts are courts of unlimited jurisdiction.

Exam Tip: For the MBE, assume that state courts have jurisdiction over any kind of case UNLESS you are provided with a statute that specifically says otherwise.

3

What must be done to get subject matter jurisdiction?

The basis for subject matter jurisdiction must be AFFIRMATIVELY PLEADED in every case. If challenged, must prove that there is a basis for SMJ.

4

Can SMJ be waived?

NO, SMJ can never be waived.

5

How is SMJ objected to?

Lack of SMJ can be raised by ANY PARTY at ANY TIME, including by the plaintiff. Meaning that it can even be brought for the first time on appeal.

6

What is federal question jurisdiction?

This is a type of SMJ that exists for a claim that arises under federal law.

7

What must be about a complaint for federal question jurisdiction?

Plaintiff's claim must be based on federal law, thus a "WELL-PLEADED COMPLAIN." Look to the face of the complaint here.

NOTE: Presence of a federal defense does NOT matter.

8

Is there a federal question when a plaintiff is suing to enforce a contract that can't be carried out under federal law?

No. This is the Mottley case. The claim is for specific performance of a contract, thus the claim arises under state law.

Federal law is only raised by the defendant's argument (defense) against enforcement of the contract and NOT by the plaintiff's complain.

9

How is diversity jurisdiction established?

This is another type of SMJ.

Arises in cases between citizens of different states OR citizens of a state and a foreign country, if the amount in controversy EXCEEDS $75,000 (so $75,000.01 is good).

EXCEPTION: PROBATE AND DOMESTIC RELATIONS (divorce, alimony, and child custody) actions CANNOT BE BROUGHT in federal court under diversity jurisdiction.

10

What kind of diversity is required?

COMPLETE DIVERSITY (generally)

EVERY citizenship represented on the plaintiff's side of the case must be different than EVERY citizenship on the defendant's side.

Does NOT mean every plaintiff must be diverse from every other plaintiff or that the defendant must be diverse from every other defendant.

MUST ONLY BE COMPLETE BETWEEN PLAINTIFFS AND DEFENDANTS.

11

Is there an exception to the complete diversity requirement?

Yes, MINIMAL DIVERSITY.

Provided by a few statutes. Exists when any one plaintiff is diverse from any one defendant.

Minimal diversity is permitted in the FOLLOWING CIRCUMSTANCES:

1) Federal Interpleader Act;

2) Class actions worth more than $5,000,000; AND

3) Interstate mass torts (e.g., airline crash).

12

When is diversity determined?

Diversity must exist when the COMPLAINT IS FILED. Does NOT matter that diversity did not exist when the cause of action took place. Does NOT matter that diversity no longer existed when the case came to trial.

13

How is citizenship determined?

1) Individuals - state or country of domicile. Domicile is a permanent residence (meaning residence + intent to remain). YOU CAN ONLY HAVE ONE DOMICILE at a time.

2) Aliens - Diversity jurisdiction exists for controversies between a citizen of a state and a citizen of a foreign country.

3) Representative parties - Generally, the citizenship of the representative party controls. However, there is an EXCEPTION for legal representatives of a decedent's estate (e.g., executor). The citizenship of the decedant controls. ALSO, the citizenship of an infant/incompetent person controls in the case of a guardian representative.

4) Class actions - Citizenship of the NAMED parties counts. Class members not named may join without regard to citizenship.

5) Corporations - Citizen of the state, states, or countries in which it is incorporated AND the state or country of its principle place of business (i.e., the "nerve center," where its executive offices are located. Be sure to consider EVERY state where the corporation has citizenship.

6) Partnerships and Unincorporated Associations - Citizen of EVERY state of which its members are citizens. Applies to unions, trade associations, partnerships, and limited partnerships.

14

How are actions that create or destroy diversity treated?

PERMITTED SO LONG AS they are not done solely for that purpose--MUST BE GENUINE.

Moving - permitted so long as the person is really changing their domicile, not just as a sham to affect diversity.

Assignment of a claim - permitted so long as the assignment is real and not collusive.

Partial Assignments of a claim for debt collection - Does NOT affect citizenship if the assignor retains an interest in the claim. Assignor's citizenship will count for purposes of diversity.

15

What is the amount in controversy requirement for diversity? How is it met?

Must EXCEED $75,000, exclusive of interest and costs. ONLY relevant in a diversity case, if not diversity, no AIC requirement.

General Rule: ANY GOOD FAITH ALLEGATION WILL SUFFICE.

Case will ONLY be dismissed for failure to meet the AIC when it appears to a LEGAL CERTAINTY that recovery in excess of $75,000 cannot be held.

16

Can smaller claims be added up to meet the AIC?

Yes, this is calculating the smaller claims in the AGGREGATE.

1) ONE PLAINTIFF v. ONE DEFENDANT - Plaintiff can aggregate ALL of his claims against the defendant to meet the AIC.

2) ONE PLAINTIFF v. MULTIPLE DEFENDANTS - plaintiff generally CANNOT add up all his claims against both defendants. The claims against EACH defendant must meet the AIC requirement.

3) MULTIPLE PLAINTIFFS - Generally, each plaintiff must meet the AIC requirement. However, SUPPLEMENTAL JURISDICTION saves the day. When one P has a claim exceeding $75,000, the claims of te other Ps can be heard if they (1) ARISE OUT OF THE SAME TRANSACTION OR OCCURRENCE, AND (2) COMPLETE DIVERSITY IS MAINTAINED. Further, when one P has a claim in excess of $75,000, the P can join claims against other defendants regardless of amount if the claims against ALL the defendants ARISE OUT OF THE SAME TRANSACTION OR OCCURRENCE AND COMPLETE DIVERSITY IS MAINTAINED.

17

Do counterclaims have to meet the AIC requirement of $75,000?

1) IF COMPULSORY - NO;

2) IF PERMISSIVE - YES

18

What is supplemental jurisdiction?

Allows a federal court with subject matter jurisdiction over a case to hear additional claims over which the court would not independently have jurisdiction. ALL the claims must be a part of the same case or controversy.

Claims constitute the same case or controversy IF they arise out of a COMMON NUCLEUS OF OPERATIVE FACT (meaning they all arise out of the same transaction or occurrence.

19

How is supplemental jurisdiction had in a federal question case?

The issue here is whether a federal court can hear a state-law claim. The exercise of the power to hear the case is DISCRETIONARY with the trial court here. Basically, supplemental jurisdiction works for federal question cases across the board.

20

When is supplemental jurisdiction had in a diversity jurisdiction case?

COMPULSORY COUNTERCLAIMS - if compulsory (arises out of the same transaction or occurrence as the main claim), then there is supplemental jurisdiction. Compulsory claims can be heard even if it does not meet the jurisdictional amount.

PERMISSIVE COUNTERCLAIMS - These are ones that do NOT arise out of the same transaction or occurrence. These can ONLY be heard IF it independently satisfies diversity jurisdiction.

CROSS-CLAIMS - These are claims by the plaintiff against another plaintiff or defendant against another defendant. Supplemental jurisdiction APPLIES IF the cross-claim and main claim SHARE A COMMON NUCLEUS OF OPERATIVE FACT (they always will). Does NOT matter that the co-plaintiffs or co-defendants are not divers or that the cross-claim is worth less than $75,000+.

MULTIPLE PLAINTIFFS / PERMISSIVE JOINDER - If the claim of one diverse plaintiff against the defendant satisfies the jurisdictional amount, other diverse plaintiffs who have claims against the defendant sharing a COMMON NUCLEUS OF OPERATIVE FACT (same transaction or occurrence) can also be heard even if their claims do NOT satisfy the jurisdictional minimum.

NOTE: Remember that there is also a statute that allows federal subject matter jurisdiction over class actions wherein the total amount in controversy exceeds $5,000,000, so long as there is minimal diversity within one plaintiff and one defendant.

21

When is Supplemental Jurisdiction NOT permitted?

In all of these claims, complete diversity must be maintained and the AIC must be met:

1) Claims by plaintiffs against IMPLEADED THIRD-PARTY DEFENDANTS under rule 14;

2) Claims by plaintiffs against ADDITIONAL DEFENDANTS joined as NECESSARY PARTIES under Rules 19 and 20;

3) Claims by PLAINTIFF INTERVENORS under Rule 24; AND

4) Claims by plaintiffs joined INVOLUNTARILY under Rule 19.

22

T/F - Supplemental jurisdiction establishes the court's power to hear additional claims; whether the court exercises that power is up to its sound discretion.

True

23

What is removal? What is transfer?

Removal moves a case from state court to federal court.

Transfer moves a case from federal court to federal court.

NOTE: There is not procedure to remove a case from federal court to state court. Federal court can abstain from hearing the case (narrow).

24

When is removal proper?

ONLY if the case COULD HAVE BEEN BROUGHT ORIGINALLY IN FEDERAL COURT.

ONLY DEFENDANTS (not plaintiffs) MAY REMOVE. ALL defendants must consent to removal.

Question to Ask: If the plaintiff had sued in federal court in the first place, would the federal court have had subject matter jurisdiction?

25

Is a well-pleaded complaint needed for removal for a federal question?

YES. If the well-pleaded complaint discloses that the plaintiff has a federal claim, then the defendant may remove to federal court. If the plaintiff's claim arises under state law, defendant may not remove even though defendant has a federal defense.

26

When is removal proper for diversity purposes?

ONLY IF:

1) There is COMPLETE DIVERSITY;

2) The amount in controversy exceeds $75,000; AND

3) THE CASE IS BROUGHT IN A STATE WHERE NO DEFENDANT IS A CITIZEN.

ONE-YEAR LIMIT ON REMOVAL - must remove within one--year of the commencement of the action in state court, UNLESS the plaintiff has acted in BAD FAITH to make the case non-removeable.

27

What are the procedural requirements to remove?

A NOTICE OF REMOVAL IS FILED IN THE FEDERAL COURT AND A COPY IS SENT TO THE STATE COURT.

When notice is filed, the case is removed automatically and instantly; once a copy of the notice is filed with the state, the jurisdiction of the state court ceases.

28

What happens if removal is improper?

Plaintiff can file a petition for REMAND. Federal court holds hearing to determine whether removal is proper.

1) If Proper - petition is denied - case stays in federal court;

2) If NOT Proper - petition is granted - case goes back to state court.

29

What is personal jurisdiction? How is it established?

Concerns the power of the court to adjudicate the rights and liabilities of the defendant. Federal courts use the long-arm statutes of the states in which they sit. Long-arm statutes are the chief means of asserting PJ over out-of-state defendants.

Every PJ issue involves two questions that must both be addressed:

1) Has the particular basis for exercising PJ over an out-of-state defendant been authorized by statute or by rule of court?

2) Is the particular basis for exercising PJ permitted by the federal constitution?

30

What are the types of personal jurisdiction?

1) In Personam Jurisdiction (against the person);

2) In Rem (against the thing); and

3) Quasi-In Rem (sort of against the thing)