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Flashcards in Civil Procedure Deck (29):

Under 28 USC sec. 1331 when does the federal district have original jurisdiction?

The Government has jurisdiction in the district court over all civil actions arising under the Constitution, law, or treaties of the US.


Under 28 USC section 1332 (a) when does the federal district court have original jurisdiction?

District court shall have original jurisdiction over all civil action where the matter in controversy excludes $75,000 and Is between

1. citizens of different states
2. Citizens of a state and foreign states. (But not if the citizen of the foreign state becomes a permanent resident and domicile in the same state)
3. Citizens of different states in which citizens of foreign states are an additional party.


What is a Foreign state?

1. Any entity which is a separate legal person corporate or otherwise and
2. Is an organ of a foreign state or political subdivision thereof or a majority of the shares are owned by a foreign party or political subdivision thereof and
3 is not a not a citizen of a state of the United States.


What is a facial attack on subject matter jurisdiction?

A challenge on the sufficiency of the compliant allegation, (such as a motion to dismiss in federal court.)

In this case the court must accept all well pleaded allegations in the compliant as true. The facial attack contends that the compliant fails to allege subject matter jurisdiction.


What is a factual attack?

A challenge to the actual facts upon which subject matter jurisdiction is based.

In that instance the court may not presume the plaintiff allegations are true. (the facts of the allegations are being challenged)


Federal service of process

After complaint is filed there are two ways to secure this
1. Waiver of service- service in the mail where defendant signs form 5 and 6 then mail back signed copy. This is the cheaper method.

2. Summons- clerk of court sign form 3 and seal it. Then the summons is serviced by process servers or federal marshals.


What is a motion?

A motion is a request for the court to do something. Thus moving or making a motion is to have the court take a step.


What is the answer?

Upon review of the complaint the defendant typically denies all allegations of the complaint.

Defendant will contend to defeat plaintiff claims we call these affirmative defenses.


What are claim preclusions?

Claim preclusions-res judicata; a claim settled by judicial decision cannot be tried a second time.


What is an issue preclusion?

A party cannot sue on the same issue if it was addressed in prior suit between the parties. A person cannot simply re-litigate an issue on a different cause of action involving a party to the first case.


What is jurisdiction

Jurisdiction is the power of a court to declare law. Article 3 authorizes the system of federal courts and section 2 sets the limits of judicial authority.


Are procedural errors subject to sanctions?

Fed civ pro rules for sanctions is designed to deter improper conduct; not mistakes or imprudent fillings. Procedural errors are not subject to sanctions. Sanctions are for exceptional circumstances


Party seeking to invoke federal jurisdiction had the burden of proving that jurisdiction is proper true or false

True- the burden of proof for federal jurisdiction is always on the party trying to invoke federal jurisdiction which is the plaintiff


In a factual attack how is proof sought?

Proof is sought through discovery-disposition, affidavits, and other items to decipher truth


What is the inexpensive method of service if process?

Mailing the defendant the complaint form 5 and 6. If defendant mails back firm 6 then suit can proceed.


What is the expensive method of service of process?

Lawyer draft a summons, and take it to the clerk of courts, who will sign it and seal. Then it is served that is, delivered to the defendant.


What is rule 11?

Imposes an obligation on counsel and client to stop, look, and listen before filling papers either to initiate the suit or conduct litigation.


When is rule 11 violated?

Only if at the time if the signing the document filed was objectively unreasonable under the circumstances. The prime goal is deterrence of improper conduct. This is reserved for those exceptional circumstances where the claim asserted is patently unmeritorious or frivolous


Purpose of the rules?

1. Merger of law and equity
2. Relaxed pleadings
3. Flexible joinder of claims and parties
4. And broad discovery.


When does discovery occur?

After the pleadings are closed; but before drafting a complaint or answer.


What is an answer?

As the name suggests an answer is a response to the allegations in the complaint.


Amendments to pleadings allowed?

The federal rules reject that cases are set in stone, instead, they allow for liberal use of amendments.


What is rule 56?

Rule 56 regulates summery judgments a mechanism for deciding cases for which a trial is not necessary and would serve no purpose. "A court should grant summery judgment where there is no 'genuine dispute as to any material facts'"


What is the greatest number if cases filed?



What civil cases are tried most often?

Contract cases.


What are substitutionary remedies?

Most remedies are substitutionary they mostly seek money damages also because many times specific remedies are impossible.


How does an individual establish jurisdiction?

1. Reside in
2. Intent to stay indefinitely


How does a corporation establish citizenship since it has no intent?

State where it is incorporated and a state where it had its principle place of business.


Explain diversity for federal purposes

No plaintiff can be from the same state as any defendant