Civil Procedure - MBE Flashcards
(359 cards)
1
Q
For venue selection, how do we decide where a person ‘resides’? What about a business entity?
A
For venue selection a person resides where they are domiciled.
A business entity (includes all forms - e.g. corporations, LLCs, partnerships, incorporated) is resident **where it is subject to personal jurisdiction. **
2
Q
Supplemental jurisdiction requires that the added claim arise from a _____.
A
Common nucleus of operative fact
(same transaction or occurence)
3
Q
When is joinder feasible?
A
Joinder is feasible if:
(1) There is personal jurisdiction over the absenteed
(2) Bringing in absentee doesn’t mess with diversity
4
Q
Supplemental jurisdiction gets ____ and ____ claims into federal court.
A
Supplemental jurisidction gets non-federal and non-diversity cases into federal court.
5
Q
What is a motion for a judgment on the pleadings?
A
Allows a court to dispose of a case when the material facts are not in dispute and a judgment on the merits can be achieved based on the pleadings.
6
Q
Asking “was the motion to remove properly granted?” is a sneaky way to test ____?
A
subject matter jurisdiction
7
Q
The exercise of personal jurisdiction generally must be authorized by ____ and be ______.
A
The exercise of personal jurisdiction generally must be authorized by statute and be constitutional.
8
Q
In considering whether there are sufficient minimum contacts, the court will look at which two factors?
A
- Purposeful availment
- Forseeability
9
Q
If relatedness fails, the only way we can proceed is if we can establish ____ jurisdiction.
A
general jurisdiction
10
Q
When must a defendant respond to a lawsuit?
A
A defendant must reply no later than 21 days after being served with being served with process (60 days if D waived formal service)
11
Q
Can defendants also assert claims in addition to the plaintiff?
A
Yes, there are two main types of claims that defendants can assert.
(1) Counterclaims (against the person suing them)
(2) Crossclaims (against coparties)
12
Q
What is a temporary restraining order?
A
A TRO is used to preserve the status quo until the court can make a decision on the preliminary injunction. Note: temporary
13
Q
What are the two types of counterclaims?
A
The two types of counterclaims are permissive and compulsory.
14
Q
What are the 2 ways a defendant can respond to a lawsuit?
A
By motion
By answer
15
Q
What was the effect of International Shoe on Pennoyer?
A
International Shoe did not overrule Pennoyer - it merely augments the traditional bases.
16
Q
What is notice pleading?
A
Notice is what matters and pleadings don’t need much detail –> disfavored today.
17
Q
Generally speaking, describe the scope of subject matter jurisidction for state courts.
A
State courts have unlimited and general subject matter jurisdiction. They can hear ANY kind of case.
18
Q
A defendant places an item into the stream of commerce with the knowledge or hope it will end up in a particular state. What should we look for to decide if there is a basis for PJ?
A
Look for facts that show an intentional targeting (purposeful availment) of the forum.
19
Q
What is the test for determining if something is a final decision?
A
Ask: after making this order, does the district court have anything left to do on the merits of the case?
20
Q
What is the two-step analysis for personal jurisdiciton?
A
The two-step analysis for PJ is:
(1) Statutory: whether the state has a statute that allows the court to exercise personal jurisdiction
(2) Constitutional: determines whether personal jurisdiction comports with Due Process (i.e. fairness)
21
Q
What’s the impact if a party fails to object to the variance?
A
If they do not object, that evidence comes in and we act as though it was pleaded all along.
22
Q
How many interrogatories can you send in total?
A
Limited to 25.
23
Q
The basis for subject matter jurisdiction must be ____ pleaded and proved in every single case.
A
The basis for subject matter jurisdiction must be affirmatively pleaded and proved in every single case.
24
Q
What are the twin aims of Erie?
A
(1) Avoiding forum shopping
and
(2) Avoiding the inequitable administration of law
25
To invoke diversity of citizenship jurisdiction, what are the two requirements?
The two requirements for diversity of citizenship are:
(1) The case is between citizens of different states
(2) The amount in controversy exceeds $75,000
26
# True or False
Pleadings are not evidence.
True!
This is especially important in summary judgment situations. The plaintiff cannot rely solely on her pleadings as evidence.
27
How is corporate citizenship determined?
A corporation is a citizen of:
(1) **All** states where it is **incorporated** and
(2) The **one** state where it has its **principal place of business**
28
How much time does a defendant have to remove a case from state court?
This is true unless the plaintiff does what?
A defendant must remove a case within 1 year of commencement of the suit in state court. This is true unless the plaintiff acts in bad faith to make the case non-removeable.
29
# True or False
A defendant can get immunity from PJ if they are only in the forum to take part in a judicial proceeding.
**True**
Also counts if D is passing through the forum to go to a judicial proceeding elsewhere
30
Once the merits in a case are settled, you have ... days in which to appeal.
30 days
31
When do we need to consider the Erie prong?
We need to consider the Erie prong if there is no federal provision on point that directly conflicts with state law.
32
An in rem judgment does not bind the parties ____ but is binding as to the ______.
An in rem judgment does not bind the parties **personally**, but it is binding as to the **disposition of property**.
33
An agent is appointed either by contract or law but fails to notify the defendant of the service of process. Does this prohibit PJ?
**Yes**, if an agent fails to notify the defendant then she is deprived of the opportunity to be heard.
But note: if the defendant voluntarily selects their own agent, then PJ is not prohibitted if they fail to inform.
34
What are some of the bases for a motion to dimiss?
(1) Lack of subject matter jurisdiciton (can be raised at any time)
(2) Lack of personal jurisdiction (waived if not included in first response)
(3) Improper venue
(4) Insufficient process
(5) Insufficient service of process
(6) Failure to state a claim
(7) Failure to join a necessary party
35
What is a request for admission?
Where you ask someone to admit or deny any discoverable matter.
If you do not deny, then you have admitted.
Applies only to parties.
36
Is the presence of property within a state by itself sufficient for a court to exercise personal jurisdiction?
No, we always have to apply the minimum contacts standard. Mere presence of property in the state is not by itself enough to exercise PJ.
37
The party moving for summary judgment must show what 2 things?
1) No genuine dispute of material fact 2) An entitlement to judgment as a matter of law.
38
By signing, an attorney confirms that they have made a ____ and that the ____ and ____ are on their side.
By signing, an attorney confirms that they have made a **reasonable investigation** and that the **facts** and **law** are on their side.
39
How do you serve process on a minor? On someone adjudicated incompetent?
Serve the minor and their guardian.
Serve the incompetent and their guardian.
40
What is a limited (or specific) long arm statute?
Enumerates the precise activity (e.g. committing a tort, conducting business, etc.) that permits jurisdiction.
41
What is the constitutional source of a jury in a civil case in federal court?
The 7th Amendment
42
For how long can a temporary restraining order last?
A TRO cannot last more than 14 days, unless the court finds 'good cause' for an extension OR D consents
43
When is a federal rule valid under *Hanna*?
Federal rules are valid if they do not modify substantive rights.
Ask two questions:
(1) Does the federal rule comply with the Rules Enabling Act?
(2) Does the federal rule violate the Constitution?
44
What is a challenge for cause? How many do you get?
Each party has an unlimited number of challenges for cause. (E.g. bias, employee, family member)
45
A defendant does not return the waiver form and has no good cause for failing to do so. What is the consequence to the defendant?
If a defendant does not return the waiver (and has no good reason for failing to do so), she **must pay for the cost of formal service**.
46
To decide if a plaintiff has a 'plausible claim,' what three rules must the judge follow?
(1) The court must **ignore conclusions of law** and **focus only on** the alleged **facts**
(2) Those **facts must support** a plausible claim
(3) Judge uses her own **experience and commonsense**
47
What are the four traditional bases of *in personam* jurisdiction from Pennoyer?
The four traditional bases for in personam jurisdiction are:
(1) D is **served with process while present** in the forum
(2) D's **agent** is served with process
(3) D is **domiciled** in the forum
(4) D **consents** to personal jurisdiction
48
If there is no jury, it is called a _____.
If there is no jury, it is called a **bench trial**
49
What is the standard of review for questions of *law* at the Court of Appeals?
The CA reviews questions of law 'de novo' - **no** deference to district court.
They substitute their own interpretation.
50
If two or more defendants are jointly liable, they are treated as _____.
one defendant
51
Can a judge rule on credibility of a witness?
No! This is a question of FACT for a jury and not the judge.
52
What is the standard for discoverability?
We can discover material that is **relevant** to a claim or defense and **proportional** to the needs of the case.
Relevant **does not equal admissible** - something may be discoverable even if inadmissible.
53
How long does a party have to answer an interrogatory?
30 days
54
A defendant has little contact with the forum. Do we apply the 'arise out of' or 'relate to' test?
If the defendant has **little contact** with the forum, we need to show that the harm **"arises out of"** the defendant's contact.
55
What are the three tests for figuring out whether an issue is substantive?
(1) Outcome determinative
(2) Balance of interests
(3) Twin aims of Erie: avoid forum shopping and avoid the inequitable administration of law
56
# True or False
Permissive counterclaims can only be heard by a federal diversity court if it independently satisfies diversity jurisdiction.
True
57
What is the standard of review for questions of **fact** at the CA?
If the question of fact was decided by the **judge**, the CA will **affirm unless it was clearly erroneous.**
Since district judget was there, we presumptively assume she's correct.
If decided by a **jury**, CA **affirms unless no reasonable juror could have made that determination.**
58
What's the rule for citizenship of a legal representative of an:
- Infant?
- An incompetent?
- The estate of a decedent?
The legal representative is deemed a citizen of the same state as the infant, incompetent, or decedent.
59
Who can remove a case?
Only a defendant can remove a case to federal court.
A plaintiff cannot remove (because they already got a chance to choose their preferred forum)
60
Voluntarily litigating on the merits waives any objection to a lack of ____.
Voluntarily litigating on the merits waives any objection to a lack of **personal jurisdiction**
61
What are the 2 common examples of **impleader**?
(1) Indemnity
(2) Contribution
62
What is the Federal Interpleader Act - also known as 'statutory interpleador'?
Statutory interpleader authorized nationwide service of process to establish personal jurisdiction.
It requires only minimal diversity and an amount in controversy of only $500 or more.
63
Domicile for natural persons = ____ + _______.
Domicle for humans = residence + intent to remain indefinitely
64
According to *Burger King*, which prong comes first?
You must **assess contact** first.
There must be a relevant contact between the defendant the forum before considering whether jurisdiction is fair or reasonable.
65
Which of the seven defenses can be raised for the first time at any time through trial.
(1) Failure to state a claim
and
(2) Failure to join an indispensible party
66
What additional element did *WW Volkswagen* add to the purposeful availment test?
In additional to deliberate conduct, **it must be *foreseeable* that the defendant could be sued in that forum.**
67
We have a mixed case involving law and equity. What do we do in terms of giving the case a jury?
Historically, no - we looked at the center of gravity.
Now we go issue by issue. If an issue of FACT underlies both law and equity, you get a jury.
We try the jury issues first.
68
Can notice of proceedings be done by publication?
Yes, there may be situations where publication (e.g. in a newspaper) is the best we can do - if, for example, we don't have the names or addresses of relevant parties.
Only used as a LAST resort.
69
What's the difference between a response by motion and answer?
A motion is not a pleading while an answer is a pleading.
70
Rule 4(e)(1) permits methods of service under ________ e.g. many states allow service by mail.
Rule 4(e)(1) permits methods of service **under state law**.
71
What is the balance of interests test under the *Erie* prong?
If a rule, provision, or law is not clearly substantive, the federal court should follow state law unless the federal court system has some interest in doing it differently.
72
What is a deposition?
Where a deponent testifies orally under oath - it's recorded and transcribed.
Questions posed can be LIVE or written and read by a court reporter.
73
How do we decide whether to apply the 'arise out of' or 'relate to' test?
Depends on the level of activity the defendant has in the forum.
74
If a case falls within the Due Process 'circle,' it will be _______.
If a case falls within the Due Process circle, it will be **constitutionally valid.**
75
Removal is a one-way street - it only goes from ____ to _______.
Removal only goes from **state court to federal court.**
76
What are the two kinds of intervention?
The two kinds of intervention are:
**(1) Intervention of Right:** gives the absentee the right to intervene if their interests may be harmed by the pending litigation.
**(2) Permissive Intervention:** the absentee must show their claim/defense and the pending case share a common question. Not automatically granted.
77
How is 'citizenship' of a human determined for diversity of citizenship?
Citizenship is determined by where a person is **domiciled** (i.e. permanently resident).
78
Generally speaking, describe the scope of subject matter jurisidction for **federal** courts.
Federal courts have **limited** subject matter jurisdiction because of Article 3 limits in the Constitution.
79
What is a long arm statute?
A state law that allows courts to exercise PJ over non-resident Ds who have certain minimum contacts with the state.
80
When can a court exercise supplemental jurisdiction?
A court with subject matter jurisdiction over a claim may hear *other* claims if they share a **common nucleus of operative fact.**
81
Due Process requires that notice be ____________.
Due Process requires that notice be **reasonably calculated to apprise D of the pendancy of the action.**
82
Supplemental claims by plaintiffs are only allowed if they are brought against a single defendant and no ____ rule is involved in making that defendant a party.
joinder
83
You have evidence that you know will hurt your case. Must you disclose it as part of initial disclosure?
No - only information that supports must be intitially disclosed.
84
What is variance and when does it arise?
Variance is where the evidence at trial does not match what was pleaded.
Can only occur at trial.
85
Failure to deny constitutes an ____ on any allegation except _____.
Failure to deny constitutes an **admission** on any allegation except **damages**.
86
What is the well pleaded complaint rule?
The plaintiff's initial complaint must contain a federal question/issue in the complaint itself. We ignore everything from the defendant as well as anticipated defenses.
87
What are the two components of process?
The two components of process are:
(1) The **summons** (the official court notice of the lawsuit)
(2) A **copy of the complaint**
88
What is a 'necessary' party?
Under Rule 19, an absentee is 'necessary' if:
(1) Without the absentee, we cannot award complete relief
(2) The absentee's interests may be harmed
(3) May subject a defendant to multiple or inconsistent obligations
89
What three things must a complaint have?
(1) A statement of subject matter jurisdiction
(2) A short and plain statement of the claim
(3) A demand for relief
90
How do we determine citizenship of a *non-incorporated* business?
To determine the citizenship of a non-incorporated business, we use the citizenship of ALL its members.
E.g. a law firm with 18 members from 18 different states is a 'citizen' of all 18 states.
91
What is work product and is it discoverable?
Work product equals trial prep materials.
Something is work product if it is prepared "in anticipation of litigation".
92
Venue in a federal action is proper in what *two* situations?
Venue in a federal action is proper:
(1) In a district where **any** D resides (as long as **all** Ds reside in the same state)
(2) Where a substantial part of the claim arose or property is located
93
# True or False
If a case falls inside the Due Process circle it means that there is automatic personal jurisdiction.
False, even if a case falls inside the Due Process 'circle,' we still need statutory authorization to exercise personal jurisdiction.
94
What type of cases does *Erie* apply to?
Diversity jurisdiction cases
95
What is the 'bulge provision'?
The Bulge Provision allows the area of service to 'bulge' to within 100 miles of the federal courthouse, even if this crosses state lines.
96
How do we decide the dollar amount for the $75,000 amount in controversy requirement?
Whatever the plaintiff claims (in good faith) will govern unless it clear to a **legal certainty** that she cannot recover more than $75,000 - e.g. if there is a statutory cap on recovery.
97
What is the Constitutional source of a jury in a civil case in federal court?
The 7th Amendment
98
What constitutional limit sets the boundary of personal jurisdiction?
The Due Process Clause
99
# True or False
You cannot rely on notice by publication if you actually know OR can reasonably find the names and addresses of the claimants.
True!
You must make a diligent effort to locate and serve personally.
100
Placing an item in the stream of commerce coupled with other acts that show an intent to serve a particular state is a sufficient basis for PJ.
True
Examples:
- Modifying a product to conform to state law
- Maintaining repair capabilities or an office for sales in the state
101
What is Rule 11?
Rule 11 is aimed at avoiding frivolous or baseless documents in litigation
102
What is the final judgment rule?
A rule that permits appeals only from a final judgment.
A final judgment resolves all claims, leaving nothing further for the court to do except enter/execute the jugment.
Objections can be preserved but not appealed until the merits are resolved.
103
What is Rule 24 'intervention'?
Intervention is when an absentee brings herself into the case through Rule 24.
104
What is a Rule 23(b)(3) class? What must you show?
A Rule 23(b)(3) class is a 'damages class action'. You must show:
(1) A common question that predominates over individual questions of members
(2) The class action is the superior way to resolve the dispute
105
Under the *Hanna* prong, what's the first question we ask?
Is there a federal provision on point that directly conflicts with state law?
106
What do we mean by "substantive" law for *Erie* purposes?
Substantive law includes:
- Statutes of Limitations
- Elements of a claim or defense
- Rules on burdens of proof and conflicts of law
107
Does a counterclaim in a diversity action have to meet the >75,000 amount in controversy requirement?
Generally no, if the counterclaim is **compulsory.**
108
What is the 'relation back' doctrine?
Relation back is a way around a statute of limitations. We treat the amendment as though it was filed with the original case.
We can 'relate back' if the new claim arises from the same conduct, transaction, or occurence.
109
If a cause of action does not 'arise from' or is 'unrelated to' D's activities in the forum, there must be _____.
There must be generaly PJ over the defendant
110
The plaintiff sues the defendant for an injunction (equitable relief).
What is the value of the claim in terms of satisfying the amount in controversy requirement?
We can assess the value by looking either at the value from the defendant's or plaintiff's perspective. Some courts look at both.
111
What is voir dire?
The process of selecting the jury by asking potential jurors questions.
112
Does a case already have to be in federal court for supplemental jurisidction to apply?
Yes, the case must already be in federal court for additional claims to be added under supplemental jurisidiction.
113
What are the two kinds of cases that can go to federal court?
(1) Diversity of citizenship
(2) Federal question
114
What are examples of work product that are absolutely protected and never discoverable?
The following types of work product are absolutely protected:
(1) Mental impressions
(2) Conclusions
(3) Opinions
(4) Legal theories
115
Is hearsay discoverable?
Yes, even though it is not admissible it may still be discoverable if calculated to lead to discoverable information.
116
What is a special pleading?
A special pleading requires providing additional specifics when trying to allege (1) fraud or (2) special damages.
117
What is venue?
Venue tells us exactly which federal court to go to.
118
# True or False
Just because you meet all the requirements for a case to go to federal court does NOT mean that you MUST go. The plaintiff can still sue in state court if she wishes.
This is true! The plaintiff can choose state court if she prefers.
119
What is the impact if a party objects to the variance?
The evidence is not admissible?
120
Most states have statutes granting their courts PJ in what 4 situations?
1. D is present and served with process.
2. D is domiciled.
3. D consents.
4. D commits acts of bringing him within the forum's long arm statute.
121
What is the aggregation rule for 1 plaintiff vs. 1 defendant?
If there is 1 plaintiff vs 1 defendant, we can aggegate (add) the plaintiff's claims together to reach the AIC threshold of > $75,000.
There is no limit to the number of claims the plaintiff can add up, and the claims do not need to be transactionally related at all.
122
What is a pretrial conference order?
A roadmap of what will happen at trial including evidence, witnesses, etc. If something is not listed it cannot be brought into trial.
123
When must diversity of citizenship exist for there to be subject matter jurisdiction?
Diversity of citizenship must exist at the time the suit is instituted.
It need not exist at the time the cause of action arose, and it is not defeated if post-filing a party later becomes a citizen of the same state as an opponent.
124
A state has not granted the court power over the parties through statute. May the courts nonetheless exercise PJ?
No, if no state statute grants the courts power over the parties, then the court lacks PJ.
125
What is the 'intention to serve' theory?
From Justice O'Connor in *Asahi*.
Must be able to show that by putting the product into the stream of commerce, D had **an intention to serve the market in the forum state**.
**Mere foreseeability **that the product would end up in the forum **is not enough.**
126
How can you serve process on persons in foreign countries?
By mail requiring a signed receipt, unless prohibited by international agreement or foreign law.
127
For a dismissal under forum non conveniens, the (foreign) court must be both ____ and _____.
For a dismissal under forum non conveniens, the foreign court must be both **available** and **adequate**
128
How does the court figure out whether you get a jury in a federal civil court today?
Determined by whether you would have had a right to a jury at common law in England. We ask two questions:
(1) Is the claim asserted analagous to one that existed in 1791?
(2) If yes, the court determines the right to a jury on an issue-by-issue basis. We always try the jury issues first.
129
What is an interrogatory?
Written questions answered in writing under oath.
Cannot be sent to non-parties.
Mostly used for background information.
130
What is a motion for judgment as a matter of law?
Also called a directed verdict.
A motion for JMOL (to not let the jury hear the case) may be granted if the juge decides that reasonable people could NOT disagree on the result.
D can make JMOL after P goes. If denied, D puts on case. Then both can motion again.
131
The 7th Amendment ____ the right to a jury trial and it does so only in cases at ______.
The 7th Amendment **preserves** the right to a jury trial and it does so only in cases at **law**.
132
To have a relevant contact between the defendant and the forum, what two things must be true?
(1) The defendant must have **purposefully availed** herself of the forum
(2) It must be **foreseeable** that the defendant can get sued in the forum
133
What is the role for privileged matters?
Privileged material is NOT discoverable, even if relevant.
134
Who decides questions of fact at trial?
If we have a jury, they decide questions of fact.
135
What are we looking for with specific jurisdiction?
We need **relatedness** - the plaintiff's claim must be connected to the defendant's contact in the forum.
136
What are the five discovery tools we have in federal court?
1. Deposition
2. Interrogatory
3. Request to produce
4. Medical exam
5. Request for admission under Rule 36
137
To determine if it is a federal question, we ask...
Is the plaintiff enforcing a federal right?
138
What is the amount in controversy requirement?
The amount that the plaintiff claims in damages must **exceed** $75,000. It cannot be exactly $75,000.
139
How do you serve process to a partnership?
Serve a general partner, an attorney in fact, or an authorized agent.
140
What does 'outcome determinitive' mean under the *Erie* prong?
Means an issue has a substantial impact on the case
141
One way a plaintiff can serve process is by leaving it at the defendant's ____ with a person of ____ and ________.
One way a plaintiff can serve process is by leaving it at the defendant's **usual abode/dwelling** with a person of **suitable age** and **discretion**.
142
What is a motion to strike?
If a pleading contains insufficient, immaterial or scandalous material then the court may strike it (either on their own or by motion).
143
A brother who lives in Arizona and a sister who lives in Maine own antique furniture together. The furniture is located in Maine. The sister brings an action in Maine to determine ownership.
Does Maine have personal jurisidction over the brother?
Yes, because the furniture is located in Maine. This is a form of quasi in rem jurisidction.
144
What is a cross claim?
A crossclaim is a claim against a coparty. Must arise from the same transaction or occurence as the underlying case.
Never compulsory.
145
Removal moves a case from ____ court to ____ court. Whereas a transfer moves a case from ____ to ______.
Removal moves a case from state court to federal court, whereas a transfer moves a case from federal court to federal court.
146
What do we mean by 'procedural law' for *Erie*?
Procedural law includes:
- Federal Rules of Evidence
- Federal Rules of Civil Procedure
- Assessment of attorney's fees
- Whether an issue is equitable vs. legal
147
Twiqbal gave us three rules for deciding on a motion to dismiss. What are they?
1. The court ignores conclusions of law and looks only at allegations of fact.
2. The facts alleged must support a plausible claim.
3. The judge uses her own experiences and common sense. Looks only at the face of the complaint.
148
What is interlocutory review?
Refers to any order that is *NOT* a final judgment.
You may appeal for interlocutory review. Allows us to go to Court of Appeal even though we don't yet have a final judgment.
149
Interlocutory review is an exception to the _____ _____ _____.
Interlocutory review is an exception to the **final judgment rule**
150
What is voir dire?
The process of selecting the jury by asking potential jurors questions.
151
What sanction are available if a lawyer violates the ethical certification duty?
Sanctions can be monetary or non-monetary.
They are discretionary.
152
On what grounds may venue be transferred?
Venue may be transfered based on:
(1) The **convenience** of the parties
(2) The **interests of justice**
153
After the court has ____ heard the case, the court can issue a ____ injunction.
After a court has **fully** heard the case, the court can issue a **permanent** injunction.
154
What are the three steps of the *International Shoe* analysis?
(1) Is there a relevant contact between D and the forum?
(2) Does P's claim arise out of or relate to D's contact with the forum?
(3) Is specific jurisdiction fair or reasonable?
155
Where is general jurisdiction proper over a corporation?
General jurisdiction is proper over a corporation:
(1) Where it is incorporated
(2) Where it maintains its principal place of business
156
A defendant has ____ days after service of process to remove a case.
A defendant has **30 days** after service of process to remove a case to federal court.
157
Partial assignment of a claim to collect debt ***(does / does not)*** affect citizenship if the assignor _______.
Partial assignment of a claim to collect debt **does not** affect citizenship if the assignor **retains an interest in the claim**.
158
What are the three steps to applying Rule 19?
(1) Is the absentee necessary?
(2) Is joinder feasible?
(3) If joinder is not feasible, the court may either proceed without the absentee OR dismiss the case entirely.
159
What is the complete diversity rule?
The complete diversity rule states that citizenship on the plaintiff's side must be **entirely different **from the defendant's side.
No complete diversity if **any** plaintiff or defendant are from the same state.
160
If relatedness is met, we know we are in the land of ____ jurisdiction.
If relatedness is met, we know we are in the land of **specific** jurisdiction.
161
# True or False
Creating or defeating diversity by moving is allowed as long as it is ________.
Creating or defeating diversity by moving is allowed as long as it is **genuine and not a sham. **
162
Does removal of a case require permission from the court?
No, permission from the court is not needed to remove a case. You simply file the notice of removal.
163
What can a plaintiff do if they think removal is improper?
If a plaintiff thinks removal is improper, they can move to remand the case back to state court.
164
Why would a defendant waive formal service of process?
One benefit to the defendant if they waive formal service is that **they get** **longer to reply** with a defensive response. They get **60 days** instead of the usual 21 days.
165
If a defendant is going to try to show that jurisdiction is unfair, what must the defendant show?
The burden is on the defendant to show that the forum is **so gravely inconvenient** that she is at a disadvantage in the litigation.
166
What is a scheduling order under Rule 16(b)?
A logistical road map for how litigation will proceed
167
Supplemental jurisdiction requires that the added claims arise from a _____.
Supplemental jurisdiction requires that the added claims arise from a common nucleus of operative fact (same transaction or occurence).
168
What is contribution?
When the third party shares responsibility for the harm.
169
Can you appeal a TRO? Can you dissolve it?
If a TRO is issued *without* notice, the other party can make a motion to dissolve it.
However, TROs are **not** appealable unless they have the effect of a preliminary injunction.
170
What is a medical exam?
Must show a medical condition is in controversy and there is a good cause.
Requires a court order.
Applies only to parties and those in their control (custody or legal control).
171
Due process requires that notice be ____ to apprise parties of the ______.
Due process requires that notice be reasonably calculated under all the circumstances to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.
172
What one question does personal jurisdiction look at?
Can the plaintiff sue the defendant in this state?
173
A plaintiff has the right to amend their pleading within _ days after the defendant serves their first Rule 12 response.
21 days
174
What is 'fallback venue' and when do we use it?
Fallback venue is a last resort. It is only used if there are no other options.
Fallback venue is proper **wherever the defendant is subject to personal jurisdiction**.
175
What is a compulsory counterclaim?
A compulsory counterclaim arises from the same transaction or occurence as plaintiff's claim.
You must assert it in the present case or else it is waived.
Only compulsory claim in the world.
176
A federal question is where the claim ____ federal law.
A federal question is where the claim **arises under** federal law.
177
Courts take a common-sense approach to venue transfer, considering where the ____ of the case is.
Courts take a commonsense approach to venue transfer, considering where the **center of gravity** of the case is.
178
What are the two steps needed for dealing with joinder?
(1) Is there a joinder rule that allows joinder of parties or joinder of claims?
(2) Is there subject matter jurisdiction over these various additional claims?
179
# True or False
Adding a new defendant and serving her starts the 30 day window for removal over again.
True
180
Rule 11 applies not just to pleadings but to ____ except ____.
Rule 11 applies not just to pleadings but to **all documents** except **discovery documents. **
181
# True or False
Summary judgment is a discretionary act.
True! Even if you meet the requirements, it remains discretionary.
182
A defendant has ____ days to amend after seeing her answer.
183
Why is service of process important?
Service of process is important because it is the way that we give notice to the defendant and provide her with an opportunity to be heard.
184
How does the court figure out whether you get a jury in a federal civil court today?
Determined by whether you would have had a right to a jury at common law in England. We ask two questions:
1. Is the claim asserted analagous to one that existed in 1791?
2. If yes, court determines the jury right issue by issue. We try jury issues first.
185
# True or False
A person can only have one domicile at a time.
True!
186
When might a case get dismissed because joinder was not feasible?
Dismissal because joinder is not feasible typically will not happen unless there is some alterantive court the plainitff can go to.
187
What is the venire?
The larger group from which the final jury is selected.
188
Supplemental jurisdiction gets ____ and ____ claims into federal court.
Supplemental jurisdiction gets non-federal and non-diversity claims into federal court.
189
What is subject matter jurisdiction?
Subject matter jurisdiction is about power over the case, not the parties.
It asks: in what court is the plaintiff's claim going to be heard?
190
When are depositions allowed and how many can you do in one day?
Depositions are allowed any time after initial disclosures. Limited to 10 per day unless court allows more.
191
What is in rem jurisdiction?
In rem jurisdiction is personal jurisdiction over a piece of property (real or personal), rather than D's person.
192
Can personal jurisdiction be consented to or waived?
**Yes**, personal jurisdiction is a personal right and can be consented to or waived.
193
When is general jurisdiction available?
General jurisdiction might be available when the defendant:
(1) Has **registered to do business** in the state and appointed an agent for service of process
(2) Is **'at home'** in the state
194
A buyer from State A breaches an $80,000 contract with a seller from State A. Solely to create diversity and prior to filing a suit, the seller moves to State B.
Does diversity of citizenship exist?
Yes, diversity exists because the seller is considered a citizen of State B now, even though it was a citizen of State A when the action arose.
Move must be genuine, but as long as it is intent does not matter.
195
What is required for a preliminary injunction?
A preliminary injunction is relief issued prior to a trial on the merits. It requires:
(1) Notice to the defendant and
(2) A hearing on whether the injunction should be granted
196
What does 'relate to' require?
'Relate to' is broader - it does not require causation. It simply requires some relationship between the harm and the plaintiff with D's contact with the forum.
197
Who decides questions of fact at trial?
If we have a jury, they decide questions of fact.
198
What are 2 important motions for pretrial adjudication?
1) Failure to state a claim 2) Summary judgment.
199
For a venue transfer the transferee court must be a ____ and have _______.
For a venue transfer, the transferee court must be a **proper venue** and have **personal jurisidction over the defendant**.
200
# True or False
Considerations of fairness are irrelevant to determining jurisdiction.
False! Considerations of fairnesscan support a finding of **specific** jurisdiction in a particular forum - e.g. where the witnesses are, most efficient forum, etc.
201
What do we need to remove a diversity case from state court (and into federal court)?
Removal based on diversity is proper only if:
(1) There is complete diversity
(2) The amount in controversy exceeds $75,000
(3) The action is brought in a state in which NO defendant is a citizen.
202
What is a motion for a new trial? When must you make this motion?
You must move for a new trial within 28 days after entry of judgment. A new trial is basically a redo - less drastic than RJMOL.
203
General jurisdiction allows suit on _____.
Specific jurisidction allows claims that have _____.
General jurisdiction allows suits on **any claim. **
Specific jurisidction allows claims that have **a connection to the forum state.**
204
What are the two components of the constitutional aspect of PJ?
1. Contacts within the forum
2. Notice
205
If it becomes clear that a defendant has not received notice of a claim against them, what must the plaintiff do?
The plaintiff should try another means of giving notice.
If other steps are reasonable to take, the plaintiff should take them.
206
Two plaintiffs from California bring a case against three plaintiffs from Delaware.
Is there complete diversity?
Yes! There is complete diversity as long as there is no similar citizenship on either side of the 'v' sign.
207
What is removal jurisdiction?
Removal jurisdiction is a means by which a **defendant** may get a case **out of state court and into federal court**.
208
What is a motion?
A request for a court order.
209
What is a motion for a more definite statement?
If a pleading is so vague or ambiguous that a party cannot reasonably draft a required responsive pleading, then the responding party may request a more definite statement.
210
What is forum non conveniens?
When a court dismisses a case because there is another court that makes more sense, but transfer to that court is impossible (because we cannot transfer to a foreign court).
The case is dismissed so the plaintiff can sue in the correct court.
211
Does 'relation back' also work for changing a party?
Yes, changing a party must involve the same transaction or occurence and the party must receive notice within 90 days AND know or have reason to know the action actually should have been brought against him.
212
Can a TRO be issued without notice? If yes, what must be shown?
A TRO **can** be issued without notice. The moving party must establish:
- Immediate and irreparable injury if there is delay
- The moving party's attorney certifies in writing any efforts made to give notice and why notice is not required
213
What are the two viable theories on whether the stream of commerce is purposeful availment?
(1) Reasonable anticipation theory
(2) Intention to serve theory
214
When is joinder of parties permissive?
Unless a party would destroy diversity, a party may join if her claim arises from the same transaction or occurence AND raises a common question of fact or law.
215
How do we serve process on a business?
We serve process on a business by serving an officer or managing/general agent.
216
A plaintiff brings a defendant into the forum by fraud or force and serves D with process. Is this valid?
No, if P brings D into the forum through fraud or force, most courts will find the service invalid.
217
What is a request to produce?
A written request for access to things.
Mostly aplies only to party but with a subpeona it can apply to non-parties.
218
What is the aggregation rule for a joint claim?
With joint claims, we can aggregate (add up) the total value of the claim.
219
What is indemnity?
Indemniyt is a contract that requires the third party to compensate the defendant for loses suffered.
220
Who is bound by a class judgment?
All members of the class are bound except those who opted out.
221
For the forseeability element of determining the sufficiency of a basis for PJ, what must D know?
D must know or reasonably have known/anticipated that her activities in the forum would render if **forseeable** that she may be hauled into court there.
222
To establish minimum contacts, the defendant must avail herself of the forum. The connection between the defendant and the forum cannot be ________ or the ________.
The connection between the defendant and the forum cannot be accidental or the unilateral act of a third party.
223
What does the signature and certification mean in Rule 11?
(4 things)
(1) The document is not for an improper purpose
(2) That legal contentions are warranted
(3) Factual contentions (will) have evidentiary support
(4) Denials (will) have evidentiary support
224
How can you override work product protection?
You can override work product protection if you show 1) Substantial need and 2) the info is not otherwise easily accessible.
225
What is the aggregation rule if there are multiple plaintiffs or defendants?
We cannot aggregate claims involving multiple parties on either side.
226
How does a person change their domicile?
A change in domicile must be affirmative. Usually requires that the defendant:
(1) Enters or moves to a new state
(2) An intention to make a permanent home in the new state
227
# True or False
Supplemental jurisdiction on its own can get a case into federal court.
False. Only diversity jurisdiction and federal question jurisidiction can get a claim into federal court.
Supplemental jurisidiction must come from the same transaction or occurence as a claim where the court has original jurisidiction.
228
What are the two kinds of personal jurisdiction?
The two kinds of personal jurisdiction are:
(1) **General**: a defendant can be sued in the forum for *all* claims arising *anywhere*, even if entirely unconnected to the forum.
(2) **Specific**: a defendant can be sued for a claim that is directly connected to what she did in the forum. The claim must 'arise out of' or 'relate to' the defendant's conduct in the forum.
229
Substitution of a party (due to death or incapacity) may be necessary.
What do we do about the substituting party's citizenship for diversity jx?
We disregard it. The orignial party's citizenship controls.
230
What is the reasonable anticipation theory?
From Justice Brennan in *Asahi*
There is purposeful availment if D puts their component into the stream of commerce and can reasonably anticipate that it will reach the forum.
231
What does 'arise out of' require?
Requires that the harm to the plaintiff was caused by the defendant's contact with the forum.
There must be causation.
232
Where can we serve formal process?
We can serve process anywhere in the state in which the federal court is based.
We can also serve outside the state if a court could as well - e.g. through a Bulge Provision.
233
If a defendant signs a waiver and mails it back within ____ days, the defendant has effectively waived formal service of process.
If a defendant signs a waiver and mails it back within **30 days**, she has waived formal service.
234
What are the three kinds of personal jurisdiction?
The three kinds of personal jurisdiction are:
(1) In personam
(2) In rem
(3) Quasi in rem
235
What's the standard of review for discretionary decision by a judge?
CA will affirm unless the district court **abused** its discretion.
Very deferential.
236
A defendant is domiciled in the forum. This gives the court ____ jurisdiction.
A defendant is domiciled in the forum. This gives the court **general jurisdiction**
237
After the court awards a motion to compel what sanctions can be imposed for continued failure to abide?
The court may award sanctions, disallow the evidence, direct the matter as established, strike the pleadings, dismiss the action in whole or part, stay proceedings until compliance.
238
Under *Hanson*, contact must result from a defendant's _______.
Under Hanson, contact must result from a defendant's **purposeful availment.**
239
If we have a claim that we want to get into federal court, what **four** questions/steps do we follow to see if supplemental jurisdiction applies?
1. **Original Jurisdiction:** is there at least one claim with federal question or diversity jurisdiction?
- No = No supplemental jurisdiction
- Yes = Go to Step 2.
2. **Common Nucleus of Operative Fact**: does the additional claim arise from the same transaction or occurence?
- No = No supplemental jurisdiction
- Yes = Go to Step 3.
3. **Diversity Restrictions (Section 1367(b)): **is the case based on diversity, and does Section 1367(b) restrict the claim?
- Yes → No supplemental jurisdiction.
- No → Go to Step 4.
4. **Court Discretion:** should the court decline jurisdiction under Section 1367(c)?
- Yes = Court can decline jurisdiction
- No = supplemental jurisdiction applies.
240
A case is not a class action until it is...?
A case is not a class action until it is **certified by the court as such. **
241
Can a judge rule on the credibility of a witness?
No! This is a question of fact for a jury and not for a judge.
242
What are 3 ways the court may get involved in a discovery dispute?
1) The responding party asks for a protective order to deny discovery or limit it - usually requires showing of undue burden. 2) Motion to compel if the other side fails to comply or responds incompletely. 3) Motion for sanctions for non cooperation.
243
Does the US Constitution provide for federal jurisdiction over cases by an alien (foreign citizen) against another alien?
No, this is beyond the scope.
244
Which defenses are waived if not asserted in your first Rule 12 reply?
12(b)(2) - Lack of PJ
12(b)(3) - Improper Venue
12(b)(4) - Insufficient Process
12(b)(5) - Insufficient Service of Process
245
A defendant is inside the United States. How many days do they have to waive formal service of process? What if the defendant is outside the United States?
If a defendant is **in** the U.S. = **30 days**
If a defendant is **outside** the U.S. = **60 days**
246
What is a notice of pendency?
In the (B)(3) class action, the court must give individual notice to all reasonably identifiable people affected. This allows members to opt-out of the class action if they want.
247
Can an objection to venue be waived?
**Yes**, an objection to venue can be waived if not asserted in a **timely manner**.
248
What is 'joinder'?
The joinder rules determine how big a case will get - i.e. how many parties and how many claims can get packaged together.
249
If venue is improper what must the court do? What may they do?
The court **must** transfer to a district where venue is proper.
The court **may** dismiss the case entirey.
250
What factors/requirements help protect defendants against pre-judgment seizure for non-payment?
(1) The seller must give an affidavit under oath of specific facts that show entitlement to property
(2) An order from a judge
(3) Seller must post bond to cover D's costs if D wins
(4) D must get a hearing on the merits
(5) Seller may get property back if she posts bond
251
Can a federal treaty with a foreign country give rise to proper subject matter jurisdiction?
Yes, subject matter jurisdiction can stem from federal question jurisdiction if the case arises under a federal (foreign) treaty.
252
We have a mixed case involving law and equity. What do we do in terms of giving the case a jury?
Historically we looked at the center of gravity to determine if a jury trial should be given.
Now if an issue of fact underlies both law and equity, you get a jury.
253
What is required for a removal to be valid?
For a removal to be valid, the defendant must show that the plaintiff's claim could have been filed in federal court in the first place.
254
What are the two situations where the Bulge provision applies?
1. Impleading third party Ds under Rule 14.
2. Joining necessary parties under RUle 19.
255
You must move for RJMOL within how many days of entry of judgment?
You must move from RJMOL within **28 days** of entry of judgment.
256
Lacking sufficient information to admit or deny a claim is treasted as ...?
a denial
257
What is a permissive counterclaim?
A permissive counterclaim does not arise from the same transaction or occurence.
May be asserted/joined in this case. OR may sue separately.
258
What is in personam jurisdiction?
In personal is a type of personal jurisdiction. It is the court's **power over the defendant's person** (because D has some **connection** with the forum).
259
Diversity of citizenship is not defeated by a ____ move.
Diversity of citizenship is not defeated by a **post-filing** move.
260
What is the exception to the general removal rule?
The exception to the general removal rule is that you **cannot remove a diversity** **case if any defendant is a citizen of the forum.
261
The judge decides questions of ____, while the jury decides questions of _____.
The judge decides questions of **law**, while the jury decides questions of **fact**.
262
What is the overarching *Erie* 'rule'?
A federal court sitting in diversity will apply its own *procedural* rules but will apply the *substantive* law of the state in which it sits (if there is no federal law on point).
263
What is the constitutional standard for giving notice to a defendant?
Notice must be **reasonably calculated under all circumstances** to **apprise** the party of the proceedings.
264
What are the two types of quasi in rem jurisdiction?
There are two types of quasi in rem jurisdiction.
(1) Disputes over the property itself
(2) Using the property as the basis for jurisdiction - i.e. the plaintiff attaches D's property in the forum state to satisfy a potential judgment unrelated to the property
265
What is the Rule 26(a)(1) required disclosure?
There are three basic disclosures:
(1) You must identify people with discoverable information that you may use to support your case
(2) You must give copies/descriptions of things you may use at trial
(3) The plaintiff must give a calculation of damages and the defendant must disclose any insurance coverage
266
Why are federal courts given subject matter jurisdiction over diversity of citizenship cases when the controversy seemingly has nothing to do with federal law?
Federal courts have SMJ over diversity cases to protect an out-of-state party against possible local bias in state courts.
267
According to Rule 4(e)(2), what are the three ways to serve process?
There are three choices for serving process on a defendant.
**(1) Personal delivery**
**(2) Substituted service:** leaving the copy at the individual's dwelling or usual place of abode with someone of suitable age and discretion who **resides** there
**(3) Delivery to an authorized agent**
268
The defendant is served with process while present in the forum. What type of jurisdiction does this basis grant a court?
If a defendant is served with process while present in the forum, the court has **general jurisdiction**
269
With a class action, how do we determine SMJ for diversity?
For citizenship, we look only at the representative, not the individual class members.
For the amount in controversy, we also focus on the representative - their claim must exceed $75,000.
270
What is a counter-claim?
A counterclaim is a claim against an opposing party (someone who has sued you).
The counter claim should be filed with the defendant's answer to the suit
271
What does purposeful availment mean?
Purposeful availment is the standard used in **specific** personal jurisdiction to determine whether a defendant’s contacts with a forum state are **deliberate** enough to justify the court exercising jurisdiction over them.
Key question: has D taken actions to avail herself of the **benefits and protections** of the forum state’s laws.
272
Is placing an item into the stream of comerce, by itself, a sufficient basis for PJ?
No!
273
What are the two types of preclusion?
1. Claim preclusion (res judicata)
2. Issue preclusion (collateral estoppel)
274
What is a preemptory challenge? How many do you get?
PReemptory challenges can be made for any reason - no need to show bias. Each side gets 3.
275
For federal question jurisdiction, the ____ of the parties is irrelevant and there is no ____ requirement.
For federal question jurisdiction, the **citizenship** of the parties is irrelevant and there is no **amount in controversy** requirement.
276
What is supplemental jurisdiction?
Supplemental jurisdiction is the *discretionary* power of the court to exercise jurisdiction over *added* claims.
277
A defendant has extensive contacts with the forum. Do we apply 'arise out of' or the 'relate to' test?
If a defendant has extensive contacts with the forum, we **apply the 'relate to' test. **
The harm need not be caused by what the defendant did in the forum - it can simply relate to the forum.
278
Where can venue be transfered?
Venue can be transfered from **one federal district court to another**; a transfer must be in the same judicial system
279
To move for RJMOL, what must you have done first?
To move for RJMOL, you must have moved for JMOL at a proper time at trial.
Failure to move for JMOL waives the right for RJMOL.
280
What are the two jurisdicitonal predicates?
The two jurisdictional predicates are:
(1) Power over the defendant's **person**
(2) Power over the defendant's **property**
281
What is the unliminted (or 'California') long arm statute?
Gives their courts power over any person or property over which the state can exercise jurisdiction constitutionality.
282
What is the split of authority in *Burham*?
Four justices said the traditional bases are sufficient by themselves, and we do not need to do a Shoe analysis.
Four justices said the traditional bases are not enough - we must always do the *Shoe*.
283
What is a renowed motion for judgment as a matter of law?
A post-trial motion made by a party asking the court to set aside the jury's verdict and enter judgment in their favor because no reasonable jury could have reached that verdict based on the evidence.
284
What was the new formula created by *International Shoe?*
Personal jurisdiction exists if the defendant has '*such minimumum contacts such that exercise of personal jurisdiction does not offend traditional notions of fair play and substantial justice.'*
285
What is an indispensible party?
If an action is dismissed because joinder is not feasible the non-joined party is called 'indispensible'
286
A person is subject to general personal jurisdiction where she is ______.
A person is subject to general personal jurisdiction where she is 'at home' - i.e. where she is domiciled.
287
Who can we depose?
We can use deposition to get information from non-parties (but they should be subpeoned or else they don't have to show up).
We can also depose a party to the litigation - no subpeona needed.
288
What is the class action fairness act (CAFA)?
Allows very large actions involving 100+ members with 5 million at stake to proceed with minimal diversity (i.e., any member of a class of Ps is a citizen of a different state than any D).
289
What is a class action?
Where a representative sues on behalf of a group
290
Federal venue is proper in which district?
(1) Where any defendant resides, as long as ALL defendants live in the same state
(2) Where the claim substantially arose
291
What are the two types of challenges to strike a juror?
1. Challenges for cause
2. Preemptory challenge
292
What is interpleader?
Interpleader is where a defending party joins a new party - called a third-party defendant.
293
What is the *Calder* 'effect' test?
Causing an effect in the forum state is sufficient to justify jurisidiction.
294
What main question does personal jurisdiction ask?
The main question personal jurisdiction asks is:** can the plaintiff sue the defendant in this state?**
295
How do you appeal a final judgment?
You file a document called a notice of appeal in the district court within 30 days of entry of final judgment.
296
What is a scheduling conference?
Brings parties together to discuss logistics. Required that both sides meet to talk about case, discuss settlement and try to resolve potential discovery issues.
297
What are the three kinds of personal jurisdiction?
(1) In personam
(2) In rem
(3) Quasi in rem
298
What are 'forum selection clauses' and are they enforceable?
A 'forum selection clause' is an agreement to litigate a case in a particular place/court.
Generally, forum selection clauses are enforced unless unreasonable, unjust, or as a result of fraud).
299
What claims can a plaintiff package together in a single case?
Under Rule 18(a), a plaintiff can assert any claims they have even if they are not legally related or come from the same transaction or occurence.
300
What is quasi in rem jurisdiction?
Quasi in rem jurisdiction is a type of personal jurisdiction where **the dispute involves the owner**, but the **property is used** to establish jurisdiction.
301
What are the five fairness factors the courts use to decide if specific jurisdiction is fair?
The five fairness factors for specific jurisdiction are:
(1) Burden on the defendant
(2) Forum state's interest
(3) Plaintiff's interests
(4) Legal system's interest in efficiency
(5) Shared substantive policies of states
302
A case is neither diversity of citizenship or a federal question, but BOTH parties agree to litigate in federal court. Are they allowed to do this?
No! Consent does not get a case into federal court. Must satisfy either diversity jurisidiction or federal question jurisdiction.
303
Settlement or dimissal of a case must be ______.
Settlement or dimissal of a case must be **approved by the court. **
304
Where is a company's principal place of business?
A company's principal place of business is where the managers direct, control, or coordinate business activity.
It is the nerve center - usually the HQ.
305
Service of process must occur within ____ days after the plaintiff files the complaint.
Service of process must occur within **90 days** after the plaintiff files the complaint.
306
What is the test for specific jurisdiction from *Bristol Myers?*
For specific jurisdiction, the plaintiff's claim must 'arise out of' or 'relate to' the defendant's contact with the forum.
307
# True or False
Due Process protection gives buyers a chance to be heard in property seizure cases.
True
308
What does the *Edmonson* and *JEB v Alabama* rule say about peremptory challenges?
You must have a race and gender-neutral reason for using a peremptory challenge.
This is because jury selection is state action.
309
On what basis/grounds is a new trial granted?
Under Rule 59(a)(1) the basis is unlimited. Trial judge must be convinced there was some mistake in the first trial that affected the outcome.
At judge's discretion.
310
Which of the seven motion defenses can you never waive?
12(b)(1) - subject matter jurisdiction
Can be raised at any time, even on appeal.
311
Who can deliver service of process?
Service of process can be delivered by **any non-party** who is at least 18 years old
312
When a removal notice is filed, the state court's jurisdiction ends when?
Immediately and automatically
313
If there are multiple defendants, who needs to approve of a removal?
If there are multiple defendants, **all defendants who are served with process** must join in the removal.
Note: not all those named must join - just those served.
314
What is a pleading?
The documents in which both parties set forth their claims and defenses.
315
If a claim is based on diversity, notice to remove must be filed within _ after the action is commenced, unless the plaintiff acted in _______.
If a claim is based on diversity, notice to remove must be filed within **1 year** after the action is commenced, unless the plaintiff acted in **bad faith. **
316
What are the four prerequisites for every class action?
For every class action we need:
(1) **Numerosity**: too numerous for practical joinder
(2) **Commonality**: question in common
(3) **Typicality**: the representative's claim is typical of those in the class
(4) **Adequacy**: the representative can adequately represent the classes' interests
317
According to Twiqbal, a plaintiff must plead _____.
According to Twiqbal, a plaintiff must plead facts supporting a plausible claim.
318
Diversity of citizenship is not defeated by a ____ move.
Diversity of citizenship is not defeated by a **post-filing** move.
319
What kind of personal jurisdiction is always preferred.
In personam jurisdiction is always preferable.
320
If served with formal process, how many days does the defendant have to reply?
The defendant has 21 days to make a defensive reply after being served with formal process.
321
Supplemental jurisdiction restricts claims by ____ but not by _______.
Supplemental jurisdictions **restricts claims by plaintiffs** but not by **defendants**.
322
What are the two main pretrial disclosures?
1) List of all witnesses 2) List of exhibits.
323
What is a supplemental pleading under Rule 15(d)?
A supplemental pleading is where you want to add something after the case was filed.
There is no right to file a supplemental pleading - must get permission from the court.
324
What are the only 3 responses a defendant can make in a reply to a claim.
(1) Admission
(2) Denial
(3) Lack of sufficient information
325
To which federal court can you have your case removed to?
A case can be removed only to **the federal district court that geographically embraces** the state court where the case was filed.
326
You can only move for JMOL after ___________.
You can only move for JMOL after **the other side has been heard at trial**
327
Can notice be constitutional even if the defendant does not get it?
Yes, service of process is constitutional even if you do not get the notice.
E.g. If substituted service was used and a family member threw away the notice, valid service has still been delivered.
328
In diversity cases, the federal court must apply state ____ law.
substantive
329
To determine validity under *Hanna* we must ask two questions. What are they?
(1) Does the federal rule comply with the Rules Enabling Act?
- Prohibits rules that modify substantive rights
(2) Does the federal rule violate the constitution?
- If procedural and does not violate substantive law, then it's constitutional.
330
When is complete diversity not required for diversity jurisdiction?
In class actions when:
(1) There are more than 100 members in P’s class;
(2) The amount in controversy is greater than $5 million; and
(3) Any individual member of the class is diverse from any individual D
331
Do damages of $75,000 satisfy the amount in controversy?
No, must be greater than $75,000.
332
Is diversity reevaluated when a complaint is amended?
Yes, diversity is reevaluated at the time of the amendment.
333
In what circumstances may a court decide not to exercise supplemental jurisdiction, even if the requirements are otherwise met?
A court may decline to exercise supplemental jurisdiction if:
(1) Claim raises novel or complex issues of state law
(2) State law claim substantially predominates
(3) Other exceptional circumstances
334
Hypo: P files complaint based on state law. D files answer asserting federal question and seeks to remove to federal court. Should removal be allowed?
No, because of the well-pleaded complaint rule. Federal question jurisdiction cannot be based on the answer - must be asserted on the face of the complaint.
335
How do you determine whether cases involving the internet/websites have minimum contacts?
Look at how much interaction the resident has with the website.
336
Define general jurisdiction
Only exists when D’s contacts with the forum state are **so continuous and systematic as to render the D essentially at home.**
337
If D is able to establish that there was no PJ due to improper service, is D entitled to have a default judgment set aside as void?
Yes, D can seek to have the judgment vacated.
338
What happens if P fails to timely serve process to D?
The court, either on motion or on its own after notice to P, must dismiss the action without prejudice or order that service be made.
339
Does failure to file proof of service affect the validity of the service?
No, although proof of service is requires (unless service is waived), a failure to prove it does not make the service invalid.
340
If new claims are filed during a lawsuit, does new process need to be served?
No, new service of process only needs to be served when a **new party** is added to the lawsuit.
341
If the defendants all reside in the same state, where is venue proper?
Any judicial district in which any single defendant resides.
342
If the defendants reside in multiple states, where is venue proper?
There are two options:
(1) The location where a substantial part of the events occured; or
(2) The location where the disputed property is based.
343
For venue purposes, where do corporations reside?
If the corporation is the defendant: any judicial district in which they are subject to personal jurisdiction.
If the corporation is the plaintiff: the judicial district in which it maintains its principal place of business.
344
If venue is transferred, the new court must apply the rules of which court?
The laws of the state of the transferor (original) court govern - you 'bring your law with you'.
345
The Erie Doctrine only applies in ____ jurisdiction, not ____ jurisdiction cases.
The Erie Doctrine only applies in diversity jurisdiction, not federal question jurisdiction.
346
What sort of claims need to be plead with particularity?
Those involving fraud, mistake, or special damages.
347
What must an answer contain?
(1) Admittance or denial of all complaint allegations - failure to deny = admission
(2) Affirmative defenses (if D fails to raise them in the answer, they are waived)
348
When do courts grant permission to amend?
Permission is “freely given when justice so requires.” Only denied if other party can show unfair prejudice would result.
349
Can you amend during or after trial?
Yes, as long as the court grants permission.
350
What is the Rule 11 “safe harbor” provision?
If the challenged paper, claim, defense, contention, or denial is withdrawn or appropriately corrected within 21 days after service, then Rule 11 sanctions should not be filed with the court.
351
When is removal "proper"?
Removal is proper **only** when the case could have been brought **originally** in federal court.
352
353
Is aggregation allowed if multiple Ps are enforcing a single title/right?
Yes, e.g. if they are joint tenants with a single and undivided interest.
354
Is an assignment of a claim allowed if it creates or destroys diversity?
Yes, assignment is permitted so long as the assignment is real (for value), **complete**, and not collusive.
355
When is minimal diversity permitted?
1. Federal Interpleader Act
2. Class actions with at least 100 class members and claims worth more than 5 million
3. Interstate mass torts if at least 75 people died in one accident (e.g. airplane crash)
356
What is **minimal** diversity?
When **any** plaintiff is diverse from **any** defendant.
357
What's the rule for collusion and other devices designed to create or defeat diversity?
Diversity jurisdiction **cannot** be created by improperly or collusively assigning a claim, **or** joining a party merely to create diversity.
358
What two situations does the Bulge Provision apply to?
Third party defendants joined under Rule 14
Joinder of necessary parties under Rule 19
359
What two situations does the Bulge Provision apply to?
Third party defendants joined under Rule 14
Joinder of necessary parties under Rule 19
