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Flemings-Civil Procedure > Definitions > Flashcards

Flashcards in Definitions Deck (34):

Concurrent Jurisdiction

Both state and federal court can hear the cases.


Federal Courts can only hear these four types of cases

1. Admiralty
2. Bankruptcy
3. Patent and copyright
4. Antitrust


Federal Question Jurisdiction

Cases that arise under the Constitution laws or treaties of the United States.


Well Pleaded Complaint Rule

A claim does not arise under federal law unless it appears on the face of a well pleaded complaint. A substantial federal issue must be raised as a legitimate part of the plaintiff's cause of action.


Diversity of Citizenship

Federal district courts have original jurisdiction over all civil adctions where the matter in controversy exceeds the sum or value of $75,000 (exclusive of interest and costs) and the controversy is between:

1. Citizens of different states
2. Citizens of a state and citizens of a foreign state


Aggregation Rules

1. A single plaintiff may aggregate all his claims against a single defendant to meet the requisite amount in controversy.
2. Plaintiff's may only aggregate their claims if their claims are based upon a "common undivided interest".
3. A plaintiff suing multiple defendants cannot aggregate his claims unless defendants are jointly liable.


Supplemental Jurisdiction

Where one plaintiff's claim exceeds $75,000 and a second plaintiff's claim against the same defendant is less than $75,000, district courts can exercise supplemental jurisdiction over the second plaintiff's claim.


Complete Diversity

Where jurisdiction is based on diversity of citizenship, diversity between plaintiffs and defendants must be complete meaning that no plaintiff may be a citizen of the same state as any one of the defendants.


State Citizenship

A party is a citizen of a state if he is domiciled in that state and a citizen of the U.S.



A person is domiciled in the state where he physically resides with the intent to remain for the indefinite future. A person keep his domicile until he establishes a new one.


Citizenship of Corporations

A corporation is a citizen of "every State and foreign state by which it has been incorporated and of the State or the foreign state where it has its principal place of business." A corporation can only have one principal place of business.


Nerve Center Test for Corporations

The nerve center of a corporation is where a corporations officers direct, control, and coordinate the corporation's activities.


Pendent jurisdiction

The joining of a state claim to a federal claim by a plaintiff. The federal claim must be substantial and both claims must be so related that they form part of the same case or controversy (common nucleus of operative fact).


Pendent party jurisdiction

Plaintiff asserts a federal claim against one defendant and also joined a related state claim against an additional but non diverse defendant.


Ancillary jurisdiction

Plaintiff asserts a claim which is supported by an independent basis of subject matter jurisdiction and subsequently, a defending party joins a claim which does not have an independent basis of subject matter jurisdiction.


Removal Jurisdiction

Where plaintiff has brought suit in state court, the removal statute permits the defendant to force the case to be removed to a federal district court only if the case could have originally been brought in a federal court.


Territoriality Rule

Every state possesses exclusive power and sovereignty over persons and property located within its territory and may assert that power over any defendant, resident or non-resident, by personally serving him with a summons while he is present in the forum state, no matter how briefly.


Minimum Contacts

International Shoe

Due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.


Two types of Long Arm Statutes

1. Specific Act long arm statutes
-Based the assertion of personal jurisdiction over non residents upon the commission of certain acts by the defendant in the forum state and;
2. Non Specific long arm statutes
-CA authorizes state courts to assert personal jurisdiction to the full extent allowed under the Due Process Clause.


In Rem Jurisdiction

In rem jurisdiction enables the court to adjudicate the status of, and interest in, the property itself. An "in rem" proceeding is a proceeding against the property itself and not an individual defendant.


Quasi In Rem Jurisdiction

Quasi in rem proceedings are brought against specified, known persons and enables the court to adjudicate the interest of only those persons in the property. The judgment is limited to the value of the property.

The modern approach is that a court cannot assert jurisdiction simply because of the property located in the state but that there still must be minimum contacts. The property is simply one contact.


Service of Process

Must be given in such a manner that is 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.


Acceptable Types of Service (Federal and CA)

1. Personal Service
2. Leaving summons at defendant's usual place of abode with a person of suitable age and discretion.
3. Registered Mail
4. Under very limited circumstances, by publication.

1. Unlike federal, substituted services requires a showing that the summons cannot with reasonable diligence be personally delivered.
2. Unlike federal summons which requires the person to be of suitable age and discretion, CA requires the person to be 18 years.
3. While federal only allows delivery at a person's usual place of abode, CA allows usual place of business as well.
4. Copy of summons must also be mailed in addition to leaving summons.
5. CA does not allow substitute service on non-residents temporarily present in CA; only personal service.


Special Appearance

In many state courts, to challenge jurisdiction, defendant must make a special appearance solely to move to quash the service.

In CA, defendant need not make a special appearance but must include the objection to jurisdiction in his first appearance. If motion to quash is denied, defendant must seek early appellate review (within 10 days).


Three Tests to Determine Proper Venue

Venue is proper in a judicial district where:

1. Any defendant resides, if all defendants are residents of the State in which the district is located or;
2. A substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated or;
3. Any defendant is subject to personal jurisdiction at the time the action is commenced, if there is no district in which the action may otherwise be brought.


Residence of Individuals and Corporations

Individuals: For venue purposes, a natural person, including an alien lawfully admitted for permanent residence in the U.S. is deemed to reside in the judicial district in which that person is domiciled.

Corporate: A corporation's residence for venue purposes is any district where it is subject to personal jurisdiction at the time the action is commenced.

Non U.S. Resident: May be sued in any judicial district.


Factors the court will consider in determining if to grant a Forum Non Conveniens

1. Is there an alternative forum for plaintiff to bring the suit?
2. Is P resident of forum state? (This would be a positive for P)
3. Location of wits, evidence etc.)
4. Costs to P & D
5. Forum state's interest in adjudicating the suit.


Erie Doctrine

In diversity cases, or federal question cases not governed by federal law, the federal courts must apply state substantive common law as well as state substantive statutory law, but are free to apply federal procedure.

This is to prevent forum shopping.


Code Pleading (some states and CA)

CA is code pleading state.

1. Must set forth facts constituting the cause of action in ordinary and concise language.
2. Must provide an allegation to cover each element of the cause of action.


Notice Pleading (most states and Federal)

1. Must set forth a short and plain statement of the claim showing that the pleader is entitled to relief.


Two Types of Pleadings

Code and Notice


Seven Pre-Answer 12(b) Motion Defenses

1. Personal jurisdiction
2. Improper Venue
3. Insufficiency of process
4. Insufficiency of service of process
5. Subject matter jurisdiction
6. Failure to state a claim upon which relief can be granted
7. Failure to join an indispensable party.


Four 12(b) Pre-Answer Motions

1. Motion to dismiss for failure to state a claim
2. Judgment on the pleadings.
3. Motion for more definitive statement
4. Motion to strike


Relation Back Doctrine (Fed and CA)

Federal: Most states and federal allows an amended pleading which adds a new claim against the same party to relate back to the dated the original pleading was filed as long as the claim asserted in the amended pleading arouse out of the same transaction or occurrence set forth in the original pleading.

CA: An amended complaint adding a new cause of action relates back to the filing date of the original complaint and thus avoids being barred by the statute of limitations if it 1) rests on the same general facts as the original complaint and 2) refers to the same accident and same injuries as the original complaint.