FCP Deck

Question 1

judicial jurisdiction

Answer 1

the power of a court to render a judgement that other courts and government agencies will recognize and enforce

Question 2

Article III of the Constitution…

Answer 2

authorizes the establishment of the system of federal courts and in S2 sets the limits of federal judicial authority

Question 3

Article IV, S1 states…

Answer 3

that “Full Faith and Credit… be given in each State to judicial proceedings of every other State.”

Question 4

S1 of the 14th Amendment…

Answer 4

provides that no “State [shall] deprive any person of life, liberty, or property without due process of law.”

Question 5

Article VI…

Answer 5

provides that the Constitution and federal laws “shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

Question 6

choice of law

Answer 6

the choice of which laws should apply to the case at hand

Question 7

in the absence of a controlling federal statute…

Answer 7

federal courts must respect state statutes and common law

Question 8

attachment

Answer 8

officially sanctioned seizure of property

Question 9

writ of execution

Answer 9

an official document from the court which authorizes the sheriff to seize any property belonging to the defendant, sell it, and give the resulting money to the plaintiff

Question 10

constructive notice

Answer 10

pretend notice when the defendant cannot be found to inform of the suit - some states will put a notice in the newspaper. this is constructive because the defendant is unlikely to ever actually see the complaint

Question 11

Bell v Novick Transfer ID and Proc Hist

Answer 11

Identification of the Case:
Plaintiff – Ronald Bell
Defendant – Novack Transfer Co. and Katie Marie Parsons
Court - ???
Date - 1955

Procedural History:
Ronald Bell sued the defendants for negligence in the Court of Common Pleas of Baltimore. Defendants moved to dismiss the declaration on the basis that: 1: there is no claim against the individual defendants, 2: it simply alleges that the negligence of the defendants caused the injury-inducing accident, and 3: it doesn’t specify what the negligent acts were

Question 12

Bell v Novick Transfer Facts, Issues, and Holding

Answer 12

Facts of the Case:
• Ronald Bell was in a car and got into an accident with a tractor trailer operated by an employee of the defendant at an intersection
• An injury occurred on the part of Ronald Bell

Issues:
Whether the complaint made by the counsel of Ronald Bell sufficiently describes his accusations of negligence against the defendants

Holding & Disposition:
Motion overruled

Question 13

Bell v Novick Transfer Rule and Rationale

Answer 13

Rule:
Rule 8: requires “a short and plain statement of the claim showing that the pleader is entitled to relief”

Rationale:
• Rule 8 imposes only this requirement
• If the defendant wants more information for the purpose of crafting his statement, he should obtain said information through “interrogatories under Rule 33, or other discovery procedure”

Question 14

Bridges v Diesel Service Inc ID, Proc Hist, Facts, and Issues

Answer 14

Identification of the Case:
Plaintiff – James Bridges
Defendant – Diesel Service, Inc,
Court - ???
Date - 1994

Procedural History:
James Bridges sued Diesel Service, Inc., under the ADA. The court dismissed the suit due to the fact that the counsel of the plaintiff had failed to exhaust administrative approaches to the remedy of the complaint. The defendant filed for sanctions against the plaintiff

Facts of the Case:
• James Bridges claimed that the defendant had fired him for a disability

Issues:
Whether the insufficient legal research and seeking of administrative remedies for the complaint is severe enough to file for sanctions

Question 15

Bridges v Diesel Service Inc Holding, Rule, and Rationale

Answer 15

Holding & Disposition:
Defendant’s motion for sanctions denied

Rule:
Rule 11

Rationale:
• The counsel’s signing of the court filing indicates that “a normally competent level of legal research” has not been conducted
• A “normally competent level of legal research” would show the plaintiff’s counsel that an EEOC filing must occur prior to the court filing
• Because Rule 11 is meant to deter future misconduct, and the plaintiff’s counsel appears to have learned their lesson (they immediately filed with the EEOC and requested civil suspension of the matter), no sanctions will be granted
• Because the error was procedural and not substantive, the complaint is not “patently unmeritorious or frivolous”

Question 16

Hawkins v Masters Farms ID and Proc Hist

Answer 16

Identification of the Case:
Plaintiffs – Mary Ann Hawkins and Rachel Baldwin
Defendants – Master Farms, Inc., Harhge Farms, Inc., and Jack E. Masters
Court - ???
Date - 2003

Procedural History:
The plaintiffs filed suit against the defendants in federal court, claiming that there is diversity among the parties. The defendants denied this claim and filed a motion to dismiss for lack of subject matter jurisdiction, attacking the factual aspect of the plaintiffs’ claims of diversity subject matter jurisdiction

Question 17

Hawkins v Masters Farms Facts and Issues

Answer 17

Facts of the Case:
• Mr. Creal, the deceased, got in a car accident with a tractor driven by Jack E. Masters, who is a citizen of Kansas
• Mr. Creal was at the time residing in Troy, Kansas with his wife and her children
• When the Creals met, he was living with his mother in St. Joseph, Missouri
• Mr. Creal began staying the night at Elizabeth Creal’s house, though he would stop at his mother’s house each day after work and then travel to Elizabeth’s house – expenses were split between the two
• Mrs. Creal moved into a new apartment in a different part of Troy, Kansas, and Mr. Creal functionally fully moved in, bringing his belongings and splitting the cost of a bedroom set with her. They also opened a joint checking account
• Mr. and Mrs. Creal married soon thereafter
• Mr. and Mrs. Creal purchased a house in a different part of Troy, his death occurring around two weeks afterward. On his death certificate, his residence is listed as Kansas
• In the time leading up to his death, Mr. Creal retained connections to the state of Missouri, listing that as his residence on many official documents, insurance forms, loan forms, etc
• An estate was opened after his death which listed his mother’s home address as his place of residence prior to the accident
• Before his death, the couple had been considering buying a house in Missouri, though they never went and actually looked at houses

Issues:
Whether the connections Mr. Creal retained with the state of Missouri in the months leading up to his death qualify the case for diversity jurisdiction, allowing it to be tried in federal court.

Question 18

Hawkins v Masters Farms Holding, Rule, and Rationale

Answer 18

Holding & Disposition:
Mr. Creal was a citizen of the State of Kansas at the time of his death, so there is no diversity jurisdiction here. Motion to dismiss granted

Rule:
“For purposes of determining whether diversity jurisdiction exists, a person is a ‘citizen’ of the state in which he or she is ‘domiciled.’ For adults, domicile is established by physical presence in a place in connection with a certain state of mind concerning one’s intent to remain there.”

Rationale:
• Mr. Creal, at the time of his death, had fully moved into the State of Kansas with a clear intent to remain there
o Because he had lived there for a year, moved his possessions, and split the house bills with his wife in Kansas, it was clear that he had an intention to stay there
• Because of the extent of his actions in moving into the house in Kansas, his connections with Missouri are insufficient to establish diversity jurisdiction
• Because the Creals never actually sought out a house in Missouri, the intention to stay in Kansas remains (“floating intention”)

Question 19

Pennoyer v Neff ID and Proc Hist

Answer 19

Identification of Case:
Plaintiff/ - Neff
Defendant/ - Pennoyer
Court - 
Date – 1877 

Procedural History:
In the original suit, Mitchell sued Neff for failing to pay a lawyer’s fee. Neff was absent, so constructive notice was performed. Neff did not respond or show up for court and a default judgement was entered. Land later acquired by Neff in the state was attached and sold to Pennoyer, who was subsequently sued by Neff to retrieve his land. A court subsequently ruled that the affidavit used to acquire the constructive notice in the publication was invalid. Pennoyer appealed.

Question 20

Pennoyer v Neff Facts, Issues, and Holding

Answer 20

Facts of the Case:
• suit was brought by Mitchell, a lawyer, against Neff, alleging that he had failed to pay his legal fees
• Neff, a non-resident, was given “constructive notice” in a publication within Oregon. He did not show up to court
• Mitchell won the suit by default
• After the judgement was entered, Neff acquired land in Oregon, which, unbeknownst to him, was attached by the court and sold to Pennoyer
• Neff returned to Oregon, discovered what had occurred, and sued Pennoyer, claiming that he still owned the land (which he had purchased from the government)
• The court which tried the case before the current court ruled that the judgement was invalid because the affidavit used to publish the constructive notice had defects and was thus invalid

Issues:
• Whether the Oregon court erred in confiscating the land which Neff did not own at the time of the judgement, and whether him not owning said land when the judgement was made means they lacked jurisdiction in the case
• Whether the method of serving notice here, constructive notice, was valid

Holding and Disposition:
The court cannot pass a judgement over which it lacks jurisdiction and then seize land later bought to validate the decision. Plaintiff also was not extended service of notice. Affirmed.

Question 21

Pennoyer v Neff Rule and Rationale

Answer 21

Rule:
Constructive notice in situations where the would-be defendant is unlikely ever to see it is not valid.
A court’s jurisdiction is determined at the time of the case, and if void when the case is tried, is void thereafter.

Rationale:
• States cannot enforce their statutes outside of their own state
• if state courts could simply publish notice in a way that the would-be defendant would never see it, it would open the doors to rampant fraud and abuse; publication in this manner cannot create any greater obligation for the defendant to appear
• there are some contexts in which publication of notice could be appropriate, but this is not one of them
• the validity of every judgement is determined when it is rendered; if it is void at that time, it stays void forever
• In Webster v Reid, it was determined that a plaintiff seeking ownership of land sold under judgments recovered in suits where the defendant had not been extended service of process did not have rights to them
• The Fourteenth Amendment does not immunize court decisions in other states from questioning if they had jurisdiction in making the decision; if they lacked jurisdiction and the decision was invalid, other states need not enforce their decision

Question 22

fact-based inquiry

Answer 22

law is easy, facts are central to case

Question 23

floating intention

Answer 23

an intention which exists out there in the ether, but which is not solid and has not been acted upon

Question 24

Statutes 1331 and 1332

Answer 24

narrows article 3 - look up for more detail

Question 25

Rule 11 (find actual rule in supplement)

Answer 25

lawyers cannot bring claims to court with no factual basis and insufficient legal research behind them. sanctions may occur if they do

Question 26

notice without the state was justified in Meyer v Mabee largely on the basis that

Answer 26

along with the privileges of living in the state, including protection of personal property and access to the law, come responsibilities and duties, such as appearing in court. absence from the state does not negate this

Question 27

rule 8 states that

Answer 27

all that is required is "a short and plain statement showing that the pleader is entitled to relief"

Question 28

deposition

Answer 28

an interview under oath outside of the courtroom

Question 29

removal

Answer 29

a procedural mechanism used by defendants to strategically change from state to federal forum. done by questioning plaintiff's choice of forum. proper jurisdictional arguments required

Question 30

torts are ________

Answer 30

state law, not federal

Question 31

the case Bell v Novick Transfer Co. got to federal court on the basis of

Answer 31

diversity jurisdiction

Question 32

a party may seek federal court to

Answer 32

avoid a sympathetic jury for the other party

Question 33

discovery

Answer 33

process through which parties obtain information not contained in complaint/defense

Question 34

personal jurisdiction

Answer 34

the power of the course to hear the particular case against the particular defendant (specifically for defendant)

Question 35

due process clause

Answer 35

no state shall deprive any person of life, liberty, or property without due process of law

Question 36

lawyers rarely sue their clients because

Answer 36

it opens them up to malpractice claims

Question 37

default judgment

Answer 37

judgment passed against a party when they are absent

Question 38

collateral attack

Answer 38

bringing a second action to attack a prior case

Question 39

service of process

Answer 39

federal. a copy of the complaint and the summons

Question 40

SAD person

Answer 40

suitable age & discretion

Question 41

natural person

Answer 41

an actual person, as opposed to a corporation

Question 42

affadavit

Answer 42

certification by a party setting out certain facts

Question 43

according to Pennoyer v Neff,

Answer 43

every State possesses exclusive jurisdiction and sovereignty over persons and property within its territory

Question 44

in personam

Answer 44

personal jurisdiction over the person of the defendant requirements: - In-State Service (PRESENCE) - Domicile - Consent - Implied - Express - Voluntary Appearance

Question 45

in rem

Answer 45

personal jurisdiction over the land ``` requirements: -In-State Property -tangible -intangible Seized Pre-Judgment ```

Question 46

express consent

Answer 46

something like a contract, where you explicitly consent to possible lawsuit

Question 47

implied consent

Answer 47

your consent is implied through your activity, like doing business in the state

Question 48

RUle 12(b), (h), and (g)

Answer 48

If you make a pre-answer motion (or make an appearance or litigate other issues) without raising an objection to personal jurisdiction, then the defense is waived. Personal jurisdiction issues must be raised at the earliest oppurtunity

Question 49

Rule 4(k)(1)(a)

Answer 49

personal jurisdiction of a federal court shall be the same as the court of a state in which the federal court is sitting, unless a federal statute provides otherwise

Question 50

special appearance

Answer 50

appearing before a court but not in the form of voluntary appearance

Question 51

in rem vs. quasi in rem

Answer 51

in rem is used in cases where the ownership of the property itself is at stake. they use quasi in rem in cases where the property is used as a "jurisdictional hook" to justify the court claiming jurisdiction over the case

Question 52

Shaffer v Heitner

Answer 52

``` Identification of Case: Plaintiff/Appellee – Heitner Defendants/Appellants – 21 present or former officers or directors of Greyhound Corporations or one of its subsidiaries Court - SCOTUS Date – 1977 ``` Procedural History: Heitner sued 28 directors or officers of the corporations for violating their duties to the corporation in which he held stock by taking actions which resulted in civil and criminal suits against them. He filed for sequestration of their stocks in the company. Delaware did so to 21 of them and notified the defendants by mail and by publication. They appealed, claiming that they were not given due process, that the shares were not available for attachment in Delaware, and that they lacked sufficient contacts in Delaware for the state to have jurisdiction Facts of the Case: • Heitner sued 28 former or current directors or officers of Greyhound or its unnamed subsidiary on the basis that they had violated their obligations to Greyhound by engaging in activities which ended them up in significant criminal or civil suits, damaging the company’s stock price (Heitner owned stock in Greyhound) Issues: Whether a Delaware statute allowing for the sequestration of shares of a Delaware corporation within the state belonging to officers/directors of said Delaware corporation to establish jurisdiction over a case is unconstitutional under the Due Process clause of the Constitution Holding and Disposition: Insufficient contacts exist between the officers of the corporation and the state of Delaware, and their status of officers of the corporation and ownership of stock in the corporation do not change that. Reversed. Rule: Rationale: • The lower courts’ finding that “sufficient contacts” was an irrelevant metric in this case is based on the logic of Pennoyer • International Shoe claimed – and SCOTUS agreed – that its principles applied to natural persons, not just corporations • The strict view on jurisdiction laid out in Pennoyer has been weakened by subsequent decisions • The minimum contacts standard of International Shoe is the standard for deciding if the court has jurisdiction over someone’s interest in a thing • The presence of property in a state may imply ties to the state and justify jurisdiction in cases where the suit is related to the property itself; however, in this case the property in question has nothing to do with the complaint, and therefore does not create sufficient links with the state • The primary purpose of the sequestration statute is to assume jurisdiction; however, “if a direct assertion of personal jurisdiction over the defendant would violate the Constitution, it would seem that an indirect assertion of the jurisdiction should be equally impermissible” • The justification that the law simplifies things by avoiding the uncertainty present in International Shoe presents a cost which is too high – the cost of sacrificing “fair play and substantial justice” • The purpose of the statute is to prevent defendants from avoiding suit by getting all their property out of the state, but the statute fails to address whether property is moved out of the state for that purpose • The interest of the state asserted by plaintiff – to exercise control over and regulate corporations within the state – is not addressed by the Delaware legislature • The plaintiff has failed to establish that in accepting their positions as officers in the Delaware corporation, they have “purposefully avail[ed themselves] of the privilege of conducting activities within the forum State…” • Delaware has no statute that says that acceptance of a directorship implies consent to be summoned to Delaware courts • It’s ridiculous to say that anyone buying stocks of a Delaware corporation consents to the above either

Question 53

for diversity jurisdiction to exist,

Answer 53

NONE of the defendants can be of the same state as the plaintiff

Question 54

federal courts usually have the same jurisdictional boundaries as

Answer 54

state courts. however, there are some isolated federal statutes or Rules that expand that power

Question 55

J McIntryre v Nicastro

Answer 55

``` Identification of Case: Plaintiff – Robert Nicastro Defendant – J. McIntyre Ltd. Court - SCOTUS Date - 2011 ``` Procedural History: Nicastro sued J. It made it up to the New Jersey Supreme Court, who judged that they had jurisdiction over the case based on some of the facts below. Defendant appealed. Facts of the Case: • Robert Nicastro injured his hand while using a scrap-metal machine manufactured by defendant corporation • The defendant corporation is incorporated in Britain and has never directly sold machines in New Jersey • Defendants contract with an independent distributor in America which distributes nationwide • Agents of defendant attended conferences in America on scrap metal to advertise along with distributor, but conferences were never held in New Jersey • Four or less of the scrap metal machines of the type which gave rise to the suit ended up in New Jersey • The distributor advertised the machines under defendant’s guidance Issues: Did the defendant sufficiently target New Jersey for the sale of goods such that it is volunteering to submit to the power of the state through “purposefully availing itself of the privilege of conducting activities within the form State, thus invoking the benefits and protections of its laws” Holding and Disposition: Sufficient contacts not established. Reversed Rule: “The ‘substantial connection’ between the defendant and the forum State necessary for a finding of minimum contacts must come about by an action of the defendant purposefully directed toward the forum state” Rationale: • Asahi holds that the “chain of commerce” may submit a manufacturer to the power of a sufficiently targeted state • Unlike the opinion of Justice Brennan in Asahi, it is not the defendant’s reasonable expectations of a lawsuit brought about by putting goods into the stream of commerce of the forum state, it is the defendant’s actions which must establish minimum connections. This is the law • Even bringing up foreseeability as viable may incur substantial costs on litigants in simply arguing over the forum • J. McIntyre targeted the markets of the United States, not New Jersey specifically • The extents of defendant’s contacts with New Jersey are the individual machine which led to the suit

Question 56

World-Wide v Woodson

Answer 56

``` Identification of Case: Plaintiffs/Appellees – Robinson Family Defendants/Appellants – World-Wide Volkswagen Corp. and Seaway Court – SCOTUS Date - 1980 ``` Procedural History: The Robinson family sued the four companies listed below for products-liability. The defendants sought a writ of prohibition against the District Court judge in Oklahoma in the Supreme Court of Oklahoma. The writ was denied at that level. They appealed to the Supreme Court. Facts of the Case: • The Robinson bought an Audi from Seaway Volkswagen in New York • The Robinson family bought a home in Arizona • On their way to Arizona, in Oklahoma, they got into a car accident which resulted in their car catching fire and badly burning the mother and two children • They sued Audi NSU Auto Union, Volkswagen of America, World-Wide Volkswagen (distributor), and Seaway (retailer) • World-Wide and Seaway claimed that Oklahoma lacked jurisdiction • Both Seaway and World-Wide are corporations located in New York • Neither has any relationship – in terms of agents, advertising, or shipments – with Oklahoma • Their relationships with the other two defendants are simply contractual Issues: Whether the defendant corporations, being largely unconnected to the state of Oklahoma, can have in personam jurisdiction exercised over them by Oklahoma’s courts. Holding and Disposition: Insufficient contacts. Reversed. Rule: The “minimum contacts” rule in International Shoe Rationale: • While economic interdependence between states has led to the relaxing of 14th Amendment restrictions, it is not irrelevant; it is still a tool for maintaining federalism • The defendants have no ties with Oklahoma whatsoever – they don’t sell cars there, they do not advertise in a way which is “reasonably calculated” to reach Oklahoma, they do not avail themselves to the benefits of working in the State, etc • The fact that cars are mobile and thus it was “foreseeable” that the car would end up in Oklahoma is insufficient – foreseeability on its own has never been enough to exercise in personam jurisdiction (Hanson v Denckla) • If foreseeability was the metric, every seller of chattel would be appointing the chattel his agent for service of process • The due process clause gives predictability to potential defendants such that they can structure their behavior in specific states • The fact that the defendants may derive some profit from people who buy their cars and use them in foreign states is a stretch; it does not provide for sufficient contacts

Question 57

Milliken v Meyer

Answer 57

- meyer knew he was sued in Wyoming - attorney told him to ignore it based on meyer's physica presence outside the state (he's in Colorado) - default judgment against meyer - meyer brings lawsuit in Colorado - SCOTUS says Wyoming had jurisdiction based on meyer's domicile in Wyoming - SCOTUS says that substituted service is acceptable as long as it is reasonably calculated to give defendant actual notice of suit

Question 58

substituted service

Answer 58

anything that's not in-state service

Question 59

specific jurisdiction vs general jurisdiction in the context of cases like international shoe

Answer 59

specific - conduct is isolated and suit is related to conduct general - conduct is continuous and systematic and suit is unrelated to conduct

Question 60

Rule 4(k)(1)(a)

Answer 60

the personal jurisdiction of the federal court shall be the same as the court of the state in which the federal court is sitting...

Question 61

why did Hanson v Denckla get up to SCOTUS

Answer 61

because you had two different courts in different jurisdictions saying opposite things - need an arbiter

Question 62

central distinction between Hanson and McGee

Answer 62

purposeful availment!!!!

Question 63

when looking at general jurisdiction with corporations, the SCOTUS usually looks at

Answer 63

whether the defendant corporation is "at home" in the jurisdiction

Question 64

implication of Harris v Balk

Answer 64

everywhere your debt goes with the person who owes you, that is your transient property which can be used to establish jurisdiction and validate substituted service

Question 65

In Shaffer, by what standard are the stocks "located" in Delaware

Answer 65

Delaware has a statute which dictates that that is the case - Delaware is the "situs" of all business there

Question 66

Calder Effects Test

Answer 66

A defendant's tortious acts can serve as a source of personal jurisdiction only where the plaintiff makes a prima facie showing that the defendant's acts (1) were intentional, (2) were uniquely or expressly aimed at the forum state, and (3) caused harm, the brunt of which was suffered - and which the defendant knew was likely to be suffered - in the forum state

Question 67

general jurisdiction

Answer 67

jurisdiction in which defendant can be sued for all claims, even those unrelated to the place itself

Question 68

shareholder's derivative action

Answer 68

suit by shareholders against corporation for mismanagement

Question 69

2 purposes of attachment

Answer 69

1. ) to establish jurisdiction | 2. ) to repay aggrieved party

Question 70

the constitutional test for jurisdiction

Answer 70

International Shoe test

Question 71

writ of prohibition

Answer 71

a procedural mechanism where one party, almost always the defendant, is saying that the presiding judge cannot hear the case. asked of the appellate court. fought by opposing party in court

Question 72

reasonableness/fairness test for jurisdiction

Answer 72

1. ) Burden on D 2. ) Forum state interest 3. ) Plaintiff's interest 4. ) Interstate judicial system 5. ) shared interest of states in furthering social policies

Question 73

minimum contacts purposes

Answer 73

1. ) to protect defendants against too burdensome litigation in inconvenient forum 2. ) to ensure states do not over-reach and breach other state sovereignty

Question 74

interstate judicial system

Answer 74

the logical rules dictating what cases go where, etc

Question 75

analysis of personal jurisdiction is the same in

Answer 75

state and federal court

Question 76

Asahi was the first time

Answer 76

the Supreme Court dealt with a case of stream of commerce

Question 77

Marks rule

Answer 77

when a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, "the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds."

Question 78

General Jurisdiction for individuals

Answer 78

- explicit consent - presence through in-state service (Burnham) - citizenship/domicile

Question 79

General Jurisdiction for Corporations

Answer 79

- place of incorporation | - principle place of business

Question 80

when specific jurisdiction is relevant, the purposeful availment test will differ depending on:

Answer 80

- stream of commerce | - intentional torts

Question 81

sliding scale test

Answer 81

internet activity falls on a continuum with regards to establishing jurisdiction - on one end, there is extremely general activity which is not interactive or commercial and cannot establish jurisdiction. on the other end, there is commercial activity which is interactive and can establish jurisdiction

Question 82

use of jurisdictional challenges as strategy

Answer 82

see page 157

Question 83

federal courts have subject matter jurisdiction over

Answer 83

admiralty matters

Question 84

Rule 4 makes notice by an officer of the court

Answer 84

exceptional rather than ordinary - the Rule allows service by any person who is not a party and is at least 18

Question 85

waiver of service

Answer 85

uses first-class mail to send a copy of the complaint to the defendant, together with a request that the defendant return a form by mail, waiving formal service of a summons. if the defendant returns that form, the case proceeds as if personal service has been performed. if the defendant does not return the form in the time specified in the Rule, the plaintiff must then proceed to have a summons served more formally

Question 86

Rule 4(k)(1) says that

Answer 86

service (or waiver) establishes jurisdiction over defendants SUBJECT TO PERSONAL JURISDICTION

Question 87

the personal jurisdiction of federal courts

Answer 87

matches the personal jurisdiction of state courts

Question 88

long-arm statutes

Answer 88

laws which allow for an expansion of a court's personal jurisdiction

Question 89

California Code of civil Procedure S 410.10

Answer 89

A Court of this state may exercise jurisdiction on any basis not inconsistent with the Constitution of this state or the United States

Question 90

corporations generally cannot be

Answer 90

tagged

Question 91

jurisdictional challenges must be raised

Answer 91

very early on

Question 92

choice-of-law clause

Answer 92

a provision in a contract where the parties agree to a specific forum should some legal dispute arise

Question 93

contract of adhesion

Answer 93

sign the agreement or you get nothing

Question 94

long-arm statutes must be

Answer 94

constitutional

Question 95

venue

Answer 95

flows from statutory, not constitutional sources. determines within which federal judicial district suit can be brought in

Question 96

28 U.S.C. S 1391

Answer 96

the general federal venue statute. places suits in judicial districts connected either to the parties or to the events giving rise to the action

Question 97

with regard to venue, entities are

Answer 97

treated differently than natural persons

Question 98

for venue purposes, non-citizens admitted to the US as permanent residents

Answer 98

are treated the same way as citizens

Question 99

the reason attachment is considered notice

Answer 99

people are expected to keep tabs on their property, even in another state

Question 100

notice and power began to diverge in the case

Answer 100

Wuchter v. Pizzuti: a statute held that if a nonresident motorist uses the roads, they consent to jurisdiction and to the appt of the Secretary of State to as the defendant's agent to receive service of process. however, the SOS did not have to give notice to the defendant. Therefore, in this case, the statute was held unconstitutional

Question 101

Mullane: court's holding on notice by publication

Answer 101

"When notice is a person's due, process which is a mere gesture is due process" (p. 167)

Question 102

Rule 4 makes service

Answer 102

by an officer of the court (a U.S. marshal) exceptional rather than ordinary

Question 103

if defendant waives service of process,

Answer 103

they have a lot longer to respond to the complaint

Question 104

Section 1391(b)

Answer 104

(b) Venue in General - A Civil Action may be brought in - 1. ) a judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located; or 2. ) a judicial district in which 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. ) if there is no district in which an action may otherwise be brought as provided in this section, any judicial district in which any defendant is subject to the court's personal jurisdiction with respect to such action

Question 105

Section 1391(c) - Residency

Answer 105

(c) for all venue purposes - 1. ) a natural person, including an alien lawfully admitted for permanent residence in the United States, shall be deemed to reside in the judicial district in which that person is domiciled; 2. ) an entity with the capacity to sue and be sued in its common name under applicable law, whether or not incorporated, shall be deemed to reside, if a defendant, in any judicial district in which such defendant is subject to the court's personal jurisdiction with respect to the civil action in question...; and 3. ) a defendant not resident in the United States may be sued in any judicial district, and the joinder of such a defendant shall be disregarded in determining where the action may be brought with respect to other defendants

Question 106

the types of cases that federal courts can hear are listed in

Answer 106

Article III, S 2 of the Federal Constitution

Question 107

Rule 8(a)(1) requires every federal complaint

Answer 107

to begin with a "short and plain statement of the grounds for the court's jurisdiction."

Question 108

concurrent jurisdiction

Answer 108

jurisdiction shared by state and federal courts

Question 109

Article III, S 1 gives federal judges

Answer 109

lifetime tenure

Question 110

if a case is dismissed for want of federal subject matter jurisdiction,

Answer 110

a plaintiff is free to refile in state court

Question 111

If a case is dismissed in a federal district court for want of personal jurisdiction,

Answer 111

plaintiff cannot refile in state court of the same state, since the federal finding on personal jurisdiction will be binding

Question 112

the issue of whether subject matter jurisdiction should be used as the basis for dismissal

Answer 112

can be brought at any time; it is fundamental and the court MUST dismiss if it finds it lacks subject matter jurisdiction

Question 113

parties who appear, challenge subject matter jurisdiction, and lose

Answer 113

are bound by that determination; they cannot thereafter challenge it

Question 114

parties who have appeared but failed to challenge the subject matter jurisdiction of a district court

Answer 114

may generally not thereafter attack its judgment in another court for lack of diversity or federal question jurisdiction (absent some statute authorizing it)

Question 115

if any two parties on opposite sides of the case are from the same state,

Answer 115

there is no diversity jurisdiction

Question 116

"neutral forum" vs. "national case" justification for diversity jurisdiction

Answer 116

neutral forum: concern over forum state discriminating against out-of-state litigants national case: cases with national implications and scope, even if dictated by state law, should be tried in federal courts

Question 117

forum non conveniens

Answer 117

- common law concept - results in dismissal. must be tried in foreign country - balance of interests - applies if foreign country is more appropriate jurisdiction - in the state court system, then the other forum would be another state if more appropriate forum

Question 118

transfer

Answer 118

"for the convenience of the parties and witnesses, and the interest of justice" - statutory Section 1404(a) - results in transfer to a more appropriate forum (another federal judicial district) (not as drastic as FNC - case is not dismissed) - promotes efficiency (all federal district courts are units in the same system) - plaintiff need not file a new claim, serve D, etc - Governs most cases - BUT if the more appropriate forum is another country, then transfer statute does not apply and FNC is more appropriate

Question 119

amount-in-controversy rule for compulsory vs. permissive counterclaims

Answer 119

for compulsory counterclaims, if the plaintiff's claim meets the requirement, the defendant leveling the counterclaim has jurisdiction as well. with permissive counterclaims, they need an independent jurisdictional basis

Question 120

a federal court has supplemental jurisdiction over claims which

Answer 120

are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution

Question 121

four reasons a federal court may choose not to exercise supplemental jurisdiction

Answer 121

1. ) the claim raises a novel or complex issue of State law 2. ) the claim substantially predominates over the claim of claims over which the district court has original jurisdiction 3. ) the district court has dismissed all claims over wich it has original jurisdiction 4. ) in exceptional circumstances, there are other compelling reasons for declining jurisdiction

Question 122

removal

Answer 122

when a defendant moves a state-court claim by defendant to federal court

Question 123

removal on the basis of diversity of citizenship must be

Answer 123

performed within one year of the date the case was filed

Question 124

practicing without a license does not generally constitute

Answer 124

negligence per se

Question 125

sua sponte

Answer 125

Supreme Court raises question of federal subject matter jurisdiction on its own without the parties themselves doing it

Question 126

well-pleaded complaint rule

Answer 126

the federal claim must appear as part of a well-pleaded complaint. to meet the requirement of a case "arising under" federal law, the federal question must appear on the face of the plaintiff's compalint

Question 127

citizenship is determined for the purpose of diversity jurisdiction on

Answer 127

the date that the initial complaint is filed. this is to avoid people moving to establish domicile for diversity

Question 128

interpleader action

Answer 128

when a person is in possession of an item and two other parties are claiming the item as theirs. in this action, the party holding the item can bring both other parties in an action regardless of their citizenship

Question 129

partnerships are treated like a

Answer 129

collection of inidividuals

Question 130

how the courts decide whether the amount in controversy is sufficient to establish federal jurisdiction when the plaintiff is not seeking money damages

Answer 130

1. Value of Injunction a. value to plaintiff b. cost to defendant c. cost or value to party invoking smj 2. Aggregation a. single plaintiff can aggregate claim against single defendant even if unrelated b. two plaintiffs cannot aggregate if claims are separate and distinct c. two related claims can be aggregated

Question 131

Supplemental Jurisdiction - S1367 (outline of the three parts, this is not the exact or entire wording)

Answer 131

a. ) "...so related to claims in the action within such original jurisdiction that they form part of the same case or controversy..." b. ) diversity only (no jurisdiction over claims by plaintiffs or enjoined plaintiffs against enjoined defendants where exercising such jurisdiction would violate the requirements of diversity jurisdiction) c. ) exceptions -

Question 132

joinder

Answer 132

additional party joins pool of plaintiffs or defendants because of their relevance to the suit

Question 133

to establish supplemental jurisdiction, the facts underlying the state and federal claims must be (in re Ameriquest):

Answer 133

1. ) common - must compare the facts necessary to prove each element of claim 2. ) operative - ask whether the state claims can be resolved or dismissed without affecting the federal claims

Question 134

in diversity only cases, a case cannot be removed

Answer 134

over a year after the action is commenced (complaint is filed)

Question 135

res ipsa loquitur in the Restatement, Third, of Torts

Answer 135

S 17. Res Ipsa Loquitur The factfinder may infer that the defendant has been negligent when the accident causing the plaintiff's physical harm is a type of accident that ordinarily happens as a result of the negligence of a class of actors of which the defendant is the relevant member.

Question 136

Erie questions come up in

Answer 136

diversity and supplemental jurisdiction cases

Question 137

denial (previously traverse)

Answer 137

defense that "i didn't do it" in defendant's response pleading

Question 138

demurrer

Answer 138

also called 12(b)(6) motion. means that the plaintiff has not alleged any sort of conduct that the court has a remedy for does two things: 1. ) admits the allegations in the complaint 2. ) says that even if all those facts are true, the law offers no remedy

Question 139

Federal Rule of Civil Procedure 8(a)

Answer 139

Claim for Relief. A pleading that states a claim for relief must contain 1. ) a short and plain statement of the grounds for the courts jurisdiction unless the court already has jurisdiction and the claim needs no new jurisdictional support; 2. ) a short and plain statement of the claim showing that the pleader is entitled to relief; and 3. ) a demand for judgment for the relief sought, which may include relief in the alternative types of relief.

Question 140

Title 28 Section 2072 (Rules Enabling Act)

Answer 140

"The Supreme Court ... ...such rules shall not abridge, enlarge, or modify any substantive right..." (finish this text)

Question 141

policies underlying Erie

Answer 141

1. ) Fairness (outcome should be same in state and federal courts) 2. ) avoidance of forum shopping

Question 142

The function of Hanna was to

Answer 142

divide the legal world into two types of cases - Rules Enabling Act Cases and Erie Doctrine Cases Rules Enabling: federal rule or statute Erie: federal practice (something like a federal "custom" that is not contained in rule or statute)

Question 143

questions when examining under Hanna part one:

Answer 143

1. ) does the rule promulgated under the authority of the rules enabling act in fact fit its description: "rules of practice or procedure?" 2. ) is the procedure constitutional? if FRCP is unconstitutional, apply state rule if FRCP is constitutional, apply the FRCP

Question 144

Hanna part two

Answer 144

if you're here, it means that Hanna part one is not satisfied. all remaining rules that are not contained in a statute or mandated by the REA (i.e. FRCP). for example, judge-made rules, or federal practice Modified Outcome Determinative Test: does applying the federal rule violate the twin aims of Erie? if there is no encouragement of forum shopping, or if the administration of the laws will not be inequitable, apply federal rule. if both, apply state rule

Question 145

Byrd analysis

Answer 145

some courts apply this test at the end of the Hanna part two test. the question is whether applying the federal rule would substantially interfere with or negate an important state policy

Question 146

problem of pleading: incompatible goals

Answer 146

1. ) learn as much as we can at the start of the case so we can screen out weak cases cheaply 2. ) eliminate technical barriers to cases that will be meritorious if they can get to discovery pleading better suited to goal #2

Question 147

pleading consists of

Answer 147

the complaint and answer

Question 148

rules in defendant's response

Answer 148

Rule 8(b): denial Rule 8(c): Affirmative defense "yes, but..." Rule 12(b): A motion that alleges some defect in the plaintiff's complaint. this is the most common reponse. 12(b)(6) is a demurrer. this is probably the most important and common within 12(b)

Question 149

when deciding a motion to dismiss under Rule 8,

Answer 149

assume the facts are true

Question 150

Rule 9

Answer 150

a party must state with particularity...

Question 151

Rule 15(a)

Answer 151

"leave to amend shall be freely given when justice so requires"

Question 152

Rule 8(d)(2)-(3) on inconsistent claims

Answer 152

"A party may set out two or more statements of a claim or defense alternately or hypothetically ... and a party may state as many separate claims or defenses as it has, regardless of consistency."

Question 153

motion for a more definite statement

Answer 153

Rule 12(e). asks for a more definite and certain statements of complainant's contentions. not frequently used, much less successfully

Question 154

motion to strike

Answer 154

Rule 12(f). two roles. two uses: 1. ) seeks to challenge a part of the pleading that fails under substantive law without contesting the whole thing 2. ) forces removal of irrelevant and prejudicial allegations in a pleading. not common

Question 155

motion for judgment on the pleadings

Answer 155

Rule 12(c). comes after answer to complaint. seeks quick judgment by court on pleadings (say defendant completely fails to assert a legally relevant defense, plaintiff will likely seek judgment in this way)

Question 156

Rule 8(b) and 8(b)(6) require, in relation to denial,

Answer 156

the defendant to deny only those allegations she actually disputes, and that any allegation that is not denied is admitted

Question 157

Codes of Professional Responsibility (ABA Rule 3 of Model Rules_

Answer 157

"A lawyer shall not bring or defend a proceeding ...."

Question 158

Rule 15

Answer 158

rule covering amendments two values at stake: easy amendment vs prejudice to other party can freely amend within 21 days the court should freely give leave to amend ***WHEN JUSTICE REQUIRES***

Question 159

Rule 15(c)(1)

Answer 159

when an amendment relates back. an amendment to a pleading relates back to the date of the original pleading when: a. ) ... b. ) the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurence set out...in the original pleading (Q: what constitutes a claim?)

Question 160

general characteristics of discovery

Answer 160

1. ) initiated by parties 2. ) judge intervenes only in case of dispute w/ broad discretion 3. ) generally confined to info that is a.) relevant to a claim or defense and b.) not privileged and c.) proportional to case

Question 161

stages of discovery

Answer 161

1.) mandatory disclosure - matters that parties may use to support their own claim or defense (Rule 26(a)) 2. ) each party requests further information from other as to other matters relevant to claims and defenses - more detail about disclosures that have already occurred - information about aspects that one party doesn't want to use-but the other does

Question 162

litigation hold

Answer 162

when attorneys tell litigants or members of a company or whatever to suspend their normal information recycling process such that necessary information is available for litigation

Question 163

for discovery purposes, counsel must get in contact

Answer 163

with key players

Question 164

preservation obligations (3)

Answer 164

1. ) litigation hold 2. ) key players 3. ) instruct all employees

Question 165

Rule 26(b)(1)

Answer 165

relevance: without court approval can seek discovery "regarding any nonprivileged matter that is relevant to any party's claim or defense" court can grant even broader discovery "of any matter relevant to the subject matter involved in the action" if the party shows "good cause" used to read: "relevant information need not be admissible at trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." now reads: "information within this scope of discovery need not be admissible..."

Question 166

relevance is linked to the admissibility

Answer 166

of evidence which is linked to the substantive law, and to common-sense

Question 167

Rule 26(b)(2)(c)

Answer 167

proportionality and privacy: according to this rule, a court can limit discovery if 1. ) it is unreasonably cumulative or duplicative or can be obtained from some other source that is more convenient 2. ) the party seeking discovery has had ample opportunity to obtain the information by discovery; or 3. ) it is outside the scope permitted by R. 26(b)(1) which limits discovery that is not proportional to the needs of the case, considering the importance of the issues at stake in the action the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit

Question 168

26(c) protective orders

Answer 168

upon motion... the court in which the action is pending or alternatively, on matters relating to a deposition, the court... may make any order which justice requires to protect a party or person fro annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following: 1. ) theat the disclosure or discovery not be had; 2. ) that the disclosure or discovery may be had only on speified terms and conditions, including a designation of the time or place

Question 169

summary judgment - rule 56

Answer 169

"A party may move for summary judgment, identifying each claim or defense - or part of each claim or defense - on which summary judgment is sought. The court shall grant summary judgment if the movant [person making motion] shows that there is no gneuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." i.e. no reasonable jury could find for the nonmoving party

Question 170

56(a) (summary judgment)

Answer 170

Rule 56(a), provides that “the court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”

Question 171

summary judgment is appropriate when...

Answer 171

1.) there is no factual dispute - the p has provided no facts to support a (legitimate) legal theory - but there are no facts to support the breach - i.e. the caterers DID show up to the party. if there is no conflicting evidence, then this case should be dismissed 2.) There is no legal theory that supports the claim

Question 172

Supreme Court: summary judgment will not lie if

Answer 172

the dispute about a material fact is "genuine," that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party the evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in its favor

Question 173

Rule 50(a), 50(b), 59 (General)

Answer 173

asks judge to direct a verdict before trial based on insufficiency of evidence for nonmoving party asks judge to direct a verdict after trial based on same and other factors requests a new trial

Question 174

jury instructions are requested by

Answer 174

``` the parties (model jury instructions) these instructions explain the substantive law instructions have two audiences - the jury and the appellate court ```

Question 175

voir dire

Answer 175

jury selection. a screening mechanism to ensure juries are uncontaminated by inadmissible information. in extreme cases, the judge can sequester the jury

Question 176

Rule 50(a)

Answer 176

(a) Judgment as a matter of law (1) In General. If a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue, the court may: (A) resolve the issue against the party; and (B) grant a motion for judgment as a matter of law against the party on a claim or defense that, under the controlling law, can be maintained or defeated only with a favorable finding on that issue. (2) Motion. A motion for judgment as a matter of law may be made at any time before the case is submitted to the jury. The motion must specify the judgment sought and the law and facts that entitle the movant to the judgment. 50(a)(1) and (2) - mtion can be made at any time before case is submitted to the jury. Before, at, or after close of evidence - before the case is submitted to the jury. The motion can be made by D after the P has made its case (at end of P's case) even before the defense has presented its case.

Question 177

Rule 50(b)

Answer 177

(b) Renewing the Motion After Trial If the court does not grant a motion for judgment as a matter of law made under 50(a), the court is considered to have submitted the action to the jury subject to the court's later deciding the legal questions raised by the motion. No later than 28 days after the entry of judgment... the movant may file a renewed motion for judgment as a matter of law and may include an alternative or joint request for a new trial under Rule 59. In ruling on the renewed motion, the court may: (1) allow judgment on the verdict, if the jury returned a verdict; (2) order a new trial; or (3) direct the entry of judgment as a matter of law

Question 178

rule 13(a)

Answer 178

transaction = logical relationship = all logically related events entitling a person to institute a legal action against another generally are regarded as comprising a transaction or occurrence