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Flashcards in Fed. Jurisdiction Deck (141):
0

Personal jurisdiction is:

Power over the PARTIES.

1

Subject matter jurisdiction is:

Power over the CASE.

2

What are the two main types of suits that can be heard in federal court?

1. Diversity of citizenship cases (complete diversity + more than $75k in controversy; or
2. Federal questions

3

Complete diversity rule:

No diversity if ANY P is a citizen of the same state of ANY D.

4

Determining citizenship of a natural person: (2 factors)

1. Presence in state, AND
2. Intent to make it her permanent home.

May only be domiciled in one state at a time.

6

When is test for diversity applied?

When case is FILED.

7

Determining citizenship of corporation: (2 factors)

1. Citizen of state where it was incorporated; AND
2. Where the principal place of business is located.

(Corps can be citizens of two states at the same time.)

8

HYPO: XYZ Corp (inc. in MA w/ PPB in CA) sues D (CA). Is there diversity?

NO. Because both P and D are CA citizens.

9

Determining a corporation's principle place of business (PPB):

Where managers:
1. Direct,
2. Coordinate, and
3. Control corporate activities

(Usually the HQ)

10

Determining citizenship of unincorporated associations: (Partnerships, LLCs, etc.)

Use citizenship of ALL the members.

11

Determining citizenship for decedents, minors, and incompetents:

Use THEIR citizenship, not that of their agents.

12

Amount in controversy rule?

Must EXCEED $75k - not counting interest ON the claim or the costs of litigation.

13

Aggregation:

Adding two or more claims to meet the amount in controversy requirement.

14

HYPO: P sues D for $40k breach of K and $50k for another unrelated claim. The amount is $90k. Why is this permissive?

It's the aggregate of the claims b/t one P and one D.

There is no limit to the number of claims that can be aggregated by one P against one D. The claims do not have to be related.

15

HYPO: P sues JOINT tortfeasors X, Y, and Z for $76k. Okay?

Yes. For JOINT CLAIMS uses TOTAL value of the claims - any one of the three could be liable for the whole amount.

16

Federal Questions case:

COMPLAINT must show a RIGHT or an INTEREST founded substantially on FEDERAL LAW. (Claim 'arises under' federal law.)

17

Equitable relief hypo: P sues D to tear down part of his house that blocks P's view. What two tests?

Either:
1. P view: Does the blocked view decrease the value of P's property by more than $75k?
2. D view: Would it cost D more thank $75k to comply with injunction?

18

Federal ct exclusions (not often tested)

Divorce, alimony, child custody, probate

19

What is a federal question case?

COMPLAINT must show a RIGHT OR INTEREST founded substantially on a federal law.

The claim "arises under" federal law.

20

What must be tested on EVERY SINGLE CLAIM?

Whether it meets either diversity or FQ.

21

Supplemental jurisdiction. What is it for?

Can be used to get additional CLAIMS into federal court that do not meet diversity or FQ.

22

Supplemental jurisdiction test: Claim must share:

COMMON NUCLEUS OF OPERATIVE FACT with claim that invoked federal subject matter jurisdiction.

Test is ALWAYS met by claims that arise from the same transaction or occurrence as the underlying claim.

23

Limitation of supplemental jurisdiction?

P cannot use supplemental jurisdiction to overcome a lack of diversity, but CAN be used to overcome the lack of amount in controversy.

Limitation also never applies in cases taken under the FQ rule.

24

Non-FQ, Non-diversity claims CAN BE heard on federal ct if it meets supplemental jurisdiction test, UNLESS the claim is: (3 factors)

1. Asserted by P,
2. against a citizen of the same state as the P.
3. In a diversity of citizenship case (not FQ), and

25

Who can remove case from state to federal court, and when?

DEFENDANT can remove within 30 days of SERVICE.
Also decision to remove must be unanimous among all defendants.

26

What cases can be removed?

Generally: cases that meet diversity or FQ

27

Exceptions for removing cases to federal ct on the basis of diversity: (why they cannot be removed)

1. No removal if D is a citizen of the forum (in state D rule), AND
2. No removal more than one year after the case was filed in state ct.

28

In state defendant hypo: P-GA sues D1-AL and D2-NY in Alabama ct, can D1 and D2 remove?

No, there is diversity by D1 is an in state D and therefore the case cannot be removed.

29

Erie Doctrine

In diversity cases federal cts must apply state substantive law.

30

Three steps to determining if it's substantive law.

1. Is there a fed law that conflicts with state law? Then, fed law (supremacy clause)
2. Is it an easy issue? Then it's substantive.
3. First two don't apply, then:
A. Outcome determinitive?
B. Balance of interests
C. Avoid forum shopping.

31

4 Examples of substantive law issues:

1. Elements in claims/defenses.
2. Statute of limitations
3. Rules for tolling statutes of limitations
4. Conflict or choice of law rules.

32

Tests to determine whether to use fed or state law: Outcome determinative:

Would applying or ignoring state rule affect outcome of the case?

33

Tests to determine whether to use fed or state law: Balance of interests:

Does either federal or state system have a strong interest in having its rule applied?

34

Tests to determine whether to use fed or state law: forum shopping deterrence:

If the fed ct ignores state law on this issue, will it cause parties to flock to fed ct? If so, probably apply state law.

35

2 basic choices when choosing venue:
P may lay venue in ANY DISTRICT WHERE:

1. All Ds reside, or
2. A substantial part of the claim arose.

36

Human residence for venue purposes:

Where the person is domiciled.

37

Corporate residence for venue purposes:

All districts where it is subject to personal jurisdiction.

38

What two documents are necessary for service of process?

1. Summons, and
2. Copy of the complaint

39

Who can serve process?

Any non-party who is at least 18 Y/o

40

2 rules for substituted service.

Must be done at Ds usual abode, and
Service must be to someone of suitable AGE and discretion WHO RESIDES THERE

41

4 methods of service: A WASP

Abode (substituted service)
Waiver
Agent Service
State Methods
Personal Service

42

Waiver of Service

Copy of waiver mailed to D w/ copy of complaint, 2 copies of waiver form, and self addressed stamped envelope. If D executes and returns to P w/i 30 days service is waived.

43

If D fails to return waiver form:

P has D served in a formal manner and if D does not have good cause then D will pay the cost of service.

44

Rule 11 applies to:

All documents (except discovery)

45

Rule 11 states that when an attorney signs the documents he is certifying that to the best of her knowledge and belief, AFTER REASONABLE INQUIRY: (3 things)

1. The paper is not for an improper PURPOSE.
2. The legal contentions are warranted by LAW (or non-frivolous argument for law change), AND
3.The FACTUAL CONTENTIONS *and* denials have evidentiary support

46

Are Rule 11 Sanctions to punish or deter?

DETER.

47

If the opposing party violates Rule 11, can you immediately move for sanctions?

No.

48

How do you get Rule 11 sanctions on opposing party?

1. Serve the motion on other parties, but do not file.
2. Violating party has "safe harbor" for 21 days to fix the problem.
3. If violating party fails to do so then the motion can be filed with the court.

49

How long is the "safe harbor" for Rule 11 sanctions?

21 days

50

What do you file to commence a civil action?

A complaint

51

What three things must be included in the complaint?

1. Statement for grounds of SUBJECT MATTER JURISDICTION.
2. Short and plain statement of the CLAIM, showing entitled to relief; AND
3. Demand for the RELIEF sought.

52

What is the standard for pleading?

You must plead facts supporting a PLAUSIBLE claim. [Bell Atlantic v. TWOMBLY]

53

What three matters must be pleaded with even more detail? (with PARTICULARITY or SPECIFICITY)

1. ***FRAUD
2. Mistake
3. Special damages

54

Special damages are:

those that do not normally flow from an event.

55

Under Rule 12, what are the two ways a D may respond to a complaint?

1. By motion, or
2. By answer

56

To avoid default how long does a D have to respond? What about if formal service was waived?

Within 21 days of service of process.
If waived, then from 60 days from when P mailed waiver.

57

Motions (Rule 12) - Issues of form (2)

(1) Motion for more definite statement
(2) Motion to strike - aimed at immaterial things.

58

Rule 12(b) Defenses - 7 available (LLIIIFF)

1. Lack of subject matter jurisdiction
2. Lack of personal jurisdiction
3. Improper venue
4. Insufficiency of process (problem with the papers)
5. Insufficient service of process
6. Failure to state a claim
7. Failure to join an indispensable party

59

Which 12(b) defenses are waivable? (4) LIII

2. Lack of personal jurisdiction
3. Improper venue
4. Insufficiency of process
5. Insufficient service of process

60

How do you waive a 12(b) defense?

Fail to put it in the first Rule 12 response that you submit.

61

What 2 12(b) defenses can be asserted all the way through trial?

6. Failure to state a claim
7. Failure to join an indispensable party.

62

What 12(b) defense can never be waived?

1. Lack of subject matter jurisdiction.

63

How long before the answer must be served?

Within 21 days of receiving process (60 if process was waived)

64

What are three ways to respond to allegations of complaint in an answer?

1. Admit
2. Deny
3. State that you lack sufficient evidence to admit or deny (but cannot be used if information is public knowledge or in D's control.)

65

What are the consequences of failure to deny?

It will be considered an admission in any matter except for damages.

66

The Answer includes: 4 possible things

1. Response to allegations (3 ways)
2. Raise affirmative defenses
3. Counterclaim
4. Crossclaim

67

Classic affirmative defenses:

Statute of limitations, statute of frauds, res judicata

68

Failure to raise affirmative defenses in the answer:

waives the use of those defenses at trial.

69

Counterclaim

Claim against an OPPOSING PARTY. It should be a part of D's answer.

70

Two types of counterclaim:

1. Compulsory
2. Permissive

71

Failure to file a compulsory counterclaim results in:

waiver of the claim.

72

Compulsory Counterclaim:

Arises from the same transaction or occurrence as P's claim. Must be filed in the pending case, or the claim is waived.

73

Permissive counterclaim:

DOES NOT arise from the same transaction or occurrence as P's claim. May be filed in answer with current case or filed separately.

74

Counterclaim Hypo: L and M each driving her own car, collide and each is injured. L sues M. M answers and defends the suit. Then M files a new case against L concerning the same wreck. The case is dismissed. Why?

Because M's claim was a compulsory counterclaim and because she failed to file it in the first case she has waived it and it her claim is gone.

75

If the counterclaim is procedurally okay in federal court, then what?

Must assess the ct. SMJ over the claim
(Whether claim invokes diversity or FQ jurisdiction, if not then try for supplemental jurisdiction.)

76

Crossclaim

A claim against a CO-PARTY. It MUST arise out of the same transaction or occurrence as the underlying action. (Never compulsory)

77

P has right to amend pleadings how many times? What is the time period?

Once, within 21 days of D's service of first R.12 response.

78

D has right to amend pleadings how many times? What is the time period?

Once, within 21 days of serving his answer.

79

Where there is no right to amend:

seek leave of court.

80

What three factors does the court look at when ruling on the right to amend?

1. Delay
2. Prejudice
3. Futility of the amendment.

81

"Relation Back" rule: Amended pleadings 'relate back' if they concern the:

SAME CONDUCT, TRANSACTION, or OCCURRENCE as the original pleading - this avoids a statute of limitation problem.

Basically, you treat the amended pleading as though it was filed when the original was filed to avoid SoL problems.

82

Three types of required disclosures in discovery:

1. Initial
2. Experts
3. Pretrial

83

Initial disclosures must be made within:

14 days of Rule 26(f) conference. (Unless court or party's stipulation varies.)

84

Initial disclosures include identification of:

persons, documents, or electronically stored information LIKELY TO HAVE DISCOVERABLE INFORMATION THAT THE DISCLOSING PARTY MAY USE TO SUPPORT ITS CLAIM OR DEFENSES.

P must also give a computation of damages and D must disclose insurance for any judgment.

85

5 discovery tools:
RIDER

Requests to produce
Interrogatories (only to named parties in suit.)
Depositions
Examination, physical or mental (only w. ct order)
Request for Admission (only to named parties)

86

Depositions:

Sworn oral or written answers to questions by counsel. Non-parties must be subpoenaed.

87

Interrogatories:

Questions in writing to ANOTHER PARTY, answered under oath. Party must answer or object w/i 30 days.

88

Requests to produce:

Requests to another party (or non-party w/ subpoena) requesting that she make available for review or copy various items, documents, etc.

89

Duty to supplement:

If answers change or new discoveries are made after requests then you must supplement the response that you have already provided to opposing counsel.

90

What is discoverable?

Anything RELEVANT to a claim or response.

Relevant is anything that is "reasonably calculated to lead to the discovery of admissible evidence"

91

Discoverable is _________ than admissible.

Broader

92

What communications are protected from discovery?

Those protected by privilege.

93

Work product

Material prepared in anticipation of litigation.

94

What are four types of work product that are absolutely protected?

1. Mental impressions.
2. Opinions
3. Conclusions
4. Legal theories

95

Work product witness statements MAY be discoverable when the court concludes (2 things):

1. Substantial need
2. Not otherwise available.

96

Does work product need to be generated by a lawyer to be protected?

No. A party or any representative of the party may create protected work product. (But must be prepared in anticipation of litigation and not in the normal course of business.)

97

How do you claim privilege or work product?

It must be done EXPRESSLY and PARTICULARLY by describing the material in a privilege log.

98

Protective order:

Responding party seeks protective order limiting disclosure to litigation b/c the request is overburdensome, has trade secrets, ESI not reasonably accessible, etc.

99

What must a party seeking sanctions for discovery violations do?

"The party seeking sanctions must certify to the court that she tried in good faith to get the info without court involvement."

100

To seek sanctions on a partial response what two steps are followed?

1. Move for an order to compel,
2. If party violates the order compelling him to answer then RAMBO sanctions plus costs.

101

Sanctions available when there is no response from the other party?

Straight to CRAZY PANTS sanctions.

102

5 CRAZY PANTS sanctions are:

1. Order matters to be treated as admitted
2.Strike pleadings of disobedient party
3. Disallow evidence from disobedient party
4. Dismiss P's case (if bad faith is shown)
5. Enter default judgment against the D (if bad faith is shown)

103

What is the test for joining co-parties: 2

1. Claims must arise from the same transaction or occurence, AND
2. Raise at least one common question.
(Then SMJ must be assessed)

104

Who must be joined because they're 'necessary'? (Must meet one of three tests)

1. W/o absentee party (A), the court cannot accord complete relief among existing parties. (Multiple suits.)
2. A's interest may be harmed if he is not joined (practical harm); or
3. A claims an interest which subjects another party to multiple obligations.

105

If Absentee is necessary then it must be tested to see if A is feasible. 2 part feasibility test:

1. Ct has PJ over A
2. Joining will not mess up diversity.

106

2 things the court can do if necessary A cannot be joined:

1. Proceed without A
2. Dismiss the entire case..

107

Impleader:

D wants to bring in a third party defendant, usually because TPD may be liable to D for P's claim. (Indemnity and/or contribution.)

108

The right to implead lasts:

14 days after serving answer, then it is at the discretion of the court.

109

Intervention:

Absentee wants to join a pending suit.

110

Intervention of right:

A's interest may be harmed if not joined and her interest not adequately represented now.

111

Initial requirements of class action: CANT

ALL MUST BE MET:
C - Commonality: Some issue in common to all class members.
A - Adequacy of representative
N - Numerosity: Too many class members for practical joinder, AND
T - Typicality: Reps claims/defenses are typical of those of the class.

112

Types of CA suits: Prejudice

Class treatment is necessary to avoid harm to either class members or to party opposing class.
Ex. Many claimants to a finite amount of money.

113

Types of CA suits: Injunction or declaratory judgement

Damages are not being sought. Class was treated alike by other party.
Ex. Employment discrimination.

114

Types of CA suits: Damages (2 things)
**most likely to see

1. Common questions PREDOMINATE over individual questions; AND
2. Class action is superior to handling the dispute.
Ex. Mass tort

115

Class action: Court Certification

Not a CA until court certifies, in doing so it defines the class, class claims, issues, or defenses.
Judge also appoints class counsel.

116

Named representatives in a CA suit must:

fairly and adequately represent the class.

117

In 'damages' class action court must:

Notify (usually by mail) individual class members that are reasonably identifiable.

118

Class action notice tells members: (5 things)

1. Nature of the action
2. Definition of the class
3. Class claims, issues, defenses
4. They can opt out
5. Bound if they do not.

119

Can parties dismiss or settle a certified class action?

Only w/ court approval

120

Class action SMJ:

So long as the rep is diverse from all D's and as long as the rep's claim exceeds $75k

121

P can file a written notice of dismissal before trial (voluntary dismissal) and have the case dismissed w/o prejudice but the next time:

P's case will be dismissed WITH prejudice. (Case cannot be refiled.)

122

What happens when D moves for Dismissal for Failure to State a Claim? When is motion granted?
(R. 12(b)(6))

Ct ignores legal conclusions and looks at only at allegations of fact.
If the ct finds that even if the facts were true then P still could not win - then ct grants the motion.

123

If a failure to state a claim (12(b)(6)) motion is made after D files an answer what is the name?

Motion for judgment on the pleadings.

124

Summary Judgment (Rule 56).
Must show 2 things:

1. No genuine dispute of material facts, and
2. She is entitle to judgement as a matter of law.

125

Summary Judgment (Rule 56) must be made:

no later than 30 days after the close of discovery.

126

How does the court consider evidence in a summary judgment (Rule 56) motion?

"The court views the evidence in the light most favorable to the non-moving party."

127

Right to jury trial in federal court.

7th Amendment preserves the right to jury in "civil actions at law" but not equity.

128

When must the demand for a jury be made?

IN WRITING NLT 14 days after service of the last pleading raising a jury triable issue. If not, right is waived.

129

How many jurors?

At least six but no more than 12

130

Peremptory strikes must be used:

in a race and gender neutral way. B/c jury selection is a state action. (14th Amd.)

131

Motion for judgment as a matter of law (JMOL) AKA Directed Verdict. Standard:

Takes the case away from the jury.
Standard: Reasonable people could not disagree on the result.

132

When is motion for JMOL submitted?

After the other side has been heard AT TRIAL.

133

Renewed motion for judgment as a matter of law. (RJMOL)

Same as JMOL but used AFTER trial.

134

Absolute prereq. for brining RJMOL?

Must have moved for JMOL at proper time in trial.

135

Motion for a new trial. Submitted:

After trial. Within 28 days of the judgment

136

Some grounds for granting new trial:

Basically anything the judge thinks ought to start a new trial.

1. Prejudicial (not harmless) error
2. New evidence that could not have been obtained with diligence during trial.
3. Prejudicial misconduct of 3d party, attorney, or juror.
4. Judgment against the weight of the evidence
5. Excessive or inadequate damages

137

Generally the right to appeal is ONLY:

from final judgments.

138

Final judgments:

Ultimate decision by the trial court of the merits of the ENTIRE CASE.

139

Notice of appeal must be filed where and when?

In the trial court, within 30 days after the entry of the judgment.

140

When court certifies CA what does it define?

the class, and class claims, issues, or defenses.
Judge also appoints class counsel.

141

What makes a party necessary - so they must be joined? Not joining would:

1. Cause multiple suits.
2. Cause practical harm to A's interest; or
3. A claims an interest which subjects another party to multiple obligations.