Lists and Factors Flashcards
(101 cards)
1
Q
Who makes the FRCP
A
Congress as constrained by the constitution
2
Q
What case emphasizes how broadly “arising under” can be read? what is this about
A
Osborn V Bank of US; federal Q jurisdiction
3
Q
What case deals with anticipating federal question defenses being inadequate?
A
Mottley V Nsher RR
4
Q
What case says that the COA has to arise under federal law?
A
Gunn V Minton
5
Q
What is the test for stretching federal Q jurisdiction? What case?
A
Grable Metal V Darue
State law claims that necessarily raise an actually disputed federal question that is systematically substantial and wouldn’t upset the national balance of power if hear by a federal court
6
Q
What is a good case to cite to say that only the real parties in interest are considered for diversity jurisdiction?
A
Rose V Giamatti
7
Q
Who bears the burden of proof for diversity? cite case
A
The party asserting diversity has to prove it (Mas)
8
Q
What is the definition of domicile? cite case
A
the place where you have 1) established an residence and 2) intend to return (Mas)
9
Q
Where are corporations citizens?
A
1) principle place of business 2) place of incorporation
10
Q
What is the standard for disproving P’s estimate of amount in controversy? Cite case
A
“Legal certainty” (AFA tours)
11
Q
What all is included in AIC? cite case
A
Injunction and damages (AFA Tours)
12
Q
If one party meets AIC, do other parties have ? cite case
A
No (Exxon)
13
Q
Where are lawfully admitted aliens citizens?
A
state of domicile
14
Q
What are the 2 main aggregation rules?
A
1) P can aggregate value of claims against the same D (or Ds being sued jointly) regardless if same transaction/occurrence 2) Multiple Polo Shirt can aggregate claim values only if they seek to “enforce a single right” (Troy Bank v Whitehead)
15
Q
How is supplemental jurisdiction constitutional?
A
Plays with the definition of “case” or “controversy”
16
Q
Can you exercise Supp J if it would create incomplete diversity?
A
Nope - unless you pull of the P joined under Rule 20 loophole successfully
17
Q
What is the baseline test for if you can invoke Supp J
A
are the state law claims out of the same case/controversy as judged by the “common nucleus of operative fact”?
18
Q
Does the court have to exercise Supp J even if diversity is good and in the same nucleus of operative fact?
A
Nope, discretionary
19
Q
What do you do if you lose your jurisdictional battle?
A
There’s no interlocutory appeal because of the final judgment rule, but might as well go for writ of mandamus per WW VW V Woodson(
20
Q
What factors cause you to burn the PJ analysis
A
cognovit note, choice of forum clause unless unreasonable under the circumstances (Carnival Cruise)
21
Q
What is the constitutional backbone of PJ, OTBH, and Notice?
A
Due Process (14th Amd)
22
Q
If I serve someone in the forum, what cases say I’m good and for what reason
A
You’re good per Tickle V Barton or Burnham (Scalia harps on tradition)
23
Q
What limits federal court PJ?
A
The federal long arm statute (this is not a constitutional issue, its a safeguard to keep the federal courts from being flooded anytime there is a PJ issue in state court)
24
Q
I can’t serve D inside the forum, what hurdles do I need to overcome? (cite a case)
A
Need to look at the state long arm statute (Hess V Pawloski) and then you need to make sure that the exercise of PJ is consistent with the 14th Amd. Due Process
25
What was so groundbreaking about International Shoe
Defined due process as minimum contacts (as judged by nature and quality) and such that the exercise of jurisdiction comports with traditional notions of fair play and substantial justice
26
What can replace minimum contacts?
consent/adequate representation, notice, OTBH, opt out/
27
Is stream of commerce any good for PJ?
It is good to the extent that it indicates purposeful availment (JMcIntyre)
is usually best when the party you are trying to assert PJ over is close to the COA (more like Titan&Gray than Asahi&motorcycle rider)
If you do a lot of business and have employees with a state you're probably subject to PJ there (Gray and intl shoe) at least prior to Bristol Meyers
28
What's up with foreseeability and stream of commerce? Cite case
Brennan's dissent only wants stream of commerce and foreseeability O Conner's plurality wants stream of commerce and plus factors (1marketing 2designformarket 3Mfr in state) Asahi
29
Due process for PJ is flexible...how can it flex?
Consent works or opp for opt out and adequate representation can work, Due Process is less strenuous in binding other Ps
30
Is foreseeability sufficient? Cite Case
No, foreseeability alone is not sufficient (WW VW)- P cannot be the only connection between D and the forum (Walden)
31
What are the 5 FPSJ factors? Cite Case
1) Burden on D
2) P's Interest
3) forum state's interest
4) efficiency
5) state's interest to further substantial policies
(WW VW)
32
Are contracts enough? What if it has a choice of law clause? Choice of forum clause?
A choice of forum clause ends the discussion. A contract and choice of law clause are useful to indicate purposeful availment but alone won't be enough...you need "contract plus" other indicators of purposeful availment (Burger King)
33
What is the standard for General Jurisdiction? Cite Case?
Goodyear - The contacts with the forum should be "continuous and systematic" as to render D "essentially at home". For businesses this is only the principle place of business and state of inc.
Despite a series of Sotomayor opinions (Goodyear, Daimler) citing the benefit this gives to large companies with lots of aggregate contacts, GJ is measured as a % of a company's total contacts, not in absolute.
34
What is the standard for SJ? Cite Case?
SJ is created when a COA "arises out of or relates to" D's contacts with the forum state. (Bristol Meyers) but has been interpreted such that the "relates to" standard is fairly strict and you really need "arises out of" (Bristol Meyers)
35
I want to invoke Quasi in Rem Jurisdiction? What are the hurdles and what cases do I need?
Need to remember from Pennoyer V Neff that you have to attach the property at the start of the proceeding. You will only be able to recover against the value of the rem. But D will have to be very careful to make a limited appearance to defend up to the value of the property otherwise, you can get them in personal
You still have to get min contacts and satisfy FPSJ since Shaffer.
36
What factors should you use to prove PJ in quasi in rem?
If the dispute is about the property or the rights or duties of ownership, that helps. It also helps to indicate purposeful availment if the property is real estate in the forum or if witnesses and documents are in the forum
37
What is the standard for notice? Cite Cases?
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Mullane says notice must be reasonably calculated given the circumstances (this is the same standard loving court that gave us international shoe)
"Reasonably calculated might not be by mail" (Google Buzz)
You're also going to want to send first class and certified mail after the Jones V Flowers decision and you don't want to be out of luck if the certified is returned unclaimed.
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38
What is your go to quote for the standard for notice?
Justice Jackson in Mullane - the law should make the same effort to notify as a financially motivated businessperson
39
What are the circumstances where a pre-hearing seizure of property is OK? What case says this?
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Emergency situations (flight risks, war) and quasi in rem jurisdiction
In any event the state should be controlling the force of the seizure (Fuentes v Shevin)
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40
What are the 3 Factors for the ____ test for pretrial seizure? Cite case that used it
Mathews Test in CT V Doehr: 1) D's interest 2) risk of erroneous seizure (fact heaviness, non-repeat player) 3) P's preexisting interest in the property
41
If one of 2 joint owners causes a piece of property to be seized, what happens?
Both owners are out of luck (Dennis V Michigan)
42
What are the 2 standards that are used for venue? Give statute #
1) if a D's reside in the same state, any district where any D resides works 2) District where the property is or where a substantial part of the events took place (1391b)
The bar for "substantial part of the events" is pretty low per Bates
43
What is the summary of the residency rules for venue?
A natural person is a resident where domiciled, corporations are residents of any district of a state that has PJ over them.
44
What's the rule for a corp in a state with >1 district?
Corps can only be P's in the district of principle place of business, but can be D's in any district where they have sufficient contacts where if the district was a state they would have PJ - if no such district exists, any district works
45
What is the cure for cases with bad venue?
can be transferred or dismissed
46
Where can venue be transferred?
To any district where the case could have been brought (w/o D's consent - Hoffman) or do any district where all parties have consented
47
What are the 3 factors to consider for granting a transfer of venue? Cite case? What is the background presumption?
1) convenience of parties 2) convenience of witnesses/evidence 3) interest of justice (Hoffman)
Generally P's choice of venue is respected unless P is foreign and a superior alternative forum exists (Piper Aircraft)
48
If you change venue, whose choice of law rules do you apply?
Apply the rules of the transferor court (Change in court room only) per the Van Dusen Rule
49
What is the Eerie Doctrine?
Federal courts apply state law unless there is federal law available - There is no federal common law
50
What are the requirements for forum non Conveniens
Common law doctrine - There must be an other court system that is better equip to hear the case or hearing it in Fed Ct is too much of a burden on the court. The other forum must recognize the COA, and it be in the private and public best interest. (Piper Aircraft)
Case can be dismissed even if SMJ, PJ and V are all proper
It doesn't matter if the forum is less favorable as long as the COA is recognized (Piper Aircraft)
51
What can be removed to federal court from state court?
Only cases that could have been brought in federal court to begin with
52
What's the deal with removal and D being in home state? Cite
D can't remove a case to federal court if its a diversity case and he's at home.
D can remove all federal question cases (Mas)
All D's have to agree to remove.
53
A case in removed to federal court with some state law claims...can the court hear the state claims?
It can if the claims are out of the same nucleus of operative facts so that that fed court can use Supp J. The court also has the option to sever the state claims and only hear the federal stuff
54
P joins an extra party for the sole purpose of preventing removal? WYD?
Court can sever the party under Rule 21 and only the real parties at interest are considered for diversity (Rose V Giamatti)
55
What are the 3 questions to ask before Joinder
1) does the addition follow a joinder rule? 2) Is there SMJ and PJ over the additional suit? 3) What are the preclusive effects
56
I want to get a case dismissed because a required party can't be joined as required my Rule 19...what are my odds of success?
Slim - nothing gets dismissed under rule 19 unless its a limited funds situation (Temple V Synthes)
The court can shape relief to account for their absence and evaluate P's remedy if dismissed and the ability to provide complete relief without prejudice to the absent party
57
What are the requirements for joining a party under Rule 19 (Mandatory) or Rule 20 (permissive)
Claim has to arise out of the same transaction or occurrence ("bears a logical relationship" per LASA) AND have a common question of fact or law
58
What are the requirements for making a claim against an existing party?
none - you can join all the claims you want, but be careful...if you put a transaction/occurrence on the table you better go all the way or face preclusion issues
59
What are the is the trump all for Class Actions
Class Action waivers
60
What are the 23a prerequisites for class certification?
Numerous (as to make joinder unfeasible), common Qs of law or fact, typicality (reps typical of class), and representativeness (reps are adequate to rep the class)
61
What is one solution to conflicts of interest within a class?
Subset the class, but this makes it more complicated, have to split atty fees (Agent Orange)
62
What are the 23b types of class actions
23b1a-Water rights
23b1b- Limited fund case/prejudice absent parties
23b2- Injunctive relief
23b3- $ damages
All of these solve some kind of externality
63
What are the 2 sub requirements for 23b3 class actions?
This is the only non-mandatory type of class action, class reps must notify and give opp to opt out to the class
1) common issues predominate over individual issues 2) class action is a superior method of adjudication
64
What are the requirements for CAFA and what is the fall back?
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CAFA helps with SMJ; class actions have SMJ if >100Ps, >$5M AIC, 1 P diverse from 1 D, subject to the local controversy exception
The fall back is complete diversity and >$75K AIC for 1 P (ie the normal rules)
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65
Why don't class actions violate due process? you're binding all of these P's without their consent and without minimum contacts?
Per Shutts, Due process is flexible and there is less risk in considering a lack of opt-out as sufficient consent. There is no inconvenience to P going to a distant forum and to say otherwise would make many class actions impractical. Plus they are represented adequately by reps.
66
You're a D in a class action where most of the class is not from the forum state...WYD?
Object to PJ of the out-of-state P's if you are not at home and their COAs do not arise out of or relate to that state. SCOTUS could say that the class reps PJ is enough, but doubtful.
P's cure to this is to go to D's home forum
67
You're about to get precluded on your individual claim based on a prior class action, WYD?
Look at the class definition, argue you weren't adequately represented by the class (Hansberry V Lee, Martin V Wilks), argue that the claim that was precluded is different from your claim (Cooper V Fed - maybe try this by saying that your claim could not have been brought in class action form b/c no commonality)
68
Nobody i about by a judgment in personam without being adequately represented? who said it
Martin V Wilks
69
What is the standard for granting an MTD?
If a facts alleged taken as true and P still doesn't win (Case V State Farm)
Legal conclusions are not accepted as true (Twombly) Must allege the fire, not the smoke
70
How plainly must you plead your COA?
Plainly on the face of the complaint (Case V State Farm)
Courts take it easy on you if they like you (Pruitt) or if you're Pro Se (Dioguardi/Erickson)
71
What is the standard for truthful pleadings under Rule 11?
The duty to research is "personal and non-delegable" to the atty signing the complaint. But now there's a safe harbor provision that allows you a chance to amend
Get around this by going "upon information and belief"
72
What is the default scope of discovery?
Anything relevant, regardless if admissible as long as the judge hasn't prohibited it or it's privileged/workproduct
73
What is the standard for discovering work product? cite case?
Dimichel - work product is discoverable only if there is substantial need and undue hardship (there's no other way to get it)
Even if discovery is ordered, the court will redact the lawyer's analysis (Hickman V Taylor)
74
What do you have to provide in initial disclosures?
names and contact info of people that likely have relevant info, description of the info they likely have, calc of damages, insurance agreements
75
What is the baseline for SJ? Cite case?
If all the facts are taken in a light most favorable to the defendant, is there a genuine issue of material fact where a reasonable jury could find for the non-moving party? - Valley Natl Bank
The definition of "genuine" is subject to interpretation (Scott V Harris)
76
4 Types of SJ
1) Everyone agrees there are no facts in dispute (Pruitt like except that was MTD)
2) P moves for SJ- very hard because you have to prove no genuine issue of material fact and win the case (Cross)
3) D moves for SJ on killer evidence (there is no way a reasonable jury can find for P in light of it) (Adickes)
4) D moves for SJ on P has nothing (there is no way a reasonable jury can find for P on the evidence they have) (Catrett V Celotex)
77
What happens if there is an injunction and damages case on the table and it's about to go to trial. HOW DO I SAVE MY JURY TRIAL RIGHT? I LOVE THE 7TH AMD
Invoke Beacon Theaters which says the damages claims have to be tried first to preserve right to trial by jury.
78
What happens to right to 7th Amd right on a COA that did not exist in 1791? Cite case
The court rounds it to the nearest COA in existence at the time (Terry V Union)
79
What are the two limits on peremptory challenges and what cases established them?
JEB - gender
Edmondson - race
The striking party then has to briefly explain
80
What's interesting about the constitutional basis for peremptory challenges
The non-striking party is given 3rd party standing to assert the constitutional rights of the jury that has been struck. This barely meets the state action doctrine because the state is putting its authority behind it
81
What is the baseline standard for JMOL/RJMOL?
Same as SJ
82
How is an RJMOL constitutional?
If a JMOL is denied, the denial is considered provisional, and the judge can re-evaluate it after the jury comes back.
83
What are the 5 elements for claim preclusion?
1) Final judgment 2) valid 3) on the merits 4) same parties 5) same transaction/occurrence
84
What are the 5 Types of Claim preclusion
1) Groundhog Day 2) P forgets claim-Rush 3) D forgets counterclaim - Mitchell 4) Class members are precluded unless they didn't opt out - Cooper 5) non-parties only if in privity -Taylor
85
What are the 2 pre-requisites for claim preclusion?
1) claim could have been brought 2) claim out of the same transaction/occurrence (Also need all of the requirements for claim preclusion
86
What is the non-so-great justification for claim preclusion?
Prevents inconsistent decisions and encourages reliance on the judicial system.
87
What are 6 ways to preclude claims of those not party to the original suit
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This skirts the rule from Wilks
1-Consent
2-Substantive relationship
3-interest adequately represented
4-non-party controlled the prior litigation
5-litigation by proxy
6-special schemes like bankruptcy
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88
5 Elements for issue preclusion
1) Same issue
2) Actually litigated
3) Valid judgment
4) Issue essential to the judgment
5) Same Parties (maybe)
89
What is an example of Non-Mutual Offensive Issue Preclusion? what are the requirements? Cite case
Parklane - Only P's can benefit from this against the same D
Additional Requirements are 1) meets all of the requirements of regular issue preclusion 2) D has the same procedural opportunities 3) D has similar incentives 4) P did not sideline sit 5) No prior inconsistent outcomes
90
What is an example of Non-Mutual Defensive Issue Preclusion? Cite case
Blonder-Tongue - Only D's can benefit from this against the same P
91
What's constitutionally weird about Non-mutual offensive issue preclusion?
Tosses aside the 7th Amd right to a jury trial
92
What's the risk of runaway preclusion in a mass-action?
If D loses issues on the first case, every subsequent P can run non-mutual offensive issue preclusion. this is solved by selecting bellwether trials
93
Questions of law are reviewed de novo and questions of fact are reviewed on a "clearly erroneous" standard.What case cites this?
Hicks (although the court bent the rules here a bit)
94
What is the final judgment rule?
Liberty Mutual - a claim cannot be appealed until a final judgment is entered (claim is different than remedy)
95
What is the test for independent claims?
Could they be separated? if so, a final judgment on one is good enough to get appeal (Sears Roebuck)
96
What are the 4 ways to interlocutory appeal>
a1)interlocutory injunctions a2)interlocutory appointment of receivers or sale of property a3)admiralty b) judge certifies a question to the appellate ct
97
What is a private settlement?
a contact that leads P to drop the claim (Rule 41)
The fact that it's a contract means that you could be stuck in state court if someone breaches the contract
98
What are the 3 steps to settling a class action?
1) parties get the judge to give preliminary approval which says its good enough to go to the class 2) parties get notice and opt-out chance 3) Fairness hearing where the judge acts as fiduciary for the class and approves settlement if fair reasonable and adequate
99
What are the preclusive effects of a class action settlement?
no preclusive effects on issues.
claim is precluded
any question of the fairness of the settlement is precluded unless a class member says they weren't adequately represented
100
What holds back crazy arbitration agreements? Cite case
FAA forces courts to like them, but the agreements are still subject to contractual restrictions like good faith and fair dealing and unconscionability (Hooters)
101
What can screw P's even if the arbitration structure affords symmetrical rights?
You can change the rules in ways the benefit repeat players and defendants, even if symmetrical. This advantages Ds but likely won't be invalidated by a court. (Circuit City)
Can also sneak in a class action waiver because class actions are too high stakes, counter to speed, and don't have enough procedure for class actions (ATT V consepcion)
