Bar Prep - Civil Procedure

Front 1

What is the definition of Subject Matter Jurisdiction

Back 1

SMJ is the power of the state/federal court over the subject matter of the action.

Front 2

What is the subject matter jurisdiction of the Oregon courts?

Back 2

Oregon courts are courts of original and general jurisdiction.

Front 3

Define general jurisdiction.

Back 3

The power to hear all kinds of actions except if it is exclusive jurisdiction in some other forum.

Front 4

In Oregon, the two forums where their is exclusive jurisdiction over specific matter:

Back 4

Oregon Tax Court - all matters involving state taxation and the federal courts in specific situations such as bankruptcy

Front 5

What is the SMJ of the Oregon courts?

Back 5

Oregon courts are courts of general jurisdiction, except in cases where their is exclusive jurisdiction elsewhere i.e. Oregon tax courts and certain Federal Courts such as bankruptcy.

Front 6

What is the SMJ of the federal court?

Back 6

Federal courts are courts of limited jurisdiction.

Front 7

What are the two primary jurisdictional bases for the federal courts:

Back 7

(1) "Arising under" federal law or involving a substantial federal question.
(2) Diversity jurisdiction

Front 8

Define the well plead complaint rule under federal law.

Back 8

"Arising Under" a federal issue must appear on the face of the Pf's complaint as part of the Pf's own claim and not merely by way of defense.

Front 9

What are the requirements for diversity based federal jurisdiction?

Back 9

(1) complete diversity (no single Df from same state as any single Pf);
(2) Amount in controversy must exceed $75,000 (from Pf's viewpoint, multiple Pf's cannot aggregate).

Front 10

Define supplemental jurisdiction.

Back 10

When their are two claims, and there is only a primary jurisdictional basis for one of the claims, the federal court has discretion to assert supplemental jurisdiction over both claims if they derive from a "common nucleus of operative fact."

Front 11

What is the exception to supplemental jurisdiction?

Back 11

If the only primary jurisdictional basis is diversity, there can never be supplemental jurisdiction over additional claims brought by the Pf against non-diverse parties.

Front 12

When may Dfs remove an action from state court to the federal court that "geographically embraces" the state court:

Back 12

(1) if a notice of removal is filed within 30 days of service of the state court complaint; and
(2) there is federal jurisdiction over the removed claims.

Front 13

In federal court, what happens if their is a conflict between federal law and state law involving a federal statute, federal rule of civil procedure, a federal rule of evidence, or the issue of trial by jury?

Back 13

The federal law governs.

Front 14

In federal court, what happens if their is a conflict between federal law and state law involving a federal statute, and the conflict does NOT involve a federal rule of civil procedure, a federal rule of evidence, or the issue of trial by jury?

Back 14

State law governs where the difference between federal and state law would change the outcome.

Front 15

The general rule regarding a conflict between federal and state law is:

Back 15

State law governs unless issue involves a federal statute, a federal rule, or trial by jury.

Front 16

What is the definition of PJ?

Back 16

The power of the court over the Df's person or property.

Front 17

ORcourts have PJ if what two things are true:

Back 17

(1) OR state law itself grants PJ;
(2) State law is constitutional.

Front 18

In OR, what are the three bases for PJ?

Back 18

(1) consent;
(2) presence;
(3) Long-Arm statute.

Front 19

What are the two forms of consent for OR courts to have PJ?

Back 19

(1) implied consent;
(2) express consent.

Front 20

What are the three ways that a Df can consent to PJ in OR

Back 20

(1) Df appoints agent to accept process on his behalf in the state;
(2) Df entered a contract consenting to be sued in OR court;
(3) Df expressly consents (in fact pattern) to PJ.

Front 21

What is implied consent to PJ in OR

Back 21

Df fails to object to PJ in a timely manner (1st response to complaint w/in 30 days of service).

Front 22

When PJ is based on presence in the state, what are the three forms of presence?

Back 22

(1) "Dancing" - actual, voluntary, physical presence of a Df w/in state when served with process;
(2) "Domicile" - person's true home is in the state and he/she intends to return;
(3) "Doing business" - regular, systematic and continuous in-state business (NOT merely solicitation).

Front 23

Under the Long-Arm Statute basis for PJ in Oregon, what are the forms of conduct which give rise to PJ?

Back 23

LIMIT:
Land - Df owns, uses, or posses land in the state from which the lawsuit derives;
Injury - (1) injury from Df's tort in the state or (2) injury in the state from tort committed out of the state IF Df carries on activities in the state;
Matrimony - if Pf wants non-monetary relief, Pf must reside in the state; (2) if Pf wants monetary relief, Df must have been domiciled in the state for 6 Mo and file w/in 1 year.
Insurance - Df enters into insurance contract for risk located in the state;
Transaction - Df enters into a transaction promising to do something in the state, from which the lawsuit derives.

Front 24

Even if OR law grants PJ through its Long Arm Statute, the law must also be...

Back 24

Constitutional

Front 25

PJ of a state is constitutional if:

Back 25

(1) Df engaged in minimum contacts that would not offend traditional notions of fair play and substantial justice;
(2) the issue becomes whether the Df has purposefully availed itself of the benefit of the state;
(3) Put another way, Df could reasonably be expected to be sued in the state;
(4) Moreover, there must be a substantial relationship between the state and the litigation.

Front 26

What is the PJ of the federal court?

Back 26

In the absence of a federal statute that expressly grants PJ, federal court barrows the PJ of the state where it sits.

Front 27

Who may properly serve process?

Back 27

Person over 18 who is NOT a party to the action.

Front 28

Service of process is proper if:

Back 28

(1) forum's own laws allow the method used; and
(2) Method used is constitutional (reasonably calculated to apprise the parties of the litigation).

Front 29

In the federal courts, the proper methods of service are:

Back 29

(AWASP)
(1) Abode - authorizes server leaves at last and usual abode with somebody residing therein of suitable age (13) and discretion;
(2) Waiver - Pf mails request to Df asking Df to waive formal process (Df gets more time to respond 60 days v. 21);
(3) Agent service - personal service on authorized or managing agent of Df;
(4) State method - Feds may use any available method of state court where it sits;
(5) Personal service - authorizes server makes in-hand personal delivery on person of Df (wingspan of Df okay).

Front 30

In OR the proper methods of service are:

Back 30

(AMOPE)
(1) Abode - server leaves process at Df's abode w/someone residing therein 14 and up AND sends 1st class mail;
(2) Mail - 1st class mail AND mail evidenced by a receipt;
(3) Office service - leaves process at Df's office w/someone apparently in charge AND sends via 1st class mail;
(4) Personal service - in-hand delivery or wingspan of reluctant Df;
(5) Entity service - personal service or office service on an authorized, registered, or managing agent, or officer, director, or general partner.

Front 31

Service by publication is permitted if:

Back 31

Pf swears via affidavit that their is no other way. The court has DISCRETION to order publication (once/week for 4 weeks in newspaper where actions is pending).

Front 32

Federal venue is proper in a district where:

Back 32

(1) Any Df resides if all Df's reside in the same state;
(2) any substantial part of the claim arose.

Front 33

In Oregon venue is proper in a county where:

Back 33

(1) Any Df resides (NOT Pf); or
(2) Where the cause of action arose.

Front 34

In OR, the two exceptions to the general rule of venue are:

Back 34

(1) If no Df resides in OR, then in any county at all;
(2) in an action involving land, where the land is located.

Front 35

In Oregon, how does a Df object to venue?

Back 35

By filing a motion to transfer venue to a proper venue which will be granted in the court's discretion for the convenience of the parties and witnesses and in the interest of justice.

Front 36

What are the requirements for pleading in the federal courts?

Back 36

Notice pleading - contain facts that put the Df on notice of PLAUSIBLE claims for which the law provides relief.

Front 37

What are the requirements for pleading in the OR courts?

Back 37

Fact pleading - complaint must allege ULTIMATE facts (elements of claim) that constitute a claim for relief.

Front 38

What is the general rule regarding amendment of the pleadings?

Back 38

Amendments shall be granted freely to do justice and serve the merits thereby unless against the statute of limitations.

Front 39

When does the amendment of a pleading for a NEW CLAIM relate back to avoid the statute of limitations?

Back 39

New claims relate back if they derive from the same transaction or occurrence as original timely filed claim.

Front 40

When does the amendment of a pleading for a NEW PARTY relate back to avoid the statute of limitations?

Back 40

If claims involving those two parties derive from the same transaction or occurrence as original timely filed claim AND new party has acquired knowledge that but-for a mistake in name it would have been a party.

Front 41

The tested OR statute of limitations period is:

Back 41

Two years from discovery of a personal injury tort claim to bring a claim.

Front 42

What is the time allowed for service of process in the federal courts?

Back 42

120 days of filing.

Front 43

What is the time allowed for service of process in the OR courts?

Back 43

60 days of filing.

Front 44

What is the rule for joinder of CLAIMS?

Back 44

A party may join as many CLAIMS it has against a Df regardless of any connection whatsoever.

Front 45

What is the rule for joinder of PARTIES?

Back 45

You may join parties to a suit so long as claims involving those parties derive from the same transaction or occurrence.

Front 46

What is a counterclaim?

Back 46

A claim filed by a Df against a Pf

Front 47

In OR, all counterclaims are:

Back 47

Permissive.

Front 48

In the federal courts, all counterclaims are:

Back 48

Either permissive or compulsory.

Front 49

A permissive counterclaim is:

Back 49

A counterclaim that does not derive from the same transaction or occurrence of the Pf's claim. You may file this claim as a counterclaim but do not have to.

Front 50

A compulsory counterclaim is:

Back 50

A counterclaim that derives from the same transaction or occurrence as Pf's claim (same theory of recovery). You must file this claim as a counterclaim and cannot be filed later.

Front 51

What is impleader?

Back 51

A Df may bring into a lawsuit a brand new claim against a brand new party IF that third party may be liable to the Df for all (indemnity) or part (contribution) of Df's liability to the Pf.

Front 52

What is interpleader?

Back 52

The holder of a COMMON FUND may come to court as a Pf and joint as Dfs all RIVAL CLAIMANTS to its common fund.

Front 53

What is intervention?

Back 53

The act of a non-party in moving to intervene in an ongoing lawsuit.

Front 54

In the federal courts but not in OR, intervention is:

Back 54

as of right - the intervenor has the right to intervene if it has an interest that will be adversely affected by the litigation and not protected by the parties.