Bar Study- Civ Pro

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Subject Matter Jurisdiction

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SMJ is the power of the court to hear a claim itself (over the issue).
Nonwaivable
May be raised by any party or the court at any time

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Areas of NC Courts SMJ

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NC SMJ: over anything federal courts have not claimed
-Federal: Anit-Trust, Bankruptcy, Patent/Copyright, Postal Matters, Foreign Diplomats, US as party, Admiralty, areas preempted by Congress (look at intent, can be implicit)
-State courts in NC also do not hear Worker's Comp claims (heard by the Industrial Commision) or related matters

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Right of Appeal to NCSC

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1. Dissent in NCCoA
2. Substantial Const. Question (state OR fed)
3. Cases that involve rate making proceedings for utilities
4. Death Penalty (direct appeal to NCSC)

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Right of Appeal to NC CoA

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1. Superior andDistrict Court Cases
2. Insurance rate cases
3. Administrative Agencies
4. Worker's Compensation
5. NC State bar cases

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Superior Court

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EXCLUSIVE: probate matters

PROPER: Civil actions in excess of $10k AND Injunctive relief or declaratory judgment actions AND guardianship issues

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District Court

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EXCLUSIVE: Juvenile matters
PROPER: Civil actions for less than $10k, Family Law matters, Traffic matters

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Magistrate Court

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Claims that do not exceed $5,000- Summary ejectment, recovery of personal property

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Aggregation of Claims in Diversity

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RULE: no aggregation
Exception:
PL can aggregate all claims against same DE
Multiple PL's cannot, UNLESS there is an undivided interest in property
Cannot aggregate claims against multiple DE's UNLESS you have joint and several liability

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Valuing Injunctive Relief (Div)

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Factors for value of injunctive relief:
1. Value of object of litigation
2. Cost of compliance
3. Amount of damage if no injunction is granted

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Federal Question

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PL's claim must arise from federal law, Constitution, or treaty ("well pleaded complaint")
Defenses to state law claims don't get in

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Supplemental Jurisdiction (Pendent and Ancillary) DEFINITION

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Supplemental Jurisdiction (Pendent and Ancillary) are for state claims added on to federal question cases

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Supplemental Jurisdiction (Pendent and Ancillary) REQUIREMENTS

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To meet the requirement, must be part of the same case, arising from a common nucleus of operative facts

-discretionary on the part of the court
-Factors for staying in NC include: State claim involves novel or complex state law issues State claim predominates over the claim
District court has dismissed all claims over which IT had original jurisdiction
Other exceptional circumstances

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Pendent

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Pendent- claims by plaintiff which otherwise don't get SMJ in federal court
Pendent Party Jurisdiction- PL adds claim in fed Q case over (1) an additional De for whom there is no federal question or diversity jurisdiction and (2) claim arises out of same transaction or occurrence as original claim
-PL cannot add a defendant to a diversity case in order to defeat diversity

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Ancillary

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Ancillary- claims by anyone but PL that would not otherwise get into federal court; generally diversity but not limited

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Supplemental Jurisdiction & Amount in Controversy

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Supp Jur can override amount in controversy requirement for counterclaims, etc.

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Removal

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Very technical statutes: only 30 days from service to remove. If PL is untimely in objecting to removal, objection can be considered waived (except for SMJ)
Exception: In diversity cases, case cannot be removed if any DE is a citizen in the state in which state claim was filed

If a DE who was blocking removal is dismissed, case can be removed up to 1 year later

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Erie Doctrine

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federal courts in diversity cases apply state substantive law because it's basically a state case.

Courts use federal rules of procedure where possible
Otherwise, if procedure is not clearly substantive or the FRCP/federal procedure isn't broad enough, court uses "twin aims of Erie"

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Erie Doctrine Test & Factors

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Courts use federal rules of procedure where possible
Otherwise, if procedure is not clearly substantive or the FRCP/federal procedure isn't broad enough, court uses "twin aims of Erie"
1) avoid forum shopping: PL files in federal court to get a different result than in state court
2) avoid inequity: outcome determinative test Outcome determinative state laws:
1) substantive areas such as torts, property, etc.
2) statutes of limitations
3) burdens of proof
4) choice of law rules
Evidentiary: state laws for privilege, presumptions, and competency of witnesses

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Outcome Determinative Test

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Outcome determinative state laws:
1) substantive areas such as torts, property, etc.
2) statutes of limitations
3) burdens of proof
4) choice of law rules

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Erie Evidentiary Rules

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Evidentiary: state laws for privilege, presumptions, and competency of witnesses

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PJ- Non-Minimum Contacts Analysis

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1. Waiver, express or implied, ie DE has substantially participated on the merits by filing and answer or pre-answer motion w/out a motion for lack of PJ
2. Consent or Contract, is Motorist Statutes or Forum Selection Clauses
3. Physical Presence (transitory jurisdiction)- only for individuals, not corporations
4. Corporations "doing business" in NC- if substantial and continuous activity
5. NC Long Arm Statute- Minimum Contacts is the floor, but some states go higher in terms of who they'll go after
A. Acts or omissions in NC causing in jury to people/property in NC
B. Acts or omissions outside of NC caussing injury in NC (if some activity here/goods sent here)
C. Acts arising out of K's to perform services in NC
D. Acts arising out of K to ship goods to or from NC
E. Acts arising from K's of insurance here PL was resident of NC when claim arose
F. Acts arising out of Ks for insurance where event causing loss ocurred in NC AND
G. If a NC statute provides additional specific grounds for PJ

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PJ- Minimum Contacts/Due Process

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Look at number and nature of DE's contacts
-systematic and continuous is preferred
-purposeful availment
-relationship of contact to claim
-acts of DE purposefully directed at the forum state

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PJ- In Rem Jurisdiction

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Thing must be in the state of NC

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Service of Process- WHO & WHEN

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1. Who may serve?
In state: Sherriff of county OR authorized person
Out of state: a person 21 or older who is not a party or anyone duly authorized to serve
2. When must it occur?
Within 60 days after issuance of summons,

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Service of Process- RENEWAL

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No service- when not timely effectuated, can be continued for 90 days w/ 2 renewal methods
1) Endorsement- PL may secure endorsement on original summons
2) Alias or pluries summons- Clerk issues alias summons to extend 90 days

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Service on Natural Person

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1. In hand service
2. leaving a copy at DE's dwelling house or usual place of abode w/ a person of suitable age
3. delivering copy of summons & complain with authorized agent
4. By mail, registered or certified, return receipt requested, addressed to party and delivered to addressee
5. Depositing with a designated delivery service & obtaining a receipt

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Service on Corporation

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1. Delivering copy of summons & complaint to officer, director, or managing agent
2. leaving a copy in the office of the above persons with a person apparently in charge
3. delivering to an authorized agent
4. By mail, registered or certified, return receipt requested, to any of the persons listed in 1 or 3
5. depositing with a designated delivery service, addressed to officer, director or agent

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Service on Partnership

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general partner, attorney in fact, or authorized agent as for corporations
-if you plan to hold an individual liable, must serve them separately

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Service on Non-resident Motorist

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Commisioner of Motor Vehicles in NC

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Service by Publication

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only after due diligence to use bettermeans; last resort
-defect in service by publication is jurisdictional; judgment without compliance is void

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Venue (basics)

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- proper site or location for a trial
-right to proper venue is substantial, but not jurisdictional. It is waivable, and if you do not raise it in your first response is considered waived.
-cases will generally be transferred if venue is improper, but can be dismissed
-denial of a motion to remove or dismiss for improper venue as of right is immediately appealable (if discretionary, not immediately appealable)

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Determining Venue

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based on residence of parties. First to county where any DE lives, if no DE's in state then to county where any PL lives, and if not that, then to county designated in summons and complaint

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Venue for Corporations

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Domestic: residence for venue purposes is registered principal office OR place of business
Domesticated: treated like ^

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Venue for Foreign Corporations

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1) In country where claim arose
2) in country corp did business or has property
3) where plaintiff resides, determined as:
a) for a state resident, county where PL resides
b) for nonresident, county where she engages in business
c) for nonresident, where claim arose or where subject of action is situated

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Venue is Where Subject Situated IF:

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a. recovery of real prop/estate
b. determination of rights in real prop cases
c. for injury to real prop

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Objections to Venue

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1. As of Right: once objection properly asserted, court must fix before any essential matters
2. Discretionary: When provable grounds that can't have a fair trial in that county OR convenience of witnesses

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Simplified NC Venue

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1. Any county where PL OR DE resides
2. Corporations (Domestic OR Domesticated): where has a registered OR principal office, or maintains its business
3. If no one resides in NC: venue lies in county named by PL in summons and complaint

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Exceptions to Venue

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A. Defendant is Foreign Corporation
B. If action concerns real property/estates, venue lies where property is situated
C. If action involves penalties, forfeitures imposed by statute, or actions against public officials, venue is where action arose
D. In actions on Bonds
-Official Bonds (Executors/Administrators): Where bond is given
-Construction Bonds: where K is performed
E. In actions against railroads: where cause of action arose or where PL resided at time of cause of action

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Federal Venue

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1. If all DEs reside in one state, venue lies in any district in which a DE resides; OR
2. In any district where a substantial part of events giving rise to cause of action took place
If neither (1) or (2),
3. Any district where DE may be found (for Fed Q cases) or is subject to PJ for diversity cases
4. For venue, a corp is a resident of any district in which it is subject to PJ