Civ Pro

Front 1

what is General Jurisdiction

Back 1

defendant can be used in the forum for something that happened any where in the world

Front 2

Specific Jurisdiction

Back 2

gives the forum power over only for a claim that arose in that forum

Front 3

What is the two step process

Back 3

1. Look for long arm statue or a statue like it granting jurisdiction, then ask does it apply in this situation in front of you. – if not no person jurisdiction
2. If step one is satisfied the asked based on the facts in front of you does this violate Due Process

Front 4

What are the 4 Traditional Notions of Personal Jurisdiction, and What case did they come from

Back 4

Case: Pennoyer
1. Was the defendant severed with process in the forum. (This is known as Presence in the forum)
2. Is the defendants agent severed while in the forum
3. Is the Defendant domiciled in the forum
4. Did the defendant consent to PJ (this can be done openly, willingly, or can be implied through actions)

Front 5

What is the Minimum Contacts Buzz Phrase, and where did it come from.

Back 5

Case: International Shoe
The court has jurisdiction if the defendant has such minimum contracts with the forum so that exercise of jurisdiction does not offend traditional notions of fair play, and substantial justice

Front 6

What MC Rule came from Magee

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1) Did the Defendant solicit business in the plaintiffs forum state 2) notion of relatedness. Plaintiffs claim arise from defendants contact within the state (may help with only one contact) 3) is there a State interest

Front 7

What MC Rule came from Hanson

Back 7

To be a contact it must result from the Defends Purposeful Availment in the Forum

Front 8

What MC Rule came from World Wide VW

Back 8

A defendant should reasonably anticipate being haled into court in the forum

Front 9

What MC Rule came from Burger King

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You must have a relevant contract before you look to fairness. Court suggests a sliding scale; a stronger showing of fairness may make up for a less showing of contact. The BOP is on the defendant to show that the forum is unconstitutional, TOUGH BURDEN, must show defending the case is so gravely difficult, and inconvenient that you are at a sever disadvantage in the litigation.

Front 10

What MC Rule came from Asahi

Back 10

Stream of Commerce. Did the defendant place his products into the stream of commerce? There is a split on this issue, make sure to know and argue both

Front 11

What is The Brennan View for Stream of Com

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If a defendant puts the product into the stream of commerce, and reasonably anticipates it will get into the plaintiffs forum.

Front 12

What is the O'conner view for Stream of Com

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You need more. You need the above, plus intent or purpose to serve the plaintiffs forum state.

Front 13

What happen in Burman for MC

Back 13

Reaffirms presence in the forum gives General Jurisdiction

Front 14

What is the MC rule in Helicoptors

Back 14

the forum state may still exercise personal jurisdiction over the defendant if there are continuous and systematic contacts with the forum state

Front 15

What is the rule for MC in Calder

Back 15

The effects Test, the court found minimum contacts where the defendant was not present in the forum state but, 1) the defendant commits an intentional tort 2) the plaintiff felt the brunt of the harm in the forum state 3) Defendant expressly aimed his tortuous conduct at the forum state

Front 16

What is the MC Rule from Zippo

Back 16

the interactivity of a defendants website may subject the defendant to personal jurisdiction of the forum state. PASSIVE: posted information, not grounds for PJ. INTERACTIVE: defendant clearly does business with the forum state over the internet PJ is proper

Front 17

Specific Jurisdiction With Contacts single, isolated occasional, or casual

Back 17

MAYBE: Specific Jurisdiction might or might not exist

Front 18

Specific Jurisdiction with Contracts Systematic and Continuous

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EASY: Specific does exist

Front 19

General Jurisdiction with Contacts single, isolated occasional, or casual

Back 19

EASY: NO general Jurisdiction

Front 20

General Jurisdiction with Contracts Systematic and Continuous

Back 20

MAYBE: PJ might or might not exist

Front 21

What is the two types of Long arm status

Back 21

California type – the statue reaches to the full extent of the constitution, full extent of due process

List: (Specific Jurisdctions) a non-resident defendant can be sued within the forum if he/she is doing one of the things listed in the statue. Claim must arise from one of the things in that list

Front 22

When will In Rem, or Qusi In Rem come up

Back 22

Can come up where the exercise of jurisdiction would be constitutional under Minimum Contacts, but we can’t get In Personam Jurisdiction because the Long Arm does not apply.
Here jurisdiction is not over the person, but over their property. Maybe Real property, or personal property.

Front 23

What is In Rem

Back 23

the law suit is about the property, ownership rights, interests

Front 24

What is Quasi In Rem

Back 24

Lawsuit that has nothing to do with the property, simply using the property as a jurisdictional basis. A case that would be In Personam if it would be applicable, but for some reason it is not. The property has to be attached at the outset!

Front 25

How to handle this type of In Rem or Quasi In Rem Situations

Back 25

1. Do you have an attachment statie
2. Constitutional Analysis. 1) Quasi In Rem the property be attached at the outset of the case. 2) Shaffer the constitution requires that the defendant have minimum contacts with the forum

Front 26

How does Notice work in personal jurisdiction

Back 26

Due process requires that proper notice and an opportunity to be heard. Notice must be reasonably calculated to convey the required information and afford reasonable time to make appearance. Personal service of written notice within the jurisdiction is the classic form and is always sufficient.

Front 27

How do you Challenging Personal Jurisdiction

Back 27

1. in general a defendant that choose to challenge Pj has two options: He can either directly challenge jurisdiction through a special appearance in the state court or 12(b)(2) motion in federal court (direct attack), or allow a default judgment and then challenge the validity of the judgment by challenging PJ on appeal (collateral attack)
2. Defendants should be wary, however, because a collateral attack cannot be made after an unsuccessful direct attack


In State Court
1. if the suit is in state court, D must enter a special appearance to challenge PJ, as opposed to a general appearance to litigate the merits. However, some state courts have allowed D’s to challenge both the merits and PJ.

Front 28

What is Subject Mater Jurisdiction Diversity of Citizenship

Back 28

1. §1332(a)(1) – Tells the requirements for a diversity of citizenship case. Has to be Citizens of different states, and amount in controversy must exceed $75,000 (just $75,000 is not enough must exceed)

Front 29

What is the Complete Diversity Rule

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(Strawbridge) there is no diversity if any plaintiff is a citizen of the same state of any defendant. (Co-parties can be Co-Citizens)

Front 30

When do you test for Complete Diversity

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Test for diversity when the case is filed (a subsequent change in citizenship is irrelevant)

Front 31

What is Citizenship

Back 31

3. Citizenship is not Residence: A person is a Citizen in a state in which the person is domiciled. Domiciled is established by TWO factors. 1) Must be present in the state 2) you must form the intent [Subjective] to make that your permanent home. (YOU CAN ONLY HAVE ONE DOMICILED)

Front 32

what is the Citizenship for Corporation

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Defined by § 1332©(1): a corporation is a citizen of all states where incorporated (impossible to find a corporation that’s incorporated in more that one state), and the ONE state where it has its principal place of business. (can be a citizen of two states)

Front 33

What are the two tests to determine a PPB

Back 33

Nerve Center Test: where the never center of the corporation is. The Nerve center is where the decisions are made, most often the Headquarters. 2. Muscle Center Test: place of activity. The place were the corp. does more stuff than any where else, could be its manufacturing HQ 3. Total Activities Test: Will look at Nerve, and Muscle center and applies common sense. Most courts rule the PPB is the Nerve, unless most of the activity is done in one state.

Front 34

where are Un-incorporated association

Back 34

look to the citizenship of all the members of that business, it is deemed to be a citizen of all the state in which it has members who are citizens (ALL FROM CARDIN Case)

Front 35

Representatives Sue on Behalf of other people

Back 35

1. §1332©(2) descendants, minors, and incompetents: look to their citizenship 2. Class Action: look to the citizenship of the representative only

Front 36

What is Amount in Controversy for a Diversity

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1. §1332(a)(1) The amount must exceed $75,000 not counting interest on the claim or costs.
2. Plaintiffs claim governs unless its clear to a legal certainty that she cannot recover that much.
3. The plaintiffs ultimate recovery is irrelevant
4. Aggregation: where we add tougher two or more claims to get over $75,000. Single P: claims can be completed unrelated. Mutli-P: if at least one P meets the amount, other plaintiffs may join their related claims against the same defendant. If you have joint claims, go with totally value.

Front 37

Whats Federal Question Jurisdiction

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§1331: a case that arises under federal law, Citizenship and amount in controversy is irreverent

Front 38

What rules govern Federal Question Jurisdiction

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Two Rules Need be Applied in these types of cases
1. You look only at the plaintiffs complaint, you don’t not look at anything the defendant does.
2. It’s the plaintiffs claim that must arise under federal law. This is the well pleaded complaint rule. (Motly Case, did not give rise to a federal clam)

Front 39

What is Supplemental Jurisdiction

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A. Supplemental Jurisdiction allows for us to have a claim to be heard in federal court that would not have normally been able to be heard in federal court.

Front 40

What does Supplemental Jurisdiction work

Back 40

sure the plaintiffs original claim meets federal subject matter jurisdiction either with diversity, or federal question

A second claim can come into to federal court because it is part of the same Overall Case. Arises from a common nucleolus of operative fact, with the jurisdiction invoking claim

Front 41

What is the Statues Two Steps for Supplemental Jurisdiction

Back 41

§1367 is the test that is applied today, not just gibbs. Keep it very Simple
1. Does §1367(A) grant Supplemental Jurisdiction to this claim?
1A. Yes, if the claim arises from a Common Nucleolus of operative Fact with the Jurisdiction invoking claim (Gibbs) Will also work even if the second claim is a against a different defendant (last sentence in statue)
2. §1367(B) Kills Supplemental Jurisdiction only in diversity cases.
2A. Over claims by the Plaintiff against parties joined under Rule, 14, 19, 20, and 24
2B. Over claims by rule 19 Plaintiffs
2C. Claims asserted by persons seeking to intervene as a plaintiff under rule 24.

Front 42

What is Removal

Back 42

Removal is when we go to federal court because that’s where the defendant wants to be. Removal is governed by §1441, §1446, §1447

Front 43

Can Removal go from Federal to State?

Back 43

1. Removal is a one way street – it only goes from state court to federal court. If you want to Remove (as a defendant) you just do it, under §1446 you file a notice of removal, you don’t have to ask. for permission. If it was wrongfully removed the court can remand, and send back to state court.

Front 44

Who has to agree for Removal

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2. All defendants must agree to remove. (Minor Expectation §1441C, that a single defendant can remove if there is a separate or independent federal question claim against her.)

Front 45

Who can Remove?

Back 45

3. Only Defendants can remove. Plaintiff cannot remove, even with a counter claim.

Front 46

Where and When can you Remove?

Back 46

4. You remove to the federal district embarrassing the state court where the case was filed. (§1441A)
5. Remove within 30 days of the case becoming removable. Normally a case is removable at the outset

Front 47

What is the one exception to the time removal

Back 47

You cannot remove a diversity case more than one year after the case was filed in state court, and you cannot remove to a place where a plaintiff is a citizen of that forum

Front 48

What is Venue?

Back 48

Venue is about where to bring about your suit. Venue must be laid in an appropriate federal district.

Front 49

What is the Basic Provisions for Venue

Back 49

1. In removal cases venue is in the district embracing the state court
2. Local actions must be brought in the district where the land lays (Local actions is a case about ownership, possession, or injury to real property, including trespass)


§1391A – Diversity cases
§1391B – Federal Question
Rules in these two cases are almost exactly the same in 99.9% of all cases under those two options
Plaintiff has two basic choices under §1391 (A) or (B)
1. Any district where all defendants reside [§1391(A)(1) §1391(B)(1)] (Residents same as domicile) (§1391(C) a corporation resides in all districts where it is subject to personal jurisdiction) If all defendants reside in a different districts of the same state you may lay venue any where that one resides
2. Any district where a substantial part of the claim arose [§1391(A)(2) §1391(B)(2)]

Front 50

How does Transfer of venue work?

Back 50

Moving from a trail court in a judicial system, to a trail court in the same judicial system. IT HAS TO BE IN THE SAME SYSTEM. STATE-TO-STATE FEDERAL TO FEDERAL

Front 51

What are the two status that govern Transfer of Venue

Back 51

1. 1404(A) - The transferor court is a proper venue, and we may transfer based upon 3 things 1) Convince of the parties 2) Convince of the witness 3) Interest of justice. (Fairens) The Transferee court, applies the choice of law rules of the transferor court
2. 1406(A) – Venue in the transferor court is improper, the court may transfer in the interest of justice or dismiss

Front 52

What is Forum Non Conveniens

Back 52

This is where a court dismisses a case because litigation would be more appropriate in some other court
Dismiss because transfer is not available, true when the better court is a different judicial system. Also comes up when the better court is in another country.

Front 53

How do you Challenging Forum Selection

Back 53

There are several threshold defenses related to forum selection, the better be raised all tougher (put up or shut up) if your don’t then you will have waived most of them. All rules are in FRCP 12B. You must make a Motion for a 12(B)(3) improper venue.
12G and H say, 12(b)(2) thru (5) must be put in the first response or they will be waived.
12(b)(7), and 12(b)(6) can be raised at any time through trial
12(b)(1) can be raised at anytime (Never Waived)

Front 54

what are the basics Appeals rules

Back 54

You may only appeal an order after final judgment has accrued.

Best Test to Use: Does the judge have something left to do on the merits of the case. If YES, then its not a final judgment and not appealable, if NO, then it is a final judgment and you may appeal the order.

Front 55

What are the 6 Interlocutory Expectations to Appeals

Back 55

1. §1292(A): there are certain interlocutory orders that are reviewable as of right
2. §1292(B): allows appeals if the trail judge certifies that it allows a controlling issue of law, and there are substantial ground difference of option. Court of appeals must also agree to hear it
3. FRCP 23(f): court of appeals has discretion to review an order granting or denying class action status
4. FRCP 54(b): involves a case where there are more than one claim or multiple parties the trail court can expressly direct final judgment as too one or more of these and can make an express finding there are no just reason for delaying appeal.
5. Collateral Order Rule: Cohen. Gives the court of appeals discretion to take an interlocutory issue, Needs 3 things 1) must rise an important issue that is separate form the merits 2) The court order, completely resolved that issue 3) the issue is effectively is unreviewable if we wait toll final judgment.
6. Extraordinary Writ : an original proceeding brought in the appellant court, asking an order compelling the trail judge to do something or to vacate an order.

Front 56

Res Judicata (Claim Preclusion)

Back 56

1. Got to show case one, and case two were brought by the same claimant against the same defendant
2. Case 1 must have ended in a valid final judgment on the merits
3. Case 1, and Case 2 must involve the same claim. Majority View: transactional, same T/O or series of T/O. Single Wrongful Act: Look to the wrongful act of the defendant Minority View: Looks at rights invaded, Primary Rights Theory, for defining the claim it stands for the prop that you have a different claim for each primary right invaded
4. Sytech Rule: on the merits mean you cant final it in the same jurisdiction, however if filed some where else it depends on the local rule of that jurisdiction

Front 57

Collateral Estoppel (Issue Preclusion)

Back 57

Focused on an issue. There was an issue litigated, and determined in case 1, and the effect of Collateral Estoppel is deemed to be established in case #2
1. Case One ended in a valid final judgment on the merits
2. The same issue was actually litigated, and determined in case 1
3. Got to show that issue was essential to the judgment in case 1. Without this issue we would not have had the same result
4. Against who is Collateral Estoppel being used, you can only use it against someone who was a party to case 1
5. By whom is collateral Estoppel asserted, Traditional View: Mutuality: that it can only be used by someone who was a party in case one. Mordern Trend: to allow non-mutual collateral estoppel, means the party using CE in case 2 was not a party in case 1

Front 58

What is the blackletter rule that came from the Eire Case

Back 58

A Federal Court must apply state substantive law in diversity cases

Front 59

What is the rule that came out of Hanna that effects Eire

Back 59

If a Federal rule of Civ Pro is on point that directly clashes with the law then you must apply the FRCP

Front 60

What is the Outcome Determinative Test for Eire that came out of York

Back 60

If the outcome of a case would be different if federal law was applied over state law then you must apply state law.

Front 61

Balance of Interest Test for Eire from Bird

Back 61

if a state rule is not clearly substantive the federal court can apply state law, unless the federal court system has some interest in doing it differently

Front 62

What is the Twin aims approach in Eire

Back 62

1. Avoid of Forum shopping
2. Avoids of Inequady Administration of the Law
Ask your self, would this cause people to flock to federal court. If yes, then it would also not be fair to the instate persons who cant get into to federal court.

Must apply State Law if the aims fail