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49 Cards in this Set
- Front
- Back
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Define domicile
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Physical presence and intent to remain indefinitely
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14th Amendment
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Due Process Clause
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Article III of the Constitution
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Authorizes establishment of federal courts
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Article IV, Section 1
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Full faith and credit clause - states can recognize and enforce each other's judgments
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Bases for personal jurisdiction
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Domicile, consent, physical presence and/or minimum contacts
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28 USC § 1391(a)
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Venue in diversity cases
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28 USC § 1391(b)
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Venue in all federal question cases (not including diversity)
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FRCP 12(h)(1)
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When some defenses are waived (e.g. omitting from motion/pleading; failing to plead/make a motion)
personal jurisdiction venue insufficient process insufficient service of process |
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FRCP 12(h)(3)
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If at any time court determines it lacks subject matter jurisdiction, it MUST dismiss
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28 USC § 1391(a)(3) and 1391(b)(3)
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Fallback provisions re venue:
a: a district where any D is subject to personal jurisdiction if no other district proper b: judicial district where any D may be found if no other district propr |
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28 USC § 1404
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Change of Venue.
Gives federal courts ability to move cases around for convenience of parties and witnesses and in the interest of justice. Do not need to dismiss and refile. Upon motion, consent, or stipulation. |
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28 USC § 1406
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Cure or Waiver of Defects
Dismiss or transfer to court where jurisdiction would be proper. |
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28 USC § 1631
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Transfer to Cure Want of Jurisdiction
Case filed in proper venue, but court w/o jurisdiction can transfer to proper court w/o dismissal, will operate as though case had been filed in proper court at the beginning. [Courts of limited jurisdiction? Like filed in federal district, but shoulda gone to BK?] |
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Can a resident defendant remove a diversity case to federal court?
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No, removal available only to out of state defendants.
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28 USC § 1331
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Federal question jurisdiction
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28 USC § 1332
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Diversity jurisdiction. Requires complete diversity (parties on either side of the "v" must be from different states). Also must have more than $75k amount in controversy. Corporations residents of states where incorporated and where PPB. Representative of estate considered resident of state where decedent domiciled. Buncha class action crap.
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28 USC § 1367(a)
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Supplemental jurisdiction over actions so related to claims currently in federal district court that they form part of the same case or controversy
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28 USC § 1367(b)
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Supplemental jurisdiction over diversity cases - won't have supplemental jurisdiction when it would conflict with requirements of § 1332 (diversity)
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28 USC § 1367(c)
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May decline supplemental jurisdiction if:
a. novel/complex issue of state law b. state claim predominates currently currently in federal court c. federal court dismissed all claims over which it has original jurisdiction d. other reasons in exceptional circumstances |
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28 USC § 1367(d)
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Statute of limitations tolling after dismissal of supplemental jurisdiction [not clear on this]
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28 USC § 1441
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Actions Removable Generally
Actions brought in state court over which district courts have juris. can be removed to federal court by non-resident Defendant. [and a bunch of other sub-provisions] |
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28 USC §§ 1446 and 1447
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Procedure for Removal and Procedure After Removal Generally
note: can't remove on diversity grounds after one year after commencement of the action |
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FRCP 4
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What's in a summons, how to issue, who can serve, waiving service, failure to waive, serving w/in US, foreign country, minor, corporation, partnership, etc. etc.
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FRCP 7
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Pleadings Allowed
complaint, answer, answer to counterclaim, 3rd party complaint, answer to 3rd party complaint and if allowed, reply to answer. Request for court order must be made by motion: in writing or at hearing or trial; state with particularity grounds and state relief sought. |
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FRCP 8(a)
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1) short and plain statement of grounds for jurisdiction unless claim needs no such support
2) short and plain statement of claim showing pleader entitled to relief 3) demand for relief sought which may include relief in the alternative or different types of relief |
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FRCP 8(b)
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Defenses, Admissions Denials
State in short and plain terms defenses and admit or deny allegations asserted by opposing party. May do a general denial of all allegations (including jurisdictional grounds). If lacking knowledge or information to admit/deny, must so state. If you don't deny an allegation in a required responsive pleading (except amount of damages), it's considered admitted. |
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FRCP 8(c)
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Affirmative Defenses
Lists affirmative defenses - says "including" and not "limited to". See supplement page 31. |
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FRCP 8(d)(3) allows...
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As many claims or defenses a party has, regardless of consistency.
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FRCP 8(d)(2)
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Alternative statements of a claim or defense - can plead alternatively or hypothetically
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FRCP 9(b)
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Pleading fraud or mistake; conditions of mind:
If alleging fraud or mistake, must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person's mind may be alleged generally. |
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FRCP 11(a)
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(a) All pleadings require attorney's signature or party's if not represented.
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FRCP 11(b)
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Signing a pleading certifies to the court that to the best of the person's knowledge, information, and belief, formed after reasonable inquiry under the circs:
1. not presented for improper purpose (e.g. delay) 2. claims/defenses/contentions merited by law or nonfrivolous argument for extending/modifiying law 3. facts have evidentiary support or will likely have it after opportunity for discovery and further investigation 4. denials of fact contentions warranted on evidence or reasonably based on belief or a lack of information |
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FRCP 11(c)
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Sanctions for Rule 11 violation
1. Sanctions allowed and law firm usually sanctioned jointly with associate/partner/employee. 2. Motion must be separate pleading. Serve on attorney, wait 21 days, then file with the court. 3. Court can order party to show cause why they should not be sanctioned on their own initiative. 4. Sanction limited to what is needed to prevent repetition; variety of sanctions other provisions, including that inapplicable to disclosure and discovery... |
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FRCP 12(a) how long to serve an answer?
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20 days after service or if service was waived under Rule 4(d), 60 days. 90 days if sent to D outside US. 20 days to answer counterclaim or after being served with order to reply.
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FRCP 12(b)(1)
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lack of subject matter jurisdiction
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FRCP 12(b)(2)
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lack of personal jurisdiction [WAIVED IF NOT PLEADED IN MOTION OR INITIAL RESPONSE OR AMENDMENT]
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FRCP 12(b)(3)
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improper venue [WAIVED IF NOT PLEADED IN MOTION OR INITIAL RESPONSE OR AMENDMENT]
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FRCP 12(b)(4)
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insufficient process [WAIVED IF NOT PLEADED IN MOTION OR INITIAL RESPONSE OR AMENDMENT]
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FRCP 12(b)(5)
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insufficient service of process [WAIVED IF NOT PLEADED IN MOTION OR INITIAL RESPONSE OR AMENDMENT]
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FRCP 12(b)(6)
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failure to state a claim on which relief can be granted
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FRCP 12(e)
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motion for a more definite statement
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FRCP 12(f)
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motion to strike insufficient defense or any redundant, immaterial, impertinent, or scandalous matter
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FRCP 12(g)
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Can join Rule 12 motions; 12(g)(2) sets out which Rule 12 motions can/cannot be made after filing an initial Rule 12 motion (can still file 12(b)(6) but others waived)
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FRCP 12(h)
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Some defenses waived unless party makes them at first possible opportunity: lack of personal jurisdiction, improper venue, insufficient process, insufficient service of process
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FRCP 13(a)
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Compulsory counterclaims: must state a claim if it arises out of transaction or occurrence that is subject of opposing party's claims; does not require adding another party over whom the court cannot get jurisdiction. Exceptions 13(a)(2)
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FRCP 13(b)
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Permissive counterclaim - any claim that isn't compulsory; may be stated as a counterclaim
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FRCP 41
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Dismissals; voluntary, involuntary, counterclaims, costs...
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FRCP 56
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Summary Judgment
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FRCP 65
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Injunctions and Restraining Orders
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