Civ Pro Fall 2010 Semester

Front 1

What is Personal Jurisdiction?

Back 1

Personal jurisdiction is the power of a court to make a binding orders against a party.

Front 2

To determine whether each D is subject to PJ depends on:

Back 2

1.) Whether D was properly served and if so,
2.) Whether the exercise of jurisdiction agrees with the Traditional Notions of Fair Play and Substantial Justice.

Front 3

How do you obtain PJ?

Back 3

Personal jurisdiction is obtained by giving notice notice within the grasp of the state's long-arm statute which is coextensive with the US Constitution.

Front 4

Define Notice

Back 4

Modernly, a crt may exercise jurisdiction over an out-of-state defendant upon proper notice to the extent permitted by the LAS of the state where the crt sits. A failure to object at the time of challenging PJ would waiver any notice defect in the federal court.
1.) Consitutional/permission - a state's LAS can reach only so far as the consitution allows.
2.) Statutory/Power: state will only have as much power as its LAS allows.

Front 5

What is notice?

Back 5

RULE 4(k):
(specifies when fed. Crt may assert pj over a defendant served under Rule 4)
Territorial limits of Effective Service of a summons or filing a waiver of service is EFFECTIVE to establish JDN over defendant

Front 6

Define Long Arm Statute (LAS)

Back 6

One gets PJ over an out of state defendant by giving notice within the grasp of state's LAS, IF D has m/c with the forum so that the exercise of jurisdiction does not offend traditional notions of fair play and substantial justice. CA LAS is coextensive w/ limits of constitution.

Front 7

CONTACT - Foreseeability (PJ)

Back 7

Foreseeable to the defendant he when acted that he could be haled into court.
Come into the state and you do something (benefits and protections of being inside the state).
Once you establish that there is this two prong m/c text

Front 8

Fairness five factors
(B.I.P.E.S.)

Back 8

List all five fairness factors and pick the ones that are most obvious DO NOT GO IN-DEPTH
1.B urden on defendant
2.I nterest of forum state to adjudicate
3.P laintiff's interest in relief
4.E fficient resolution of case
5.S hared interests of states in further fundamental social policy

Front 9

Define Traditional Bases of Jurisdiction

Back 9

1.Domicile
- Individual: place of domicile
- Corporation: place of incorporated
2.Appearance
- General: to dispute the case at hand/appearing on the merits of the case
-Special: to contest that there is no PJ to hold a defendant to answer.
3. Consent: when defendant consents to jurisdiction
4. Presence: in the forum state at the time of service, regardless of m/c.

Front 10

Stream of Commerce:

Back 10

•Stream of Commerce:
O'Connor = stream of commerce is insufficient-to-give-PJ even if knowledge of direction to specific state, as in Asahi.
Brennan, =it is sufficient-to-give-PJ as national marketing puts party on notice of possibility of suit in a forum where an injury might occur.
Grey (Per Shoe) - m/c satisfied through single act w/ substantial connection to the state even if doing no biz in state.

Front 11

Shoe Boxes (nature and quality of contacts)
Shoe creates sliding scale: light vs. heavy

Back 11

- Light contacts supports JDN only over claims related to those contacts )specific JDN)
- Heavy contacts supports JDN over unrelated claims (general JDN)

Front 12

Special Cases :
DON’T TALK ABOUT unless in fact pattern (Placement under Contact: foreseeability)

Back 12

•Stream of Commerce:
O'Connor, Brennan, =it is sufficient-to-give-PJ as national marketing puts party on notice of possibility of suit in a forum where an injury might occur.
Grey (Per Shoe) - m/c satisfied through single act w/ substantial connection to the state even if doing no biz in state.

•Internet cases: passive (purely informational) v. active (interactive with visitors)
Effects test: D's actitivty in their state and effects out of state P.
•Hanson v. Denckla: act has to be by the D, not 3rd person.
•Shaffer v. Heitner: attachment theory. P cannot attach property/cow to out of state D if no PJ over them.

Front 13

Shoe Box 1-4 of defining minimum contacts

Back 13

1. Continuous / systematic/related to lawsuit – JDN never been doubted
2. Isolated/related to lawsuit – JDN Maybe present
3.Continuous/systematic/unrelated to lawsuit – JDN maybe present
4.Isolated/Unrelated to lawsuit – No JDN
* NO contacts, ties or relations = NO JURISDICTION

Front 14

Define Nexus

Back 14

Where the contact of the defendant with the plaintiff's state is RELATED to the dispute at hand or it AROSE from the D's contact with P's state.

Front 15

Three cases where fairness negated Jurisdiction

Back 15

1. Domestic - Kuklo
2. International - Asahi
3. Gen JDN over corp. - Wal Mart
Note - if you have one, spend more time on fairness factors

Front 16

Purposeful Availment

Back 16

When Defendant deliberately choses to take advantage of the benefits and protections of the laws by coming into the state.

Front 17

Purposeful Direction

Back 17

When Defendant is out of state, but directs things into that state.

Front 18

Diversity (1332) -- Amount in Controversy (detailed)

Back 18

Amount in Controversy: must be greater than $75K
a.) agregation of claims: a single P can aggregate claims against a single D to reach amt in controversy.
- P can add punitive damages. Excesssive punitive's use single multiplier 9:1
b.) Injunctions: may be valued at benefit to P or cost to D & can be aggregated with damages to meet amt in controversy.
c.) Legal Certainty Test: if amt is not given, it is reasonably certain that the amt will exceed $75K. Burden shifts to D to prove that will not exceed $75K

Front 19

Define Subject Matter Jurisdiction

Back 19

Where courts have the power to decide a particular case.

Front 20

SMJ – State and/or Federal
(two parts)

Back 20

1. Exclusive Jurisdiction (Federal Anti-trust, Bankruptcy, Patent and copyright, SEC Case (some))
2.Concurrent jurisdiction (state crt will have cj over cases w/in the federal judicial power unless congress made fed crt JDN exclusive for a particular type of claim).
/but FED courts refrain from hearing certain state law matters

Front 21

Federal Courts are of limited jurisdiction and can hear a case if: (four keys)

Back 21

One: it arises under a federal question (1331)
Two: there is diversity (1332)
Three: the case is brought in by supplemental jurisdiction (1367)
Four: the case has been properly removed (1441)

Front 22

Federal Question §1331 (ARISING UNDER)

Back 22

Fed. district crts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.

1.) Well Pleaded Compliant: this determines if the case involves a fed. Q. (C.A.T.)
- Arising under the Constituion
- Acts of Congress
- Treaties
2.) Congressional intent: Did Congress intend a private right of action? (e.g., Civil Rights, Amer. Disability Act, Age Discrimination, COBRA)

Front 23

Diversity § 1332

Back 23

Where a compliant is founded on diversity of citizenship, a Fed. court may maintain jurisdiction over the action only “where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between (1) citizens of different States.” 28 U.S.C. § 1332(a)(1)

Front 24

Diversity (1332) -- Complete Diversity

Back 24

Complete Diversity- where there is diverse citizenship. No P and D are citizens of the same state. (Diversity only needs to exist at time the claim is filed).
a.) Individuals: where domicile is. (permanent connection, actual residence and place intended to remain).
b.) Alien. 1) resides in the 51st state, can be sued in any district. 2.) Green card alien is deemed a citizen of that US state.
c.) Corp.: Dual citizenship. 1.) State wis where incorporated 2.) Principal place of business, where decisions are made.
d.) Puerto Rico/D.C.: considered an individual U.S. State.
e.) Unincorporated Assoc.: considered citizens in every state they have a member
f.) Red Cross (federally chartered assoc.): always in Fed. Crt.

Front 25

Removal Jurisdiction § 1441

Back 25

Defendant may remove an action to FED crt:
-Fed. question - Yes
- Diversity - if not filed in home state of Defendant
TEST: Could action have been filed in FED crt?
Multiple Defendants must consent to removal

Front 26

ERIE Conceptual Framework

Back 26

Federal Courts apply state substantive law to state law claims
What about procedural law?
- outcome determative (York)
- balancing (Byrd)

Front 27

How do the courts handle an ERIE case when a judge does something wrong? (3 federal case)

Back 27

1.) York - Outcome Determinative Test: if fed. rule directly affects outcome, apply state lawe. If not, apply the fed. law.
2.) Byrd - Balancing Test: even if federal rule affects the outcome, do balancing test to see if fed. or state interest.
- the right to a jury is not going to change the outcome, so if it would have been given in fed. crt., they get it in state crt.
** Gaspermi ** - analysis to see if the damages are excessive and should be done under York case law for shock value. Apply state rule if fed. rule shocks bx shock would hange the outcome of the case.

Front 28

How do the courts handle an Easy ERIE case when state and federal rule conflict?

Back 28

If state rule and federal rule conflict, identify te source of the conflict on the federal side.
- If US Cons., Treaty or Act of Congress: Federal Law wins
- IF FRCP: Hanna says Fed rules are good
- York: if federal rule directly affects the outcome
- Byrd: even if the Federal rule does affect the outcome

Front 29

What are the TWIN AIMS of ERIE?

Back 29

The whole purpose of ERIE
To discourage:
1.) Forum shopping
2.) Negotiable administration of the law

Front 30

What is Forum shopping?

Back 30

the practice of a litigant selecting one rather than another court in which to sue, in the hope that the court will in some way treat the litigant more favorably than another court that might have heard the case.

Front 31

How do the courts handle an ERIE conflict that is from the US Constitution, Treaty or Act of Congress?

Back 31

Apply Federal Law
"Supremacy Clause"

Front 32

How do the courts handle an ERIE conflict that is on point with the Federal Rules of Civil Procedure?

Back 32

If FRCP is on point, apply federal law, Per Hanna, follow what is permitted/allowed under this rule.

Front 33

How do the courts handle an ERIE conflict that is on point with the Federal Rules of Civil Procedure and violates the Twin Aims of ERIE?

Back 33

Hanna to the Rescue: If FRCP is on point, Federal Rules are Safe! If not, "modified outcome determinative test" (only when violates Twin Aims)

Front 34

What is the “Outcome-Determinative” test established by York?

Back 34

A state rule that was outcome-determinative was to be followed no matter how it might be labeled. If following a federal practice that differed from state procedure might significantly affect the result of litigation, the court must apply the state rule instead to prevent diverse parties from gaining unfair advantages.

Front 35

Define Reverse ERIE?

Back 35

Where there is a Fed. Q. in state crt. = use:
- fed. substantive law
- State procedure law, UNLESS "undue burden on fed. right" (e.g. state has to accept pleading notice filed in fed. crt.If state changes the pleading notice, it would be considered an "undue burden" ... )
EXCEPTION: jury trial = always use right to jury trial

Front 36

What is Lex Loci?

Back 36

It is the Law of the PLACE
- this is a minority rule
- there is no constitutional problem bx there is a connection btwn the crt and case.
- any kind of contact is good -- contact or aggravaion of contact.
- e.g. here, we care WHERE you'll be hung but whether you'll be hung or not - we don't care.

Front 37

What is Lex Fori?

Back 37

It is the law of their forum (their own procedrual rules).
- Here, constitution can be challenged
- e.g. state crt's own statute of limitations

Front 38

What is the New Restatement: Balancing?

Back 38

- here, constituional can be challenged
- e.g. P from CA from D from CA. Car wreck takes place in CA = apply CA law b/x everyone is in CA.

Front 39

What to do when you have a FRCP on point in an ERIE problem?

Back 39

If FRCP is on point, apply the facts. If not, go to York (SOL) and Byrd (workers comp) analysis. SOL becomes substantive when filed in federal court.

Front 40

What is Substantive law?

Back 40

Substantive Law defines proscribed behaviors and specifies penalties. Laws concerning murder, rape, and robbery are substantive in that they define unlawful acts

Front 41

What is Procedural law?

Back 41

Procedural law consists of rules stating how the government proceeds against an individual accused of committing a crime

Front 42

Main four sections of Rule 15 are?

Back 42

15(a) - amendments generally
15(b) - amendments to conform to proof
15(c) - relation back/
- beyond statute of limitations
15(d) - supplemental pleadings

Front 43

There is ORIGINAL JURISDICTION over the defendant under SMJ if?

Back 43

If either prong is met:
1.) Federal Question:
Well pleaded compliant and congressional intent.
2.) Diversity
Complete diversity and amount in controversy.

Front 44

SMJ: Concurrent jurisdiction

Back 44

State crt will have concurrent JDN over cases w/in the federal judicial power unless congress made fed crt JDN exclusive for a particular type of claim).
/but FED courts refrain from hearing certain state law matters

Front 45

Supplemental Jurisdiction (1367)

Back 45

Article III permits Fed. Crts. to include in their jurisdiction some claims over which they would not have original JDN -- if the claims are sufficiently related over which they do have original JDN. KEY: Allows some, but not all, of these related claims to come to FED crt under the wing of supplemental JDN; the courts have authority to decline to exercise supplemental JDN

Front 46

Rule 14
.

Back 46

Allows joinder of a non party for contribution or indemnity
BULGE Rule – joinder under Rule 14 and served within a judicial district of the US federal court system within 100 miles, jurisdiction is good

Front 47

Define Pleading Sufficiency

Back 47

Courts usually grant leave to amend once, to cure defects, as long as it arises out of the same case and controversy.

Front 48

Remand (1446)

Back 48

If a case can be removed, it can also be remanded.
- Remand can only be brought by the P
- Case can be remanded is C.L.C.M.
* Cause of action improperly removed to FED crt
* Lack of SMJ
* Crt’s discretion by State law predominates
* Must remand w/in 30 days of removal

Front 49

REMOVAL

Back 49

•Where D want case to be heard in Fed. Crt. & case originally brought by P in state crt.
- may remove a case/claim if could have been brought in Fed. Crt in first place.
- Only D can remove
- If diversity action, removal is barred if any defendant is a citizen of the forum state
IF multiple D, all must agree to a removal (time limit w/in 1 yr)

Front 50

What are the three substitutes to get into Fed. Court?

Back 50

1.) 1367
a.) grants Supp. J if crt has original JDN, they have Supp J and can hear all other 3rd party claims that arise out of the same nucleas of operative facts so as to form part of the same constitutional case/controversy, even if the requirements for Fed. Q or diversity jurisdiction are not met.
b.) Limits Supp . J.: Supp. J is NOT avilable to P who files claims against 3rd party D joined under R.14,19,20 or 24. P can still sue 3rd party D by establishing original jurisdiction (fed. Q or diversity).
c.) Declines Supp. J: crt can decline if E.N.D.S.
- Exeception circumstances compels crt to decline
- Novel or complex issues of the state law
- Dismissed all claims over which it had original J (used most often)
- Substantial state law claim predominates over fed. claim
2.) Pendent: (fed. Q only): when plaintiff joins a related claim against same D, even though second claim is not w/in the courts SMJ, it is pendent and hanging from claim.
3.) Ancillary (fed. Q or diversity): when crts disagree whether 2nd P w/ claim less than $75K can be inclded in Supp. action under diversity.
-- Traditionally: both P required to be diverse & exceed $75K
-- Modernly: 1367 allows 2nd claim even if limit not met.

Front 51

15(a) AMEND GENERAL

Back 51

• ONE amend okay before response within 21 days
• If NO response required, amend okay within 20 days;
• after that amend only by leave of crt or written permission of opponent (get okay of other counsel)
• If you are in a federal court or CA, must provide COPY of amended compliant at the time of request

Front 52

15(b) – AMEND TO CONFORM

Back 52

•Amend to conform to presented evidence
•Something comes out at trial; want to amend based on evidence

Front 53

15(c) – RELATION BACK / BEYOND SOL (difficult part of Rule 15)

Back 53

•Amendment related back to the date of original pleading IF:
•Permitted by law giving SOL; OR
•Related to the transaction, conduct or occurrence in the original pleading
•Misnomer IF served within 120 days AND Known of suit so not prejudiced AND Knew or should have known intended party

Front 54

Types of Pleadings Allowed: FRCP Rule 7

Back 54

1.) Claim/Compliant
a.) Compliant and answer to a compliant or
b.) Petition/response
2.) Counter Claim - where D sues P
a.) P reply to D
3.) Cross Claim: typically when D sues a co-defendant and co-defendant sues back.
4.) 3rd Party Claim: D brings in 3rd party for contribution or indemnity.
a.) 3rd party answer
b.) if 3rd party sues back against party who sued him, its a counter claim.
c.) CA = we call these cross compliants.

Front 55

Define Venue

Back 55

- Fed. Crt. statutes limit the districts in which a suit can be brought.
- State venue statutes limit the counties which a suit can be brought.

Front 56

Venue (1391)
Note: four parts

Back 56

(a) & (b) Cartier's barf: "As the appropriate place of trial, venue is generally good where D resides, if all D reside in the sam state, or where a substantial number of events give rise to the claim occured."
(c.) Corporate D: venue is good in any district where they would be subject to PJ, if the district court is considered a state.
(d.) Alien can be sued in any district.

Front 57

Define Transfer

Back 57

Transfer for a choice of law; also known as change of venue.
1404- when venue is proper
1406- when venue is improper/wrong
1631- where JDN is no good
(1407) - where there is a multidistrict JDN

Front 58

When Venue is Proper (1404)

Back 58

May transfer for convenience of witnesses, interest of justice, the first court's law applies, allows transfer to another Fed. Crt. where the claim could have originally been brought.

Front 59

When Venue is Improper or Wrong (1406)

Back 59

County or district can dismiss, or transfer where claim could have been brought, in interest of justice, 2nd crt's laws apply.
1406 presumes pj and smj are good -- unlike 1631

Front 60

Where jurisdiction is no good (1631)

Back 60

Crt can dismiss or transfer the case in the interesdt of justice to where it could have been brought, 2nd court's laws apply. PJ and SMJ are no good under 1631.

Front 61

Where there is a multidistrict JDN (1407)

Back 61

If case doesn't settle, P can choose where judge is or go back to where there is original jursidiction.

Front 62

Judicial Discretion

Back 62

A crt that is otherwise proper may decline JDN if there is a better forum considering BOTH the private and public factors.
When transferring to another crt, it must be a better, proper crt. Generally, if the crt dismisses, it would be an abuse of discretion

Front 63

What is Forum of Non Conveniens?

Back 63

A court that otherwise is a proper court may decline to exercise JDN where there is an alternative forum (different system) that is better suited to decide a case. A court will stay or dismiss, NOT TRANSFER.

Front 64

What are Public and Private factors considered within Judicial Discretion?

Back 64

Public (A.C.E.)
- Administratitve difficulties = forum familiarity w/ substantive law
- Court congestion
- Excessive local interest by controversies if decided at "home"
Private (I.C.E.)
- Interest of litigants
- Convenience = possibily view of premises if call for
-Effects of access to proof by keeping or staying

Front 65

Define ERIE

Back 65

When there is a state claim in Fed. Crt. = use state substantive law and fed. procedural law
- If no state substantive law on the matter in dispute, then fed, crt. must determine what it "thinks" the state's supreme crt would rule on the issue.

Front 66

Within ERIE -- When there is a State and Federal Conflict the rule is?

Back 66

Identify the cause of the conflict on the Fed. side:
1.) Under Supremacy Clause: Fed. law wins if C.A.T.
- C: Arising under the Constitution
- A: Acts of Congress
- T: Treaties
2.) Hanna/28 U.S.C.: FRCP on point, apply fed. procedure.

Front 67

What is Notice (Federal); Rule 8?

Back 67

1. Short, plain Statment of the Claim
a.) of grounds for crt's JDN, unless claim already has JDN (SMJ/Supp.)
b.) showing the pleader is entitled to relief, AND
c.) demand for the relief sought
2. BUT Twombly/lgbal: crt doesn't want possible, but plausible = where if facts were true, it would give justice.

Front 68

What is Rule 9: Special PLeading Matters (exception)?

Back 68

- Fraud and mistake: a party who brings a claim based on fraud and mistake, must state the circumstances constituting fraud or mistake w/ particularity (needs to describe in detail).
- Special damages: state w/ particularity (e.g. a special injury, an injury not likely to occur or expect).

Front 69

What is Code (CA)?

Back 69

1.) Prime Facie Case: statement of facts must establish the c/a.
2.) BUT punitive damages: demand judgment must be for a specified amt, but only include actual damages in the compliant as not to shock D.

Front 70

Define the General Rule of Pleading?

Back 70

"He who pleads, has the burden of proof."

Front 71

What is the Burden under pleading?

Back 71

1.) Burden of Pleading
2.) Burden of Production
3.) Burden of Persuasion
Three P's

Front 72

What are the ethical limitations under pleading (note Rule 11)?

Back 72

Rule 11: prohibits the following:
- An attorney signing, filing, pleading, documenting, arguing before court in bad faith.
- 11 4(c): amount awarded to the prevailing party cannot exceed what it was meant to prevent (a reasonable amount).

Front 73

Methods of Responding to the Compliant

Back 73

1.) Default Judgment: by D does nothing
2.) Answer/affirmative defense: by admitting; denying; deny on info and belief or raise affirmative defense.
3. Pre-Answer Motion: not a response pleading. D can use motions to raise both procedural & substantive challenges to the compliant. FRCP 7 provides that a party seeking any form of relief from a crt will usaully ask by a way of motion.

Front 74

Rule 12(b) 1-7

Back 74

1) Objection to SMJ
2.) Objection to PJ
3.) Objection to Venue
4.) Insufficieny of Content of Service
5.) Insufficiency of Manner of Service (e.g. left w/ underage child)
6.) Failure to state a claim upon which relief can be granted.
7.) Failure to join an indispensible party

Front 75

Rule 12(b) can

Back 75

Only be raised once

Front 76

Rule 12(b) 2,3,4 & 5 must be

Back 76

In the pre-answer motion or answer (whichever comes first) or they are waived.

Front 77

Rule 12(b)1 & 6

Back 77

Can be raised later

Front 78

Rule 12(e) Motion for a More Definite Statement

Back 78

If a response pleading cannot reasonably be prepared because the statement is so vague or ambiguous, a party may move for a more definite statement. Once court orders, party has 14 days to respond. If not, court may strike pleading or issue any other appropriate order.

Front 79

Rule 12(f) Motion to Strike

Back 79

The court may strike from a pleading:
- an insufficient defense,
- any redundant,
- immaterial
- impertinent, or
- scandalous matter

Front 80

Define Amended Pleadings (Rule 15)

Back 80

(a.) general amendment - 1 okay
(b.) amend to conform to presented evidence
(c.) amendment relates back to date of original pleading (must meet certain requirements).

Front 81

Rule 15 (a) General Amendment allows

Back 81

One amendment okay before response to pleading; if no response required then okay to amend within 21 days; after that amend only by leave of crt or written permission of opponent.

Front 82

Rule 15 (c) Relation Back allows

Back 82

15(c) - Amendment relates back to date of original pleading if:
1.) permitted by law giving SOL; OR
2.) claim arose from same transaction/occurence or attempted to be set forth in the original pleading; OR
3.) changes name of party (bx wrong party) IF:
- w/in 120 days [4(m)]
- D not prejudiced to defend; AND
- D knew / should have known it was to be them but for error