Civil Procedure 1, Sep 2010

Front 1

Removal from State Court to Federal Court is available to who?

Back 1

This is available to Defendants. §1441

Front 2

Why would a ∆ want to remove his case from state court to federal court?

Back 2

1- throw opponent off her game

2- get a different jury pool

3- get a different procedural law

Front 3

Define the Erie Doctrine.

Back 3

When deciding non-federal question claims, the federal court must apply the substantive state law that the state court, for the state in which the federal court sits, would apply.

Front 4

To have specific jurisdiction over a ∆, the plaintiff has to show that the ∆ did what?

Back 4

Purposeful Availment

*did the defendant purposely avail himself with the forum state?

Front 5

What are the two elements in determining purposeful availment?

Back 5

1- ∆'s conduct creates contacts with the forum state.

2- Contacts are of a nature and quality that the ∆ would reasonably anticipate being haled into the forum state's court.

Front 6

What are some examples of Purposeful Availment?

Back 6

Out of state ∆:

1- conducts activities in the forum state.

2- contracts with a person in the forum state

3- Stream of Commerce

4-contact w/forum state via internet

5-tortious interference
2-

Front 7

If Specific Jurisdiction with ∆ is through a contract, what things should you consider?

Back 7

SPJ - Contracts with Persons in the Forum State; Purposeful Availment

1- Pre-Contract negotiations

2- Contract terms

3- Post execution performance

Front 8

What are the 5 Specific PJ Fairness Factors?

Back 8

1- burden on ∆

2- Forum State's Interest

3- π's interest in getting relief efficiently

4- interstate interest in efficiency

5- shared states social policy interest

Front 9

General Personal Jurisdiction requires there to be ____________contacts with the forum state?

Back 9

General PJ requires there to be substantial contacts with the forum state.

Front 10

Define Substantial Contacts?

Back 10

"Doing Business"

Continuous and Systematic, usual and ordinary, general business activities

Front 11

When would the ∆ file a motion to dismiss for forum non conveniens in the state court?

Back 11

forum non conveniens is used in the state courts when the convenient forum is in another state of foreign country.

Front 12

When would the ∆ file a motion to dismiss for forum non conveniens in the federal courts.

Back 12

Forum non convenines is used in federal courts when the convenient forum is in a foreign country.

Front 13

What are some forum non conveniens private factors?

Back 13

1- ease of access to proofs

2- compulsory process for unwilling witnesses & cost for willing witnesses

3- practical problems

Front 14

What are some forum non conveniens public factors?

Back 14

1- court congestion

2- local interest

3- comfort with the law that must be applied

Front 15

When a federal court is confronted with a state law claim, what doctrine should we start thinking about?

Back 15

The Erie Doctrine

Front 16

What is the Rules of Decision Act (RDA)?

Back 16

The RDA says that the laws of the several states shall be regarded as the rules of decision. This was clarified in the Erie Railroad Case.

Front 17

What are the Twin Aims of Erie?

Back 17

The twin aims of Erie are:

(1) discourage forum shopping between federal & state courts

(2) eliminate discrimination encountered by resident parties with regard to choice of forum and outcomes

Front 18

What is the Rules Enabling Act?

Back 18

The rules enabling act was enacted in 1934, authorizing the supreme court to draft and make a set of procedural rules for the federal courts.

Front 19

Define Procedural Law:

Back 19

Procedural law is the law that governs the "manner and means by which a right to recover is enforced."

Front 20

What is the Outcome-Determinative Test? When do we apply this?

Back 20

Ask:

~Would the outcome of the litigation be significantly affected if the federal court disregarded a State law that would be controlling if the parties were in State court?

Front 21

What is the primary purpose of "modern" pleading?

Back 21

To give NOTICE of claims and defenses to other parties and the court.

Front 22

Is a pleading considered proof or evidence?

Back 22

NO, a pleading is merely a notice.

Front 23

FRCP 8(a) requires a pleading to contain what three things?

Back 23

(1) a short, plain statement providing the grounds for the court's jurisdiction.

(2) A short, plain statement of the claim showing that the pleader is entitled to relief.

(3) A demand for that relief

Front 24

What are two types of pre-answer motions?

Back 24

(1) Motion for a more definite statement

(2) Motion to dismiss for failure to state a claim upon which relief can be granted (12)(b)(6)

Front 25

What is the two step analysis for a 12(b)(6) motion?

Back 25

(1) To identify allegations in the complaint that are merely conclusory and then disregard them

(2) Review the well-pleaded allegations that remain and determine whether they plausibly give rise to an entitlement to relief.

Front 26

How must an allegation of fraud or mistake be plead?

Back 26

Fraud or mistake must be plead with particularity the circumstances that constituted the fraud or mistake.

Front 27

How do you "state with particularity" in a fraud case?

Back 27

When alleging fraud the π must:
(1) who said it
(2) what were the fraudulent statements
(3) when & where were the statements made,
(4) How are the statements fraudulent

Front 28

Rule 11 requires every pleading to contain what?

Back 28

(1) It must be signed by either the attorney or in pro per.

(2) the signature is certifying that the undersigned to the best of their knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, that
~the pleading is being used for an improper purpose
~allegations are warranted
~allegations have evidentiary support

Front 29

Imposing sanction for a violation of Rule 11 is determined how and by whom?

Back 29

Imposition of sanctions is discretionary with the court.

Front 30

Rule 11 Sanctions may consist of what?

Back 30

(1) directives of a nonmonetary nature

(2) payment to the moving party or some or all of expenses

Front 31

Rule 11 Sanctions are limited to what?

Back 31

Sanctions are limited to what is sufficient to deter.

Front 32

Rule 11 violations applies to everything BUT what?

Back 32

Rule 11 is inapplicable to discovery.

Front 33

How is 28 USC §1927 different from Rule 11 in applying sanctions?

Back 33

§1927 is broader in that it doesn't limit writings and it sanctions any attorney OR OTHER PERSON who multiplies the proceedings unreasonably and vexatiously (bad faith)

Front 34

When served with a complaint, what are the ∆'s two options?

Back 34

(1) file a pre-answer motion

(2) answer it

Front 35

When must an answer to a complaint be filed?

Back 35

an answer must be filed within 21 days after being served with the summons and complaint

Front 36

If the ∆ is served with a request for a waiver of service and he agrees, under Rule 4 how long does he then have to answer the complaint?

Back 36

the ∆ will have 60 days in which to file an answer to the complaint if he agrees to waive formal service.

Front 37

When MUST pre-answer motions be filed with the court?

Back 37

Pre-answer motions must be filed BEFORE the time for filing an Answer to the Complaint.

Front 38

What are the 7 FRCP (12)(b) Defenses?

Back 38

(1) lack of SMJ
(2) lack of PJ
(3) Improper Venue
(4) Insufficiency of Process (the paper itself)
(5) Insufficient service of process (was I served at all)
(6) Failure to state a claim upon which relief can be granted
(7) Failure to join under Rule 19

Front 39

What is the definition of Domicile?

Back 39

It means the ∆ has set up his home someplace, resides there, and plans on staying for an indefinite amount of time.

Front 40

Pursuant to Milliken, when do states have PJ over their citizens?

Back 40

The general rule is that States have general PJ over their citizens, whether or not they are physically present in the state.

Front 41

Having General Jurisdiction means what?

Back 41

General jurisdiction means that the ∆ can be sued in their state whether the cause of action arises out of or is related to contacts there and even if the cause of action arose outside of their state.

Front 42

For PJ of a business to remain consistent with the Due Process clause, it must not do what?

Back 42

It must not offend notions of fair play and substantial justice.

Front 43

Pursuant to Perkins, General PJ will be found if what?

Back 43

General PJ will be found if ∆'s contacts were continuous, systematic and substantial.

*This is a high hurdle to pass

Front 44

Specific PJ will be found if what?

Back 44

Specific PJ will be found if the minimum contacts test is met AND the reasonable factors.

Front 45

What does a non limiting long-arm statute provide for?

Back 45

Non limiting statutes provide for everything the US Constitution does.

Front 46

What does a limiting long-arm statute provide for?

Back 46

Limiting statutes provide for less than the US Constitution.

Front 47

A default can be entered against a party who has failed to do what?

Back 47

Upon motion of a party, the clerk of the court can enter a default against the ∆ who has FAILED TO PLEAD OR OTHERWISE DEFEND.

*remember this is NOT the same as a default JUDGMENT.....an entry of default is a prerequisite to obtaining the default judgment.

Front 48

What is the effect of an entry of default????

Back 48

The defaulting party (the one who failed to plead) is deemed to have admitted all well-pleaded allegations in the complaint.

Front 49

An entry of default can be set aside for a showing of what?

Back 49

An entry of default can be set aside for a showing of good cause.

Front 50

What are some reasons for setting aside an entry of default?

Back 50

1- mistake

2- newly discovered evidence

3- fraud or other misconduct by the adverse party

4- changed circumstances or in the interest of justice

Front 51

Do courts generally favor or disfavor judgments by default and why?

Back 51

default judgments are typically disfavored by the courts because the court would rather enter judgments based on the merits of the case.

Front 52

The π can voluntarily dismiss an action without consent of the court...what are the two ways?

Back 52

A π can dismiss his action without consent of the court:

1- by stipulation

2- Unilaterally (IF AND ONLY IF) the ∆ has not yet filed an answer or SJ motion.

Front 53

Are Involuntary Dismissal's by the court presumed to be with or without prejudice?

Back 53

Involuntary Dismissal's by the court are presumed to be WITH prejudice unles the court specifies otherwise.

Front 54

Rule 18 regarding Joinder of Claims says what?

Back 54

Rule 18:

*A party can bring all claims he has against another party, even if the claims are unrelated*

~this rule is permissive...meaning you don't HAVE to bring all claims...you just can if you want to~

Front 55

Rule 18 regarding Joinder of Claims is subject to what procedural rules?

Back 55

1- The court must still have PJ over the litigants AND SMJ over the claims. If it doesn't you CAN'T join.

2- We may need to satisfy rules 13, 14, 15. If the requirements are not met you CAN'T join.

Front 56

Rule 13 deals with counter & cross claims...what are the two types of counterclaims?

Back 56

1- Compulsory...these are the ones that arise from the same thing as the π's claim and it MUST be asserted or it is waived!

2- Permissive...these are unrelated claims that the ∆ can join or bring in a separate action....remember PJ & SMJ must always be met.

Front 57

What are the exceptions to a compulsory counterclaim?

Back 57

claims arising out of the same thing as the original claim must be asserted or it's waived UNLESS:

1- It's an immature claim

2- There is lack of jurisdiction over 3rd parties

3- Pending lawsuits

**I really don't know how to explain this, so LOOK IT UP

Front 58

Cross claims are brought against persons on the SAME side of the litigation and are ALWAYS what?

Back 58

Crossclaims are always permissive!

~a crossclaim can only be brought if at least one crossclaim ∆ is ALREADY a party to the action!

*Z sues A for assault and B for dramshop. A can file a cross claim against B. And B can file a cross claim against A.

A & B can file a COUNTER claim against Z! KNOW THE DIFFERENCE!

Front 59

Rule 20 applies to WHO and what are the 2 requirements?

Back 59

Rule 20 applies to joinder of parties as plaintiffs or defendants!

1- the claims brought by the people under this rule must arise out of the same thing

2- Parties joined under this rule must have in common at least ONE QUESTION OF LAW OR FACT.

Front 60

Rule 14 deals with Impleader...what does impleader allow?

Back 60

Rule 14 impleader allows a party defending a claim to join other persons not yet parties.

***MUST BE DERIVATIVE of 3rd party Plaintiff's liability***

"if me, then he owes me." think about indemnity and contribution

Front 61

Once a 3rd party ∆ is in the case..what can happen?

Back 61

a 3rd party ∆ can file counterclaims, crossclaims and defenses....just like the original ∆ who is now called the 3rd party π.

**The original plaintiff can now also file claims against the 3rd party ∆ that arise out of the same thing....which is usually always or why would he have been brought in anyway??

Front 62

Rule 13(h) is like a little hook to grab someone who is not in the litigation...What is the rule?

Back 62

HYPO: Dave sues you and you file a counter claim..well Dave owns the house with his wife.

~Rule 13(h) is used to bring in the wife because the court can't just get rid of the wife's interest without having her as part of the suit.

Front 63

What is mandatory when bringing in a stranger under Rule 13(h)?

Back 63

You MUST be counter claiming against an existing party in the case.

***If you don't counter claim, you CAN'T bring someone new in***

Front 64

Is the Impleader rule (rule 14) permissive or compulsory?

Back 64

Permissive.

*Remember, the stranger's liability must be derivative of the 3rd party plaintiff's liability*

~you don't have to do it, but you probably would~

Front 65

How long does the ∆ have to file an impleader?

Back 65

Once the ∆ files his answer to the complaint he has 14 days to file an impleader.

**If you miss the deadline, you have to ask the court for permission**

Front 66

How do you bring a JIC into the suit?

Back 66

Analyze 1367(a):

If the JIC meets SCNOOF...arising out of the same thing...YOUR IN.

Front 67

1367(b) kicks the JIC right back out if all of the following _____are met?

Back 67

1-JIC is brought by the PLAINTIFF

2- JIC is against a party joined under rule 19,20,24,14

3- Fails 1332 (diversity of citizenship and over $75,000)

Front 68

When do we do a supplemental jurisdiction analysis?

Back 68

??

Front 69

If I (MI) want to sue B(AZ) for $80,000 and C(AZ) for $50,000 in federal court..what do I have to analyze?

Back 69

Because the amount from C is less than $75,000 we have to analyze:

1- 1367(a)...is SCNOOF met? YES
2- 1367(b)
*is the anchor claim based on diversity? B's claim? YES
*is the JIC brought by the π? YES
*is the JIC against parties joined by rule 14 or 20? YES
*does 1332 fail? YES..the amount in controversy.

**This hypo FAILS because 1367 will knock the suit against C out.

Front 70

What three prerequisites must be satisfied in order to bring suit in a particular forum?

Back 70

PJ, SMJ, and Venue

Front 71

U.S.C. §1332(a)(1) is the basic provision for determining what?

Back 71

Courts use domicile to determine the the state citizenship of individuals.

**corporations have two..remember..PPB and State of incorporation**

Front 72

Diversity is satisfied so long as what?

Back 72

So long as the parties are from different states and the amount in controversy requirement is met, diversity is satisfied!!

**Remember that diversity jurisdiction turns on a comparison of the citizenship of the parties.....not the relationship between the parties or the claim & the forum state**

Front 73

To establish general jurisdiction over a corporation what do you need to establish?

Back 73

the π needs to establish substantial and continuous contacts in order to establish general personal jurisdiction over a corporation.

Front 74

§1404 gives a court the power to transfer cases for what?

Back 74

"for the convenience of parties and witnesses, in the interest of justice."

**a ∆ can argue that the claims did not arise in the forum state and although the ∆'s activities are substantial in the forum state, they are completely unrelated to the claim before the court.*

Front 75

If no ∆ is domiciled in the forum state, the π will have to rely on specific jurisdiction and base the analysis on what?

Back 75

To rely on specific jurisdiction the π has to do a minimum contacts analysis as outlined in International Shoe.

Front 76

Diversity requirements of 28 U.S.C. §1332 apply only to SMJ of what courts?

Back 76

Federal Courts

Front 77

PJ analysis is the same whether the suit is brought in state or federal court as indicated in what rule?

Back 77

FRCP 4

Front 78

Can a ∆ object to PJ AFTER his case has been removed to federal court?

Back 78

YES...a ∆ can seek dismissal on improper PJ after the case has been removed from state to a federal court.

Front 79

Can a ∆ remove his case based on diversity if he is a citizen of the forum state?

Back 79

NO, NO, NO

A case cannot be removed, even if it satisfies the basic diversity requirements is he is a citizen of the forum state!!!

Front 80

Federal district courts have subject matter jurisdiction if you are suing _______ and you are asking for at least ______ in money damages.

Back 80

"Don't make a federal case out of it."

1- a citizen of a different state or foreign national

AND

2- over $75,000 in money damages

Front 81

In order for a federal court to have diversity jurisdiction it must be what?

Back 81

The diversity MUST be complete.

~There can't be someone from MI for example on both sides. No matter what!~ if there is....diversity jurisdiction fails!

Front 82

If the claim arises out of a federal question, does the π still need to meet the $75,000 requirement and diversity of citizenship requirements?

Back 82

NOPE.....the π can file in the federal court in which she lives.

**conversely, if the ∆ lived in the same state..it would still be okay AND if the ∆ lived in a different state, she could file in the federal court where she lives (where the claim arose) OR where the ∆ lives.

Front 83

If the π misses the statute of limitations in the state court to file a claim based on a state law....can he then file in federal law to beat this??

Back 83

NO...if the claim is a state law claim the federal court will use the state's statute of limitations.

**However, if the claim arose out of a federal question, the π could still sue in federal court even though the SOL ran in the state court.