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81 Cards in this Set
- Front
- Back
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How long does a Plaintiff have to serve process on the D after the filing of the complaint?
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120 days`
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Who may effect service?
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Any person over the age of 18, not a party to the lawsuit.
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HOw long does a D have to respond to a request for waiver?
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30 days in the US, 60 outside.
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What happes if the D refuses waiver and the court finds no reason to do so?
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COst of service will be charged to the D
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How long does a D have to Answer is service is not waived? If it is?
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20 days if not waived
60 if it is(90 for outside the US) |
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How may service be effected?
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1. Pursuant to the law of the state in which the district court is located, and
2. By delivering a copy of the complaint to the D, or 3. By leaving copies at the D's house or usual place of abode with a person of suitable age and discretion then residing therein, or 3. By delivering the complaint to an agent authorized by law to receive service of process. |
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What two things must be allowed a D in service?
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1. Notice
2. Opportunity to respond |
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What is the test for notice?
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"notice reasonably calculated under all circumstances to apprise interested parites of the penendcy of the action and afford them an opportunity to present their objections"
(Mullane v Central Hanover Bank) |
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If a person has multiple dwellings when is substitute service okay?
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1. There is significant indicia of permanence, and
2. They are there at the time(NDC v. Triad Holding Corp) |
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What if a person has actual notice of the case, but service is improper?
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The court will dismiss the case, there must be strict compliance with the rules of service of process.(Mid-Continent Wood v Harris)
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Can fraud in order to get someone into a state to serve process nullify personal jurisdiction?
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Yes.(Wyman v Newhouse)
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Under Pennoyer V NEff what were the 2 ways that a state could acquire personal jurisdiction over an absent non-resident?
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1. Service while in the state
2. By the D appearing voluntarily |
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What were the exceptions to the two ways to acquire personal jurisdiction under Pennoyer v. Neff?
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1. Consent
2. By appointment of an agent for service of process 3. When it is necessary to determine the status of a resident 4. When the company is incorporated in the state 5. When the person has that state as their domicile |
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What is the difference b/w a collateral attack and a direct attack on PJ?
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1. Collateral occurs after there has already been a default judgment entered in the other jxn, and they are trying to enforce it in the D's home district.
2. Direct- Make a special appearance in the state to claim the PJ is not valid |
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Why is the collateral attack risky?
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If you are wrong about PJ, then you can not litigate the case on the merits
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How did states respond to the decision in Pennoyer v Neff?
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By passing non-resident motorist bills to allow for PJ by just driving on the roads of a state, and b y struggling with the "presence" of corporations
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What is the two part test established by International Shoe?
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1. Minimum contacts(Quality and nature of contacts considered)
2. Fair PLay and substantial justice |
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What are three possible ways to view a corporation's activity w/in a state and their effect on PJ?
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1. WHen a corp's activities are systematic/continuous and the claim arises out of those activites a corp will always be subject to PJ.
2. When the contact is casual and isolated and the suit does not relate to the behavior a corp will never be subject to suit 3. If the suit arises out of the casual/isolated behavior(McGee v International Life), or if the corporations acctivites are systematic/continuous but the claim is unrelated(Perkins v Benguet) then they may be subject to PJ. |
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What is traditional stream of commerce theory?
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If a company releases a product into the stream of commerce with the knowledge that the product would end up in a certain jurisdiction then the company will be subject to PJ in that jxn.(Gray v American Radiator)
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What is purposeful availment?
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When a company commits some act targeted at a specific jurisdiciton then they will be subject to PJ there.(Hanson v Denkla)
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WHat are the four considerations that effect whether PJ is proper established by WWVW?
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1. Forum state's interest in adjudicating claims that concern their state
2. Plaintiff's interest in obtaining a convenient/effective ruling 3. Interstate judicial system's interest in the most efficient resolution of conflicts 4. The shared interest among states of furthering fundamental substantive social policies(Kulko v Superior Court) |
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Should it be foreseeable to the corporatin that they might get sued within a jurisdiction?
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Yes. The "D's conduct and connection with the forum state are such that he should reasonably anticipate being hailed into court there"(WWVW)
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What did the Brennan dissent take issue with in WWVW?
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He argued that a car derived its value from its' mobility, so the dealer should reasonably foresee that it would be used in a foreign jxn.
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What did the Marshall dissent take issue with in WWVW?
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He argued that the use of the item should be important. A car is used to travel, and the dealer took part in a national service network.
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WHat did the Blackmun dissent take issue with in WWVW?
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He argued that it is obvious by the cars very character that it will travel to other jxns.
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Does the plaintiff need to have minimum contacts with the state?
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NO, just the D.(Keeton v Hustler)
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What is the single publication rule?
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Suits for libel will be brought in only one jurisdction, but the damage award will include damages felt in all jxns where the article was published.
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What does an intentional tort indicate about PJ?
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That the person committing the tort would reasonably foresee being haled into court, and thus be amenable to suit w/o other minimum contacts.(Calder v Jone)
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What is Stream of Commerce plus?
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A theory put forth by O'Connor in Asahi. It claims that knowledge that a product will end up in the forum is not enough. There must be more targeted behavior.
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What did O'Connor identify as four possible ways that a company can meet SOC +?
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1.Advertising within the forum
2. Marketing 3. Designing the product especially for the forum 4. Establishing channels for providing regular advice/service to the customers |
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What did the Brennan/White/Marshall dissent focus on in Asahi?
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Agreed with O'Connor that no PJ existed, but differed ont he reasoning. Went with the test established under Gray.
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What did the Stevens dissent focus on in Asahi?
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He argued that the test must focus on the value, the volume, and the hazardous nature of the product to determine if the company could reasonably foresee that they might get sued.
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Can inconvenience to the D outweigh minimum contacts?
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Yes.(Burger King v Ruczewicz)Credit card hypo.
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What did the Stevens dissent focus on in Burger King?
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The burden on the D to defend a suit away from home.
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What is general jurisdiction?
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When a company has such substantial contacts with a forum that they will always be subject to PJ. Incorporated companies, or where they have their primary place of business. Also, people domiciled there.
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What did Brennan take issue with in the dissent in Helicopteros Nacionales?
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He argued that Helicopteros's contacts with Texas were significant enough to establish general jurisdiction, and that the court should apply the "Related to" analysis(Over the arises out of) in case like this to establish PJ.
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Does In-Rem/Quasi In-Rem jurisdction still exist?
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NOt really. The court in SHaffer v HEitner, held that in order for a court to exercise personal jurisdiction, they must go through an International Shoe test to establish PJ, even if propety has been properly attached before/at the time of filing. States that ownership of property will usually be a good indication that PJ is present. Also that if the property gives rise to the claim it will usually be proper.
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Does "gotcha"/transient jurisdiction still exist?
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Yes. Scalia's plurality in Burnham argued that the rule's pedigree established that it still existed and was not subject to an IS test. Brennan's dissent argued that Shaffer ruled that PJ would always be subject to the Shoe test, but agreed with Scalia that PJ was present here.
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What must a website do in order to be subject to PJ?
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It can not be a passive site. There must be interaction between the site and the person acessing it. Otherwise, info used by someone downloaded off of the site is a unilateral activity. Site must know that the effects of the posting will be felt in the forum.(Pavolvich v Superior COurt)
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Can a person consent to personal jxn?
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Yes, as long as they have notice that thye are consenting. Carnival Cruise LIne v Shute.
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What are the two ways that a court can acquire subject matter jurisdiction?
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1. Diversity
2. Federal Question |
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What is the time of filing rule?
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All parties must be completely diverse at the time of the filing of the complaint.
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Can a person consent to subject matter jurisdiction?
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No if there is not diversity/AIC, or a federal question, then the court can not exercise jxn.
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What is alienage jurisdiction?
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Federal courts will always have SMJ over a foreigner sued in US courts.
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What is domicile?
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A person's/corporation's legal place of residence. People have one, and corporations can have two(Place incorporated/primary place of business)
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Who has the burden to establish that complete diversity is present?
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The plaintiff(Tanzymore v Bethlehem Steel)
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Can a court raise SMJ sua sponte?
Are problems with SMJ waived if they are not objected to during the trial |
Yes.
No, court can dismiss case at any time if they find that they did not have jurisdiction.(Belleville Catering v Champaign Marketing) |
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What is the amount in controversy requirement?
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$75,000.01
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Cna the claims of a plaintiff against one D be agggregated to meet the AIC?
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Yes, and they do not have to be related.
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Can a counter claim above $75000 get a trial into federal court if the P's claim is less that 75k?
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NO, the P's claim must meet the AIC requirement
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Can a counter claim be less that 75k?
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Yes if it is compulsary(arises out of the transaction or occurence that is the subject matter of the opposing party's claims or if it includes a federal question)
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Can a D aggregate counter claims to meet the AIC?
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Yes, if the claims are permissive(arising out of a different controversy) they cna come in if they add up to >75k.
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Can multiple P's claims be aggregated to meet the AIC?
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Not unless the P's have a common and undivided iterest. However if one claim meets the AIC,a dn the remaining claims arise out o the same transaction, the court can let the claims in under supplemental jurisdiction.(Exxon Corp. v. Alpattah)
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What does the Constitution require a federal question be to establish jurisdction?
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A mere ingredient.
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What is the well pleaded complaint rule?
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The federal question must be included in the complaint, the P's can not speculate on a federal question defense(Loousville & Nashville R.R. CO v. Mottley)
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What is the Holmes test for federal question jurisdcition?
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"A suit arises under the law that creates the cause of action"
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What is the 4 part test established in Grable & Sons to determine if the federla question is substantial enough to allow for federal jxn?
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1. Is the federal law issue essential to the decision of the case?
2. Is the federal question actually disputed? 3. Is there a substantial federal interest in the resolution of the federal question? 4. Will allowing for fedral jxn disrupt the balance b/w federal and state judiciary?(Most important prong-called a veto by Souter) |
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What was the test established by Smith v. Kansas City for federal question?
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"Where the right to relief depends on te construction or application of the COnstitution or laws of the US, and such claim is not merely colorable, and rests upon a reasonable foundation,then the District Court has jxn."
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What is supplemental jurisdiction?
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When a federal court can hear claims based on state law, or over plaintiffs that may not met the AIC.
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What must the court have in order to exercise supplemental jurisdction?
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Original jurisdcition over the federal claim.
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What must the supplemental claim be in order to be heard by the court?
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There must be a common nucleus of operative fact, such that they form part of the same case or or controversy.
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In a case where SMJ is based solely on diversity, when will the court not have supplemental jurisdiction?
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When the claims made by the plaintiff are against D's joined under rules 14(indemnification), 19(allows for essential parties to be brought into the case), 20(When a P joins multiple defendants), 24(WHen a party intervenes in the case). The court also does not have SMJ over P's joined under 19 & 24.
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Does a court have to exercise supplemental jurisdiction?
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NO, the court can refuse if the case raises a novel question of state law, if the state claim predominates, if all federal claims have been dismissed, or in other exceptional circumstances(jury confusion)
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What is removal?
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The process where a D removes the case from state court to federal court.
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Can the Defendant remove the case if it is filed in their home state?
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No. No home cookin'.
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Do all of the D's have to agree to removal?
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Yes.
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Does the basis for removal have to be in the well pleaded complaint?
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Yes, unless the court finds that the P has engaged in artful pleading. In that case they may allow the case to be removed under the idea of federal pre-emption.(Rivert v Regions Bank of La.)
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Is removal appealable?
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Yes, remand generally is not.
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What if there was no SMJ at the time of removal?
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The court coudl dismiss the claim. However in the interest of finality, efiiciency, and economy, the court may uphold the judgment if all parties remaining in the case at the time of trial/verdict are subejct to SMJ(Lewis v Cat)
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How long does a D have to remove the case?
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30 days after service of process. If before a year has passed the limitations of SMJ are met, the D may remove the case.
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Once PJ and SMJ are established what is the final piece of the filing puzzle?
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Venue.
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In cases brought under 1332 where can the case be filed?
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1. A judicial district where a D resids if all of the D's are from the same state.
2. A district where a substantial part of the acts or omissions took place, or where a substantial amount of the property in question resides, 3. If venue is not proper anywhere else, the case can be brought in any district where the D is subject to personal jurisdiction. |
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In cases brought under 1331 where is venue proper?
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1. A judicial district where a D resids if all of the D's are from the same state.
2. A district where a substantial part of the acts or omissions took place, or where a substantial amount of the property in question resides, 3. If venue is not proper anywhere else, the case can be brought in any district where the D can be found. |
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When can a court transfer case?
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For the convenience of the parties, in the interest of justice, the court, the plaintiff or the defendant. Must be to another district within the same system that has SMJ.
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Can a court transfer a case sua sponte?
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Yes.(Republic of Bolivia v. Philip Morris)
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What if the P files the case in an improper venue?
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The court can transfer the case, or dismiss it.
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What if a D fails to raise an objection to an improper venue?
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The judgment will not be compromised based on a lack of SMJ.
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Under rule 12(b)(3) and (h)(1) what happend if a D fails to file a motion or include in their response an objection to venue?
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Then the question is waived.It is the same for complaints of insuffiency of service, or improper service. SMJ can never be waived though.
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What is forum non conveniens?
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When court can not transfer a case to a better venue and thus dismisses a case.
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What is the three part test to determine if FNC applies?
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1. Is there another place that the suit may be brought?
2. Is the inconvenience to the D oppressive compared to the convenience of the P? 3. Does the court have any administrative concerns? (Piper Aircraft v Reyno) |
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Can a party move to dismiss for improper venue after they have removed the case to federal court?
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No, the federal venue statute does not apply to cases removed to federal court, it only applies to cases commenced in federal court.
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