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44 Cards in this Set

  • Front
  • Back
My PArents Frequently Forgot to Read Childrens Stories
Purposeful Availment
State's Interest
Complete Diversity Rule
1. Every P must be from different state from every D
There is no diversity if any P is from the same state as any D
2. This is tested when complaint is filed
Citizenship for Human
Place of domicile
1. Presence in state AND
2. Subjective intent to make it her home
Citizenship for Corp
Can have more than one
1. All states where incorporated AND
2. The one state where corp has principal place of business
Principal Place of Business
1. Nerve Center - headquarters
2. Muscle Center - corp does more production / service
3. Ct usually uses nerve center
Partnerships / LLCs
Citizenship of all members - if members in 50 states, then citizen in every state and cannot be sued in diversity
Decedents / Minors / Incompetents
Look at their domicile - NOT representatives
Amount in Controversy
1. P must set forth good faith allegation that claim EXCEEDS $75K
2. Allegation is sufficient unless clear to legal certainty that cannot recover that much (statute limits)
3. IF P recovers less - does not affect jx but P may be liable for costs
1. Can aggregate all claims where 1 P v. 1 D - don't have to be related
2. If Ds are joint tortfeasors - use total value of claim
IF P is suing for equitable relief, how is the amount in controversy determined?
Two tests - if either is met the Amt is OK
1. P's viewpoint - does blocked view decrease value of P's property by more than $75K
2. D's viewpoint - would it cost D more than $75K to comply w/injunction?
What actions are excluded from diversity JX?
Child Custody
Probate of an Estate
Federal Question JX
P must show right or interest founded substantially on federal law - Is P enforcing a federal right?
Well Pleaded Complaint Rule
In fed question jx - P's claim, properly pleaded, must be based on federal law
Supplemental Jx
1. Must consider every claim brought in fed ct for jx - is there diversity jx, fed question or supplemental
2. TEST - Claim must arise from same transaction or occurrence as P's claim that invoked federal SMJ
2. LIMITATION - No sup.jx if claim is asserted by P; in diversity case; and would defeat complete diversity
1. D can remove if case could be heard in fed ct - fed SMJ
2. All Ds must agree to remove (unless sep/ind fed claim against one D)
3. Can only go to fed ct covering district where state ct is
4. D must remove no later than 30 days after filing of first removable doc
How is removal limited in diversity cases?
1. D is citizen of the forum state
2. No removal more than 1 yr after case is filed
How can D waive removal?
1. By filing permissive counterclaim in state ct (not compulsory counterclaim)
What are clear examples of state substantive law that diversity fed ct must apply (erie)?
1. Elements of claim/defense
2. Statute of limitations
3. Rules for tolling of statute of limitations
4. Choice of law
IF not clear whether ct should apply state law or fed law - erie
1. Is there fed statute/rule that directly conflicts w/state law - APPLY FED LAW
2. If no fed law on pt
Outcome determinative - applying / ignoring rule affects outcome of case - apply state law
2. Balance interests - does either state or fed system have strong interest?
3. Avoid forum shopping - if fed ct ignores this state rule, will parties run to fed ct?
Venue - Local Actions Rule
Ownership, possession, injury to land - MUST be filed in district where land lies
IF not a local action - where is venue appropriate?
1. Where all Ds reside OR
- If all Ds reside in different districts of SAME state - ok in any district
2. Where substantial part of the claim arose
IF there is no district where all Ds reside or where a substantial part of claim arose, where is venue ok?
1. Fed Question case - Any district where any D is found
2. Diversity - Any district where any D is subject to personal jx
Where do Ds RESIDE for venue purposes?
1. Humans - residence is domicile
2. All districts where subject to personal jx (broader than citizenship)
Where can party transfer venue to?
1. Only to district where case could have been filed - proper venue w/PJ over D
2. D cannot waive improper venue or lack of PJ
3. Transferee ct will apply choice of law rules of transferor ct
If venue in the original district was proper, can you transfer venue?
YES - Ct can transfer for convenience of parties, witnesses, interests of justice
Ct discretion based on
1. Public factors - what community should be burdened; what law applies
2. Private factors - convenience of parties
If venue in original jx was IMPROPER - what should ct do?
1. Transfer in interests of justice
2. Dismiss
Forum Non Conveniens
1. There is a far more appropriate ct elsewhere
2. Transfer is impossible (foreign)
3. Ct may dismiss w/o prejudice to let P sue there
- Consider public factors and private factors
- Does not matter if P will recover less there
- Will not happen if P is resident of this forum
Contents of Complaint
1. Statement of SMJ
2. Short plain statement of claim, showing entitled to relief
3. Demand for judgment
Rule 11 Certification on pleadings
Attny must sign, certifying to best knowledge and belief, after reasonable inquiry that:
1. Paper is not for improper purpose
2. Legal contentions are warranted by law
3. Fact contentions have evidentiary support (or will after investigation)
What are the special claims that must be pleaded with particularity?
1. Fraud
2. Mistake
3. Special damages - damages that do not flow naturally from an event
What are the 12(b) DEFENSES?
Can be raised either by motion or answer
1.Lack of SMJ - never waived - can be raised even after trial
2.Lack of PJ - waivable
3.Improper venue - waivable
4.Insufficiency of process - waivable
5.Insufficient service of - waivable
6.Failure to state a claim - can be raised anytime through trial
7.Failure to join indispensable party - can be raised anytime through trial1
What does it mean if a defense is waivable?
Must raised in the first 12(b) response or you've waived it
What does D's ANSWER have to contain?
1. Response to allegations in pleading - admit or deny or state that you lack sufficent info to admit/deny
2. Affirmative defenses - statute of limitations; S/F; res judicata; self-defense
- Must raise them here or cannot use them at trial
3. Counterclaims - must be filed with answer
Compulsory Counterclaim
1. Arises from same T/O as P's claim
2. MUST be filed or waived - cannot bring in another action
3. B/c asserted by D and from same T/O as P's claim - always gets Supp Jx
Permissive Counterclaim
1. Claim that does not arise from same T/O as P's claim
2. Must check that it has independent fed SMJ - diversity or fed question
Cross Claims
1. Offensive claim against a co-party
2. Must arise from same T/O as underlying claim
3. Is not compulsory
4. Must test SMJ - can exercise Supp Jx as long as not claim by P that destroys diversity
Right Amend Pleadings
1. P has right to amend once before D serves answer
2. D has right to amend once w/in 20 days of serving answer
3. If no right to amend - can get leave of court if justice requires; no delay/prejudice
Can you amend a pleading to join a new claim after the S of L has run?
YES - if concern same conduct, transaction or occurrence as original pleading
Amended pleading relates back - treated as if filed when original was
Can you amend a pleading to join a new defendant after S of L has run?
ONLY IF P sued wrong D at first but right D knew about it
Amendment will relate back if:1
1. Same conduct, transaction, occurrence as original
2. New D knew of action w/in 120 days of original filing
3. New D knew that but for mistake, he would have been named
Who MAY be joined in action?
1. Claims against these parties arise from same T/O as underlying claim AND
2. Claims raise at least one common question
3. Check SMJ of claims
Joinder of Parties
Who is a NECESSARY party?
1. W/o party, ct cannot accord complete relief (want to avoid multiple suits)
2. Party's interest may be harmed if not joined
3. Party claims interest which would subject D to multiple obligations
Are joint tortfeasors necessary parties?
Joinder of parties
If party is necessary, is joinder feasible?
1. Personal JX over party
2. Will joining party defeat diversity
Joinder of parties
IF joinder of necessary party is not feasible - what happens?
Ct either proceeds w/o him OR dismisses (b/c indispensible)
1. IS there an alt forum (state ct?)
2. What is the actual likelihood of prejudice to absent party?
3. Can ct shape relief to avoid prejudice?