Use LEFT and RIGHT arrow keys to navigate between flashcards;
Use UP and DOWN arrow keys to flip the card;
H to show hint;
A reads text to speech;
107 Cards in this Set
- Front
- Back
What is subject matter jurisdiction? |
Subject matter jurisdiction is the court’s power to hear the case. Under the constitution, federal district courts are courts of limited jurisdiction. In order to be able to hear a case, they must have been granted the power to hear the case by statute |
|
Basic rule of federal question jursidiction |
Well-pleaded complaint rule; federal issue must appear on the face of the plaintiff's well-pleaded complaint. |
|
Well-pleaded complaint rule; 2 ways a federal issue appears on face of the plaintiff's complaint |
Cause of action is created by federal law; resolution of a state law question requires resolution of a (1) necessarily raised, (2) actually disputed, (3) substantial question of state law (4) capable of resolution in federal court without disrupting the judicial balance between the state and federal levels. |
|
Diversity jurisdiction elements |
1. The amount in controversy must exceed $75,000; and 2. The controversy must be between: Citizens of different states Citizens of a states and citizen citizens of a foreign state, except where the citizens of a foreign state who are lawfully admitted for permanent residence and are domiciled in the same state as the adverse party Citizens of different states in which citizens of a foreign state are additional parties Foreign state is a plaintiff (the country itself) |
|
Amount in controversy; how determined |
Legal certainty test; plaintiff's amount controls unless it appears to be a legal certainty that they cannot recover an amount exceeding $75,000 |
|
Diversity standard |
Courts have held that adverse party's must be completely diverse |
|
Residency of natural persons for § 1332 |
Domicile; residence-in-fact + intent to remain there indefinitely |
|
Residency of corporations for § 1332 |
Corporations are citizens where incorporated + principal place of business |
|
Where is the corporation's principal place of business? |
Nerve center; where officers and directors of the company direct operations |
|
Residency of other business entities for § 1332. |
Citizens of states in which the business's members or owners are residents. |
|
Federal Question statute |
28 U.S.C. § 1331 |
|
Diversity Jurisdiction statute |
28 U.S.C. § 1332 |
|
Supplemental Jurisdiction statute |
28 U.S.C. § 1367 |
|
2 elements for supplemental jurisdiction: |
The court must have original subject matter jurisdiction over another claim and the state claim must form part of the same case or controversy as the claim with original subject matter jurisdiction. |
|
For purposes of § 1367, what does "same case or controversy mean"? |
Same nucleus of operative facts |
|
What is the presumption of concurrent jurisdiction? |
Federal claims are presumed to be able to be heard in state court unless that presumption is rebutted by federal statute, legislative history or clear incompatibility between state court jurisdiction and federal interests. |
|
True or False: Supplemental jurisdiction is discretionary. |
True |
|
Four factors for determining if a federal court should decline to exercise it supplemental jurisdiction. |
(1) raises a novel or complex issue of state law; (2) the state claim substantially predominates over the claim over which the district court has jurisdiction; (3) the district court has dismissed all claims over which it has original subject matter jurisdiction; (4) in other exceptional cases, where there are compelling reasons for declining jurisdiction. |
|
Removal Jurisdiction statutes (2) |
Authority: § 1441 Procedure: § 1446 |
|
2 requirements for removal: |
(1) The federal court would have original subject matter jurisdiction over the claim and (2) removal is effected in accordance with § 1446. |
|
Exceptions to removal |
(1) Cannot remove when original subject matter jurisdiction would be based on diversity jurisdiction and the defendant is a resident of the state where the action is brought and (2) there is a one-year limitation for removal based on diversity to be completed. |
|
Steps for effecting removal |
(1) Within 30 days from the receipt of summons or documents indicating removal is possible, defendant must file notice with the district court. Notice includes a short and plaint statement of grounds for removal plus a copy of all process, pleadings and orders served on him. All defendants must consent to removal. (2) Written notice must be given to adverse parties. (3) Removal must be effected by filing a copy of the removal notice with the state court.
|
|
Nebraska County Court subject matter jurisdiction statute |
§ 24-517 |
|
Jurisdiction of Nebraska County Courts |
Concurrent original jurisdiction w/ district courts in civil actions where amount in controversy is $52,000 or less. No equitable claims, except partition in probate.
Exclusive original jurisdiction over probate, juveniles (if no juvenile court) and guardianships/conservatorships. |
|
Jurisdiction of Nebraska Small Claims Divisions |
Claims where amount in controversy is $3,500 or less. Equity powers to rescind a contract for sale of goods or services worth $3,500 or less. |
|
Nebraska District Court jurisdiction statute |
§ 24-302 |
|
Nebraska District Court jurisdiction |
General, original and appellate (from county courts) jurisdiction in all matters, civil and criminal, except where otherwise provided.
Full legal and equitable remedies. |
|
What is personal jurisdiction? |
Personal jurisdiction is the power of the courts to enter orders and judgment against the parties. |
|
Two types of personal jurisdiction |
Specific and general personal jurisdiction |
|
Two requirements for exercise of personal jurisdiction in state court. |
(1) state's long-arm statute satisfied and (2) exercise of jurisdiction comports with the Due Process Clause of the 14th Amendment |
|
Specific Personal Jurisdiction test |
(1) Minimum contacts with the forum state. (2) Controversy must arise out of those contacts. (3) Exercise of jurisdiction must comport with traditional notions of fair play and substantial justice. |
|
What are minimum contacts? |
Defendant must have conducted activities in or purposefully directed activities at the forum state, so as to avail themselves of the protections of that state. Random, fortuitous or attenuated contacts OR unilateral activities of third parties are insufficient to create minimum contacts. |
|
What are the conditions for "claim must arise of those contacts - relatedness requirement" test? |
But-for causation OR proximate causation tests. Varies by state. |
|
What are the factors for deciding if a case is "rare and compelling" and thus should (not) result in the exercise of personal jurisdiction? |
Burden on the defendant of appearing, state's interest in adjudicating the dispute, plaintiff's interest in convenient and effective relief, interstate judicial system's interest in obtaining the most efficient resolution of outcomes, the procedural and substantive interest of other states in furthering fundamental social policies. |
|
Calder effects test elements |
(1) Defendant's acts were intentional; (2) the defendant's actions were uniquely or expressly aimed at the forum state; (3) the defendant's actions caused harm to the plaintiff, (4) the brunt of which the defendant knew or should have known would be suffered in the forum state. |
|
Minimum contacts in contract litigation. Factors in deciding if contacts exist: |
Prior negotiations (passive v. active purchaser), contemplated future consequences, terms of the contract, parties' actual course of dealing |
|
What is the stream of commerce doctrine? |
Personal jurisdiction over the seller of a product will lie, generally, where the product is sold. |
|
What is general personal jurisdiction? |
"All-purpose" jurisdiction unrelated to specific, related minimum contacts. In general, general personal jurisdiction exists in a state of residence or where a natural person can be served. |
|
Residency of natural persons for general personal jurisdiction of natural persons |
Place where the person is domiciled or where they can properly be served process |
|
Residency of corporations for general personal jurisdiction |
States of incorporation and principal place of business (nerve center) |
|
Residency of other business entities |
States of incorporation and principal place of business (nerve center) |
|
Federal rule dealing with personal jurisdiction |
Rule 4(k) |
|
Rule 4(k)(1)(A) |
Subsection (k)(1)(A) says that the federal court can exercise jurisdiction when the court of general jurisdiction (usually the state court) where the district court is located could exercise personal jurisdiction. This is the most common way for a federal district court to get personal jurisdiction. |
|
Rule 4(k)(1)(B) |
Subsection (k)(1)(B) deals with defendants joined under Rule 14 or 19. Court can exercise personal jurisdiction over the party if the party is within 100 miles of the place where the summons was issued. |
|
Rule 4(k)(1)(C) |
Subsection (k)(1)(C) allows for the exercise of personal jurisdiction where allowed by statute. |
|
Rule 4(k)(2) |
(1) For a claim arising under federal law, the courts can exercise personal jurisdiction (2) where the defendant is not subject to the jurisdiction of any state court; and (3) exercising jurisdiction is consistent with the constitution (sufficient contacts with U.S.) |
|
What are the two situations where Rule 4(k)(2) is most often applied? |
State would normally have personal jurisdiction but a narrow, categorical long-arm statute prevents the exercise of jurisdiction in that state OR the contacts with the U.S. are scattered such that no one state has sufficient contacts but the contacts, when taken as a whole, are sufficient contacts with the U.S. to exercise jurisdiction. |
|
What is venue? |
Venue is the geographic specification by statute of the court of courts for institution of a proceeding. |
|
Nebraska Venue: What is a local action? |
Local actions involve title to, injury to or possession of land. In short, these are actions that could have only happened in one place. |
|
Nebraska Venue: What is a transitory action? |
Transitory actions are those that, conversely, could have happened anywhere. |
|
Nebraska Venue: Where can local actions be brought? |
Local actions must be held in the county where the land is. |
|
Nebraska Venue: Where can transitory actions be brought? |
(1) In any county in which any defendant resides, (2) In any county in which the action arose, (3) In any county where the transaction or some part of the transaction occurred, out of which the action arose (4) If all defendants are non-residents, any county in Nebraska. |
|
How do we determine if some part of the transaction occurred, out of which the transaction arose, is sufficient to support jurisdiction? |
The fact occurring in the proposed venue must be an integral part of the cause of action. There must be a causal link between the events in the forum county and the cause of action. |
|
Federal venue statute |
28 U.S.C. § 1391 |
|
Nebraska venue statutes |
§ 25-401, 25-403 |
|
Nebraska Venue: Residency of a natural persons |
Domicile, probably |
|
Nebraska Venue: Residency of a corporation, LLC or out-of-state corporation) |
Place of registered office, place where the corporation has another office (where one or more employees regularly work), or place where the corporation is doing business |
|
Nebraska Venue: Residency of a partnership |
Place where any partner resides, place where the partnership has an office, or place where the partnership is doing business. |
|
Federal Venue: § 1391(b)(1) |
Venue is proper in any district in which any defendant resides, if all defendants are residents of the same state. |
|
Federal Venue: Residency of natural persons |
Domicile |
|
Federal Venue: Residency of a corporation or other business entity in a single judicial district state |
Personal jurisdiction (specific or general) |
|
Federal Venue: Residency of a corporation (or likely for any business entity) in a multiple judicial district state |
Personal jurisdiction (specific or general) |
|
Federal Venue: § 1391(b)(2) |
Venue is proper where a substantial portion of the event or events giving rise to the event occurred, or if the dispute involves property, where a substantial portion of the property is situated. |
|
Federal Venue: How do we know if events in a forum form a substantial portion of the events giving rise to the claim? |
As if the events in the forum form a close nexus with the claim. |
|
Federal Venue: What do we do if venue is not proper under § 1391(b)(1)-(2)? |
Forum is then proper in any judicial district in which any defendant resides. |
|
Motion to transfer statute |
28 U.S.C. § 1404(a) |
|
Elements required for transfer |
(1) The action could have been brought in the forum to which transfer is sought; and (2) the forum is more convenient based on a list of factors. |
|
Transfer / forum non conveniens convenience factors |
Plaintiff's choice of forum (more weight if it's P's residence or where the action occurred); convenience for each party (relative financial resources, location of counsel), access to proof (compulsory testimony), interests of justice (law, docket congestion, third party claims, desire to handle local conflicts locally). |
|
Is transfer discretionary? |
Yes. |
|
Can parties waive jurisdiction and venue challenges to transfer? What about for forum non conveniens? |
Not for transfer, but can waive for forum non conveniens. |
|
Elements required for forum non conveniens |
An alternative, satisfactory forum exits and convenience of parties favors dismissal. |
|
Capacity, real party in interest rule in federal court |
Rule 17 |
|
Determination of age for capacity in federal court |
Look to state law where the minor is domiciled |
|
Determination as to whether a corporation can sue in its own name in federal court |
By the law under which it is organized (incorporated) (Rule 17(b)(2)). |
|
Determination as to whether an entity can be sued in its own name. |
By the law of the state where the court is located. |
|
Nebraska law: Can an unincorporated business entity, partnership or association be sued in its own name? |
Yes, if the entity is carrying on a trade or business in the state, holding any species of property in the state, or representing employees in collective bargaining. |
|
True or false. Even if the partnership or unincorporated association cannot be sued in its own name under the law of the state where the court is located, claims may be asserted in federal court to enforce a substantive right. |
True. |
|
Requirements for a party to be joined. |
A claim must be asserted by or against the party to be joined, the claims must arise out of the same transaction, and the claims raise a common question of fact or law. |
|
When is joinder compulsory? |
Complete relief cannot be afforded to the plaintiff with only the existing parties, and the absent party would be prejudiced. (Multiple/inconsistent obligations to existing, absent party's interests impaired or impeded). |
|
Permissive joinder rule |
Rule 20 |
|
Factors for determining if action should be dismissed in absence of a Rule 19 party. |
What is the prejudice to absent and existing parties? Can relief be shaped to mitigate prejudice? Can an adequate remedy be granted without the absent party? Does an alternative forum exist? |
|
Compulsory joinder rule |
Rule 19 |
|
Rule allowing as many claims as a party has to be asserted against a properly joined party. |
Rule 18 / § 25-701 |
|
Rule 8(a) |
Complaint must include a short and plain statement of the claim showing the pleader is entitled to relief. |
|
What does a short and plain statement of the claim showing the pleader is entitled to relief mean? |
By Iqbal, the pleader must plead sufficient facts to state a claim that is plausible on its face. Plausible means that a finder of fact could draw a reasonable inference from the facts that the pleader is entitled to the relief sought. |
|
Complaint for relief must include |
Caption, jurisdictional statement, short and plain statement of the claim, demand for judgment. |
|
Rule 10(c) |
Attached documents are incorporated by reference. Instruments, if attached, are incorporated even without reference.
|
|
Compulsory joinder rule |
Rule 19 |
|
Rule 11 Certification |
Document is not being presented for any improper purpose; claims, defenses and other legal contentions are supported by existing law or a nonfrivolous argument for the extension, modification or reversal of existing law; factual contentions have evidentiary support or are likely to have support after a reasonable opportunity for discovery; the denials of factual contentions are based on a good faith belief or lack of information. |
|
Rule 11 Sanctions |
Monetary and nonmonetary sanctions, including discipline, education, attorney's fees, penalties. |
|
Prohibition of frivolous claims, NE state court |
§ 25-824 |
|
Nebraska service of process provisions, individuals |
Personal, residential, certified mail or designated delivery service. |
|
Nebraska service of corporations |
Personal, residential, certified mail or designated delivery service on an officer, director, managing agent or registered agent; or by leaving papers at the corporation's registered office with someone employed therein, or by certified mail or designated delivery service to the registered office. |
|
Effecting service; factors in federal court for discretionary extension of time limit |
Whether the statute of limitations would bar a refiled action, whether defendant has actual notice, whether defendant attempted to conceal a defect in service, whether the defendant would be prejudiced in maintaining its defense |
|
Rule 12(b)(1) |
Challenge subject matter jurisdiction |
|
Rule 12(b)(2) |
Challenge personal jurisdiction |
|
Rule 12(b)(3) |
Challenge venue |
|
Rule 12(b)(4) |
Challenge based on insufficient process |
|
Rule 12(b)(5) |
Challenge based on insufficiency of service of process |
|
Rule 12(b)(6) |
Challenge based on failure to state a claim for which relief can be granted |
|
Rule 12(b)(7) |
Failure to join a Rule 19 party |
|
Rule 12(e) |
Motion to make more definite and clear |
|
Rule 12(f) |
Motion to strike |
|
Rule 12(g) |
Requires consolidation of Rule 12 motions; rule 12(b)(2)-(5) are waived if not raised in a rule 12 motion. Rule 12(b)(1), (6) and (7) are not waived under Rule 12(h). |
|
Answer requires |
Responses, any affirmative defenses and any claims for affirmative relief |
|
Compulsory counterclaim |
Counterclaim is compulsory if its related to the same transaction or occurrence. |
|
How do we know if a counterclaim is arises out of the same transaction or occurrence? |
Logical relationship test: Essential facts of counterclaim and plaintiff's claim so logically connected that considerations of judicial economy and fairness dictate that the case should be resolved in one suit. Evidentiary overlap. |