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102 Cards in this Set
- Front
- Back
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types of juristiction over parties
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In Personum
in rem quasi in rem |
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traditional methods for finding juristiction
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Domicile
Actions done in state Nationality Consent Effect in state caused by action elsewhere Residence Pressence ownership, possetion, use of a thing in a state other relationship buisness in a state Appearance in a state |
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Grace v. MacArthur
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Over=In
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Transient Rule
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service while temporarily in the state in a suit unrelated to D's activities in the state is sufficient for jx through pressence
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Consent
Express |
If you sign a lease which authorizes a party in another state to recieve service on your behalf, you are subject to juristiction in that state so mlong as you recieved timely notice of suit.
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Consent
Implied |
if you bring a lawsuite in a state you are subject to juristiction in that state for all actions arising from that suit
-exclusive juristiction forum selection clause |
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Coprerations are domicile
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Instate where they are incorperated
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Minimum contacts approach
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1. General juristiction
2. Specific juristiction 3. Special Circumstances |
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General Juristiction
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-Need More Contacts
-If you have enough contacts for general juristiction they need not involve the lawsuite |
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Specific Juristiction
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-Some contacts
-Contacts MUST involve the lawsuite |
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Special Circumstances
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-minimal contacts/single contacts
-Extraordinary circumstance making juristiction necessary |
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Hanson Denkla
PURPOSEFUL MINIMUM CONTACTS |
Out of state D must have purposefully availed itself of priviliges and benifits of conducting buisness in state.
-deliberate conduct/connection w the state so D could reasonable be expected to be hauled into court there. |
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World Wide Volkswagon (later interpritation of international shoe)
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Relationship between D, the forum state, and the cause of action
-forseeability alone is not sufficient for minimum contacts |
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Brennan Dissent
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Balance the interists of the P, D, & the forum state.
brennan always wants juristiction. |
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Juristiction based on effects
The Calder effects test |
1. Intentional Act
2. Expressly aimed at forum state 3. Act must cause the harm D knew was likely to be suffered as a result of the act w/in the forum state |
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Fair Play and substantial Justice Factors
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1. Burden on D
2. Forum state interist 3. P interist 4. Interstate judicial interist shared state interists |
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True in rem
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Property is w/in the state and the dispute is about the property, property must be attached
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quasi in rem
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no longer in CA
-the dispute is NOT about the property, the property is attached to gain juristiction -shaffer v. Heitner: must have minimum contacts for all forms of juristiction (essentially killed quasi in rem) |
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Notice to parties
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reasonably calculated, affords d's opportunity to present objections
-Give notice as if you really want D to know and appear!!! -notice by publication is not sufficient unless you have no idea where D is. |
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Forum non convenience
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only when the venue is proper and there's a substantially better reason for the case to be moved
-court must first find juristiction -no time limit on when it can be raised |
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for forum non conveniens the party (usually D must show)
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1. Another venue w porper juristiction is available
-proper venue -proper subject matter 2. the other venue is more convenient |
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Long Arm Statutes
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Juristictional statutes assert the states athority to reach its long arm across the state boundry into another state or country and to subject a corperation or person to its jx
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CCP 410.10
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a court of this state may excersize jx on any basis not inconsistent w the constitution of this state or of the US
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Federal longarm statutes
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rely on the longarm statutes of the state in which they sit.
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Ways to make a juristictional challange
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1. make a special appearance w/in forum state
2. do nothing in forum state (default judgement will be enterred, risk of doing this is that you can no longer litigate on the merits of the case) |
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ways to attack juristiction
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1. Lack of in personum jx
2. Lack of subject matter jx 3. fraud or duress 4. Immunity (Niehaus: if you file an answer or make a general appearance it constitutes consent and any jx challange is waived) |
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Limited general appearance
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can make a limited general appearance in CA w.o being subject to juristiction but challanging party must promptly seek a writ of mandate if trail judge finds Jx.
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FRCP 12b (2): Motion to dismiss for lack of personal juristiction
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FRCP 12b(4)-motion to dismiss for lack of personal jx (can be raised prior to answer OR as an affirmative defense in the answer)
FRCP 12b(5): motion to dismiss for insufficency of service of process |
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California: Motion to Quash
CCP 418.10 |
effective in 2003- changed the rule that objection to jx was waived by doing anything that constituted a general appearance.
-if motion to quash is denied D has 10 DAYS to file a writ of mandate seeking interlocutory review |
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CCP 586(a)(4)
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If D fails to respond proceed as though D failed to answer
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Areas where Federal court has exclusive jx
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1. Federal anti-trust laws
2. Maritime and admiralty laws 3. Bankrupcy 4. patents and copywrights 5. US as a party |
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How to get into federal court
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1. Federal question
2. Diversity 3. Supplemental jx |
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Federal Question jx
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federal courts may have jx over any cause of action arising from a constitutional question or federal law or treaties of the US
1. no minimum awards amount 2. Diversity of parties not necessary |
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Diversity jx
28 USC Sec. 1332 |
1. Complete diversity of citizenship between p's and d's (from different states)
2. Amount must be over 75k (one p must be able to plead the ammount) |
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For diversity purposes states are citizens
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1. where they are incorperated
2. where the principle place of buisness is located (Brains approach: where the offices, CEO are Brawn approach: where the majority of buisness is carried out0 |
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Manipulation to obtain jx
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28 USC 1367 prohibits collusivly obtained jx
MOVING- as long as move completed before suite filed ASSIGN TO SOMEONE ELSE- may be ok if they paid a substantial ammount for the claim. |
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Supplemental jx/ pendant jx
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if a violation of state law (state issue) is so closely related to a violation of federal law (federal issue) may be allowed to try in federal court even if no diversity of citizenship.
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Removal from State to federal court
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28 USC 1441
A civil action brought in state court of which a fed. court has original jx can be removed to fed. court w appropriate jx by D. -D HAS 30 DAYS FROM FILING TO REMOVE THE CASE. |
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Principals of removal from state to fed. court
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1. D can remove any case that P could have filed in fed. court
2. a resident of the state CANNOT remove from state to federal court 3. ONLY D can remove (D can't file in state court and than remove to fed. court) |
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If P wants to stay in state court
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1. Add D's of the same state to destroy diversity
2. File in the state that D's a citizen of 3. assign all or part of the claim to a non diverse P. |
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Choice of Law rule
getting rid of forum shopping advantage |
a federal court sitting in a diversity action will ALWAYS apply state SUBSTANTIVE law of the state in which the fed. court sits, AND apply state procedual law where application of the federal law over the state law is truly outcome determanitive.
must follow even state procedual rules if they effect the outcome of the case. |
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Limits on when federal courts apply state law
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preference for state law is not binding if application of the law would deprive one party of a strongly protected federal right, even if it could be outcome determanative.
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FRCP
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service of process is not outcome determanitive, and in federal cases the court uses FRCP
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Federal Venue
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basic rule 1: If all D's live in the same state, P can file in ANY fed. district where any one of the D's live.
RULE 2: P can file in ANY district where a substantial part of the cause of action arose. FALLBACK RULE (if can't satisfy the criteria of the other 2) If there's a district where all the p's are subject to in personum jx P can file there |
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for removeal from state to fed venue
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the only proper venue is the district court that encompases the area in which the fed. court sits.
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28 USC 1404 (a)
federal forum non convenience transfers for venue |
even if the venue is proper ct may transfer it to any dist. where it might have been brought for convenience of parties and witnesses
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five factors to consider with federal fnc transfer
no time limit on when it can be made. |
1. Balance the hardship on parties
2. location of witnesses and evidence 3. governing law 4. judicial economy 5. compelling state interist |
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unfavorable substanative law
fnc |
unfavorable substanative law is not a huge consideration in a forum non convenience inquiry unless grossly unfavorable.
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Resonses to a complaint
Federal FRCP 7 |
Pleadings and answers
FRCP 7(a): pleadings FRCP 7(c) Demmurrers, pleas, and exceptions for insufficiency of pleadings shall not be used |
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FRCP 8
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Procedual requirements
FRCP 8(a): pleadings shall contain 1. a short and plain statement of the grounds on which the courts juristiction depends. 2. statement of claim showing the pleader is entitled to relief 3. Demand for judgement or relief sought |
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FRCP 8(c)
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affirmative defenses: If a party mistakenly terms claims, the court will treat them as if they are termed properly if justice requires.
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FRCP 12: defenses and objectiond
FRCP 12(a) |
1. D shall answer w/in 20 days after being served
2. P shall reply w counterclaim w/in 20 days of service of answer 3. if US or agent of US shall serve answer w/in 60 days 4. If court denies motion responsive pleading must be served w/in 10 days of notice of courts action. |
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FRCP 12(b) Defensive motions
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1. lack of subject matter jx
2. lack of personal jx 3. Improper venue 4. insufficiency of process 5. insufficiency of service of process 6. failure to state a claim upon which relief can be granted 7. failure to join a party under rule 19 |
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FRCP 12 (f)
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motion to strike any insufficient defense or redundant, imaterial, impertinent or scandalous matter
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CCP 422.10
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the pleadings allowed in civil actions are complaints, demurrers, answers, and cross complaints
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CCP 425.10
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Complaints or cross complaints must have:
1. a statement of the facts constituting the cause of action 2. demand for judgement for the relief entitled |
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CCP 430.30
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Answers and demurrers:
a party objecting to a complaint or cross-complaint may answer and demurrer at the same time. |
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CCP 430.50
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can demurrer or answer to whole complaint or any part therof
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CCP 430.80
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If a party doesn't respond, objection waived
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General Demurrer
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deals w issues of substance.
In CA: Procedure for a general demurrer In Fed. Motion to Dismiss |
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Special demurrer
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deals w other technical defects
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FRCP 15 Ammendmant to pleadings
Ammend "AS of Course" |
As of Course: without stipulation from the court or the other side
-any pleading can be ammended once "as of course" before an answer or demurrer is filed. an answer may be ammended once as of course w/in a short period after it's filed CA=10 days Fed.=20 days |
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Ammend. that are NOT "of course"
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require permission by the other party (stipulation) or court order (ask court for "leave to ammend" when complaint is ammended D must file an answer or default
CA=30 days Fed.=10 days |
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Res Judicata
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1. Same parties as in prior litigation
2. Same cause of action 3. final judgement has been enterred 4. on the merits Can ONLY be brought as a DEFENSE in a second suit if it's not raised you waive it. |
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California Pomeroy Primary rights
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1. Injury to person
2. Injury to character (libel and slander) 3. Injury to personal property (includes K's) 4. Injury to real property (houses and land) |
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Federal: Factual test theory
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TOSTO:
Transaction, occurance, serise of transactions and occurances used in most juristictions including federal |
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Split cause of action
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Two suits filed over the same incident dealing w the same cause of action
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merger and bar
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If p prevails in a case, the cause of action is merged into the judgement which is issued in the case. IF the D fails and the P wants to refile suit, it is barred
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res judicata in CA
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if there is no appeal it's final when time to file appeal has expired. if appealed rj after it reaches termination after the appeal
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res judicata Fed.
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conditional rj while action is pending
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Res Judicata
state-fed |
A federal court must give the same preclusive effects that would the courts of the state rendering the judgement, no less and no more.
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Collateral Estoppel
(claim precusion) |
1. subsequent lawsuit
2. Issue in the 2nd cause of action same as issue in the first cause of action 3. issue was actually litigated 4. Decission on the issue in the 1st lawsuit was necessary 5. final judgement on the merits 6. fairness |
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Fair Play and substantial Justice Factors
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1. Burden on D
2. Forum state interist 3. P interist 4. Interstate judicial interist shared state interists |
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True in rem
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Property is w/in the state and the dispute is about the property, property must be attached
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quasi in rem
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no longer in CA
-the dispute is NOT about the property, the property is attached to gain juristiction -shaffer v. Heitner: must have minimum contacts for all forms of juristiction (essentially killed quasi in rem) |
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Notice to parties
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reasonably calculated, affords d's opportunity to present objections
-Give notice as if you really want D to know and appear!!! -notice by publication is not sufficient unless you have no idea where D is. |
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Forum non convenience
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only when the venue is proper and there's a substantially better reason for the case to be moved
-court must first find juristiction -no time limit on when it can be raised |
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for forum non conveniens the party (usually D must show)
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1. Another venue w porper juristiction is available
-proper venue -proper subject matter 2. the other venue is more convenient |
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Long Arm Statutes
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Juristictional statutes assert the states athority to reach its long arm across the state boundry into another state or country and to subject a corperation or person to its jx
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CCP 410.10
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a court of this state may excersize jx on any basis not inconsistent w the constitution of this state or of the US
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Federal longarm statutes
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rely on the longarm statutes of the state in which they sit.
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Ways to make a juristictional challange
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1. make a special appearance w/in forum state
2. do nothing in forum state (default judgement will be enterred, risk of doing this is that you can no longer litigate on the merits of the case) |
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ways to attack juristiction
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1. Lack of in personum jx
2. Lack of subject matter jx 3. fraud or duress 4. Immunity (Niehaus: if you file an answer or make a general appearance it constitutes consent and any jx challange is waived) |
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Limited general appearance
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can make a limited general appearance in CA w.o being subject to juristiction but challanging party must promptly seek a writ of mandate if trail judge finds Jx.
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FRCP 12b (2): Motion to dismiss for lack of personal juristiction
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FRCP 12b(4)-motion to dismiss for lack of personal jx (can be raised prior to answer OR as an affirmative defense in the answer)
FRCP 12b(5): motion to dismiss for insufficency of service of process |
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California: Motion to Quash
CCP 418.10 |
effective in 2003- changed the rule that objection to jx was waived by doing anything that constituted a general appearance.
-if motion to quash is denied D has 10 DAYS to file a writ of mandate seeking interlocutory review |
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CCP 586(a)(4)
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If D fails to respond proceed as though D failed to answer
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Fair Play and substantial Justice Factors
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1. Burden on D
2. Forum state interist 3. P interist 4. Interstate judicial interist shared state interists |
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True in rem
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Property is w/in the state and the dispute is about the property, property must be attached
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quasi in rem
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no longer in CA
-the dispute is NOT about the property, the property is attached to gain juristiction -shaffer v. Heitner: must have minimum contacts for all forms of juristiction (essentially killed quasi in rem) |
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Notice to parties
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reasonably calculated, affords d's opportunity to present objections
-Give notice as if you really want D to know and appear!!! -notice by publication is not sufficient unless you have no idea where D is. |
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Forum non convenience
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only when the venue is proper and there's a substantially better reason for the case to be moved
-court must first find juristiction -no time limit on when it can be raised |
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for forum non conveniens the party (usually D must show)
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1. Another venue w porper juristiction is available
-proper venue -proper subject matter 2. the other venue is more convenient |
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Long Arm Statutes
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Juristictional statutes assert the states athority to reach its long arm across the state boundry into another state or country and to subject a corperation or person to its jx
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CCP 410.10
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a court of this state may excersize jx on any basis not inconsistent w the constitution of this state or of the US
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Federal longarm statutes
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rely on the longarm statutes of the state in which they sit.
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Ways to make a juristictional challange
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1. make a special appearance w/in forum state
2. do nothing in forum state (default judgement will be enterred, risk of doing this is that you can no longer litigate on the merits of the case) |
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ways to attack juristiction
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1. Lack of in personum jx
2. Lack of subject matter jx 3. fraud or duress 4. Immunity (Niehaus: if you file an answer or make a general appearance it constitutes consent and any jx challange is waived) |
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Limited general appearance
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can make a limited general appearance in CA w.o being subject to juristiction but challanging party must promptly seek a writ of mandate if trail judge finds Jx.
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FRCP 12b (2): Motion to dismiss for lack of personal juristiction
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FRCP 12b(4)-motion to dismiss for lack of personal jx (can be raised prior to answer OR as an affirmative defense in the answer)
FRCP 12b(5): motion to dismiss for insufficency of service of process |
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California: Motion to Quash
CCP 418.10 |
effective in 2003- changed the rule that objection to jx was waived by doing anything that constituted a general appearance.
-if motion to quash is denied D has 10 DAYS to file a writ of mandate seeking interlocutory review |
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CCP 586(a)(4)
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If D fails to respond proceed as though D failed to answer
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