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128 Cards in this Set
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- Back
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What are the 2 types of subject matter jurisdiction?
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1) diversity of citizenship; 2) federal q
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What is alienage?
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can get subj matter jurisdiction via diversity if there is a suit b/t a citizen of a state, and a citizen of a foreign country, AND amount in controversy EXCEEDS $75k
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must be complete diversity=no diversity if ANY P is a citizen of the same state as ANY D (alienage is big topic!)
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What is diversity of citizenship within the u.s.?
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can get subj matter jurisdiction via diversity if there is a suit b/t a citizens of different states, AND amount in controversy EXCEEDS $75k
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must be complete diversity=no diversity if ANY P is a citizen of the same state as ANY D
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What if P (NY) sues D1 (CA) and D2 (NY) in fed court?
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no diversity b/c P and D2 are citizens of the same state
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Does alien vs. alien create diversity of citizenship?
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no, must be citizen of a u.s. state and a citizen of a foreign state, not 2 foreigners
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What about an alien who has permanent residency status in the u.s.?
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treated as a citizen of the state where she's domiciled
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What is a u.s. citizen's 'citizenship'?
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a u.s. citizen is a citizen of the u.s. state in which she is domiciled (only can have 1!)
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this is for natural humans
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How do you est domicile?
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1) presence in the state AND 2) intent to make that your permanent home
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What happens if there was diversity when the case was filed, but then one of the parties moved and now they are citizens of the same state?
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it's ok, still diversity, b/c only look at the citizenships when the case is FILED
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What is the citizenship of a corp?
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BOTH 1) where the corp is incorporated, AND 2) where the corp has its principal place of business
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this means corps have 2 places of business
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What is a corp's principal place of business?
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it's where managers direct, coordinate, and control corp activities
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called the 'nerve center' usually the headquarters
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What is the citizenship of UN-incorporated businesses (partnerships, LLCs)
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the citizenship of ALL MEMBERS can be used (all general and limited partners)
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What citizenship do you use when dealing with decedents, minors, and incompetents?
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all 3: look to their citizenships, NOT their representatives'
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What about the amount in controversy req?
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must exceed $75k (NOT EQUAL $75), and does NOT include interest on the claim or costs of litigation
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For p's claim of damages, what does the court look at?
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if the p claims something in good faith then good; BUT if the p's claim is "clear to a legal certainty" that it wont surpass $75k, then no federal jurisdiction=case dismissed
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What if the ultimate recovery is less than $75K
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doesnt matter, jurisdiction is OK as long as could have gotten over $75k; BUT the p may have to pay the d's litigation costs (like filing and discovery fees, NOT attorney fees (need a statute for that))
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What is aggregation?
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P can add 2+ claims to meet amount in controversy; can be COMPLETELY UNRELATED claims and UNLIMITED # of claims, if there is only 1 P and 1 D
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remember if there are more than 1 D, can't aggregate! must be 1 P and 1 D
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What about if there is 1 P but more than 1 D b/c the ds are joint tortfeasors? what do you do about the amount in controversy?
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it's ok, you can add up the total value of the claims b/c the # of parties is IRRELEVANT with joint tortfeasors
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When you talk about suing for equitable relief in fed court and the amount in controversy req
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Discuss the P's point of view: does the encroachment or whatever problem decrease the value of the P's property by more than $75k?; Discuss the D's point of view: would it cost D more than $75k to comply with the injunction?
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What will fed courts NOT hear?
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divorce, alimony, child custody, probate
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How do you est subj matter via FQ?
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complaint must show a right or interest founded substantially on fed law: claim must "arise under" fed law
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citizenship is n/a; amt in controversy is n/a
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What do you look for in determining whether the complaint is "well-pleaded" re FQ jurisdiction?
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meaning just looking at p's claim alone, would it be a federal claim? ask 1 q: "is P enforcing a federal RIGHT?" if yes, it's FQ
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Does every individual claim asserted in the federal court case have to have federal subject matter jurisdiction?
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yes, test every single claim for diversity or fq (includes cross claims, impleader, etc)
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What if an individual claim does NOT have diversity or FQ?
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then look to see if there is SUPPLEMENTAL jurisdiction
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always watch for this!
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Can you get an entire case into fed court under supplemental jurisdiction?
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NO, the case itself must already be in fed court via diversity or FQ; this applies to an additional CLAIM that doesnt meet the diversity or FQ req
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What is the "test" and the "limitation" for supplemental jurisdiction?
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the test=must be a claim that shares a "common nucleus of operative fact", so ALWAYS met when the claim arises from the "same transaction or occurrence of the underlying case"; the limitation=ONLY in a case with diversity subj m jurisdiction (NOT FQ!), the PLAINTIFF cannot use supplemental jur to overcome LACK OF DIVERSITY (but CAN use supplemental jur to overcome amount in controversy req!!)
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So to repeat, what does the "limitation" apply to and not apply to?
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it applies ONLY to diversity cases; does NOT apply in FQ cases, so if the underlying case was admitted to fed court based on FQ jurisdiction then no limitation for supplemental claims if they meet the TEST
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Can the supplemental test be used to overcome anything else?
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the amount in controversy req in a diversity case!!
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Who can use supplemental jurisdiction?
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any party EXCEPT P can use supplemental jur to overcome either a lack of complete diversity or amount in controversy in any case
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Can P use a supplemental jurisdiction to overcome lack of diversity for a claim in a FQ case?
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yes; the limitation only applies in diversity cases
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P (NY) sues D (NY) for 1) violation of fed antitrust laws, and joins a claim from the same T-O which is 2) a violation of state antitrust laws; is this ok?
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claim 1 is ok b/c it's a FQ case; but claim 2 is NOT FQ (b/c it's based on state law) and does NOT meet diversity; so the limitation on supplemental jurisdiction do NOT apply, P can do this!
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How can the court decied the supplemental claim, whether it comes in or not?
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court has discretion NOT to hear the supplemental claim if a) the FQ is dismissed early in the proceedings; or 2) if the state law claim is complex, or 3) state law issues would predominate
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rarely tested
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What is removal and who can remove?
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it's a 1-way street, where you remove the case from state trial court to fed trial court; ONLY THE D can remove! if removal is improper, the fed court remands to state court
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not tested as much
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When can the d remove?
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he has 30 days from service of the doc that FIRST made the case removable
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Where can the case be removed to?
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only be removed to the federal district embracing the state court in which the case was originally filed
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general test for removal is?
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d can remove if the case would invoke diversity or FQ
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What about if P is suing multiple ds and one of the d's wants to remove?
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cant, ALL Ds must AGREE to remove the case
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When can the p remove?
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NEVER! the p doesnt remove! (tricky!)
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What is the special rule on removal for diversity cases only?
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no removal allowed if any D is a citizen of the forum state (meaning where the suit is going on)
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important!
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What is the special rule on removal for FQ cases?
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there is none! if it's a FQ case, then there is no rule where removal is not allowed if one of the D's is a citizen of the forum state
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What happens if there is a diversity case with 1 P and 2 Ds, where D1 is not a citizen of the forum state, but D2 is a citizen of the forum state; BUT P dismisses the claim against D2?
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the case then becomes removable b/c there is no D who is a citizen of the forum anymore! doesnt meet the special rule on removal! so if D2 now gone, D1 can remove to fed court if he wants, but MUST be w/in 30 days from the date of P's dismissal of D2; BUT, EXCEPTION: there is NO REMOVAL more than 1 year after the case was filed in state court
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dates matter! this means that if the claim against the forum D2 is dismissed, but the case is already past the 1 year mark since it was filed in state court, then D1 cannot remove; if the case is within the 1 year mark since the case was filed, then D1 can remove, but must do so within 30 days of the day that removal became available!
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What is the procedure of removal?
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D files notice of removal in the FED COURT (NOT state court!), stating grounds for removal; signed under Rule 11, attach all docs served on D in state action and copy all adverse parties; then file the notice in the state court
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easy, no permission needed, just file!
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What if removal was procedurally improper?
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P can move to remand to state court, but must do so within 30 days of removal
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What if there was removal but there is no fed subject matter jurisdiction?
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p can move to remand to state court ANYTIME (or the fed court can remand anytime) meaning there is NO TIME LIMIT on raising lack of subject matter jurisdiction
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When does a D probably waive the right to remove to fed court?
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if the d files a PERMISSIVE counterclaim in state court; but probably does NOT waive removal if filed a COMPULSORY counterclaim in state court
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Re: Erie Doctrine, what is the question about what law the court must apply?
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the question will be whether the court must apply state law on some issue: in DIVERSITY cases, fed court MUST apply the SUBSTANTIVE state law
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What are the 3 steps when dealing with an Erie Doctrine issue?
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STEP 1: ask if there is a fed law (like constitution, statute, FRCP (most likely) or FRE) ON POINT , that directly conflicts with the state law; if so, apply the fed law as long as it's valid--why? b/c of the SUPREMACY clause. STEP 2: If there is NO fed law on point, ask "is this issue an 'easy one'" (meaning either a) elements of a claim or defense, b) SOL, c) rules for tolling SOLs, d) conflict of law rules) they are easy b/c they are substantive, so MUST apply state law! STEP 3: if there is no fed law on point, and not an easy one, analyze under 3 facts: 1) outcome determinative=would applying or ignoring state law affect outcome of the case? if so it's prob a substantive rule so state law should be used, 2) balance of interests=does either fed or state system have strong interest in the rule being applied? 3) avoid forum shopping=if the fed court ignores state law on this issue will it cause parties to flock to fed court? if so apply state law
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a FRCP is valid if it is "arguably procedural"--none has ever been held invalid
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What happens in this situation: FRCP 23 allows a case to proceed as a class action; but under state law, the claims asserted by the class can only be asserted in individual cases, not as a class; what does the fed court do?
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use the FRCP b/c it's a fed rule ON POINT, and it's VALID (arguably procedural)
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Where must cases regarding ownership, possession or injury to land be filed? What are these called?
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in the district where the land lies; these are called "local actions"
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If it is not a "local action" what is it called?
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a "transitory" action (not a land case)
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In what venue do you file a transitory case?
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in any district where: a) ALL d's reside, OR b) a substantial part of the claim arose
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What is the special rule when all the ds reside in the same state, but in different districts?
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P can lay venue in the district in which ANY of them resides (ex. if D1 lives in E.D.N.Y. and D2 lives in S.D.N.Y, can sue in either district)
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watch out for this on the exam!!
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Where do human defendants 'reside' for purposes of venue?
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in the district where domiciled
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In what districts do corporations and other associations (partnership, LLC) reside for purposes of venue?
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wherever subject to personal jurisdiction when the case is filed (broad)
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don't confuse "citizenship" with "residence"--a corp has citizenship in 2 places (where incorporated and the principal place of business); while a corp has residency in EVERY district in the US b/c it is subject to personal jur in every district, b/c it does business in every jurisdiction
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When do you look at citizenship, and when do you look at residence?
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citizenship: when determining subj m jur; residence: when determining venue
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What is the req for a transfer of venue?
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a case can only be transferred TO another federal district where the case "could have been brought", meaning a venue that has personal jur over the d
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What if the venue in the original district is proper, when may the court transfer to another fed district?
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can be based on the "convenience of the parties, witnesses, and interests of justice"; BUT courts are nervous to do this b/c interferes w/ P's right to choose forum, so courts look to a) public factors: what law applies, what community jury should be drawn from, and b) private factors: convenience, where witnesses and evidence are
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more likely to see this issue on exam, so throw this into an essay! you will see many facts about this so incorporate them into the answer
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If the case is transferred to a diff venue, what choice of law RULES do the transferree court use (meaning the rules to determine which law to use)?
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the law of the state in which the case was originally filed
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What happens if venue in the original district is improper?
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court may transfer in the interests of justice, or dismiss
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less likely on the exam
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What is process?
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deliver to d 1) summons (formal court notice of a suit and time for response) and 2) copy of the complaint
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When do you have to serve process in fed cases?
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within 120 days after filing with the court; if dont serve til after 120 days, the case will be dismissed without prejudice (unless show good cause for delay)
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Who may serve process?
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any non-party who's at least 18 years old
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The P suing in fed district court may use what method of service?
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1) any permitted by the FRCP; or 2) any permitted by the law of the state in which the court sits; or 3) any permitted by the law of the state in which service is effected
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What are the basic methods of service of process in the FRCP?
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1. personal service: papers served on d personally anywhere in the forum state; 2. substituted service: process is left with someone other than the d IF a) it's at the d's usual abode, AND b) serve on someone of suitable age and discretion who RESIDES there; or 3. agent service: can serve d's agent who is authorized to receive service (ex. for a corp, can be a registered agent or an officer)
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How do you get d to waive formal service?
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can do "waiver by mail" by mailing d a copy of the complaint and 2 copies of a waiver form, with prepaid means of returning the form; d can return the executed waiver form within 30 days, and then the P files the waiver with the court
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If d waives formal service, does she waive the defense of lack of personal jurisdiction?
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NO!
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What if d fails, without good cause, to return the waiver form?
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p then has to have d personally served or by substituted service, and d's penalty is that she has to pay the costs of service
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What is the geographic limit on service of process?
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a fed court in NY can only serve process outside of NY if a NY state court could
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For joinder of "proper parties", what is the test for determining whether certain Ps can sue together?
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proper parties are parties that MAY be joined; can sue together if their claims 1) arise from the same T-O, AND 2) raise at least 1 common question
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For joinder of proper parties, what is the test for determining whether certain Ds can BE SUED together?
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same test, the P or Ps can sue multiple D's if their claims 1) arise from the same T-O, AND 2) raise at least 1 common question
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Once you determine which parties can be joined, what do you have to determine?
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whether there is subject matter jurisdiction! can we get this case into fed court based on diversity/FQ?
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What are 'necessary' or 'required' parties?
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these are parties who MUST be joined (unlike proper parties that 'may' be joined); they are ABSENTEES who must be forced into joining the case b/c they're necessary
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What are the steps when analyzing whether there are necessary parties?
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Step 1: ask if the absentee is necessary; Step 2: assess whether the necessary party can be joined; Step 3: if the necessary party cannot be joined, determine what choices the court has
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Discuss Step 1 re necessary parties
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The absentee is necessary, and the court may order joinder of that party, if any 1 of 3 are met: 1. without absentee, no complete relief for those already joined (don't want multiple suits); 2.**absentee's interest will be harmed if he isn't joined (practical harm); or 3. absentee claims an interest which subjects a party (usually d) to possibility of multiple obligations
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What's an example of #2, the 'absentee's interest will be harmed if he isn't joined'?
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Bob Barker: if Shatner sues to have the shares they own jointly canceled and reissued, this will harm Bob's interests if he is not joined
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Are joint tortfeasors necessary parties?
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NEVER (probably b/c joint/several liability?)
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Discuss Step 2 re necessary parties
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assess whether the necessary party can be joined: 1) is there personal jur over Bob, and 2) can he be joined without messing up diversity? if so, join him
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Discuss Step 3 re necessary parties
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if Bob CANNOT be joined, the court has only 2 choices: 1) proceed w/o Bob, or 2) dismiss the entire case
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How does the court decide to proceed w/o the necessary party vs. dismissing the case?
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balance these factors: 1) is there altern forum available where everyone can be joined (state court?), 2) what is likelihood of harm to anyone if proceed w/o absentee?, 3) can court shape order to avoid such harm?
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no one knows how to do these, so just throw them in!
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If the court ultimately dismisses the entire case b/c can't join the absentee, what is the absentee called?
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indispensable
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What is a counterclaim?
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claim against an opposing party (usually d files against p); filed with the d's answer
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make sure to diagram the parties
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What types of counterclaims are there?
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2 types: 1) compulsory=arises from same T-O as P's claim, MUST be filed with answer in pending case or WAIVED (can't sue in separate case); 2) permissive=does not arise from the same T-O as P's claim, does not have to be asserted in the pending case
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counterclaim is the ONLY type of claim that can be compulsory!
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What happens if the d does not file an answer, but instead files a motion to dismiss, and it was granted? What can be done about a counterclaim?
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if the d files her own separate case, it will NOT be dismissed b/c if she did not have to file an answer, then she did not have to file a counterclaim within the same claim as the P
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Remember, what do you have to have to assert a claim in fed court?
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must have subject matter jurisdiction: first, is there diversity/alienage? second, is there FQ? third, if none of those works, is there supplemental jurisdiction?
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very important!
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What about supplemental jurisdiction and compulsory counterclaims: P(NY) sues D(NJ) in fed court on a state-law claim for $80k, then D files compulsory counterclaim against P for $45k; can the counterclaim invoke supplemental jurisdiction?
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yes, b/c it meets the "test"--although the counterclaim does not invoke diversity b/c it's less than $75k, it does arise from the same T-O; it also is not subject to the "limitation" b/c it isn't a claim brought by the P
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classic hypo
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What about supplemental jurisdiction and permissive counterclaims?
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The Second Cir has upheld supplemental jurisdiction over a permissive counterclaim if it has a "loose factual connection" with P's claim
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What is a cross claim?
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claim against a co-party; MUST arise from the same T-O as the underlying action (usually D1 against D2)
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make sure to diagram the parties
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Are cross claims compulsory or permissive?
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permissive, never compulsory!
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What is an impleader?
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a d is joining a third party d (TPD) who was not a d in the pending case (p didnt sue TPD); usually seeking indemnity or contribution b/c TPD may be liable
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What is the timing of an impleader?
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have the right to implead within 14 days of serving your answer
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What are the procedures for filing an impleader?
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1. file third party complaint naming the TPD, 2. serve process on TPD (to have the court get personal jur over him); a) after TPD is joined, the P can assert a claim against TPD if it is the same T-O as underlying case; b) after TPD is joined, TPD can assert a claim against the P, if same T-O as the underlying case
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For impleader, what do you still have to check on?
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subject matter jur! diversity? FQ? supplemental?
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What is an intervention?
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when an absentee wants to join a pending suit; chooses whether to 'intervene' as a P or D (the court can 'realign' her if wrong side); only req is for it to be 'timely'
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less likely on exam
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What are the types of interventions?
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2 types: 1) intervention of right: 1. absentee's interest may be harmed if she's not joined, AND 2. that interest is not adequately represented now (similar to Bob Barker, #2 for necessary parties analysis!); 2) permissive intervention: absentee's claim or defense and the pending case have at least 1 common q...allowing intervention is in court's discretion
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For intervention, what do you still have to check on?
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subject matter jur! diversity? FQ? supplemental?
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What are the special multiparty joinder situations?
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1. Interpleader; 2. Class action
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What is interpleader?
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one holding $ or property wants to force all potential claimants into 1 case to avoid multiple litigation/inconsistent results; person holding property=stakeholder, persons who want the property=claimants
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usually the stakeholder isnt sure who owns the property but wants to avoid being sued by several diff ppl at diff times; in each type of interpleader the court can issue an injunction to stop parties from litigating the ownership question in another court
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What are the diff types of interpleader?
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2 types: 1) Rule: treat this like regular diversity case, where the stakeholder must be diverse from EVERY claimant, exceed $75k, regular service of process rules, regular venue rules; 2) Statutory (less strict): one claimant must be diverse from one other claimant only (so not about stakeholder diverse from claimant!), only needs to be $500 or more, nationwide service of process (so personal j ok always), venue can be whatever district any claimant resides
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What is a class action and what are initial requirements?
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a representative sues on behalf of a group. reqs: 1) too numerous for practicable joinder (no magic #), 2) some qs of law/fact in common to the class, 3) rep's claims/defenses typical of those of the class, and 4) rep is adequate and fairly rep class
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HOT ISSUE!
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What are the diff types of class actions?
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3 types: 1) prejudice: class necessary to avoid harm to class members or party opposing the class (ex. numerous claimaints to a fund, indiv suit deplete fund); 2) injunction or declaratory judgment: not damages, but equity sought b/c class members were treated alike by the other party (ex. employment discrimination); 3) damages: common qs PREDOMINATE over indiv qs, AND class action SUPERIOR METHOD for resolving dispute (ex. mass tort)
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damages more likely type tested; prejudice never been on the exam
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What must the court do before hearing a class action case?
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must determine at an 'early practicable time' whether to certify the class; if it does, must define class; judge appoints class counsel (fairly and adeq rep interests of the class)
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What about notifying the class about pendency of the class action?
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the court must give individual notice in "damages" class action to all reasonably identifiable members, telling them: a) that they can opt out, b) bound by judgment if dont opt out, c) can enter separate appearance
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important!
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Is notice req in prejudice and injunction/declaratory j class actions?
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no, expensive!
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Who pays to give notice?
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the rep
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In which of the 3 types of class action can class members 'opt out'?
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ONLY the damages class action; in the prejudice and inj/declar j, NO OPT OUT!
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Can the parties dismiss/settle a certified class action?
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only w/ court approval; in all 3 types of class actions, the court gives notice to members to get feedback on settling/dismissal; may give damages class members second chance to opt out
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never tested
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If the class seeks to invoke diversity jurisdiction, whose citizenship matters and how determine amount in controversy?
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the rep must be diverse from all of the ds; rep's claim must exceed $75k
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watch for this!!
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What is CAFA?
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Class Action Fairness Act: allows fed courts to hear class actions of at least 100 members if ANY member is of diverse citizenship from ANY d, and if aggregated claims of the class exceed $5mil (it's a way to get big interstate class actions into fed courts)
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rarely tested
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Jury trials in Fed courts
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have a right to trial by jury via 7th am, but ONLY for actions at law; if there is a case that involves both law and equity, get jury for law claims but NOT equity claims (the judge can decide that); generally try the jury issues FIRST
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Does the 7th am apply to the states?
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no, not incorporated
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How do you get a jury trial in fed court?
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Must demand jury trial in writing no later than 14 days after service of the last pleading raising a jury-triable issue (legal issue)
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For jury selection (voir dire) what is the process?
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each side has unlimited strikes for cause; each side has 3 peremptory strikes, no need to explain, BUT: must be race/gender neutral b/c jury selection is state action (even if private case, can violate constit)
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What is a motion for judgment as matter of law (JMOL)?
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exceptional order, takes the case away from the jury; brought AFTER the other side has been heard at trial; standard=reasonable people could not disagree on the result (only come out 1 way); court will view the evidence in a light most favorable to the nonmoving party
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What is a renewed motion for judgment as matter of law (RJMOL)?
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MUST have already done a JMOL at trial, and if not, waived the right to an RJMOL (RJMOL is same reasonableness standard, and evidence in light of nonmoving party); this is when the judge did not grant the JMOL, jury returns verdict and court enters judgment, then do RJMOL and if granted, ENTRY OF JUDGMENT FOR THE ORIGINAL LOSER! must move no later than 28 days after entry of the original judgment
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What is a motion for a new trial?
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a party can move for a new trial within 28 days after entry of a judgment; the judge looks for an error that reqs the case to be re-tried
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What are the possible grounds/errors for a motion for new trial?
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a) prejudicial (not harmless) error at trial makes judgment unfair (wrong jury instruction, erroneous evidentiary ruling), b) new evidence could not have been discovered in time for trial, c) prejudicial misconduct of a party or juror (juror making indep investigation of scene), d) judgment against the weight of evidence, so serious error of jury judgment
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What is more drastic, a new trial or a RJMOL?
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RJMOL, b/c a new trial results in starting over so the same party could still win, whereas RJMOL takes away judgment from winning party
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Pleadings: how does the d respond to service of process?
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2 diff ways: 1) by answer, or 2) by motion; no later than 21 days after service of process on her
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rarely test timing of these docs
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What does the d do in the answer?
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2 things: 1) responds to allegations of the complaint, and 2) raises affirmative defenses
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What are motions?
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not pleadings; they ask the court to order something
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What defense can the d raise in either the answer or motion?
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a) lack of smj, b) lack of pj, c) improper venue, d) insufficient process (prob w/docs), e) insufficient SERVICE of process, f) failure to state claim on which relief can be granted, g) failure to join an indispensable party
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timing: letters b-e MUST be put in the first response or WAIVED
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When can failure to state claim on which relief granted and failure to join indispensable party be raised?
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anytime, up through trial
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When can lack of smj be waived?
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never waived! can raise anytime!
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What is a complaint?
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complaint must contain: 1) statement of smj, 2) short and plain statement of claim, showing entitled to relief, 3) demand for judgment (demand doesnt limit what can be recovered, except in default cases)
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What does the statement of claim need to have?
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does not need great specificity or particularity; often can use "notice pleading" where pleading sufficient if just put other side on notice;
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What has the Sup Ct stated that the P must plead?
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BUT P must plead facts supporting a PLAUSIBLE claim (tougher than notice)
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tougher than just notice pleading
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On what topics does the P NEED to plead facts with specificity or particularity?
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3 topcis req it: 1) fraud; 2) mistake; 3) special damages
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fraud is most important
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What are special damages?
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do not normally flow from an event--must give detail (like permanent erection!)
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