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70 Cards in this Set
- Front
- Back
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Under Fed. Rules, how do you achieve in personam juris?
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Just like in NY:
1. Doing business in JD 2. presence in the JD 3. Domiciliary of the JD 4. Min. Contacts 5. Consent 6. Resident Motorist Statute |
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What 2 types of disputes can Fed. Courts Hear?
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1. Federal Question
2. Diversity of Citizenship |
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2 requirements for Diversity or Alienage cases?
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1. Action must be btw “citizens of different states” OR “a citizen of a state and a citizen of a foreign country (alien) AND
2. Amount in controversy MUST EXCEED 75K |
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What destroys diversity or alienage?
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any condition where the 2 parties are not “citizens of different states” OR “a citizen of a state and a citizen of a foreign country
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What does it mean to be a of a citizen of a state? 2 part test?
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To be domiciled there determined by 2-part test:
1. presence in the state 2. intention to remain there indefinately |
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Can a P file then change domicile to conform with the citizenship requirement?
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No, test is done at time of filing
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How do you determine a corporation's citizenship?
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• Citizenship equals where incorporated AND
• The state where corp has principal place of business (PPB) |
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2 requirements for PPB
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Headquarters OR
Where corp does more production or service activity than anywhere else |
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How many PPB's can a corp have? How many citizenships?
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ONE PPB;
TWO citizenships can be where incorporated AND where PPB |
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What is the place of citizenship of an Unincorporated associations (Pships, LLC’s) (rarely tested)
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Use citizenship of all members (gen and limited partners)
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What is the citizenship of Decedents, minors and incompetents?
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Look to their citizenship NOT citizenship of their representative
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How much is enough to satisfy Amount n controversy?
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Must be good faith allegation that claim exceeds 75K, exclusive of interest and costs
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What is Aggregation –
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Where P adds claims to meet AIC
• Aggregate claims when one P vs one D • For joint claims use the value of the claim, exceeds 75K |
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If P sues for injunction, how is the value of injunction determined to satisfy AIC?
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If either test yields over 75K, then deemed satisfied:
• P’s viewpoint – does the encroachment decrease the value of P’s property by more than 75K, ALWAYS SAY • D’s viewpoint – would it cost D more than 75K to comply with injunction |
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In order to satisfy Federal Question case (FQ), what is needed?
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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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In order to achieve FED SMJ, a case must satisfy?
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EITHER:
1. Fed Question OR 2. Diversity of Citizenship |
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What are the elements of Diversity of citizenship?
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diversity AND AIC (amount in controversy
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What is the essence of the FQ requirement?
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P must be invoking a fed right
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MUST each and every claim in a case satisf FQ for the case to survive SMJ scrutiny?
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YES, unless, supplemental JD satisfies the requirement.
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What is “THE TEST” for supp jurisdiction?
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• Does this claim share a common nucleus of operative fact w/ underlying case
• This test is ALWAYS met if claim arises from the same transaction or occurrence (T/O) as the underlying case (T/O narrower than common nucleus) |
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What does Supplemental Jursidiction Supplement?
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Allows the FED court to hear additional claims that do not meet either Diversity or FQ.
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Can Supplemental Jurisdiction be used to achieve SMJ by overcoming diversity?
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NO- Supplmental JD can never overcome lack of diversity; if 2 D's are sued and there is a valid diversity or FQ claim against 1 but neither Div not FQ against 2, Sup. J will NOT help
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CAN P use supp jurisdiction to overcome lack of AIC for claims by P in diversity cases?
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YES, but only b/c Div is satisfied and the Sup. Juris. is only coorecting the shortcoming re: the AIC
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Non-fed, non-diversity claim CAN be heard in fed ct if it meets “the test” UNLESS:
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1. Asserted by P
2. In a diversity of citizenship case AND 3. Would violate complete diversity |
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What is Removal?
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Allows D’s to have case filed in state ct “removed” to fed ct
Removal is a one way street only goes from state to fed If removal improper fed ct will remand back to state ct |
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When can D remove?
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D can remove if case could be heard in fed ct: Diversity/alienage or FQ case
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When must D remove?
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D MUST remove no later than 30 days after service of the 1st removable document
Usu means 30 days after initial service of process |
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What special rules (2) for diversity cases prevent removal?
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• NO removal if any D is a citizen of the forum (does not apply on FQ)
• NO removal more than one year after case filed in state ct (dates always matter) |
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P(PA) sues D1(GA) and D2(NY) in NY state court--Can D's remove?
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NO--no removal if a D is a citizen of the forum
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Can a D who files a permissive counterclaim in state ct remove?
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No--likely waives the right to remove
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What is the Erie Doctrine?
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In diversity cases, fed ct must apply state substantive law
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State law governs in diversity cases on these issues: (4)
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1. Elements of a claim or defense
2. SOL 3. Rules for tolling SOL 4. Choice of law |
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3 major considerations under the Erie Doctrine?
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1. Outcome determinative – if applying or ignoring state rule would affect the outcome of the case then probably substantive and apply state law
2. Balance of interests – does fed or state have strong interest in applying rule 3. Avoid forum shopping – if fed ct ignores state law on this issue, will it cause parties to flock to fed ct, if so apply state law |
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Where is venue proper in a dispute over land?
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in the venue wher the land is located--in rem action
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In a transitory case, where may P lay venue?
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1. where all D's reside
2. a substantial part of the claim arose |
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for purposes of venue, where do corporations reside?
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everywhere they do business
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what factors should the court consider to determine if change of venue is proper?
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1. convenience of the parties
2. convenience of witnesses 3. interest in justice the court is looking for the center of gravity |
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What is service of process?
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Summons and Complaint
Summons: tells the D of the suit and time for repsonse Complaint: indicates COA's |
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When must process be served?
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MUST serve process w/i 120 days of filing or else Will not be dismiss if P shows good cause for delay in serving
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Who can serve process?
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Any non-party who is at least age 18
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Methods for service?
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Fed district ct may use any method of service permitted by:
FRCP OR Law of the state in which the ct sits OR Law of the state in which service is effected |
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2 methods for serving process?
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1. Personal service – papers given personally to D
-Serve anywhere in the forum state 2. Substituted service – process is left w/ person at D’s summer home, ok if D’s usual abode |
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Can D waive process?
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YES-Waiver by mail (this is not service) – process mailed to D by first class mail, postage paid
-Ok if D returns waiver w/i 30 days; D waives service but nothing else -If D does not return in time, P MUST serve D either personally or by substituted service |
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Who are proper parties – who MAY be joined?
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Co P’s and Co D’s can sue together if
• Claims arise from same T/O AND • Raise at least one common question |
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What if a party is not present in suit?
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Court may ORDER joinder in any of the following circumstances:
1. w/o absentee cannot accord complete relief among those already joined OR 2. Absentee’s interest will be harmed if he isn’t joined OR 3. Absentee claims an interest which subjects a party (usu D) to possibility of multiple obligations |
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Are Joint tortfeasors necessary parties?
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NO
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What if a necessary party cannot be joined?
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• Must have PJ AND
• Party can be joined w/o messing up diversity |
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What if party CANNOT be joined?
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2 options
• Proceed w/o absentee party OR • Dismiss entire case |
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How does the ct decide whether to proceed or dismiss?
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Apply Balancing test:
• Is there an alternative forum available where everyone can be joined? • What is the real likelihood of harm if proceed w/o the party? • Can the ct do something to shape the order to avoid any harm |
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What is a compulsory counter claim? and when must it be filed?
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Compulsory counterclaim - arises from same T/O
• MUST be filed w/ answer in the pending case or WAIVED |
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What is a permissive counter-claim?
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Permissive – does NOT arise from same T/O as P’s claim and does not have to be asserted in this case
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What test is used to determine whether a Cross-claim may be brought?
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Supp jurisdiction over cross-claim if meets “the test” bc arises from same T/O AND is not a claim by a P
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Distinguish impleader in FED from NY.
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FED: D has right to implead w/i 10 days
NY: D has right to implead w/i 20 days |
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Who may intervene and on what theory?
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Intervention – absentee chooses whether to intervene as a P or D
Application to intervene MUST be timely Intervention as of right (test 2 for necessary parties – party joined w/o messing diversity) • Absentee’s interest may be harmed if not joined AND • Interest is not adequately represented now Permissive intervention – claim or defense and pending case has at least one common question, allowing intervention is cts discretion |
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define Interpleader.
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One holding money or property wants to force all potential claimants into single case to avoid multiple litigation and threat of inconsistent results
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Parties to interpleader?
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Person holding the property is the stakeholder
People who want the property are claimants |
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What are the Initial requirements for class action?
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(Nobody Can Tell Rich anything)
• Too NUMEROUS for practicable joinder • Some questions of law or fact in COMMON to the class • Representative’s claims/defenses are TYPICAL of those of the class AND • REPRESENTATIVE will adequately and fairly represent the class |
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3 types of class actions?
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Prejudice (type 1) – Injunction or declaratory judgment (not damages) (type 2)
Damages (type 3) |
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What must the Ct determine “at an early practicable time”
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• whether to certify the case to proceed as a class action AND
• Must appoint class counsel • If ct certifies the class, it must define the class • Class counsel must fairly and adequately represent the interests of the class |
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What must the Ct notify type 3 class members who are reasonably identifiable (usu by mail) of?
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• Can opt out
• Binding effect of a class judgment on class members AND • Can enter separate appearance through counsel |
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Can you have a jury trial for an action at equity?
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YES if there is a CoA at law as well; Jury decides the facts underlying the damages (law) claim
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Wxplain the Voir dire process.
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Each side has unlimited strikes of potential jurors for cause (bias, related to litigant)
Each side has 3 peremptory strikes which must be used in a race and gender neutral way |
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What is a Motion for judgment as a matter of law (JMOL) (directed verdict)
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1. D moves a close of P’s evidence and again at close of all evidence
2. P can only move at close of all evidence |
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What is the Standard for granting JMOL motion (same standard for RJMOL)
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Reasonable people could not disagree on the results
Ct views the evidence in the light most favorable to the nonmoving party |
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Who files a Renewed motion for judgment as a matter of law?
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Losing party files RJMOL
Must move no later than 10 days after entry of judgment If granted, the judgment is entered for losing party |
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What are the Grounds for new trial
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1. Prejudicial (not harmless) error makes judgment unfair
2. New evidence could not have been discovered in time for trial 3. Prejudicial misconduct of party or juror 4. gment is against the weight of the evidence, serious error by the jury |
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What are the possible defense responses?
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Under FRCP 12 – defending party MAY respond in one or two ways: By motion OR by answer
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What are the Seven defenses that can be raised either in answer or motion?
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1 – Lack of SMJ
2 – Lack of PJ 3 – Improper venue 4 – Insufficient process (there is a problem w/ the documents) 5 – Insufficient service of process 6 – Failure to state a claim on which relief can be granted 7 – Failure to join an indispensable party |
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Complaint MUST contain: (3)
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1. Statement of SMJ
2. Short/plain statement of the claim, relief entitled to AND a. Statement need not be made with specificity or particularity 3. Demand for judgment (wherefore clause) |
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Which 3 CoA's require “pleading w/ specificity or particularity”
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1. Circumstances establishing fraud
2. Mistake 3. Special damages |
