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81 Cards in this Set

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What is personal jurisdiction?
Power over the parties
Do federal courts need personal jurisdiction over defendants?
Yes
How is personal jurisdiction assessed?
Same as in state court
What is subject matter jurisdiction?
Power over the case
What are the two main kinds of cases that can be filed in federal court?
Diversity of Citizenship and Federal Quesetion
- Any diversity of citizenship includes "alienage" jurisdiction (NY likes this)
What are the two requirements for Diversity and Alienage Cases?
1- the action must be between "citizens of different states" or between "a citizen ofa state and a citizen of a foreign country (alien)" AND 2) The amount in controversy must exceed $75,000
Who are the right kind of litigants for diversity or alienage cases?
Complete diversity rule. There is no diversity of citizenship jurisdiction if ANY plaintiff is a citizen of the same state as any defendant.
- An alien admitted to the US for permanent residence is treated as a citizen of the state in which she is domiciled
Is there diversity between a US citizen domiciled in France and a NY residence?
No, because one party is not a citizen of a state
For a natural person who is a US citizen, what is her state of citizenship
The US state of her domicile
Can a person have more than one domicile at a time?
No, you are only a citizen of one state at a time
How do you establish a new domicile?
1- Presence in the state, physical
2- The intent to make that your permanent home - mental
*Test for diversity when the case is filed
What is/are the citizenship(s) of a corporation?
1- Where incorporated AND
2- The one state where it has its Principle place of business (PPB): where managers direct coordinate and control corporate activities
*Corporations can have 2 citizenships
What is the citizenship of an uncorporated association, like partnerships and LLCs?
Use the citizenship of all members, including general and limited partners
What is the citizenship for decedents, minors and incompetents?
THEIR citizenship, not the citizenship of the representative
Does the amount in controversy include interest on the claim or costs of litigation?
No, its the claim alone
*Must EXCEED $75,000! $75,000.01
How does the actual award impact the more than $75K reqirement?
Whatever the P claims in good faith is OK unless it is "clear to a legal certainty" that P cannot recover more than $75K
Who pays litigation costs?
Usually, the loser pays winner's costs. Each party pays her own attorney's fees unless there is a statute or rule that allows recovery of attorney's fees
What is Aggregation?
Where P must add two or more claims to meet the amount in controversy requirement.
* If there is 1 P and 1 D
* No limit on number of claims
* Don't have to be related, can be totally unrelated
* For joint claims, use the total value of the claim and the number of parties is irrelevant
What are the exclusions to diversity and alienage cases?
Federal courts will not issue a divorce, alimony or child custody decree; they also will not probate a decedent's estate
What must be included in the complaint for a federal question
Complaint must show a right or interest founded substantially on a federal law. The claim must "arise under" federal law
*Citizenship of the parties is irrelevant
* Amount in controversy is irrelevant
Where can federal questions (FQ) be brought?
Some FQ cases can only be brought in federal court.
Most FQ though, can be brought in either state or federal court
If the complaint were well-pleaded, just stating P's claim w/o extraneous materal, would it be federal?
Ask: Is P enforcing a Federal Right?
-If the answer is YES, it's a FQ case. IF the answer is NO, it is not a FQ case
Does every individual claim asserted in a federal court case have to have federal subject matter jurisdiction?
Yes. Test every single claim for diversity or Federal Question.

If additional claim in the case does not meet diversity or FQ, try supplemental jurisdiction.
Can supplemental jurisdiction be used to get a case into federal court?
No. This only works after a case is already in federal court through diversity or FQ. We have an additional claim in that ccase and that claim does not meet diversity or FQ. we might still be able to get that claim into federal court with supplemental jurisdiction.
What is the test for supplemental jurisdiction?
The claim we want to get into federal court must share a "common nucleus of operative fact" with the claim that invoked federal subject matter jurisdcition.

The test is always met when the claim arises from the same transaction or occurrence of the underlying case (T/O)
What is the limitation on Supplemental Jurisdiction?
In a diversity case, a P cannot use SJ to overcome a lack of diversity.
Can SJ be used to overcome a lack of amount in controversy for a claim in a diversity case?
Yes
Who can use SJ to overcome either a lack of complete diversity or amount in controversy in any case (diversity or FQ)?
Any party but P
Summary on what can be heard in Fed Ct under SJ
A non-federal, non-diversity claim can be heard in federal court if it meets "the test" (T/O) UNLESS it is:
-Asserted by the P
- In a diversity of citizenship (not FQ) case AND
- Would violate complete diversity
What are discretionary factors?
Court has discretion NOT to hear the supplemental claim if:
1- The federal question is dismissed early inthe proceedings or
2- If the state law claim is complex or
3- State law issues would predominate
What is removal?
Transfers ONLY from a state trial court to a federal trial court. If removal is improper, the federal court "remands" to state court
1- When? No later than 30 days after service of the first removable document. Usually this means 30 days after initial service of process. But some cases are not removable then and only become removable later.
2-Where? The case can only be removed to the federal district embracing the state court in which the case was originally filed.
3- General Test: D can remove if the case would invoke diversity or FQ; all D's must agree; P can never remove; If comlete diversity, apply diversity and amount in controversy; No removal if any D is a citizen of the forum- However, this does not apply in FQ cases!; No removal after 1 year of filing in state court
What is the procedure for removal?
D files notice of removal in federal court, stating grounds of removal; signed under Rule 11; attach all documents served on D in state action; copy to all adverse parties, Then file copy of notice in state court.

- If removal was procedurally improper, P moves to remand to state court; she must do wo w/in 30 days of removal. But if there is no federal SMJ, P can move to remand anytime (or the federal court can remand antime). In other words, there is no time limit on raising lack of SMJ

- A D who files a permissive counterclaim in the state court pobably waives the right to remove. Filing a compulsory counterclaim in state court, though, probably does not waive the right to remove.
What is the Erie Doctrine?
Whether teh court must apply state law on some issue. IN DIVERSITY CASES, FEDERAL COURT MUST APPLY STATE SUBSTANTIVE LAW.
Describe the Erie Process?
1- Ask: is there a federal law on point that directly conflicts with state law? if so, apply the federal law as long as it is valid.

2- If there is no federal law on point, ask: is this issue one of the easy ones? (1) elements of a claim or defense, (2)S/L, (3) Rules for tolling S/L, and (4) conflict or choice of law rules- must apply state law

3- If thre is no federal law on point, and it's not an easy one, but federal judge wants to ignore the state law. If the issue is one of substantive law, though, she must follow state law. Analyze the facts per these three tests, and come to a reasonable conclusion:
a- Outcome determinative: would applying or ignoring the state rule affect outcome of case? If so, its''s probably a substantive rule, so should use state law.
b- blalance of interests: does either federal or state system have strong interest in having its rule applied
c- Avoid forum shopping: if the federal court ignores state law on this issue, will it cause parties to flock to federal court? If so, should probably apply state law

* Under FRCP 23, a case may proceed as a class action. Under state law, however, the claims asserted by the class can only be asserted in individual cases, and not as a class. The federal rule is ona point so it wins
What is venue?
Tells exactly which federal court.
In what venue do we bring local actions?
Ownership, possession, or injury to land

filed in the district court where the land is

If it si not a local action, we call it transitory
Where do we bring transitory cases?
P may lay venue in any district where either:
1- All defendants reside: in cases where all d's reside in different districts of teh same state, P can lay venue in the district in which any of them resides; OR
- A substantial part of the claim arose
Where do D's reside?
Where domiciled
What districts do corp and other associations reside?
In districts where they are subject to personal jurisdiction when the case is filed
How can you transfer a venue?
A case can only be transfered to another federal district where the case "could have been brought, a proper venue that has PJ ofver the D
When may the court transfer to another federal district
basedon convenience of parties, witnesses and the interests in justice.
Courts are nervous about this b/c it violate's P's choice of forum.

Also look at public and private factors to see if the other court is the center of gravity
Public: what law applies, what community a jury should be drawn from
- Private: convenience: assess where the W's and evidence are
If the case is transfered, what choice-of-law rules does the court apply?
Those of the state in which the case was originally filed.
What if the venue in the original district is improper?
Court may transfer in the interests of justice or dismiss
What is service of Process?
Deliver to D a summons (formal court notice of a suit and time for response) AND A copy of the complaint.
In federal court civil cases, when do you have to serve process?
W/in 120 days after filing
If service is beyond 120 days, the case will be dismissed without prejudice, not if P shows good cause for delay
Who may serve process?
Any non party who is at least 18
What method of service?
The FDC may use any method of service permitted by the FRCP or the law of the state in which it sits or the law of the state in which service is effected
What methods of service does the FRCP recognize?
1- Personal service: papers are given to D personally anywhere in the forum state
2- Substituted service: If left at D's usual abode AND served to someone of suitable age and discretion
3- Agent service: You can serve D's agent who is authorized to receive service

* Waiver by mail- Regular mail to D a copy of the complaint and 2 copies of a waiver form, with a prepaid means of returning the form. D can return the executed waiver form w/in 30 days. Then the P files the waiver in court
- D has waived formal service, but not waived defenses like lack of PJ
- D fails (w/o good cause) to return waiver form and P then has D sered personally or substituted. PENALTY for D- pays cost of service
Can a federal court in NY serve process outside NY?
Only if a NY state court could
Who may be joined? (proper parties)
1- who arise from the same transaction/occurrence AND
2- Raise at least 1 common question

Ps and Ds can be joined if the 2 part test is met
Who Must be joined? (Necessary or required parties)
absentees who should be forced into the pending case, because they are "necessary"

*Joint tortfeasors are NEVER necessary
What is the test to determine who necessary/required parties are?
1-How do we know if the absentee is necessary?
a- W/o absentee, cannot accord complete relief among those already joined (worried about multiple suits); OR
b- Absentee's interest will be hared if he isn't joined (practical harm); OR
c- abseentee claims an interest which subjects a party (usually defendant) to possibility of multiple obligations

2- Assess whether the necessary party can be joined:
a- is there personal jurisdiction AND
b- Can he be joined without messing up diversity? If so, join him

3- If party cannot be joined, the court has only 2 choices:
a- Proceed w/o party OR
b- Dismiss the entire case
How does the court decide whether to proceed or dismiss in the case where a necessary/required party cannot be joined?
Balance these factors:
1- Is there an alternative forum available where everybody can be joined?
2- What is the real likelihood of harm to anybody if we proceed without party
3- Can the court do something to shape the orer in th pending case to avoid any such harm?

If the court dismisses, party is called Indispensible
What is a counterclaim?
A claim against an opposing party.

Filed with the defedndant's answer
What are the two types of counterclaims?
1- cumpulsory: One that arises from teh same T/O as the complaintants claim
- It must be filed with your answer in the pending case or else it's waived. D cannot sue on the claim in a 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
What is a cross-claim?
A claim against a co-party. It MUST arise from the same T/O as the underlying action

-Never compulsory, not required to file it in the pending case
What is Impleader?
Third party practice
A defending party joins third party defendant (TPD), b/c TPD is or might be liable to the defending party for the claim against the defending party. Usually this claim is for indemnity or contribution
When do you implead?
You have a right to implead within 14 days of serving your answer; after that, you need court permission to implead
What is the process for impleader
1- File 3P complaint naming TPD AND
2- Serve process on TPD (gives the court PJ)

Then P can assert a claim against TPD if it arises from the same T/O as the underlying case
-AND, TPD can assert a claim against the P if it arises from the same T/O as the underlying case

***After determining what claims are asserted, remember that each one has to be assessed for SMJ: 1- diversity; 2- FQ; 3- SJ
What is Intervention?
Absentee wants to oin a pending suit. She chooses whether to intervene as a P or as a D. The court can realign her if she came in on the "wrong" side. Application to intervene must be TIMELY
What is intervention of right?
1- Absentee's interest may be harmed if she is ot joined
2- That interest is not adequately represented
What is permissive intervention?
Absentee's claim or defense and the pending case have at least one common question. Allowing intervention here is discretionary with the court

- SMJ: Now assess whether the claim by the intervenor P or against the intervenor-D invokes SMJ: 1- Diversity; 2- FQ; 3-SJ
What is multiparty Interpleader?
ne holding money or property wants to force all potential claimants into a single case to avoid multiple litigation and the threat of inconsistent results

- The person holding the property is the stakeholder

- the folks who want the property are the claimants

So the stakeholder wants to force all the claimants into a single case
What are "rule" and "statutory" interpleader?
In each, the stakeholder is not sure who owns teh property and wants to avoid being sued several different times about it.

In each type the court may issue an injunction stopping parties from litigating the ownership question in another court.

The two types, though, have different standards for jurisdiction, venue, and service of process. RULE interpleader is treated just as a regular diversity case
Diversity, amount in controversy, service of process, and venue in Rule and Statutory Interpleader
- To determine diversity of citizenship
*Under Rule: the stakeholder must be diverse from every claimant
* Under statute, one claimant must be diverse from one other claimant. Don't even look at the stakeholder's citizenship

-Amount in Controversy
*under rule: must exceed $75,000
*Statutory: $500 or more

-Service of Process:
*Rule: Regular Service of process rules, like any case
*Statute: nationwide service of process, never a PJ problem

-Venue:
*Rule: Regular venue rules, like any case
*Statute: lay venue in a district where any claimant resides
What are the initial requirements to a class action suit?
Representative sues on behalf of a group

1- Too numerous for pracitcable joinder
2- Some questions of laaw or fact in common to the class
3- Reps' claims/defenses typical of those of the class AND
4- Rep is adequate- will adequately and fairly represent class
Describe the second step on filing the class action
Must fit the case w/in one of three types of class action
1- Prejudice: class treatment is necessary to avoid harm either to class members or to the party opposing the class (numerous claimants to a fund and individual suits would deplete the fund)
2- Injunction or declaratory judgment (not damages) sought because the class members were treated alike by the other party (employment discrimination)
3- Damages:
a- Common questions predominate over individual questions AND
b- Class action is the superior model for resolving the dispute (mass tort)
What must the court do in initiating a class action suit?
The court must determine "at an early practicable time" whether to certif the case to proceed as a class action. If the court certifies the class, it must define the class and appoint class counsel
- Class counsel must fairly and adequately represent the interests of the class
Does the court notify the class of pendency of the class action
In Type 3, damages, the court must give individual notice (usually by mail) to all reasonably identifiable members, telling them various things including:
1- They can opt out
2- That they will be bound by the judgment if they do not opt out, and
3- They can enter a separate appearance through counsel

This kind of notice is not required for prejudice and injunctive/declaratory classes

- The representative pays for the notice as cost of litigation
Who is bound by class action judgment?
All class members except those who opt out of a type 3 Damages class

No opt out for prejudice or injunctive/declaratory classes
Can the parties dismiss or settle a certified class action?
Only with court approval

In all 3 types of class action, the court gives notice to class members to get their feedback on whether the case should be settled or dismissed. In a type 3, damages class, may give members a second chance to opt out
How is SMJ handled in class action?
a class might invoke FQ urisdiction by asserting a claim arising under federal law. There we don't care about citizenship or amount in controversy.

- To invoke diversity of citizenship jurisdiction, The rep must have diversity of jurisdiction from all Ds

- Amount in controversy- the Res claim must exceed $75,000
What is the Class Action Fairness Act (CAFA)?
This Act contains a grant of SMJ separate from regualr diversity of citizenship jurisdiction. It allows federal courts to hear a class action of at least 100 members if any class member (not just the representative) is of diverse citizenship from any defendant and if the aggregated claims of the class exceed $5M. The whole idea is to get big interstate class actions into federal court. There are complicated provisions for ensuring that local classes Iwhere most class members and the primary defendants are citizens of the same state) cannot stay in federal court. They are idsmissed by the federal court (or, if they were removed from state court, are remanded to state court)
What is a jury trial?
Juries resolve disputes of fact. The court instructs the jury on the law

Right to jury trial in federal court. 7th Amendment preserves it in actions at law, but not in suits at equity. If the case involves both law and equity, jury is on the law claims, not the equity claims.

Try jury issues first, generally

7th Amendment applies only in federal cases, not in state courts
How doe you obtain a jury trial?
Demand- you must demand jury trial in writing no later than 14 days after service of the last pleading raising a jury-triable issue
What is the voir dire process?
Selecting the jury, each side has unlimited strikes of potential jurors for cause (bias, related to a litigant)

Each side also has 3 "peremptory" strikes, which traditionally did not have to be explained. However, they must be used in a race and gender neutral way b/c jury selection is state action
What is Motion for judgment as a matter of law (JMOL)?
Exceptional, takese the case away from the jury.

When? After the other side has been heard at trial. D can move at the close of the P's evidence and again at the close of all evidence. P can move at the close of all evidence.

Standard for granting the motion: Reasonable people could not disagree on the result

- In ruling on the motion, the court generally will view the evidence in light most favorable to the nonmoving party
What is Renewed Motion for Judgment as a Matter of Law (RJMOL)?
Judge does not grant JMOL, and jury decides. Losing party files renewed motion for judgment as a matter of law. If granted it results in entry of judgment for him. Must not move later than 28 days after entry of the judgment.

Same standard as JMOL- so if this is granted, jury reached a conclusion reasonable people could not have reached.

Generally, the court willv iew the evidence in light most favorable to the nonmoving party.

Prerequisite to making the RJMOL: must have moved for JMOL at trial
What is a motion for new trial?
A party can move for new trial w/in 28 days after entry of the judgment. Judge is looking for an error that requires the case to be retried.:
1- prejudicial (not harmless) error at trial makes judgment unfair
2- New evidence that could not have been discovered in time for trial
3- prejudicial misconduct of party or juror
4- judgment is against the weight of the evidence showing serious error of judgment by the jury

(less drastic than RJMOL: new trial vs. granting judgment for the losing party)
What are Defensive responses?
Under FRCP 12, a defending party may respond in one of two ways (by motion or by answer) no later than 21 days after service of process

1- Answer is a pleading. D does two things
a- responds too allegations of the complaint AND
b- Raises affirmative defenses

2- Motions are not pleadings: they ask the court to order something

3- 7 defenses can be raised either in the answer or by motion: 1) Lack of SMJ; 2) Lack of PJ; 3) Improper venue; 4) Insufficient process; 5) insufficient service of process; 6) failure to state a claim on which relief can be granted; 7) failure to join an indispensible party
*2,3,4,5- must be put in your 1st response
*6&7: can be raised anytime throughout trial
*1- Never waived even on appeal
What is a notice pleading?
Complaint must contain:
1- Statement of SMJ
2- Short and plain statement of the claim, showing entitled to relief AND
3- Demand for judgment- does not limit what can be recovereed except in default cases

Stmt of claim need not be made with great specificity or particularity. The Fed Rules use what is often called "notice pleading' under which the pleading is sufficient if it puts the other side on notice.

The sC says P must plead facts supporting a plausible claim

3 topics requiring the party to plead facts with specificity or particularity:
1- Fraud, 2- Mistake, 3- special damages: those that do not normally flow from an event, give detail