Federal Jurisdiction & Civil Procedure

Front 1

Personal Jurisdiction: Two Step Analysis

Back 1

Court's power over the parties: In what state can P sue D?

(1) Satisfy a statute (long arm statute)
(2) Satisfy the Constitution (Due Process)

**Same analysis in borth state and federal court

Front 2

In personam jurisdiction

Back 2

*P wants to impose a personal obligation on D. Jurisdiction over the person, not property because of some contact between D and forum state

Front 3

In personam jurisdiction: Statutory Analysis

Back 3

Every state has statutes allowing jurisdiction based on domicile, presence instate when served with process and consent (implied or actual).

**Every state also has a long arm statute allowing jurisdiction over non-residents.

Front 4

In personam jurisdiction: Constitutional Analysis

Back 4

Test: Does D have "such minimum contacts with the forum so that exercise of jurisdiction does not offend traditional notions of fair play and substantial justice?

Look to factors of constitutional analysis.
(a) Contact
(b) Fairness (Fair Play and Substantial Justice)

Front 5

Constitutional Analysis Factor: Contact

Back 5

There must be some contact between D and forum

**Must result from purposeful availment (D's voluntary act) by reaching out to the forum

Foreseeability: Must be foreseeable that the D could be sued in this forum

Front 6

Constitutional Analysis Factor: Fairness

Back 6

(a) Relatedness: between contact and the claim
Does P's claim arise from D's contact with the forum state?
*Does not always have to be present--not needed if D has substantial ties with the forum

(b) Convenience: D may complain that the forum makes it tough to litigate, okay unless it puts D at a severe disadvantage in the litigation.

(c) State's Interest: provide forum for its citizens

Front 7

SUMMARY OF CONSTITUTIONAL TEST

Back 7

Minimum Contacts
(a) purposeful availment
(b) foreseeability

Fair play & Substantial Justice
(a) relatedness of contact and claim
(b) convenience
(c) state's interest

"My Parents Frequently Forgot to Read Children's Stories"

Front 8

Subject Matter Jurisdiction

Back 8

*Court's power over the case

State courts can generally hear any case, but federal courts can only hear limited types of suits.

Front 9

Types of Cases Heard in Federal Court

Back 9

(1) Diversity of Citizenship
(2) Federal Question

Front 10

Diversity of Citizenship Jurisdiction

Back 10

(1) Must be between citizens of a different state
(2) Amount in controversy must exceed $75k

Front 11

Complete Diversity Rule
"citizens of different states"

Back 11

No diversity of citizenship jurisdiction if any P is a citizen of the same state as any D.

Front 12

Determination of Citizenship

Back 12

A natural person who is a US citizen, citizenship is the state of her domicile.

Two factors:
(1) Presence instate [physical requirement]
(2) Subjective intent to make it permanent home [mental requirement]

**On intent: courts look to all relevant evidence of intent

Front 13

Corporation Citizenship

Back 13

(1) State where incorporated

AND

(2) One state where the corporation has its principal place of business

**Can have more than one citizenship

Front 14

Principal Place of Business Test

Back 14

"nerve center" test:

where decisions are made

Front 15

Amount in Controversy

Back 15

Must have a good faith allegation that claim exceeds $75k in order to have diverse jurisdiction.

**Whatever the P claims in good faith is OK unless it is clear to a legal certainty that she cannot recover more than $75k

**What a P WINS doesn't matter, it's what she claims BUT a P who wins less than $75k may ahve to pay D's litigation costs.

Front 16

Aggregation

Back 16

Adding two or more claims to meet the amount requirement.

**Can have as many unrelated claims as needed as long as it is a SINGLE P against a SINGLE D.

**For joint claims, use total value of the claim, the number of parties doesn't matter in a joint claim.

Front 17

Amount in Controversy: Equitable Relief

Back 17

Ex. P sues D for an injunction to tear down part of his house that blocks P's view

Two Tests (if either is met, it is okay):
(1) Plaintiff's Viewpoint: does the blocked view decrease the value of plaintiff's propery by more than $75k?
(2) Defendant's viewpoint: would it cost D more than $75k to comply with the injunction?

Front 18

Federal Question Jurisdiction

Back 18

Complaint must show a right or interest founded substantially on a federal law.

The claim must "arise under" federal law.

Front 19

Well Pleaded Complaint Rule

Back 19

It is not enough just that some federal issue is raised by the complaint. The claim itself must "arise under" federal law.

**Must look at claim itself and ignore extra stuff P might have alleged.

Ask: Is P enforcing a federal right?

Front 20

Supplemental Jurisdiction

Back 20

CANNOT be used to get a case into federal court!!

This only works after a case is already in fed court through diversity or FQ and you have an additional claim that does not meet diversity or FQ. This may help get the claim in fed court.

Front 21

Supplemental Jurisdiction: Test

Back 21

Must share a "common nucleus of operative fact" with the claim that invoked federal subject matter jurisdiction.

**Always met by claims that arise from same transaction or occurrence as the underlying claim

Front 22

Limitation on Supplemental Jurisdiction

Back 22

In a diversity case, P cannot use supplemental jurisdiction to overcome a lack of diversity.

(okay to overcome diversity in federal question cases)

**CAN use supplemental jurisdiction to overcome a lack of amount in controversy for a claim in a diversity case.

Front 23

SUMMARY OF SUPPLEMENTAL JURISDICTION

Back 23

Non-federal, non-diversity claim can be heard in federal court if it meets the test:
(1) Asserted by a plaintiff
(2) In a diversity of citizenship (not FQ) case AND
(3) Would violate complete diversity

Front 24

Discretionary Factors

Back 24

Court has discretion NOT to hear the supplemental claim:
(1) if the federal question is dismissed early in the proceedings OR
(2) if the state law claim is complex or
(3) state law issues would predominate

Front 25

Removal

Back 25

*Defendants (ONLY) to have case filed in state court transferred to federal court.

**Only can be removed from state court to federal court. [Fed court can remand back to state]

*Can remove if th case could be heard in federal court invokes diversity or federal question

Front 26

Where can a case be removed?

Back 26

Can only be removed to the federal district embracing the state court in which the case was originally filed.

Front 27

When can a case be removed?

Back 27

Must be no later than 30 days after service of the first removable document. (usually service of process)

*P can never remove!

*No removal if any D is a citizen of forum (instant defendant rule)

Front 28

Procedure for Removal

Back 28

D files notice of removal in fed court, stating grounds of removal.

**If improper, P moves to remand to state court (must do so 30 days of removal). If no federal subject matter jurisdiction, P can move to remand anytime. NO time limit on raising lack of subject matter jurisdiction.

**D files a permissive counterclaim in state court probably waives the right to remove. Filing a compulsory counterclaim in state court, though probably does not waive the right to remove.

Front 29

Erie Doctrine

Back 29

Whether the court must apply state law on some issue.

**Rule: In diversity cases, federal court must apply state substantive law.

Ask: Is there a federal law on point that directly conflicts state law? If so, apply federal law as long as it is valid. (Supremacy Clause)

*If this is a issue involving: elements of a claim/defense, statute of limitations, rules for tolling statutes of limitations, and conflict of law rules

*No federal law on point, but federal judge wants to do, ignore the state law If the issue is one of substantive law, must follow state law.

Front 30

Erie Doctrine: Three Tests

Back 30

(1) Outcome Determinative: Would applying or ignoring the state rule affect outcome of case? If so, it's probably a substantive rle, so should use state law.

(2) Balance of Interests: Does either federal or state system have strong interest in having its rule applied?

(3) Avoid forum shopping: if the federal court ignores state law on this issue, will it cause parties to flock federal court? If so, should probably apply state law.

Front 31

Venue

Back 31

Telling you exactly which federal court to bring suit.

Local Action: actions regarding land

If not local, it's transitory.

Front 32

Transitory Cases
(federal question or diversity)

Back 32

Plaintiff may lay venue in "any district where...."
(a) all defendants reside
(b) substantial part of the claim arose

Special Rule: In cases where all Ds reside in different districts of the same state, plaintiff can lay venue in the district in which any of them reside.

Front 33

Venue: Residence

Back 33

Residence basically equals domicile, so usually same place as citizenship for diversity of citizenship purposes.

Corporation and other business associations "reside" in all districts where it is subject to personal jurisdiction when the case is filed.

Front 34

Transfer of Venue

Back 34

Can only transfer to a district where case could have been filed--to a proper venue that has personal jurisdiction over the D.

**If venue in original district is proper, may transfer to another federal district based upon convenience for the parties/witnesses and the "interests of justice".

Court has discretion to order transfer based upon (1) public factors and (2) private factors

**If venue is improper, court may transfer in the interests of justice or dismiss

Front 35

Service of Process

Back 35

Must deliver to the D:
(1) Summons
(2) Copy of Complaint

Together these two documents are called process.

**Any nonparty who is at least 18 years old

Front 36

Methods of Service

Back 36

(1) Personal Service: papers handed to D personally anywhere in forum state

(2) Substituted Service: can leave process with someone at D's home if it is the D's usual abode and it is someone of suitable age that resides there

(3) Service on D's agent: process can be delivered to D's agent if within the scope of the agency

(4) State Law: can use methods permitted by state law of the state where the federal court sits or where service effected.

Note: Federal court can serve process outside the state in which it sits ONLY if a state law allows (ie long arm)

Front 37

Waiver of Service

Back 37

Process is mailed to D by first class mail, postage prepaid.

**This is okay if D executes and mails the waiver form to P within 30 days.

By doing so, D waives only formal service of process

**P files D's waiver in court

**D fails to return the waiver form. P then has her served either personally or by substituted service.
[There will be a penalty for D unless shows good cause---pays for service]

Front 38

FRCP 11

Back 38

Requires attorney to sign all pleadings, written motions and papers (except discovery documents, which are treated by another rule)

**With signature, the person certifying that to the best of her knowledge and belief after reasonable inquiry:
(1) the paper is not for an improper purpose
(2) legal contentions are warranted by law [or nonfrivolous argument for law change], and
(3) that factual contentions and denials of factual contentions have evidentiary support [or are likely to after further investigation]

Front 39

Rule 11 Sanctions

Back 39

Discretionary sanctions may be levied against attorney, firm or party to deter repeat bad conduct.

**Can be non-monetary sanctions. Monetary sanctions are often paid to court, not to the other party. Before imposing sanctions, court must give a chance to be heard.

**Motion for violation of Rule 11 is served on other parties but cannot be filed yet.

Front 40

Rule 11 Sanctions: Safe Harbor Rule

Back 40

Motions for violation of Rule 11 is served on other parties but cannot be filed yet. Must give the other party 21 days to withdraw the document or fix the problem.

**If she does, no sanctions.

**If not, then motion can be filed.

-Court can always ask to show good cause.

Front 41

Complaint: Requirements

Back 41

Filing commences an action:
(1) statement of grounds subject matter jurisdiction
(2) short and plain statement of the claim, showing entitled to relief;
(3) demand for the relief sought

Front 42

Heightened Pleading

Back 42

Must plead facts fupporting a plausible claim

Three matters must be pleaded with particularity or specificity:
(1) Fraud
(2) Mistake
(3) Special Damages

Front 43

FRCP 12: Defendant's Response

Back 43

Requires D to respond either:
(1) by motion
(2) by answer

**To avoid default, you must serve either within 21 days after service of process.

Front 44

Rule 12 Defenses

Back 44

(1) Lack of Subject Matter Jurisdiction
(2) Lack of Personal Jurisdiction
(3) Improper Venue
(4) Insufficiency of Process
(5) Insufficient Service of Process
(6) Failure to State a Claim
(7) Failure to Join an Indispensable Party

**2, 3, 4, 5 are waivable which means that they must be brought on the first response

Front 45

Answer

Back 45

Serve within 21 days after service of process.

If D made a Rule 12 motion and it is denied, must serve answer within 14 days after court rules on motion.

**Must respond by admitting/denying/stating lack of sufficient information specifically.

***Failure to admit or deny on any matter except damages can consitute an admission

*Must raise ALL affirmative defenses

Front 46

Counterclaim

Back 46

Claim against an opposing party.

(1) Compulsory
(2) Permissive

Front 47

Compulsory Counterclaim

Back 47

Arises from the same T/O as P's claim. Must be filed in the pending case or it's waived

Front 48

Permissive Counterclaim

Back 48

Does NOT arise from same T/O as P's claim.

You may file it with your answer or in a separate case.

Front 49

Crossclaim

Back 49

-Claim against a co-party.

**Must arise from same T/O as the underlyiing action

**NEVER COMPULSORY

Front 50

Amending Pleadings

Back 50

Plantiff: can amend within 21 days after D serves first Rule 12 response

Defendant: can amend once wihtin 21 days of serving answer

**If there is no right to amend, seek leave of the court and it will be granted if justice requires and does not cause UNDUE DELAY, PREJUDICE and depends on FUTILITY of the amendment.

Front 51

Variance

Back 51

-When the evidence at trial does not match what was pleaded

**Want pleadings to reflect what was tried

Front 52

Relation Back

Back 52

Amended pleadings "relate back" if they concern the same conduct, transaction, or occurrence as the original pleading.

This means you treat the amended pleading as though it was filed when the original was filed, so it can avoid a statute of limitations problem.

Front 53

Initial Disclosures

Back 53

Unless coiurt order or stipulation of parites differs, in most cases, within 14 days of Rule 26(f) conference, must identify persons, electronically stored info, and documents that are "likely to have discoverable info that the disclosing party may use to support its claims or defenses", damages, and insurance

Front 54

Discovery Tools

Back 54

**May not be used until after teh Rule 26(f) conference unless court order or stipulation allows

(1) Depositions
(2) Interrogatories
(3) Requests for Production
(4) Physical/Mental Exam
(5) Request for Admissions

Front 55

Scope of Discovery

Back 55

**Anything relevant to a claim or defense.

**Relevant means "reasoanbly calculated to lead to the discovery of admissible evidence"

**privileged matter not discoverable.

Front 56

Work Product

Back 56

"trial prep materials"

**Generally protected from discovery

Must show: (a) substantial need and (b) not otherwise available

Not required to produce: (a) mental impressions, (b) opinions, (c) conclusions, (d) legal theories

Front 57

Experts

Back 57

Required disclosures mean that each party must give info about experts she may use at trial--even though no one requests that infor.

Any party may take deposition of any expert "whose opinion may be presented at trial"

**Consulting expert--no discovery absent exceptional need

Front 58

Enforcement of Discovery Rules

Back 58

(a) Protective Order
(b) Partial Violation: can get an order compelling the party to answer the unanswered questions plus costs of bringing the motion, but if motion violated RAMBO sanctions/contempt
(c) Total Violation: RAMBO sanctions

Front 59

Joinder: Proper Defendants/Plaintiffs

Back 59

People that may be joined when P is putting the case together and figuring out who the parties should be.

Must:
(1) arise from same T/O
(2) raise at least one common question

**Must still have subject matter jurisdiction

Front 60

Joinder: Necessary/Indispensable Parties

Back 60

Some absentees (non-parties) must be forced to join in the case because they are required.

Parties are necessary if absentee who meets any of these tests:
(1) With absentee, the court cannot accord complete relief (worried about multiple suits);
(2) Absentee's interest may be harmed if he isn't joined (practical harm); OR
(3) Absentee claims an interest which subjects a party (usually defendant) to a risk of multiple obligations.

Front 61

Feasibility of Joinder

Back 61

If absentee party cannot be joined, court must proceed without absentee or dismiss the case.

**To determine feasibility, court will look at these factors:
(a) Is there an alternative forum available?
(b) What is the actual likelihood of prejudice?
(c) Can the court shape relief to avoid that prejudice?

Front 62

Impleader

Back 62

(third party practice)

**Defending party wants to bring in someone new, third party defendant, for one reason: the TPD may own indemnity or contribution to the defending party on the underlying claim


**Right to implead within 14 days of serving answer (after that, need approval)

Front 63

Intervention

Back 63

Absentee wants to join a pending suit--chooses to come in either as plaintiff or as a defendant. Court may realign absentee if it thinks she came in on the "wrong side". Application to intervene must be timely.

Front 64

Class Action

Back 64

Must demonstrate ALL of the following:
(a) Numerosity: too many class members for practicable joinder
(b) Commonality: some questions of law or fact in common to class
(c) Typicality: representative's claims/defenses typical of those of the class
(d) Representative Adequate: class representative will fairly and adequately represent class.

Front 65

Class Action: Three Types of Class Actions

Back 65

(1) Prejudice: class treatment necessary to avoid harm either to class members or to party opposing class. [ex. many claimants to a fund]

(2) Injunction or Declaratory Judgment sought because class was treated alike by other party [ex. employment discrimination]

(3) Damages: (A) common questions predominate over individual questions and (B) class action is the superior method to handle the dispute [ex. mass tort]


**Court must determine "at an early practicable time" whether to certify the case to proceed as class action. If it certifies the class, it must "define the class and the class claims, issues, or defenses"

**Class counsel must fairly and adequately represent the interests of the class.

Front 66

Notification of Class Action

Back 66

In a damages case, the court must notify class members, including individual notice (usually by mail) to all reasonably identifiable members.

Notice informs members of :
(a) option to "opt out'
(b) if they don't opt out, they are bound AND
(c) Can enter a separate appearance through counsel.

Front 67

12(b)(6): Failure to State a Claim

Back 67

D can move to dismiss for failure to state a claim.

**This tests the sufficiency of P's allegations

**Court assumes all allegations are true and asks: If P proved all she has alleged, would she win a judgment?

**Court only looks at the face of the complaint.

Front 68

Summary Judgment: FRCP 56

Back 68

Moving party must show:
(1) there is no genuine dispute as to material issue of fact AND
(2) entitled to judgment as a matter of law

**Court can look at the evidence.

**Court generally views the evidence in the light most favorable to the nonmoving party.

Front 69

Rule 26(f) Conference

Back 69

At least 21 days before scheduling conference, parties discuss claims, defenses, and settlement. Must form discovery plan and present it to court in writing within 14 days.

Front 70

Scheduling Order

Back 70

Court enters an order scheduling cut-offs for discovery, joinder, amendment, motions, etc.

Front 71

Pretrial Conference

Back 71

As need to expedite the case and foster settlement.

**Final one determines issues to be tried and evidence to be proffered.

**Road map of issues to be tried, evidence to be presented at trial, witness, etc. No surprises at trial.

Front 72

Jury Trial

Back 72

**Determine facts and are instructed on the law by the judge

**Must demand in writing no later than 14 days after service of last pleading raising jury triable issue.

Front 73

Jury Selection

Back 73

*Each side has unlimited strikes for cause

*Each side gets 3 peremptory strikes

Front 74

Motion for Judgment as a Matter of Law (JMOL)

(Directed Verdict)

Back 74

After the close of evidence, this can be brought.

Defendant usually has the opportunity to do this twice, Plaintiff has one shot.

Standard: Reasonable people could not disagree on the result.

Front 75

Renewed Motion for Judgment as a Matter of Law (RJMOL)

(JNOV)

Back 75

If judge did not grant JMOL and the case went jury. It returns the verdict for one party and teh court enters judgment on the basis of the verdict. Now, the losing party files a RJMOL.

**If you did not move for JMOL at trial, you cannot bring RJMOL.

Front 76

Motion for a New Trial

Back 76

Judgment entered, but errors at trial require a new trial. Must move within 28 days after judgment.

Grounds:
(1) prejudicial (not harmless) error at trial makes judgment unfair
(2) new evidence that could not have been obtained with due diligence for the original trial
(3) prejudicial misconduct of party or attorney or thrid party or juror
(4) judgment is against the weigh of the evidence

Front 77

Final Judgment Rule

Back 77

As a general rule, can appeal only from final judgments, which means an ultimate decision by teh trial court of the merits of the entire case.

**File notice in TRIAL COURT within 30 days after entry of final judgment

**To determine if final judgment ask: After making this order, does the TC have anything left to do on the merits of the case?

Front 78

Interlocutory Appeal

Back 78

**May be appealable even though not final judgment

Reviewable as a right: orders granting, modifying, refusing injunctions; appointing/refusal to appoint receivers; finding of patent infringement; orders affecting possession of property

Front 79

Interlocutory Appeals Act

Back 79

Allows appeal of nonfinal order if trial judge certifies that it involves a controlling issue of law as to which there is substantial grounds for difference of opinion and the court of appeals agrees to hear it.

Front 80

Preclusion

Back 80

Whenever there has been an earlier case, watch for claim and issue preclusion which concern the preclusive effect of a prior judgment on the merits.

Question: Whether a judgment already entered in Case 1 precludes litigation of any matters in another Case 2.

Front 81

Res Judicata [Claim Preclusion]

Back 81

Only get 'one bite of the apple' in which to vindicate all rights to relief for the claim

Requirements:
(1) Same claimant against the same defendant
(2) First Case ended in a valid judgment on the merits
(3) Same claim

Same claim [split authority]:
Majority: a claim is any right to relief arising from a transaction or occurrence
Minority: separate claims for property damage and for personal injuries because those are different "primary rights"

Front 82

Collateral Estoppel [Issue Preclusion]

Back 82

**Precludes relitigation of a particular issue litigated and determined before

Requirements:
(1) First case ends in a valid final judgment on the merits
(2) Same issue, already litigated in first case
(3) Issue was essential to the judgment in Case 1


**Can only be asserted AGAINST one that was party to Case 1

**Can be asserted BY on one who was party to case 1.

Front 83

Non-mutual Defensive Issue Preclusion

Back 83

the one using issue preclusion was not a party in Case 1 and is a defendant in Case 2

Front 84

Non-mutual Offensive Issue Preclusion

Back 84

the one using issue preclusion was not a party in Case 1 and is a plaintiff in Case 2.