Study your flashcards anywhere!

Download the official Cram app for free >

  • Shuffle
    Toggle On
    Toggle Off
  • Alphabetize
    Toggle On
    Toggle Off
  • Front First
    Toggle On
    Toggle Off
  • Both Sides
    Toggle On
    Toggle Off
  • Read
    Toggle On
    Toggle Off

How to study your flashcards.

Right/Left arrow keys: Navigate between flashcards.right arrow keyleft arrow key

Up/Down arrow keys: Flip the card between the front and back.down keyup key

H key: Show hint (3rd side).h key

A key: Read text to speech.a key


Play button


Play button




Click to flip

58 Cards in this Set

  • Front
  • Back
What are the Requirements for Obtaining Diversity of Citizenship Jurisdiction in Fed Court?
1. Action must be between citizens of different states or between a citizen of a state and a citizen of a different country
What are the requirements for fed court diversity jurisdiction
1. action between citizens of different states or a citizen of a state and a citizen of a foreign country (alienage)
2. amount in controversy exceeds $750000
Complete Diversity Rule
There is no diversity jurisdiction if ANY plaintiff is a citizen of the same state as ANY defendant
What are the requirements for diversity jurisdiction in fed court
1. action between citizens of different states or action between citizen and citizen of foreign state
2. amount in controversy exceeds $75000
Complete Diversity Rule
For diversity jurisdiction, any plaintiff may NOT be a citizen of the same state as any defendant
What is the Test to Establish an Individual's Domicile?
1. Physical Presence in the State
2. Intent To Make State a Permanant Home
What is the Test for Establishing Corporate Citizenship?
Citizenship will equal:
1. ALL states where corp. incorporated; AND
2. the one state where corporation has its principle place of business
How to Determine Citizenship for Unincorporated Associations?
Citizenship of ALL members
May a Plaintiff Aggregate Claims Against a Defendant to Meet the Amount in Controversy Requirement?
1. Yes, if single D or Joint Tortfeasors
2. No, if aggregating separate claims against different defendants
What is test for determining amount in controversy when P suing for an injunction?
Can use either of the following:
1. Does the encroachment hurt plaintiff by more than $75000
2. Will compliance by D cost more than $75000
What types of cases are always excluded from federal diversity jurisdiction?
Issuance of divorce, alimony, child custody decree, and probate of a decedent's estate
What is the Test for Federal Question Jurisdiction?
Whether Plaintiff's Claim would arise Under Federal Law if Contained in a "well-pleaded complaint"
Requirements for the Fed Court to Exercise Supplemental Jurisdiction
1. Must already be in court on at least one claim that satisfies diversity or fed question.
2. Ask whether supplemental claim shares a common nexus of operative fact
3. REMEMBER: in diversity case, cannot be used to overcome complete diversity rule
when does a fed court have discretion not to hear a supplemental jurisdiction claim?
1. If fed question dismissed early in proceedings
2. if state law claim complex
3. If state law issues predominate
Which Party Can Invoked Removal?
ONLY the defendant
What is the Right of Removal
Defendant can automatically remove certain cases to the federal court embracing the state court in which originally filed if:
1. If it could have been filed in federal court to begin with
2. All defendants agree (Exception: separate & independent fed question claim)
3. If case is based on diversity, no D can be a citizen of the state in which case was originally filed
What is the Timing for Removal?
1.Must remove within 30 days of the first removable pleading
2. Special Rule for Diversity Cases - In no case more can a D file for removal more than one year after case is filed in state court
What is the Procedure for a D to File for Removal
1. D must file motion in federal court, setting forth grounds of removal, signed under Rule 11
2. Must attach all docs served on D in state court
3. must serve a copy on all adverse parties
4. Must file a copy of notice of removal with state court
What is Plaintiff's Remedy if Removal is Improper?
1. Plaintiff moves to remand to state court
2. Must do so within 30 days UNLESS claim of defect based on subject matter jurisdiction (then court court can remand at any time).
Will Defendant Waive Right of Removal if Files a Counterclaim in state court?
1. If Permissive Counterclaim - probably yes
2. If mandatory - probably not
The Erie Doctrine
Under Erie, federal courts sitting in diversity (and in deciding supplemental jurisdiction claims) must appy substantive state law
What are considered plainly substantive rules for purposes of Erie?
1. elements of a claim or defense
2. SOL
3. Rules for tolling of SOL
4. Choice of Law Rules
If a state law is not plainly substantive, how does fed court determine whether to apply it under Erie?
Three tests:
1. ask whether outcome determinative? If so, then substantive
2. Balance interests of fed and state on matter
3. will applying fed law encourage forum shopping? If so, apply state law
Fed Rule for Determining Venue in Removal Cases
Venue is federal court embracing the state court in which plaintiff originally filed
General Fed Rules for Determining Where Plaintiff May Lay Venue?
1. District Where ALL Defendants Reside OR
2. A Substantial Part of the Claim Arose
How do we determine residence for Fed Venue Purposes?
1. If Individual - residence usually equalls domicile
2. For Corps - resides in all districts where it is subject to personal jurisdiction when case is filed
How to determine Venue when local action (ownership, injury to land etc.)
District where property/land sits
When Is Transfer of Venue Permissible?
1. Transferee court has personal jursidction over the Defendants
2. Is a Proper Venue
3. Courts will look to convenience of the parties, witnesses, interests of justice
What are requirements on P for Service of Process in Fed Court
1. Must deliver summons & complaint with 120 days of filing or case will be dismissed without prejudice
2. Summons
3. Copy of the Complaint
Who May Serve Process in Federal Action?
Anyone 18+ who is a non-party
What are the possible methods of service in fed court
1. Service under the fed rules of civ pro:
a. personal service anywhere in forum state
b. substituted service - process left at D's usual abode AND with someone of suitable age and discretion who resides there
c. Delivery to D's Agent Authorized to Receive Process
d. Waiver by Mail (D must return waiver in 30 days or must use another form)
2. Service under law of state in which fed court sits
3. law of state in which service is effected
Test for Permissive Joinder
1. do claims arise out of the same transaction or occurence; AND
2. Is there a common question of law or fact; AND
3. does the court have subject matter jurisdiction
Test for Compulsory Joinder/Necessary Parties
1. without absentee, full relief cannot be accorded among those already joined;
2. absentee's interests will be harmed if she is not joined(practical harm)
3. absentee claims an interest that could subject a party to possibility of multiple obligations
What Will Court Ask when determining if an absentee can feasibly be joined?
1. is there personal jurisdiction?
2. can she be joined without destroying diversity
What if Party Cannot be Joined?
Court can dismiss or proceed without him. Will consider:
1. whether an alternative forum exists where all parties can be joined
2. what the real likelihood of harm is if not joined
3. whether court could shape order so as to avoid harm to absentee
What is a compulsory counterclaim?
1. Arises from same transaction or occurrence as P's claim
2. must be filed w/ answer in pending case or else it is waived
What is a permissive counterclaim?
1. does not arise from same T/O as P's claim. Does not have to be asserted in pending case.
2. must still have subject matter jurisdiction (but note that second circuit has upheld permissive claim with even loose factual connection to P's claim)
What is a Cross Claim?
Offensive claim against a co-party that is not compulsory.
1. may be filed if arises out of the same transaction or occurrence
When to use Impleader?
A defending party joins TPD, usually in claim for contribution or indemnity
1. Timing - has right within 10 days of serving answer, after that permissive
2. must file complaint, serve process on TPD (thus need personal jurisdiction)
3. must satisfy subject matter jurisdiction
When can an Absentee intervene as of right?
Two requirements:
1. absentee's interests may be harmed if not joined
2. That interest is not currently adequately represented
When Is Permissive Intervention Available?
Absentee's claim or defense and pending case have at least one common question. Intervention will be at discretion of the court.
What is Interpleader device used for?
One holding money or property (the stake holder) wants to force all potential claimants into a single case to avoid multiple litigation and threat of inconsistent results
Rule Interpleader
1. Complete Diversity required
2. amount in controversy must exceed $75000
3. Regular service of process rule apply
4. regular venue rules apply
Statutory Interpleader
1. Minimal diversity - one P diverse from one D
2. Amount in controversy only $500 or more
3. nationwide service of process by statute
4. venue is district in which ANY claimant resides
What are the Initial Requirements for a Class Action?
1. Numerosity
2. Typicality
3. Commonality
4. Representativeness
What are the Three Possible Types of Class Actions
1. Prejudice - class treatment is necessary to avoid harm to either class members or defendant
2. Injunction or Declaratory Judgment SOught - class members treated alike by party
3. Damages - common questions predominate over individual questions AND class action is superior method for solving the dispute
What are the Special Notice Rules in a Damages (23(b)(3) action)
1. Court must notify ALL reasonably identifiable members:
a. they can opt out
b. binding effect of class judgment on members
c. they can enter separate appearance of counsel
What is timing for class to be certified?
Court must determine "at an early practicable time" whether to certify as class
Basics of Class Action Fairness Act
1. minimal diversity - any class member diverse from D
2. at least 100 members in class
3. aggregate amount in controversy exceeds $5 million
Requirements to Assert Right to a Jury Trial
To assert 7th Amendment right:
a. must demand jury trial in writing, no later than 10 days after service of last pleading raising a jury-triable issue
2. right only preserved in actions at law, not equity and;
3. only applies in federal civil cases
When Does Party Make a Motion for a Judgment as A Matter of Law?
After the other side has been heard
What is Standard for JMOL?
reasonable people could not disagree as to result
When Does Party Move for a Renewed Motion for JMOL?
1. must have first made regular JMOL motion
2. must move no later than 10 days after entry of judgment
When move for Motion for New Trial?
no later than 10 days after entry of judgment
When Must a Defendant Make First Response
By motion, or answer, within 20 after served with process
What are the Seven Defenses that can be raised either in motion or in answer by D?
1. subject matter jurisdiction - never waivable
2. lack of personal jurisdiction - waived if not put in first response to P
3. Improper venue - waived inf not put in first response
4. Insufficient process - put in first response or waived
5. failure to state a claim on which relief can be granted - raised at any time through trial
6. failure to join an indispensible party - raised any time through trial
What are the requirements of notice pleading?
1. statement of subject matter jurisdiction
2. short and plain statement of claim, showing entitled to relief
3. demand for judgment
Three claims that must be pleaded with greater specificity
1. Fraud
2. mistake
3. special damages