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63 Cards in this Set
- Front
- Back
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What is the general rule re: diversity of citizenship j/d?
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1) Action must be between citizens of different states or between a citizen of a state and a citizen of a foreign country, and
2) Amount in controversy must exceed $75,000 |
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What is the complete diversity requirement?
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There is no diversity of citizenship j/d if any P is a citizen of the same state as any D
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When is diversity of citizenship determined as of?
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Diversity is determined when the case is filed
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In what state does an individual have citizenship for purposes of determining diversity?
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A US citizen is a citizen of the state in which she is domiciled
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In what states does an corporation have citizenship for purposes of determining diversity?
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1) State where incorporated, and
2) The one state where the corporation has is principal place of business (Headquarters test: where the decisions are made) |
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In what states does an unassociated organization have citizenship for purposes of determining diversity?
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Citizen of all states in which its members are citizens
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When will claims be aggregated for the purposes of determining amount in controversy?
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Aggregate P’s claims if the case involves one plaintiff v. one defendant
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How do you determine the amount in controversy when the action is for an injunction?
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1) P’s viewpoint: does the encroachment decrease the value of P’s property by >$75,000?
2) D’s viewpoint: would it cost D > $75,000 to comply w the injunction? |
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What are the exclusions from a federal court's diversity j/d?
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Federal courts will not:
1) issue divorce 2) issue alimony or child custody decree; 3) probate a decedent’s estate |
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What is required for federal question jurisdiction?
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Complaint must show a right or interest founded substantially on a federal law. The claim must arise under federal law
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What is the general test for invoking supplemental jurisdiction?
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The claim must share a common nucleus of operative fact with the claim that invoked federal SMJ
Met when: claim arises from the same transaction or occurrence as the underlying case |
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What is the primary limitation of supplemental jurisdiction?
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1. A non-federal, non-diversity claim can be heard in federal court if it meets the “common nucleus” test, unless it is:
1) Asserted by the P 2) In a diversity case, and 3) Would violate complete diversity |
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What are a court's discretionary factors for determining whether not to hear a case on supplemental jurisdiction?
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1) If the federal question is dismissed early in the proceeding, or
2) If the state law claim is complex, or 3) State law issues would predominate |
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When can a case be removed to federal court?
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D can remove if the case could be heard in federal court (i.e. if there is federal SMJ)
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Where can a case be removed to?
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The case can only be removed to the federal court embracing the state court in which the case was originally filed
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When must a case be removed?
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Must remove no later than 30 days after service of the first removable document
(Usually, this means 30 days after initial service of process) |
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What is the result of one defendant wants to remove but the other does not?
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No removal. All defendants must agree to remove
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Can a plaintiff remove as a result of a counterclaim?
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No. P can never remove
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What is the special rule re: removal in a diversity case?
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In a diversity case, there is no removal if any D is a citizen of the forum
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What is the general rule re: choice of law in a federal diversity case?
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In diversity cases, federal court must apply state substantive law
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What are the four types of law that the SC has determined are "substantive" for the purposes of Erie?
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1) Elements of a claim or defense
2) Statute of limitations 3) Rules for tolling SL 4) Conflict or choice of law rules |
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What are the factors that a court should look at to determine whether a state law is substantive or procedural?
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1) outcome determinative?
2) balance of interest 3) avoid forum shopping |
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Where may P lay venue in a non-local action?
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P may lay venue in any district where:
1. All defendants reside, or 2. A substantial part of the claim arose But: if all Ds reside in different districts of the same state: P can lay venue in the district in which any of them reside |
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What is an individual's residence for the purposes of venue?
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domicile
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What is a corporation's residence for the purposes of venue?
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Reside in all districts where they are subject to personal jurisdiction
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To where can venue be transferred?
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Can only be transferred to another federal district where the case could have been brought
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What are the three factors that a court looks to in determining whether to transfer?
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1) convenience of parties
2) convenience of witnesses 3 the interests of justice |
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When must process be served in federal court?
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w/in 120 days of filing
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Who may serve process in federal court?
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Any non-party who is at least 18
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By what processes may service of process be effected in federal court?
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1. FRCP, or
2. Law of the state in which it sits, or 3. The law of the state in which service is effected FRCP recognizes three basic methods of serving process: 1. Personal service 2. Substituted service 3. Agent service |
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What is substituted service?
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Leave service:
1) at D’s usual abode, and 2) With someone of suitable age and discretion |
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When can a federal court in NY serve process outside of NY?
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Federal court in NY can serve process outside NY only if state court could
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When may parties be joined?
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Parties may be joined if their claims:
1) Arise out of the same transaction or occurrence, and 2) Raise at least one common question |
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When is an absentee a necessary party?
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Absentee is necessary if:
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 to multiple obligations |
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When can a necessary absentee party be joined to pending litigation?
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Absentee party can be joined if:
1) Personal j/d, and 2) Can be joined w/o messing up diversity |
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What are a court's options if a necessary party cannot be joined to the litigation? What factors does it consider in making this determination?
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1) Proceed w/o the party, or
2) Dismiss the case Factors a. Is there an alternative forum available where everybody can be joined? b. What is the real likelihood of harm to anybody if we proceed w/o the necessary party? c. Can the ct do something to shape the order in the pending case to avoid such harm? |
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When is a counterclaim compulsory? When is it permissive?
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Compulsory: Arises from the same transaction or occurrence
Permissive: Does not arise from same transaction or occurrence |
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When may a counterclaim invoke supplemental jurisdiction?
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1) Same transaction or occurrence, and
2) not a claim by P that destroys complete diversity |
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What is required in order to bring a crossclaim?
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Must arise out of the same transaction or occurrence
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Are crossclaims every compulsory?
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No
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When can a cross-claim invoke supplemental jurisdiction?
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1) Same transaction or occurrence, and
2) not a claim by P that destroys complete diversity |
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What is impleader?
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A defending party joins a third party defendant b/c TPD might be liable to the defending party for the claim against the defending party (usually a claim for indemnity or contribution)
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What is the required timing for an impleader?
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D has a right to implead w/in 14 days of serving the answer; after that, court permission is required to implead
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After an impleader is made, under what circumstances may a P file a claim against the TPD (and vice versa)?
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If same transaction or occurrence
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When does a party intervene as of right?
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1) Absentee’s interest may be harmed if she is not joined, and
2) Interest is not adequately represented now |
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When may a party intervene w leave from the court?
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Absentee’s claim or defense and the pending case must have at least one common question
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What is interpleader?
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One holding money or property wants to force all potential claimants into a single case to avoid multiple litigation and the threat of inconsistent results
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What are the two types of interpleader?
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1) statutory
2) rule |
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What are the requirements for rule interpleader?
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1) Diversity of citizenship: Stakeholder must be diverse from every claimant
2) Amount in controversy: Must exceed $75,000 3) Service of process: Regular service of process rules 4) Venue: Regular venue rules |
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What are the requirements for statutory interpleader?
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1) Diversity of citizenship: One claimant must be diverse from one other claimant
2) Amount in controversy: Must exceed $500 3) Service of process: Nationwide service of process 4) Venue: Any district where any claimant resides |
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What are the requirements of a class action?
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1) Too numerous for practicable joinder
2) Some questions of law or fact in common to the class 3) Rep’s claims/defenses are typical of those of the class 4) Rep is adequate – will fairly represent the class |
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In what three types of cases are class actions permitted?
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1) Prejudice: Class treatment is necessary to avoid harm either to the class members or to the party opposing the class
2) Injunction or declaratory judgment: Injunction or declaratory judgment sought b/c the class members were treated alike by the other party 3) Damages: i. Common questions predominate over individual questions, and ii. Class action is the superior method for resolving the dispute |
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In what kind of class action is notice required? What is required to be included in this notice?
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Notice is required for a class action based on damages.
Notice must state: 1) They can opt out 2) They will be bound by the judgment if they do not opt out, and 3 )They can enter a separate appearance through counsel |
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What is required for diversity j/d in a class action?
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1) the representative must be diverse from all defendants
2) the representative’s claim must exceed $75,000 |
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In what kind of actions is a jury trial required under the 7th Amendment?
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Actions at law (not at equity)
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What is the standard for granting a JMOL?
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Reasonable people could not disagree about the result
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When must a party move for a renewed JMOL? What is required in order to do so?
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Must move no later than 28 days after entry of the judgment
Prerequisite: Must have moved for JMOL at trial |
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When must a party move for a new trial?
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Must move not later than 28 days after entry of the judgment
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What are the four possible grounds for a new trial?
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1) prejudicial error
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 |
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What is the time limit for a defendant's response after being served w process?
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21 days
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Which defenses are not waived, although they have not been included in D's first defensive response?
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1. Indispensible party (raised any time through trial)
2. Failure to state a claim (raised any time through trial) 3. SMJ (never waived) |
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What is the required level of detail in a pleading?
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Must plead facts supporting a plausible claim
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When is a party required to plead with specificity?
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1) Fraud
2) Mistake 3) Special damages |
