Ringer's Civ Pro

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28 USC § 1404

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1) Change of Venue – process by which a defendant OR plaintiff seeks to have a civil action transferred from one Federal District Court to another Federal District Court

a) 28 USC § 1404 – change of venue where venue is proper in the transferor court
i) Requirements:
(1) Venue is proper in the FDC where cva is pending

(2) Plaintiff or Defendant can seek change of venue

(3) Change of venue would be convenient to parties and witnesses

(4) Change of venue would be in the interest of justice
(a) What substantive law will the court apply (where the c/a arose)?

(5) Transferee court may exercise SMJ, PJ, and PV
(a) Consent CANNOT be the basis of PJ

(6) Transferee court must apply same substantive law and SOL that transferor court would have applied
(a) Substantive law is applied from where c/a arose
(b) SOL is applied from where cva was commenced

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28 USC § 1406

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b) 28 USC § 1406 – change of venue where venue is NOT proper in the transferor court
i) Requirements:
(1) Venue is NOT proper in the FDC where cva is pending
(a) When making a 1406 motion, defendant should also raise a 12(b)(3)

(2) Plaintiff or Defendant can seek change of venue

(3) Change of venue would be convenient to parties and witnesses

(4) Change of venue would be in the interest of justice
(a) What substantive law will the court apply (where the c/a arose)?

(5) Transferee court may exercise SMJ, PJ, and PV
(a) Consent CANNOT be the basis of PJ

(6) Transferee court is not required to apply same substantive law and SOL that transferor court would have applied because transferor court lacked jurisdiction

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28 USC §1441

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2) Removal – process by which a defendant seeks to have a civil action taken out of a state court and into a Federal District Court and thereby creating proper venue

a) 28 USC §1441 – federal removal statute
i) Requirements:
(1) Civil action is pending in a State Court.

(2) Defendant(s) is seeking removal.
(a) Plaintiff cannot seek removal, even based on a counter-claim.

(3) Removal is made to the FDC that geographically embracing the state court where the cva is pending.
(a) Removal creates proper venue

(4) FDC must have SMJ over the cva.

(5) Basis for SMJ
(a) Where the basis for SMJ is 1331, the cva can be removed even where the defendant is a resident/citizen of the forum state.
(b) Where the basis for SMJ is 1332, the cva CANNOT be removed if any defendant is a resident/citizen of the forum state.

(6) A separate and independent non-removable state claim may be removed, in the court’s discretion, where it is a part of a cva with a removable Federal claim.
(a) Three Possibilities:
(i) NO Removal when UNRELATED state claim that does NOT satisfy 1332 requirements

(ii) FDC may remove when, in addition to a removable federal claim, there is a state claim that is not removable b/c Defendant is a citizen of the forum state, but SMJ is satisfied

(iii) FDC may remove when, in addition to a removable federal claim, there is a related state claim that arises out of the same transaction but lack SMJ b/c 1332 has not been satisfied.

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28 USC § 1446 and 1447

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i) Defendant must file notice of removal within thirty days of service of summons and complaint.

ii) If the cva is not initially removable, then defendant must file notice of removal within thirty days of receiving notice that cva is removable but if the basis for SMJ is 28 USC 1332, then removal must occur within one year of commencement of the cva.

iii) Plaintiff must seek a remand within thirty days from the filing of the notice of removal.

iv) An order remanding a cva to state court is not reviewable on appeal.
(1) An order DENYING removal is reviewable on appeal.
(2) Exception – Pursuant to 28 USC § 1443, an order remanding civil rights cases is reviewable on appeal

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Doctrine of Forum Non Conveniens

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a common law doctrine whereby a defendant may seek a dismissal from a FDC based on the inconvenience of the forum, a motion that should only be granted when the cva should be adjudicated in the court of a foreign country or a state court

a) Factors to be balanced:
i) Public Interest Factors
(1) Relative ease of access to sources of proof
(2) Availability of a compulsory process for attendance of unwilling witnesses
(3) Cost of obtaining attendance of unwilling witnesses
(4) Possibility of view of premises
(5) Any other factors that will make the adjudication of the cva easy, inexpensive and expeditious

ii) Private Interest Factors
(1) Court congestion
(2) Local interest in having local controversies decided at home
(3) Having diversity cva adjudicated in the forum that is home to the laws that must govern the cva
(4) Avoidance of conflicts of laws and application o foreign laws
(5) Avoidance of burdening citizens with jury duty in an unrelated forum

b) Remedies in alternative forum - Less favorable laws in the alternative forum is NOT determinative UNLESS there is NO remedy available to the parties in the alternative forum

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28 USC § 1367

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4) 28 USC § 1367 – Supplemental Jurisdiction – where a FDC may exercise SMJ over a secondary claim not supported by either 1331 or 1332, but arises out of the same transaction or occurrence
a) Requirements:
i) FDC may exercise SMJ over the primary claim
(1) Identify the primary claim and the basis for SMJ
(a) 1331 or 1332

ii) FDC may not exercise SMJ over the secondary claim
(1) Identify the secondary claim and the lack of basis for SMJ
(a) Not 1331 or 1332

iii) Both the primary claim and secondary claim arose out of the same transaction or occurrence
(1) Derived from a common nucleus of operative facts

b) Exceptions: FDC may exercise supplemental jurisdiction UNLESS:
i) It is a claim from a plaintiff who has also alleged a 1332 claim OR
ii) The secondary claim predominates over the primary claim supported by 1331 or 1332 AND the primary claim is not substantial OR the primary claim raises a novel or complex issue of state law

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Provisional Remedies

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5) Provisional Remedies – non-final remedies imposed by the court while the cva is pending to avoid injury to a party to the cva
a) Temporary Restraining Order – ex parte order of the court, valid for 10 days or less
i) TRO granted if:
(1) Facts alleged indicate immediate irreparable injury
(2) Effort has been made to contact adverse party
(3) Bond has been posted equal to amount of damages and costs of compliance with order to adverse party
ii) Preliminary Injunction – order of the court, not done ex parte, valid for a time certain OR until judgment in the pending cva
iii) Permanent Injunction – a permanent order of the court received post trial/judgment

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Rule 1

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- FRCP shall be construed and administered to secure a just, speedy, and inexpensive determination of every civil action.

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Rule 2

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Rule 2 – There shall be one form of action known as the civil action (cva)

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Rule 3

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Rule 3 - A civil action is commenced by filing a complaint

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Rule 4(a)

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a) Rule 4(a) – A summons must be signed by the clerk, bear the seal of the court, identify the court and the parties, give the name and address of the plaintiff’s attorney, give notice of the time and date to appear, and give notice of the consequences of the failure to appear
i) If a summons is improperly issued, it may be amended with the permission of the court
ii) Defendant has 20 days from service to ANSWER

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Rule 4(b)

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b) Rule 4(b) – The clerk shall issue a summons submitted in proper form by affixing a signature and seal and making copies for all defendants to the cva – signed sealed and dated. Issuance of the summons and signing, dated and seal by the officer of the court. If not done correctly its insufficiency of process 12 b(4). Relates to the contents of the summons
i) If summons is not sealed – plaintiff should have it reissued and defendant should seek a 12 (b) 4.
ii) You must have the summons issued within 120 days of the filing of the complaint – there is no abatement in federal court

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Rule 4(c)

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c) Rule 4(c) – Summons and complaint must be served on Defendant by:
i) Certified Mail, return receipt requested (effective when delivered)
ii) US Marshall
iii) Process Server – any person over age 18 who is NOT a party to the cva
iv) Service must occur within 120 days of filing the complaint.
a) If not served within the 120 day period the court may dismiss without prejudice or may grant an extension pursuant to rule 4m
v) Summons is signed by clerk, complaint is signed by attorney for the plaintiff
Example: What if the attorney for the plaintiff does not sign the complaint?
The attorney may sign as soon as he or she is notified – but if they do not sign at the time they are given notice then the complaint shall be stricken as if it was never filed.

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Rule 4(d)

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d) Rule 4(d) – Defendant has a duty to avoid costs and waive service if Plaintiff requests waiver
i) The plaintiff serves the defendant with a notice and request for a waiver of the summons.
ii) A defendant who waives is given 30 days to return waiver (60 days if outside U.S.) to plaintiff and 60 days to answer complaint (90 days if outside US)
iii) A defendant who waives service has also waived 12(b)(4) and 12(b)(5), but NOT any other 12(b) motions
iv) If defendant does not waive service than a summons must be issued and properly serve. Then the plaintiff may return to the clerk’s office and seek to have the costs assigned to the defendant.
v) It may be in the defendant’s best interest to sign because it allows them an additional 30 days to answer the complaint (60 days instead of 30 days).

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Rule 4(e)

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e) Rule 4(e) – Service on individuals is proper if:
i) Served in accord with the laws of the forum state
ii) Served in accord with the laws of the state where the defendant is served
iii) Served at the home of the defendant to a person of suitable age and discretion
iv) Served an authorized agent
v) May use publication if the address can not be maintained through due diligence
Rule 4 (j) in NC deals with service by publication