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54 Cards in this Set

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Limitations arise from 2 sources: state statutes and the United States Constitution.

Statutory Limitations --if no state statute grants the court power over the parties before the court, the court lacks personal jurisdiction.

Constitutional Limitations --the defendant must have such contacts with the forum state that the exercise of jurisdiction would be fair and reasonable.

Federal Courts --Rule 3 of the FRCP provides that each federal court must analyze personal jurisdiction as if it were a court in the state in which it is located.
What are the limitations on personal jurisdiction?
They arise from 2 sources.
In Personam --power over the person of a particular defendant. Money judgments and injunctions are given full faith and credit in other states.

In Rem --power to adjudicate the rights of all persons in the world over a particular item of property. Usually occurs w/ respect to actions for condemnation, forfeiture of property to the state, and settlement of decedents' estates.

Quasi In Rem --power to determine whether particular individuals own specific property within the court's control. Defendant himself and his other property are not bound.
What are the 3 types of personal jurisdiction?
(1) Physical presence at time of personal service (even if the defendant is merely passing through).
Exceptions: Service by fraud or force is invalid. Persons present in or passing thru a state solely to take part in a judicial proceeding are granted immunity.

(2) Domicile --the place defendant maintains their permanent home (requires intent).

(3) Consent (express by contract or appointed agent), implied by engaging in an activity like nonresident motorist), or voluntary appearance (exception: special appearance to object to jurisdiction).

(4) Long Arm statutes --PJ over nonresidents who perform or cause to be performed certain acts w/in the state.
In what four situations do most states have statutes granting their courts in personal jurisdiction?
These are statutory limitations on PJ. There are four of them.
(1) Tort cases --some states look toward where the tort occurred, others require a tortious act in the state.

(2) Contract cases --most states permit juris. if the cause of action arises out of the transaction of business in the state. Others require physical presence by the defendant or his agent.

(3) Property actions --many state statutes permit juris. over a nonresident def. when the cause of action arises from ownership of property w/in the state.

(4) Marital dissolution --the remianing spouse may obtain PJ over the absent spouse for divorce, but states vary on whether the plaintiff spouse must be living in the state for a particular time.
Describe the four limitations on long arm statutes.
(1) Sufficient (minimum) contacts --requires purposeful availment and foreseeability. Def. must reach out to the forum in some way. (Stream of commerce cases still a plurality). Def. must also know or reasonably anticipate that his activities render it foreseeable that he may be haled into court.

(2) Fairness --Specific jurisdition (claims arising from activity in the state) or General jurisdiction (systematic and continuous activity). Convenience and the forum state's interest are also considerations. Notice is required.
What are the constitutional limitations of in personam jurisdiction?
Nexus --presence of the property in the state. Cannot be by fraud or force.

Notice --persons whose interests are affected and whose addresses are known must be at least notified by ordinary mail.
What are the constitutional limitations of in rem jurisdiction?
(1) Amount in controversy --must exceed $75,000, exclusive of interest and costs.

(2) Conflict between (a) citizens of different states, (b) citizens of a State and citizens or subjects of a foreign state, (c) citizens of different states and in which citizens or subjects of a foreign state are additional parties, or (d) a forien state as plaintiff and citizens of a State or of different states.

Permanent resident aliens are citizens of their state of domicile.

Corporations have dual citizenship: (1) where incorporated and (2) where principal place of business is located.
What are the requirements for diversity of citizenship jurisdiction?
(1) Multiple parties --every plaintiff must of diverse citizenship from every defendant.

**Federal Impleader exception --only requires diversity between any two of the claimants.

**Alienage jurisdiction grants SMJ over disputes between a citizen of a state and a citizen or subject of a foreign country.
How is diversity among the parties achieved?
The determination of the state of citizenship of a natural person depends on the permanent home to which he intends to return.

A new state citizenship may be established by (1) physical presence in a new place and (2) the intention to remain there.
How is state citizenship of an individual determined?
A corporation is deemed a citizen of any state of its incorporation, meaning "every state of its incorporation" and also "the one state in which it has its principle place of business."

If an opposing party is a citizen of any of the corporate party's states of citizenship, there is no diversity.
How is a corporation's citizenship determined for diversity purposes?
The state claims must arise from a common nucleus of operative fact that invoked federal subject matter jurisdiction.

Thus usually means the claims arose out of the same transaction or occurrence.
Occasionally, a claim may be joined that could not, by itself, invoke federal question jurisdiction or diversity jurisdiction. What is required for a federal court to entertain such claims under supplemental jurisdiction?
(1) Joinder --(for diversity jurisdiction, complete diversity must be maintained)

(2) Intervention of Right --where the intervener claims an interest relating to the property or transaction & the disposition of the action may adversely affect that interest.

(3) Permissive intervention --court's discretion. the intervenor's action & the main action have a claim or defense involving a common question of law or fact.

(4) Substitution of Parties --usually due to death, incompetency, etc. (distinguished from "replacement")

(5) Impleader (Third Party Practice) --party brought in for indemnity or contribution if the claim arises from the same transaction or occurrence.

(6) Cross claims --allows a party to assert a claim in a pending case against a co-party, but only if the claim arises from the same transaction or occurrence as the underlying dispute. (if no FQ or DJ, the cross-claim could still be asserted through supplemental jurisdiction).
What are the six ways in which additional parties not originally named may become involved in an action?
Must be in excess of $75,000.

Must be a good faith allegation that the amount of the damages or injuries exceeds $75,000, exclusive of interest and costs (unless they are part of the matter of controversy by contract).

Collateral effects of a judgment may not be considered.
How is the jurisdictional amount for diversity jurisdiction determined?
1) One Plaintiff against one Defendant --Plaintiff may aggregate all of her claims.

2) One Plaintiff against several Defendants --Plaintiff cannot aggregate claims based on separate liabilities. With joint claims, however, courts can look to the total value of the claims.

3) Several plaintiffs against one Defendant --several plaintiffs can aggregate their claims only where they are seeking to enforce a "single title or right in which they have a common or undivided interest."

Compulsory counterclaims need not meet the jurisdictional requirement.

Permissive counterclaims must meet the jurisdictional requirement.
To meet the $75,000 requirement, can an a plaintiff aggregate separate claims against (1) one defendant? (2) several defendants? (3) what about several plaintiffs against one defendant?

Can a counterclaim be combined to meet the $75,000 requirement?
In the exercise of diversity jurisdiction, a federal court is required to apply the substantive law of the state in which it is sitting. However, the federal courts apply federal procedural law in diversity cases.

If there is a federal law on point, that federal law will apply.

If there is no federal directive on point and the matter is of substance, the judge must follow state law in a diversity case. If it is a matter of procedure, the federal judge may ignore state law.
How is the Erie Doctrine affected in diversity cases?
1) Domestic relations --divorce, alimony or child custody decrees.

2) Probate --the claim asserted must involve actual probate or annulment of a will or seek to reach property in the custody of a state probate court.
What are the 2 exceptions to diversity of citizenship jurisdiction?
Federal question must appear in the complaint.

A case arises under federal law if the plaintiff is alleging a right or interest founded on federal law, which consists of federal common law, federal constitutional law, federal statutory law, treaty law, and federal administrative regulations.
What are the requirements for federal question jurisdiction?
The federal court has discretion to exercise pendant jurisdiction over the claim based on state law if the two claims "derive from a common nucleus of operative fact" and are such that a plaintiff "would ordinarily be expected to try them all in one judicial proceeding."
In some cases, the plaintiff will have both federal and state claims against the defendant. Must a federal court exercise pendent (supplemental) jurisdiction over the claim based on state law?
Where are the 3 places in which a civil action wherein jurisdiction is founded only by diversity of jurisdiction may (except as otherwise provided by law) be brought?
a judicial district where:

1) any defendant resides, if all defendants reside in the same state;

2) a substantial part of the property that is the subject of the action is situated; or

3) any defendant is subject to personal jurisdiction at the time the action is commenced, if there is no district in which the action could otherwise be brought.
Where are the 3 places in which a civil action wherein jurisdiction is founded only by diversity of jurisdiction may (except as otherwise provided by law) be brought?
a judicial district where:

1) any defendant resides, if all defendants reside in the same state;

2) a substantial part of the property that is the subject of the action is situated; or

3) any defendant is subject to personal jurisdiction at the time the action is commenced, if there is no district in which the action could otherwise be brought.
Where are the 3 places in which a civil action wherein jurisdiction is NOT founded solely on diversity of citizenship may (except as otherwise provided by law) be brought?
A judicial district where:

1) any defendant resides, if all defendants reside in the same state;

2) a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated; or

3) any defendant may be found, if there is no district in which the action may otherwise be brought.
For purposes of venue, where does a defendant that is a corporation reside?
In any judicial district in which it is subject to personal jurisdiction at the time the action is commenced.

If the state has several judicial districts that fit this description, a corp. is deemed to reside in any district in that State where it has sufficient contacts to subject it to personal jurisdiction.
Where may an alien be sued?
In any district.
When may venue be transferred?
1) where original venue is proper --balancing convenience.

2) where original venue is improper --in the interest o justice

3) where original court lacks personal jurisdiction --the original court's lack of personal jurisdiction over the defendant does not affect its power to transfer a case under section 1404(a).
3 times
When is venue considered waived by the parties?
Venue is considered waived unless timely objection (in a pre-pleading motion or, where no such motion is to be made, in the answer) is made to the improper venue.
Which court's laws apply when venue is transferred solely on convenience grounds?
A transfer solely on convenience grounds (under Section 1404(a)) carries to the transferee court the originally applicable (under Erie) rules (including choice of law).
What court's laws apply when venue is transferred on the ground that the original choice of venue was improper?
A transfer on the ground that the original choice of venue was improper (under section 1406(a)) generally results in a change of the law applicable under Erie; i.e. the law of the state in which the transferee court sits.
When can an action be removed?
A defendant can only remove an action that could have originally been brought by the plaintiff in the federal courts.
Can a defendant remove an action on the ground that she has a defense grounded in federal law?
Who can exercise the right of removal?
Only the defendant.

If there is more than one defendant, then ALL defendants must join in the removal.
just one of the parties...
When an action is removed, where does venue lie?
Venue for an action removed under Section 1441(a) lies in the federal district court "embracing the place where such [state] action is pending."
When there are multiple claims or multiple parties, may a defendant remove an entire case?
Yes. If there are multiple claims or multiple parties, under Section 1441(c) a defendant may remove an whole case if it contains "a separate and independent claim or cause of action" within federal question jurisdiction.

The federal district court may then retain the whole case, or sever and remand the matters not within its original jurisdiction.
If no federal question is involved and diversity does not exist because a party is a co-citizen of an opposing party, when is removal permitted?
If no federal question is involved and diversity does not exist because a party is a co-citizen of an opposing party, removal will be permitted if the nondiverse parties are thereafter dismissed from the action and there is complete diversity between the remaining parties, subject to some limitations:

(1) defendant may not be a citizen of the forum state

(2) a case may not be removed on the basis of diversity of citizenship jurisdiction more than one year after it was commenced in state court.
1) What is the procedure for removal?

2) When must a notice of removal be filed?
A defendant seeking removal must file a notice of removal --containing a short and plain statement of the grounds for removal and signed under Rule 11-- in the federal district court in the district and division within which the action is pending.

A copy of the notice should be sent to the other parties and to the state court.

Once this is done, the state court can no longer deal w/ the case. If the state court attempts to do so, the federal court can enjoin the state court's action.

2) The defendant must file a notice of removal within 30 days "after receipt by the defendant, through service or otherwise, of a copy of the initial pleading."
AFTER a case is removed, what procedure must be followed for a defendant who wants to demand a jury trial?
The right to a jury trial in a case removed to a federal court may be waived unless a timely demand for a jury trial is filed.

The removing party must file a demand for jury trial within 10 days after the notice of removal is filed.

The nonremoving party must file for a jury trial w/in 10 days after service on her of the notice of filing for removal.
A party who, prior to removal, has made an express demand for trial by jury in accordance to state law, need not make a demand after removal.

In addition, if state lwa applicable in the court from which the case is removed does not require the parties to make an express demand in order to claim trial by jury, they need not make such demand after removal unless the court directs them to do so.
When must a plaintiff file his motion to have a case remanded to state court?
If the plaintiff bases this motion on a defect other than SMJ (i.e. a defect in removal procedures), it must be brought within 30 days of removal.
When MUST a COURT remand a case?
A court must remand whenever it is shown that there was no federal subject matter jurisdiction.

(a federal court has discretion to remand a case to state court once all federal claims have been resolved, leaving only state claims over which there would be no diversity jurisdiction.
Statutes allow removal of certain actions against federal officers and federal employees. Describe.
Statutes allow removal of certain actions against federal officers when they were allegedly acting under color of law [28 USC 1442] and federal employees for torts by motor vehicle committed in the scop of employment [28 USC 1443].
What actions are not removable?
1) actions under the Federal Employers Liability Act (FELA) and the Jones Act

2) Actions for less than $10,000 against carreirs for losses to certain shipments in interstate commerce

3) workers compensation proceedings

4) actions under the Fair Labor Standards Act.

All four of these may be brought in State court instead.
Explain the doctrine of abstention.
Unless the doctrine of abstention applies, nothing prohibits the federal court from hearing a case that is pending in state court.

Under certain circumstances the federal courts will retain jurisdiction over a suit involving a challenge to the constitutionality of a state law but abstain from deciding the question until a decision has been made by the state courts n the meaning of the state law. A determinative interpretation of the state law may obviate the federal constitutional question.
Bear in mind that if the challenged statute is "flagrantly and patently violative of express constitutional prohibitions in every cause, sentence and paragraph, and in whatever manner and against whomoever an effort might be made to apply it."
When does commencement of an action in federal court occur?
Rule 3 provides that an action is commenced by filing a complaint with the court.

Federal courts may adopt local rules to permit filing by fax or other electronic means.

**The Supreme Court has held that a state rule that an action is commenced for purposes of the statute of limitations only upon service of process must be applied in diversity cases.
Who may serve process, and how is service made?
Rule 4 authorizes any person not a party to the action who is at least 18 years of age to serve process (Summons and complaint).

In certain limited situations (e.g., where the U.S. or an officer or agency of the U.S. is plaintiff), a party may request that service be made by a U.S. marshal, or y another person appointd by the court for that purpose.
How is service of process made?
Rule 3 provides that personal service or service left at the defendant's usual place of abode with one of suitable age and discretion residing therein, or service upon an authorized agent of the defendant, is valid.

Alternatively, service may be made under state rules or, under the waiver of service provision of Rule 4(d), by mail.
How may a defendant waive service of process?
A plaintiff may mail to the defendant (by first class mail) a copy of the complaint with a request t waive formal service of summons. The waiver is effected by defendant's return of a waiver form included in the mailing. Defendant has 30 days from the date thee request is sent in which to return the waiver.

**advantages to waiver: defendant must answer not later than 60 days after the date on which the request for waiver was mailed to her, as opposed to 20 days if the plaintiff is required to effect formal service of the summons and complaint.
How does one acquire personal jurisdiction over parties served outside the state?
1) under statute and rules for extraterritorial service of the state in which the federal court sits.

2) If they are third party defendants or required to be joined for just adjudication, if served w/in 100 miles from the place where the action is pending (but within the United States); or

(3) if out-of-state service is permitted by federal statute (e.g. interpleader)
What motions must be filed, with no extensions, within 10 days after entry of judgment?
Motion for judgment as a matter of law, motion to amend judgment, motion for new trial, motion to amend filings in nonjury case, and grant of new trial on court's initiative.
What is an interlocutory injunction?

What two types of interlocutory injunction that may be granted to maintain the status quo until a trial on the merits may be held?
An interlocutory injunction is an equitable remedy by which a person is ordered to act or to refrain from acting in specified manner.

The two types are:

1) preliminary injunction (sought be a party prior to a trial on the merits of the complaint.

2) Temporary restraining order (granted by a court when it is necessary to prevent irreparable injury to a party, and the injury will result before a preliminary injunction hearing can be held.)
What are the requirements for an ex parte temporary restraining order?
1) specific facts in an affidavid showing immediate and irreparable injury

2) the moving party must certify in writing all efforts she made to give notice to the adverse party and the reasons why notice should not be required

3) the moving nparty must provide some security, the amt of which is determined by the court, to pay for any costs and damages incurred by the adverse party if he is wrongfully enjoined or restrained.

**the court still has discretion
What are pleadings?
Pleadings serve the function of giving notice to the opposing parties.
In the complaint, what should each claim for relief contain?
1) A short statement of the grounds for the court's jurisdiction,

2) A short statement of the claim showing that the pleader is entitled to relief, and

3) a demand for judgment for relief, which may be in the alternative.
2 short statements and a demand
What are the three types of pre-answer motion?
1) 12(b) (lack of subject matter jurisdiction; lack of personal jurisdiction; improper venue; insufficiency of process; insufficiency of service of process; failure to state a claim upon which relief can be granted; or failure to join a party needed for just adjudication)

2) Motion for a more definite statement (the opposing party has 10 days after notice of an order to obey unless the court fixes a different time; if not obeyed, the court may strike the pleading)

3) motion to strike (before responding to a pleading, or, if no responsive pleading is permitted,within 20 days after service of the pleading, a party may move to have stricken any insufficient defenses, or any redundant, immaterial, impertinent, or scandalous matter. Such motion may also be taken on the court's initiative.
What must be contained in the answer?
The answer must contain a specific denial or admission of each averment of he complaint, or a general denial with specific admissions to certain averments.

Where the defendant is w/o knowledge or information sufficient to form a belief, a statement to that effect constitutes a denial.

A failure to deny constitutes an admission.

The answer must also state any affirmative defenses the defendant may have, such as the statute of limitations, Statute of Frauds, res judicata, etc.
If no Rule 12(b) motion is made, when must a defendant who has been formally served (and hasn't waived service of process) answer?

What about a defendant who has waived formal service of process?
1) w/in 20 days after service

2) w/in 60 days after the request for waiver was mailed to her
What types of counterclaims must be pleaded (or else they are barred)?
Claims that a defendant may have against the plaintiff may be pleaded in the answer as counterclaims. If a counterclaim arises out of the same transaction or occurrence as one of the plaintiff's claims, it is a compulsory counterclaim and must be pleaded or it will be barred.

Any other counterclaim is permissive and may be asserted even though there is no connection at all between it and the plaintiff's claim.