Civil Procedure

Front 1

My PArents Frequently Forgot to Read Childrens Stories

Back 1

MINIMUM CONTACTS
Purposeful Availment
Foreseeable
Fairness
Relatedness
Convenience
State's Interest

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Complete Diversity Rule

Back 2

1. Every P must be from different state from every D
There is no diversity if any P is from the same state as any D
2. This is tested when complaint is filed

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Citizenship for Human

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Place of domicile
1. Presence in state AND
2. Subjective intent to make it her home

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Citizenship for Corp

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Can have more than one
1. All states where incorporated AND
2. The one state where corp has principal place of business

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Principal Place of Business

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1. Nerve Center - headquarters
2. Muscle Center - corp does more production / service
3. Ct usually uses nerve center

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Partnerships / LLCs

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Citizenship of all members - if members in 50 states, then citizen in every state and cannot be sued in diversity

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Decedents / Minors / Incompetents

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Look at their domicile - NOT representatives

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Amount in Controversy

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1. P must set forth good faith allegation that claim EXCEEDS $75K
2. Allegation is sufficient unless clear to legal certainty that cannot recover that much (statute limits)
3. IF P recovers less - does not affect jx but P may be liable for costs

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Aggregation

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1. Can aggregate all claims where 1 P v. 1 D - don't have to be related
2. If Ds are joint tortfeasors - use total value of claim

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IF P is suing for equitable relief, how is the amount in controversy determined?

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Two tests - if either is met the Amt is OK
1. P's viewpoint - does blocked view decrease value of P's property by more than $75K
2. D's viewpoint - would it cost D more than $75K to comply w/injunction?

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What actions are excluded from diversity JX?

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Divorce
Alimony
Child Custody
Probate of an Estate

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Federal Question JX

Back 12

P must show right or interest founded substantially on federal law - Is P enforcing a federal right?

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Well Pleaded Complaint Rule

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In fed question jx - P's claim, properly pleaded, must be based on federal law

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Supplemental Jx

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1. Must consider every claim brought in fed ct for jx - is there diversity jx, fed question or supplemental
2. TEST - Claim must arise from same transaction or occurrence as P's claim that invoked federal SMJ
2. LIMITATION - No sup.jx if claim is asserted by P; in diversity case; and would defeat complete diversity

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Removal

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1. D can remove if case could be heard in fed ct - fed SMJ
2. All Ds must agree to remove (unless sep/ind fed claim against one D)
3. Can only go to fed ct covering district where state ct is
4. D must remove no later than 30 days after filing of first removable doc

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How is removal limited in diversity cases?

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1. D is citizen of the forum state
2. No removal more than 1 yr after case is filed

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How can D waive removal?

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1. By filing permissive counterclaim in state ct (not compulsory counterclaim)

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What are clear examples of state substantive law that diversity fed ct must apply (erie)?

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1. Elements of claim/defense
2. Statute of limitations
3. Rules for tolling of statute of limitations
4. Choice of law

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IF not clear whether ct should apply state law or fed law - erie

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1. Is there fed statute/rule that directly conflicts w/state law - APPLY FED LAW
2. If no fed law on pt
Outcome determinative - applying / ignoring rule affects outcome of case - apply state law
2. Balance interests - does either state or fed system have strong interest?
3. Avoid forum shopping - if fed ct ignores this state rule, will parties run to fed ct?

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Venue - Local Actions Rule

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Ownership, possession, injury to land - MUST be filed in district where land lies

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IF not a local action - where is venue appropriate?

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1. Where all Ds reside OR
- If all Ds reside in different districts of SAME state - ok in any district
2. Where substantial part of the claim arose

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IF there is no district where all Ds reside or where a substantial part of claim arose, where is venue ok?

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1. Fed Question case - Any district where any D is found
2. Diversity - Any district where any D is subject to personal jx

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Where do Ds RESIDE for venue purposes?

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1. Humans - residence is domicile
2. All districts where subject to personal jx (broader than citizenship)

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Where can party transfer venue to?

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1. Only to district where case could have been filed - proper venue w/PJ over D
2. D cannot waive improper venue or lack of PJ
3. Transferee ct will apply choice of law rules of transferor ct

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If venue in the original district was proper, can you transfer venue?

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YES - Ct can transfer for convenience of parties, witnesses, interests of justice
Ct discretion based on
1. Public factors - what community should be burdened; what law applies
2. Private factors - convenience of parties

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If venue in original jx was IMPROPER - what should ct do?

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1. Transfer in interests of justice
2. Dismiss

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Forum Non Conveniens

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1. There is a far more appropriate ct elsewhere
2. Transfer is impossible (foreign)
3. Ct may dismiss w/o prejudice to let P sue there
- Consider public factors and private factors
- Does not matter if P will recover less there
- Will not happen if P is resident of this forum

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Contents of Complaint

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1. Statement of SMJ
2. Short plain statement of claim, showing entitled to relief
3. Demand for judgment

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Rule 11 Certification on pleadings

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Attny must sign, certifying to best knowledge and belief, after reasonable inquiry that:
1. Paper is not for improper purpose
2. Legal contentions are warranted by law
3. Fact contentions have evidentiary support (or will after investigation)

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What are the special claims that must be pleaded with particularity?

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1. Fraud
2. Mistake
3. Special damages - damages that do not flow naturally from an event

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What are the 12(b) DEFENSES?

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Can be raised either by motion or answer
1.Lack of SMJ - never waived - can be raised even after trial
2.Lack of PJ - waivable
3.Improper venue - waivable
4.Insufficiency of process - waivable
5.Insufficient service of - waivable
6.Failure to state a claim - can be raised anytime through trial
7.Failure to join indispensable party - can be raised anytime through trial1

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What does it mean if a defense is waivable?

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Must raised in the first 12(b) response or you've waived it

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What does D's ANSWER have to contain?

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1. Response to allegations in pleading - admit or deny or state that you lack sufficent info to admit/deny
2. Affirmative defenses - statute of limitations; S/F; res judicata; self-defense
- Must raise them here or cannot use them at trial
3. Counterclaims - must be filed with answer

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Compulsory Counterclaim

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1. Arises from same T/O as P's claim
2. MUST be filed or waived - cannot bring in another action
3. B/c asserted by D and from same T/O as P's claim - always gets Supp Jx

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Permissive Counterclaim

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1. Claim that does not arise from same T/O as P's claim
2. Must check that it has independent fed SMJ - diversity or fed question

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Cross Claims

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1. Offensive claim against a co-party
2. Must arise from same T/O as underlying claim
3. Is not compulsory
4. Must test SMJ - can exercise Supp Jx as long as not claim by P that destroys diversity

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Right Amend Pleadings

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1. P has right to amend once before D serves answer
2. D has right to amend once w/in 20 days of serving answer
3. If no right to amend - can get leave of court if justice requires; no delay/prejudice

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Can you amend a pleading to join a new claim after the S of L has run?

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YES - if concern same conduct, transaction or occurrence as original pleading
Amended pleading relates back - treated as if filed when original was

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Can you amend a pleading to join a new defendant after S of L has run?

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ONLY IF P sued wrong D at first but right D knew about it
Amendment will relate back if:1
1. Same conduct, transaction, occurrence as original
2. New D knew of action w/in 120 days of original filing
3. New D knew that but for mistake, he would have been named

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Joinder
Who MAY be joined in action?

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1. Claims against these parties arise from same T/O as underlying claim AND
2. Claims raise at least one common question
3. Check SMJ of claims

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Joinder of Parties
Who is a NECESSARY party?

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1. W/o party, ct cannot accord complete relief (want to avoid multiple suits)
2. Party's interest may be harmed if not joined
3. Party claims interest which would subject D to multiple obligations

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Are joint tortfeasors necessary parties?

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NO

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Joinder of parties
If party is necessary, is joinder feasible?

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1. Personal JX over party
2. Will joining party defeat diversity

Front 44

Joinder of parties
IF joinder of necessary party is not feasible - what happens?

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Ct either proceeds w/o him OR dismisses (b/c indispensible)
1. IS there an alt forum (state ct?)
2. What is the actual likelihood of prejudice to absent party?
3. Can ct shape relief to avoid prejudice?