Civil Procedure

Flashcards post-midterm review and some pre-midterm review

Jurisdiction

The official power of a court to hear and decide cases, typically determined by the geographic area and subject matter involved. —> requires personal jurisidciton and subject matter jurisdiction

Subject Matter Jurisdiction

the courts power over the type of claims asserted. Subject matter J is nonwaivable. Any party may challenge the SMJ any time, even the first time on appeal.

Federal Question Jurisdiction

a federal court has jurisdiction over a civil action if the elegations of the plaintiffs well-pleaded complaint raise a claim under constitution, laws or treates of the United States. 1331 jurisdiction

Diversity Jurisdiction 1332

Federal courts have diversity jurisdiction over civil actions if:

-there is complete diversity of citizenship between the parties AND

-the claim satisfied the statutory amount in controversy over 75000

Supplemental jurisdiction

exists over claims that do not independantly satisfy 1331 or 1332 if the claims arise from the same transaction or occcurance as other claims within the courts original jurisdiction

Removal

a defendant may remove a case from state court to federal court if the federal court has subject matter jurisdiction. Removal is made to the federal court in the district and ficision in which the state court is located.

Personal Jurisdiciton

a courts power over the parties before the court or over property

Three types of personal jurisdiction

1. in personam- person

2. in rem- over property

3. quasi-in-rem- attachment of property as basis for jurisdiction over owner

Traditional grounds of personal jurisdiction

a state has jurisdiction over a defendant who…

1. is domiciled in that state

2. is physically present in the state when served with process or

3. gives express or implied consent to a court’s personal jurisdiction

Modern Long Arm Statute

a court may have jurisdiction over a nonresident under the state’s long arm statute if the application of the statute satisfies due process.

Specific Personal Jurisdiction

SPJ exists if the cause of action arises out of the defendant’s voluntary contacts with the forum state

General Personal Jurisdiction

GJ exists if the defendant’s contacts with the forum state are so continuous and systematic that the defendant is at home and can be sued there on any cause of action.

Due Process

Due process is satisfied if the defendant has sufficient minimum contacts with the forum state such that asserting jurisdiction would not offend traditional notions of fair play and substantial justice.

In rem and Quasi in rem Jurisdiction

a court has in rem jurisdiction to adjuticate the rights of all people to property within state borders. QIRJ exists if a court attaches the defendant's property within the state ad uses it as a basis for adjusticating claims against the defendant.

Service of Process and NOTICE

Due process requires that the defendant recieve notice and opportunity to be heard. The def must be served with the summons and the complaint in a amnner authorized by FRCP 4… three types of service

Three Types of Service

1. Actual service: personal delivery of the summons and complaint to the defendant

2. Substituted Service: any authorixed method of service other than personal delivery and

3. Constructive service: service by publication if other means are impossible

Venue

venue is the geographic location of the federal judicial district where the case is heard. A court with jurisdiction may not be the proper venue and more than one venue may be acceptable.

Proper Venue

venue is determined when the case is filed. the federal venue statute establishes venue in any district that …

a. any defendant resides, if all def reside in one state

b. a substantial part of the events or omissions giving rise to the claim occurred or a substantial part of the property is located OR

c. any def is subject to personal jurisidction if no other district is available (FALLBACK)

Changing Venue

a court may change venue for four reasons, (improper venue), (FNC), (Change of venue), (FSC)

Improper Venue

If venue is improper, the defendant may seek dismissal or transfer 1404 or 1406

FNC- Forum non conveniens

if venue is proper, the federal court may dismiss or stay the case if it determiens the case would be properly heard in another judicial system

Change of venue

the court may transfer a case for the convenience of parties anf witnesses or the interests of justice to any distrcit and dividion in which the case could have been filed originally or to which all parties consent

FSC- Forum Selection Clause

the federal courts must enforce a valid forum-selection clauses in which the aprties have agreed on venue in advance

Applicable law in diversity cases

** a federal court in a diversity case must apply state substantive law and federal procedural law.

Substantive law= defines the rights of the parties

Procedural law = governs the manner and means of enforcing those laws

Federal or State law?

courts use two different tests to determine this.

1. federal - rule analysis

2. Eerie Analysis

Federal Rule Analysis

if a valid federal rule or federal statute directly conflicts with state law, the federal rule or statues applies if the rule is valid, is arguably procedural and changes no substantive right.

Eerie analysis

if there is no federal rule addressing the issue, court applies Eerie.

1. which choice will best serve the twin aims (avoid forum shopping, and avoid inequity)

2. whether the choice of federal or state law determines the outcome

3. whether the state law expresses a strong state interes and

4. whether a counter federal policy should overcome state law

Motion to Dismiss- FRCP 12b

1. lack of SMJ

2. lack of PJ

3. Improper venue

4. insufficient process

5. insufficient service

6. failure to state a claim upon which relief can be granted

SPVPSR

Well Pleaded Complaint Rule

a case arising under federal law only if a federal question appears on the face of the plaintiff’s properly pleaded complaint. A right conferred by federal law must be the basic element of the plaintiffs claim.

Domiciled - Individuals

an individual is a citizen of the state where the individual is domiciled. the place of home.

Domiciled- corporations

a corporation is a citizen of

1. every state and foreign country where it is incorporated and

2. the state where it has its principal place of bsuiness

PPOB- Principal place of business

determined by the nerve center test. where the corporation’s officers control the corporations activites. Hertz

Amount in Controvery- Aggregation of claims

plaintiffs will sometimes seek to add claims to exceed the 75000 threshold. a single plaintiff may aggregate claims against a single defendant even if the laims are unrelated to another a single plaintiff may not aggregate claims ungainst multple defendants UNLESS they are jointly liable to the plaintiff.

Multiple plaintiffs may not aggregate their claims unless

1. they have a joint and comon interest in the relief or

2. they are plaintiffs in certain class action suits that involve more than 5 million in damages

Removal - Procedure

1. notice of removal - filed in the federal court, indicating the grounds for removal. the defendant must promply give the plaintiff a written notice of the removal and file the notice of removal with the state court. this means the case is automatically removed to federal court

2. Time for removal- if the case is removable when it is filed, the defendant must remove within 30 days after receipt of the initial pleading or within 30 days after service of summons, whichever is sooner. 1446B

3. One year limit on Diversity cases- if removal is BASED ON DJ, the defendant may not remove more than one year after the case was brought in state court, regardless of when the case becomes removable 1446C