Advance Survey

information to look for in a jurisdictional civil procedure class (5)

• Whether the court has power over party/property 

• State of residence

• Where incident occurred

• Amount of money at issue

• Basis for cause of action

what to look for in procedural questions (3)

• Facts surrounding the proceeding itself

• Dates

• Content of pleading, motion discovery request

personal jurisdiction

the ability of a court having subject matter jurisdiction to exercise power over a particular defendant or item of property

three types of personal jurisdiction

in personam
in rem
quasi in rem

in personam jurisdiction

•  jurisdiction over a particular defendant

in rem jurisdiction (2)

• particular item of property

  • Limited to where the property is located within the physical borders of the state and where it is necessary for the state to be able to bind all people regarding the property’s ownership and use

quasi in rem

power to determine whether particular individuals own specific property within the court’s control

two types of personal jurisdiction requirements

statutory
constitutional

long-arm statute

• state statute that specifies when a state may exercise personal jurisdiction over a defendant from another state

unlimited long arm statute

• State authorizes personal jurisdiction up to constitutional limits

types of limited long arm statutes (5)

• Specified act that if committed will subject out of state defendants to personal jurisdiction in the state

• Tort cases

  • Some require a tortious act 

• Contract cases

  • Many permit jurisdiction if the cause of action arises out of the transaction of business in the state

• Property actions

  • Many permit over a nonresident defendant when the cause of action arises from ownership of property within the state

• Divorce cases

  • When a married couple last lived together in the state and one spouse then abandons the other, the remaining spouse may obtain personal jurisdiction over the absent spouse for divorce

voluntary appearance

process in which a defendant can object to the court’s exercise of jurisdiction

types of statutory personal jurisdiction (4)

consent

• Defendant has committed acts bringing him within the forum state’s long arm statute

• Defendant is present in the forum state and is personally served with process

• Defendant is domiciled in the forum state

domicile

Where a defendant is physically present and has the intent to remain indefinitely

constitutional requirement of personal jurisidction

• Defendant must have such minimum contacts with the forum that the exercise of personal jurisdiction does not offend traditional notions of fair play and substantial justice

contacts requirement of personal jurisidction

• Must be purposefully availed of the privilege of conducting activities within the forum state, thus invoke its benefits and protections

stream of commerce and personal jurisdiction

• Placing an item in the stream of commerce with other acts that show intent is sufficient for personal jurisdiction

foreseeability and personal jurisdiction

• Defendant must have known or reasonably anticipated that her activities would render it foreseeable that she be sued there

relatedness personal jurisdiction requirement

• Causes of action sufficiently related to defendants contacts with forum

general personal jurisdiction

• when the defendant is at home in the state, the state has personal jurisdiction for all causes of action

specific personal jurisdiction

• when the state has personal jurisdiction over the defendant based on their contacts related to the current case only

fairness requirement (6)

factors used such as:
Burden on defendant

• Burden on witnesses

• State’s interest in providing forum

• Plaintiff’s interest in suing in forum

• Must discuss all of these

notice personal jurisdiction requirement (2)

• Reasonable method used to notify the defendant of a pending lawsuit

• Defendant must be given appropriate notice of the action and an opportunity to be heard

notice methods (4)

• Personal delivery

• Leaving papers with a responsible person at the defendant’s residence

• Delivery to agent

• Delivery by registered mail

mind flow for specific personal jurisdiction

• If the state has a long arm statute, contacts with forum, purposeful contacts, foreseeable suit, related contacts to cause of action, and fair jurisdiction → specific personal jurisdiction

mind flow for general personal jurisdiction

• If the state has a long arm statute, contacts with forum, purposeful contacts, foreseeable suit, UNRELATED contacts, and the defendant is at home in state → general personal jurisdiction

federal question jurisdiction

the ability of the federal court to hear a case that arises under the U.S. constitution, federal laws or treaties

well-pleaded complaint rule (4)

• Plaintiffs original complaint must be based on federal law

  • It cannot anticipate a defense under federal law

  • The defendant’s defense doesnt matter

  • Addressing a federal law is insufficient, needs to be basis of complaint

supplemental jurisdiction

the ability of the court to hear a claim it otherwise would not have subject matter jurisdiction over

supplemental jurisdiction requirements (3)

• Must have a claim to supplement

  • Federal question or diversity jurisdiction

• Supplemental claim must share common nucleus of operative fact with claim

supplemental jurisdiction restrictions

diversity
discretion of court
not combined with aggregation questions

diversity and supplemental jurisdiction

plaintiff cannot invoke supplemental jurisdiction in a diversity case

discretion of court and supplemental jurisdiction (4)

• Court may decline when

  • Claim raises novel issues of state law

  • Supplemental claim predominates over original claim

  • Original claim has been dismissed

aggregation and supplemental jurisdiction

• Aggregation is one way for court to hear case, supplemental is a different way so don’t combine

mind flow for supplemental jurisdiction

If there is diversity or FDJ → claim arises from same common nucleus of operative facts as original claim → original claim is based on FQJ or someone other than plaintiff is trying to use it → then you have supplemental jurisdiction!

When a plaintiff sues more than one defendant and there is only federal jurisdiction over one claim

second defendants claim might invoke supplemental jurisdiction if it arises from common nucleus of operative fact

A claim joined by a plaintiff that does not meet the amount in controversy requirement for diversity of citizenship may use supplemental jurisdiction if (2)

• the claim arises from a common nucleus of operative fact as the claim that invoked diversity

  • But supplemental jurisdiction CANNOT be used to override the complete diversity rule as between the co-plaintiff and defendants

diversity jurisdiction

courts have the ability to hear cases where no plaintiff is from the same state as any defendant and the amount in controversy exceeds $75k

domicile and corporations

• Corporations are citizens of every state they are incorporated and where they have principal place of business

principal place of business

• where high-level officers direct and control the corporation’s activities

citizenship in class actions

• citizenship of named representatives of the class

citizenship of partnerships

Take on citizenships of each partner

aliens and diversity (3)

• U.S. citizens may be in suits involving a foreign citizen

• Exception

  • When the foreign citizen has legal residence in the same state as the u.s. Citizen

unincorporated associations (4)

• Citizenship

  • That of each and every one of its members

• Class action

  • Citizenship is that of the named members who sue or are sued on behalf of the members of the association

amount in controversy cost determination (2)

• Court takes plaintiff’s word that claim is worth more unless it appears to a legal certainty that it is impossible for plaintiff to recover more than $75000

• Litigation interest and litigation costs are excluded when calculating amount in controversy

aggregation and AIC general rule

Single plaintiff may add up all her claims against a single defendant even if unrelated in order to satisfy amount in controversy

AIC aggregation and single plaintiff v multiple defendants

only when it is a joint claim

AIC aggregation and multiple plaintiffs against one defendant

• Aggregation allowed only if enforcing a single right

AIC aggregation and class actions

• Claims of the class members cannot be aggregated if their rights are separate rather than joint

medical bills

• Subtract medical bills amount from damages amount

joinder

• adding two or more parties in one action or joining two or more claims against someone else

two questions to ask for joinder

do the rules allow for joinder
is there SMJ over the party’s claim

2 kinds of joinder

compulsory joinder
permissive joinder

compulsory joinder

another party is required to be added to the case

3 step process of compulsory joinder

should the party be joined
can a party be joined
if the party cant be joined, should the action proceed anyway

who is a required party (4)

• When existing parties cannot get relief without that person’s presence

• When a person claims an interest in the subject of the action and a judgment would impede that ability for her interest

• Where an existing party might be subject to multiple or inconsistent liabilities if another person do not join

• Note: joint tortfeasors are not required parties

can a party be joined - what to ask (3)

• Are they subject to PJ?

• Will their presence destroy diversity?

• Will it make venue improper

permissive joinder (3)

• When parties choose to join together in an action

• parties may permissibly join together when their claims arise from the transaction or occurrence and they share any common question of law or fact

• Only plaintiff may initiate

joinder and supplemental jurisdiction

Plaintiffs may use supplemental jurisdiction in a diversity case when there two plaintiffs joining together, the second plaintiff’s claim fails to meet amount in controversy, and diversity is not destroyed

impleader (5)

• Allows a defendant to bring in a third party who may be liable to them if the defendant is required to pay anything to the plaintiff

• Claim is for indemnity or contribution

  • NOT arguing lack of liability for defendant

• Third party cannot be from same state as original plaintiff

  • But defendant and third party defendant can be from same state

• Venue does not need to be proper

2 kinds of counterclaims

compulsory
permissive

compulsory counterclaims (3)

• Arises out of same transaction or occurrence as opposing party’s claim

• Does not require joinder of additional parties

• Need not meet amount in controversy

permissive counterclaims (2)

• Anything that is not compulsory

• Must have independent jurisdictional basis and meet AIC

venue definition

Which federal court within a particular state the trial should take place

venue is proper in (3)

• If all defendants are residents of the same state, a judicial district in which any defendant resides

• If multiple defendants from different states, a judicial district where substantial part of events or omissions occurred, or where property is located

• If no defendants reside in same state or there is no state where a substantial part of events occurred, then venue is where any judicial district where any defendant is subject to personal jurisdiction

residency under venue (2)

• Individuals

  • District where they are domiciled

• Business entity

  • Any district where subject to personal jurisdiction

complaints must contain (5)

• Claims for relief

• A short statement of the grounds for the court’s jurisdiction

• A short statement of the claim showing the plaintiff is entitled to relief

• A demand for judgment for relief

• Establish subject matter jurisdiction

complaint requirement exceptions (2)

• Fraud or mistake

  • Include statement of circumstances

• Special damages

  • Monetary losses must be specifically stated

process

the complaint along with summons giving defendant notice of suit and time to respond

service of process timing (3)

• Required within 90 days of the complaint

  • Exception

    • Extension of if good cause is shown

process delivery - who can be served (2)

• Anyone who is at least 18 years old and

• Not a party

how process can be served (4)

• Personal service

  • Hand delivered

• Abode

  • Left at defendant’s usual place of abode with someone of suitable age and discretion who lives there

    • Generally older than 14 is suitable age

• Agent

  • Defendant’s authorized agent

• State rules

  • State where federal court sits

  • State where service is to be made

who can be served process in business entities (2)

• Agent of the business

  • Someone with enough responsibility that they could be trusted to notify the superiors

service of process and international defendant (2)

• Use a method provided in international agreement

• Method provided by foreign’s country’s law

waiver of process - how (3)

• Plaintiff mails defendant a formal request, two copies of waiver form, and copy of the complaint

  • Defendant has 30 days from the date that the request was sent to return the waiver

    • 60 if defendant is outside U.S.

if defendant does not agree to waive service

plaintiff must serve

failure to waive

• U.S. defendant who fails to waive service is liable for cost of service unless good cause shown

immunity and service of process (2)

• Party, witness, or attorney who enters state to appear in another action cannot be served while there

• If a party was induced by fraud or duress, the service is invalid

12b motions

allows a party to assert a defense before trial that will prevent the case from going forward regardless of what the facts might ultimately reveal

types of 12b defenses (7)

• Lack of personal jurisidction

• Lack of subject matter jurisdiction

• Improper venue

• Failure to join a required party

• Insufficient process

• Insufficient service of process

• Failure to state a claim

Rules that are required to be waived in the defendant’s first response (be it a motion or answer) and will be lost if not (5)

• Lack of personal jurisdiction

• Improper venue

• Insufficient process

• Insufficient service of process

• If only claim one, lost all the others

defenses that can be raised anytime (3)

• Failure to state a claim upon which relief can be greeted

• Failure to join a required party

• Lack of subject matter jurisdiction

answer

• defendant’s response to the allegations in the complaint

• How long until defendant has to respond? (3)

• Served with process and no rule 12b motion

  • 21 days

• Waived service

  • Within 60 days after the waiver request mailed

• 12b motion filed

  • 14 days from the court’s denial or postponement of the motion to serve the plaintiff with his answer

delivery of answers (3)

• E-file

• Drop it in mail

• Drop it at attorney’s office

what has to be included in answer (7)

• Response to allegations in the complaint

  • With admit, deny, or insufficient knowledge

  • Failure to deny constitutes an admission

• Affirmative defenses

  • Statute of limitations 

  • Statute of frauds

• Compulsory counterclaims

default (2)

• a notation in the case when defendant fails to respond to complaint

• Plaintiff has to show defendant failed to respond and move for entry of default

what happens once default is entered (4)

• defendant cannot proceed until it is set aside

  • Can still file a response even if its late

  • They move to set aside the default

    • Must show good cause

    • Excusable neglect

default judgment

a decision entered by the judge that is entered because the defendant did not oppose the case

how does a plaintiff recover from default judgment (7)

• 4 requirements

  • Plaintiffs claim is for a certain sum

  • The reason for the default was the defendant’s failure to appear

  • The defendant isnt a minor or incompetent

  • The damage amount requested is not greater than amount in complaint

• If any of the 4 arent met, the plaintiff has to go to court to get a judgment in default and court will hold hearing on what damages the plaintiff should receive

  • Defendant can still be heard at this hearing even if defendant lost the ability to defend the case by defaulting

default and when a defendant has appeared

• If defendant has appeared in the case at all, he MUST be notified of the request for a default judgment by first class mail at least 7 days before the hearing

default and defendant failure to jump through hoops

• If defendant has failed to jump through any hoops, he can still move to have the default judgment set aside by making a rule 60 motion for relief from judgment

summary judgment

A motion made before trial, after close of discovery for the court to make a jury

motion for summary judgment may be granted if (2)

• Movant shows no genuine dispute of material fact and

• Movant is entitled to judgment as a matter of law

what can summary judgment consider

May include discovery material, affidavits, evidence

judgment as a matter of law (4)

• Made at the conclusion of the opposing party’s case or any time after that until case is submitted to the jury

• Made when there is no reasonable basis for a jury to find in favor of the opponent

  • Judge looks at evidence most favorable to non-moving party

• Judges issues a verdict in favor of one party

renewed judgment as a matter of law (4)

• Made after jury returns a verdict and asks judge to reconsider original motion for JMOL

• Same standard as judgment as a matter of law

  • No reasonable basis for jury to find in favor of the opponent

• Movant must have first moved for a judgment as a matter of law

• Cannot consider the credibility of the witnesses and weight of the evidence

motion for new trial (3)

• When some grave error committed during the trial
  Lower standard than JMOL

• May look at credibility and weight of the evidence

grounds for motion for new trial (3)

• Verdict is against weight of the evidence

• Juror misconduct

• Or verdict is excessive or inadequate