CIV PRO MBE

SUBJECT MATTER JURISDICTION

Diversity of Citizenship.

Federal Question.

Diversity of Citizenship

No plaintiff may be a citizen of the same state as any defendant.

Federal Question

Plaintiff’s claim must be based on federal law.

Amount in Controversy

Must be in excess of $75K.

Court must have “legal certainty.”

Adding Claims

Plaintiff can ADD claims if one exceeds $75K.

Single Plaintiff can ADD claims against Single Defendant to reach $75K.

Multiple Plaintiffs

If Single Plaintiff meets $75K then other plaintiffs can join.

Cannot join if no Single Claim exceeds $75K.

Class Action

One named member must meet $75K.

Diversity Jurisdiction

Case exceeds $75K.

Complete Diversity of Citizenship.

Citizenship – Domicile

Present location & Intent to stay.

Foreign Citizens

US Citizen + Foreign Citizen = Diversity.

Two Foreign Citizens = NO Diversity.

Corporation – Domicile

State of incorporation AND

Principal place of business.

Joining Parties

CANNOT join a party just to obtain Diversity.

Well-Pleaded Complaint Rule

Federal issue must be obvious.

Federal Question Cases

Admiralty.

Maritime.

Intellectual Property.

Supplemental Jurisdiction

May add claims without subject-matter jurisdiction if they arise from a “common nucleus of facts.”

Diversity Cases

New party cannot destroy diversity of citizenship.

Supplemental Jurisdiction – Allowed

Compulsory Counterclaim.

Joinder in Compulsory Counterclaim.

Cross-claim.

Impleader of 3rd Party Defendants.

Supplemental Jurisdiction – NOT Allowed

Original Plaintiff vs. 3rd Party Defendant.

Compulsory Joinder.

Joinder of Defendants.

Intervention.

• AdaptiTip:

  • If defendant is trying to add, generally ok.

  • If the plaintiff is trying to add, generally not ok.

Supplemental Jurisdiction & Discretion

COURT has discretion.

Personal Jurisdiction

Ability to bring the individual into court.

PERSONAL JURISDICTION RULES

Present/Personally Served.

Domiciled.

Consent.

If you are in the state for a different proceeding or because of fraud, the court will not be able to get personal jurisdiction.

Long-Arm Statute

Gives courts the power to reach out-of-state persons.

Minimum Contacts Standard

Suit does not offend traditional notions of Fair Play & Justice.

Defendant could Reasonably Anticipate litigation.

Minimum Contacts – Corporations

Purposeful Availment.

Systematic & Continuous Activities.

In Rem Jurisdiction

Jurisdiction over an object/property.

Quasi In Rem Jurisdiction

Going after property to satisfy a judgment against an individual.

Service of Process

Only in the state where district court sits OR

Anywhere allowed by long-arm statute.

Method must give adequate NOTICE.

100 Mile Bulge Rule

Out-of-state service allowed within 100-mile radius.

Only for out-of-state 3rd party defendants/indispensable parties.

Proper Ways to Serve Process

-        Personal Service by non-party over 18.

-        At Home with person of suitable age.

-        First Class Mail.

-        Authorized Agent.

-        State Law Methods.

• AdaptiTip: Remember, don’t get stung by A WASP:

  • A – Abode. 

  • W – Waiver.

  • A – Agent.

  • S – State method.

  • P – Personal service.

Out-of-State Service of Process

Mail.

Newspaper if no other reasonable way.

Service of Process – Corporations

Officer or Designated Agent.

Anyone of sufficiently high placement.

Removal

When a State Court case could have originally been brought in Federal Court.

MUST be filed within 30 DAYS of service of Complaint.

Who Can Remove?

Only DEFENDANT.

ALL defendants must agree.

Removal—Diversity Cases

Case cannot be removed more than 1 year after start.

Defendant cannot remove if he is a citizen of forum state.

Removal—Multiple Claims

If one claim is removable, then the entire case can be removed.

Remand

Plaintiff wants to bring case back to State Court after improper Removal.

Within 30 DAYS of filing of Notice of Removal.

Defendant has burden to show Removal was proper.

Venue

The proper Federal District Court for the case.

Where any defendant resides, if all defendants reside in same state.

Where substantial part of events took place.

-        ONLY IF 1 & 2 DON’T APPLY:

• Where there is Personal Jurisdiction over defendant.

Venue – Corporations

Principal place of business.

Any district in state of incorporation.

• AdaptiTip: Venue is based on where DEFENDANT resides.

Transfer of Venue – Proper Venue

Court may TRANSFER to another district.

For the convenience of parties & interest of justice.

Law of original venue will apply.

Transfer of Venue – Improper Venue

Judge must dismiss OR transfer in the interest of justice.

Transfer to any district where the case could have originally been brought.

Transfer by Consent

Both parties must consent.

Dismissal for Improper Venue

If the more convenient forum is a foreign country.

Complaint

Filing commences Statute of Limitations.

Service within 90 days.

Elements of the Complaint

Statement of Jurisdiction.

Statement of Facts (not theory).

Demand for Relief.

Specific Complaint

Fraud & Special Damages.

Answer to Complaint

Signed by lawyer.

Whatever is not denied is admitted.

Served within 21 days of service of Complaint.

Affirmative Defenses – Pled in Answer

Contributory Negligence.

Statute of Frauds.

Statute of Limitations.

Illegality.

Duress.

Amendment as of Right

Once within 21 days of service of pleading.

After 21 Days: Need Court’s permission.

Relation Back Amendment

“Arose out of the same conduct, transaction, or occurrence.”

Relation Back (for PARTIES) Amendment

Same conduct, transaction, or occurrence.

Within 90 days of filing the party had notice.

Knew/should have known but for mistake of ID.

Rule 11

Attorney signs to best of “knowledge, information, and belief” there is a basis for the claim.

Key Words:

• Warranted by existing law.

• Evidentiary support.

• No improper purpose.

Counterclaim

Defendant raises a claim back at the plaintiff.

Compulsory Counterclaim

Same transaction or occurrence.

Supplemental JX.

Permissive Counterclaim

NOT same transaction or occurrence.

Needs independent JX.

Permissive Joinder

Single transaction or occurrence.

Common questions of law/fact.

Compulsory Joinder

Party needs to be joined or unfair.

Necessary Party = Impair Interest. If cannot join due to jurisdiction – Case may STILL PROCEED.

Indispensable Party = Prejudice. If cannot join due to jurisdiction – Case must be DISMISSED

Class Certification

Size.

Common Question.

Typical.

Representation/Conflict.

Types of Class Actions

B1 = Impairment of Interests.

B2 = Injunctive Relief.

B3 = Common Question (the superior method).

Opting Out Class Actions

B1 & B2 = Members MAY NOT OPT OUT.

 vs.

B3 = Member MAY OPT OUT.

Notice & Class Actions

B1 & B2 = Notice NOT required, in discretion of Court.

vs.

B3 = Notice to ALL members.

Diversity in Class Actions

Citizenship of the named representatives.

One member must meet $75K+ OR the sum of claims is $5 million.

Appealability of Class Actions

If Certification of Class is denied – May be appealed.

Intervention as of Right

Interest in property/transaction.

Interest is impaired.

NO Court permission required.

Permissive Intervention

Claim/defense has common question of law/fact.

Court permission IS required.

Interpleader

1 party owes something to 2 or more people.

Statutory Interpleader

Nationwide Service.

ANY 2 claimants can be diverse.

$500 or more at stake.

Deposit money/property in Court/bond.

Rule Interpleader

NO Nationwide Service.

Complete Diversity between claimant & ALL opponents.

$75K+ requirement.

NOT required to deposit money.

Impleader

Adding a 3rd party defendant who owes part or all of claim.

Cross Claim

Co-party.

Same transaction or occurrence.

Actual damage.

Discoverable Discovery

Not privileged.

Relevant.

“Proportional to needs of the case.”

Work Product

Generally immune from discovery.

Documents prepared in anticipation of trial.

Work Product – Discoverable

Substantial need.

Cannot obtain without UNDUE HARDSHIP.

Absolute Immunity

Mental impressions.

Conclusions.

Legal opinions/theories.

EXPERT – Testifying

MUST provide ID.

Expert must prepare report.

EXPERT – NOT Testifying

Discoverable only in “EXCEPTIONAL CIRCUMSTANCES.”

Duty to Supplement

Duty to supplement incomplete or wrong information.

Must be done in a timely manner.

Depositions

Party or non-party.

Written or oral.

Non-party by subpoena.

Limit = 10.

o        AdaptiTip: You cannot depose the same person more than once without the court’s permission.

Interrogatories

Only to a PARTY.

Written/Answered in writing.

Limit = 25.

Request to Admit

Written request.

Conclusively established.

Request to Produce

Documents in the other side’s possession, control, custody.

Physical/Mental Exam

Must be at issue.

Court Order.

Good Cause.

Object to a Request

Information not relevant.

Protective Order

Stop Discovery for embarrassment, harassment, undue burden.

Order to Compel

Party not complying with Discovery.

Court may order sanctions if one party has acted unreasonably. Start with minimal sanctions of fees/costs and work up to larger sanctions.

 Admissibility at Trial

Discoverable information is admissible at trial.

Conference of Parties

Court MUST have conference.

Parties MUST submit Discovery plan.

Scheduling Conference

Court MUST have conference to limit time.

Must issue SCHEDULING ORDER within 90 days of filing complaint.

CANNOT be modified unless “Good Cause.”

Final Pretrial Conference

Court MAY hold conference.

IF there is a conference, Court MUST issue Pretrial Order.

ONLY modified to prevent “Manifest Injustice.

Temporary Restraining Order

No notice.

IMMEDIATE IRREPARABLE HARM.

Expires in no more than 14 days.

Preliminary Injunction

Notice & Hearing required.

IRREPARABLE HARM.

7th Amendment:

At least 6 jurors unless stipulated.

Unanimous verdict unless stipulated.

Demand for a Jury

Made within 14 days after service of the last pleading.

Action in Equity

No right for actions based in equity (injunction, etc.)

Law & Equity

Legal issue is tried by jury first.

Equitable claim is settled by judge.

Withdrawing a Demand

Demand may be withdrawn IF all parties consent.

State Trials

No right to a jury in State trials.

Number of jurors varies by State.

Verdict does NOT need to be unanimous.

Judge’s Role - No Jury

Acts as Finder of Fact.

States Findings & Conclusions.

Mini-trial to dispose of the case.

Jury Selection

2 ways to dismiss a juror.

Dismiss For Cause.

Peremptory Challenge.

Dismiss For Cause

Juror shows any bias/connection to case.

No limit.

Peremptory Challenge

Dismissal for any reason.

Each party has 3.

CANNOT dismiss for race/gender.