Civ Pro Midterm

for civ pro

Rule 15 option 1? : 1) amending as matter of course

Party may amend its pleading once as matter of course within

·       A) 21 days after serving it, (or)

·       B) if pleading is one to which responsive pleading is req.

21 days after service of a responsive pleading (or)

21 days after service of motion under Rule 12(b), (e), or (f),

whichever is earlier

what is rule 15

how one can amend a pleading before trial

Rule 15 2 options?: 2) other amendments, in all other cases

party can amend

·       w/ opposing party’s written consent (or)

·       w/ the court’s leave (court should give leave when justice so requires)

rule 15: 2) when does justice so require?

“if underlying facts/circumstances relied upon by P) may be a proper subject of relief, he ought to be afforded opportunity to test his claim on the merits” (Beeck)

“in absence of any apparent/declared reason such as

·       Undue delay

·       Bad faith or dilatory motive (motive to delay) on movant’s part

·       Repeteated failure to cure deficiencies by amendments previously allowed

·       Undue prejudice to opposing party by allowing leave

·       Futility of amendment

subj. matter jurisd.: what are 2 req. for lower court jurisd. to exist?

o    Art. III authority/hook

Case must be in one of the 9 categories listed in Art. III of US Constitution

o    Congressional Authority

Statute must grant court authority to hear dispute

fed q jurisd.: what is art III authority?

“Judicial power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the US, and treaties made, or which shall be made, under their authority” (US Const. Art III, Sect. 2)

fed q jurisd.: what is cong. grant of authority?

“The district court shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the US” (28 USC $ 1331)

how do we determine if under const./laws of the US?

Apply Mottley well-pleaded complaint rule

How do you Apply Mottley well-pleaded complaint rule?

·       1^st) P) right to recover must come from federal law, Const. or a treaty

o    2^nd) that issue of federal law must appear in P) well-pleaded complaint

How does Mottley interpret 1331

A suit arises under Const. and laws of the US only when P) statement of his cause of action shows that it is based upon these laws of that Const.

what are the 2 rules of Mottley relating to federal question jurisdiction?

1) Anticipating defense that arises under federal law not enough to get to fed court. Even if D) does eventually raise that defense (Mottley)

2) Court does not consider irrelevant information

can parties consent to subject matter jurisdiction

no

what 2 types of claims are irrelevant in determining fed q.

cross-claim, counter-claim

where must the federal question be alleged?

P) original well-pleaded complaint that initiates the action

what is Mottley well-pleaded complaint rule as applied to declaratory judgement (DJ)?

character of impending/underlying potential action, not the DJ, determines if we have fed q jurisdiction

what 2 things does case book p. 194 say about underlying action?

“court looks beyond DJ to civil action that would otherwise occur”

“Thus fed Q jursid. Exists in DJ action if potential suit by DJ D) would arise under federal law”

(result does not change from how well-pleaded complaint rule applies to underlying action)

what types of claims present federal questions?

Claims based on federal statute

Claims based on US Const.

Claims based on Treaties (if they are self-executing)

Claims based on international law

Claims based on federal common law (rare)

what are traditional state law claims?

breach of contract, fraud

can the fed court usually hear appeals from the state court?

no

what are the 2 basic req. of diversity jurisdiction?

o    Complete diversity

o    Amount in controversy EXCEEDS $75k

what explicitly authorizes diversity jurisdiction?

Article 3

what is the amount in controversy explicitly governed by?

1332

what are the rules on aggregating claims for AIC for single P)/single D)

Single P) can aggregate all claims she has against a single D)

Do not have to be related if single P) against single D)

when can aggregate for AIC in case w/ Multiple D)’s/Multiple P)’s under 1367?

Claim for less than $75k can be added if that claim qualifies for 1331/32

P)’s are suing together and have undivided interest in property and claims relating

   in this case courts consider AIC to be value of property

how is AIC calculated?

combining compensatory and punitive claims

Attorney fees can be calculated if they are reasonably anticipated

Interest can only be included if part of the original debt

how is AIC calculated for claims other than money?

courts will try to place value on the relief sought

what happens if damages awarded are less than $75k and the p) used that to get into fed court

fed. court does not lose jurisd.

but 1332 may req. P) to pay court costs for unjust valuation of AIC

according to USC 1332 c) section 1441, how do we determine domicile of a corporation?

where the company was incorporated (AND)

where it has its principal place of business (nerve center test)

where is a legal representative of decedent (deceased), infant, incompetent person domiciled?

deemed to only be citizen of state of domicile of decedent, infant, incompetent person

what is the main rule for est. domicile in new state?

o    Residence in new state (and)

o    Intent to remain

Must happen at same time

where is an infant domiciled

same as parents

how are minors domiciled? why?

keep domicile of parents because they cannot manifest intent to change it

1) how are mentally hanidcapped domiciled? 2) military/imprisoned?

1) cannot change their domicile 2) can if they dispaly intent to remain

how is a nerve center test used to determine domicile? and why (hertz)

·       Place corp. officers direct, control, coordinate corporate activities

·       Normally HQ (if HQ is where officers operate mainly)

why: to figure out ½ places domiciled, principal place of business (where incorporated and where principal place of business)

  Business domiciled in 1 place when place incorporated, and principal place of business are the same

where is an insuarnce company domiciled in direct action against insurance company where insured does/does not join as D)?

A) every state where the “insured” is a domiciled

B) every state which “insurer” has been incorporated

C) every state which “insurer” has principal place of business

how is a partnership’s citizenship determined? (zambelli)

A partnership as unincorporated business entity takes citizenship of each of partners’ domicile

how is LLC citizenship determined? (zambelli)

Domicile of individuals who are partners

The citizens must be traced through however many layers of partners or members there may be to determine the citizenship

treated like partnership, any member that makes up LLC counted

alienage/foreign party jurisdiction

District courts have original jurisdiction over all civil actions where AIC exceeds $75k and is b/w (1332 section A: 1,2,3,4)

what does section 1 of alienage/foreign party jurisdiction state will constitute diversity?

citizens of different states

what does section 2 of alienage/foreign party jurisdiction state will constitute diversity?

o    citizens of foreign state (country) v. citizen of state in US

Unless foreigner here for permanent residence and domiciled in same state as US citizen

what does section 3 of alienage/foreign party jurisdiction state will constitute diversity?

o    citizens of different states

Where citizens of foreign states are additional parties

IF FOREIGNER on BOTH sides, must be US citizen citizens on both sides whom are diverse

what does section 4 of alienage/foreign party jurisdiction state will constitute diversity?

o foreign state ( P) or D) is a foreign state itself)

In an action against a US citizen

what is the first additional rule to Alienage/Foreign Party Jurisdiction?

Citizens of the US domiciled abroad (even if they domicile abroad and keep US citizenship)

Cannot sue US citizens through diversity jurisdiction

what is the second additional rule to Alienage/Foreign Party Jurisdiction?

o    Dual citizens may sue through diversity jurisdiction

Only US citizenship considered in terms of where domiciled

what is the caterpillar rule?

Fed court can still exercise jurisdiction where parties were not diverse when suit filed

If non diverse was dismissed

Not applicable in cases where a party moves

what is the rule on fraudulently joined parties? (manipulation of 1332)

Parties may still hear suit if non-diverse party brough simply to negate diversity (illegitimate claims)

what does 1359 state about jurisdiction if party brought to invoke diversity?

Federal court does not have jurisdiction in case where party has joined simply to invoke diversity

what are the exceptions to cases heard by Federal court?

Refuse to hear domestic relations (divorce, alimony, custody) cases

probate (validity/enforcement of will) cases

cases where abstention doctrine applies

alienage/foreign party diversity jurisd. example q’s:

§  FL, GA v. Uk (Britain)

diverse

alienage/foreign party diversity jurisd. example q’s: §  FL, GA, Uk v. Uk

no diversity

alienage/foreign party diversity jurisd. example q’s: §  FL, GA, Uk v. GA, Uk

no diversity

alienage/foreign party diversity jurisd. example q’s: FL, GA, Uk v. AL, Uk

diverse

what does 28 U.S.C. § 1331 state?

The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States

what does 28 U.S.C. § 1332 state?

defines when federal courts have original jurisdiction over civil cases based on the parties’ citizenship and the monetary value of the dispute. Its purpose is to provide a neutral federal forum for interstate or international disputes.