Term
| For a jurisdictional analysis under the Constitution, what is the test? |
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Definition
| Does the defendant have "such minimum contacts with the forum so that the exercise of jurisdiction does nt offend traditional notions of fair play and substantial justice"? (Int'l Shoe) |
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Term
| What are the 3 factors to be examined in the Const. analysis of personal Jurisdiction? |
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Definition
1) Contact_ there must be some contact between D and the forum and it must be PURPOSEFUL AVAILMENT and it must be foreseeable that D could get sued in the forum.
2) Fairness- look or relatedness, although not needed it is there is little contact with the state; thn examine convenience. If the forum is so inconvenient that the D is severely disadvantaged. Finally look to see if there is a state interest (like providing a forum for its citizens)
2) |
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Term
| For the federal courts to hear a case under the diversity of citizenship, what are the two requirements? |
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Definition
1) the action must be between "citizens of different states" (or one is an alien) AND
2) the amount in controversy must exceed $75K |
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Term
| For Diversity cases, what is the complete diversity rule? |
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Definition
| There is no diversity of itizenship if any plaintiff is a citizen of the same state as any defendant. |
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Term
| How is a litigants citizenship determined for diversity cases? |
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Definition
A natural person who is a US Citizen is a citizen of the state of domicile. Domicile is established by 2 concurrent factors: 1) presents instate (physical requirement) and
2) the subjective intent to remain. (mental requirement) |
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Term
| For federal jurisdictional purposes, how is citizenship determined for Corporations? |
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Definition
Corporation's citizenship equals 1) state where incorporated AND
2) the one state shere the corporation has its principle place of business. SO, corp. can have more than one citizenship at a time. |
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Term
| What are the facts that are examined to determine a corporations principle place of business? |
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Definition
it may be either:
1) Nerve center (HQ) OR
2) Muscle center (where t does more activity then anywhere else)
In the event of a tie between 1 and 2, use the nerve center unless all corporate activity is in one state. |
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Term
| For unincorporated business entities, the citizenship of the partnership or LLC is based on what? |
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Definition
| The citizenship of all members including general and limited partners. |
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Term
| For the amount in controversy requirement, the amount must exceed $75,000 and does not include what two costs? |
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Definition
| Interest and costs are NOT included in the amount in controversy. |
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Term
| For the puposes of the Bar exam, accept that the amount asked for is reasonable unless what is present? |
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Definition
| Look for a legal certainty that the that P can not recover 75k. i.e. a statutory ceiling on recovery. |
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Term
| So as to meet the jurisdictional amounts, can multiple claims be added together? |
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Definition
| Yes, under the policy of Aggregation, multiple claims may be added together so as to meet the requirement. NOTE: one may not aggregate the claims of separate litigants EXCEPT in a class suit. |
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Term
| For matters in equity, look to the projected harm. what are the two test where if either test is met than the requirements is satisfied? |
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Definition
1) form the plaintiffs side that the "blocked view" decreases the value of plaintiff's property by more than 75K?
2)D's view- would it cost D more than 75K to comply with the injunction?
Either way, the amount in controversy requirement is met. |
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Term
| What is the well pleaded complaint rule for jurisdictional purposes? |
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Definition
| P claim MUST set forth a claim based on federal law. NOTE: the ct will ignore any extraneous stuff that has nothing to do with the claim itself. |
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Term
| Can supplemental jurisdiction be used to get a case into federal court? |
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Definition
| No. Under either Div or FQ supplemental Jurisdiction will only get in a claim in an existing case where the claim doesnt meet Div or the FQ requirement. |
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Term
| What is the test for supplement jurisdiction? |
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Definition
| the claim must share a common nucleus of operative fact with the claim that invoked federal subject matter jurisdiction. NOTE: look for claims arising under the same transaction or occurrence. |
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Term
| What is the limitation to supplemental jurisdiction? |
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Definition
| in a diversity case, P cannot use supplemental jurisdiction to overcome a lack of diversity. |
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Term
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Definition
| This allows DEFENDANTS (only) to have a case filed in state court removed to federal court. Removal is a one way street. If the removal is improper, the federal court can remand to the state court. |
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Term
| To which fed court can a defendant remove? |
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Definition
| the case can only be removed to the federal district embracing the state court in which the case was originally filed. |
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Term
| When must the case be removed? |
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Definition
| D must remove to the federal district court no later than 30 days after the service of th first removable document. Normally this is the service of process. Sometimes, the case is not removable then and becomes removable later. For example, all Ds must agree to remove. |
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Term
| What is the procedure for removal? |
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Definition
| D files a notice of removal in Fed Ct stating grounds of removal; signed under rule 11; attaches all documents served on D in state action; copy to all adverse parties and finally files a copy of the notice in the state court. |
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Term
| in diversity cases, the federal courts must apply the Erie Doctrine. This requires that the court apply the substantive law of the state. What is substantive law? |
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Definition
The easy substantive items include:
1) elements f a claim or defense
2) rules for the tolling of statutes of limitations;
3) statute of limitations; and
4) conflict (or choice) of law |
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Term
| If the action is "local", where is venue proper in Federal court? |
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Definition
| For action concerning ownership, possession or injury (including trespass) to LAND the action mst be filed in the district where the land lies. |
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Term
| if the action is not local it is transitory. in any transitory case, the P may lay venue in any district where... |
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Definition
1) all defendants reside (if the Ds reside in the same state, but different districts then P may lay venue in the district in which any of the Ds reside); or
2)a substantial part of the claim arose. |
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Term
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Definition
| A nonparty who is at least 18 years old. |
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Term
| What is personal service? |
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Definition
| Process (summons and complaint) given to D personally anywhere in the forum state. |
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Term
| Substituted service is ok if what? |
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Definition
is left at D's usual abode at the time; and
2) of suitable age and descretion who resides at the abode.
Note: butler resides at abode, baby sitter does not. |
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Term
| Service on D's agent is okay so long as |
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Definition
| acceptance of the service is within the scope of agency. e.g. agent appoijted by contract or corp's registered agent, managing agent or officer. |
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Term
| What other method of service is effective other than Personal, substitued and agent? |
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Definition
| Any method allowed permitted by state law of the state where the federal ct sits OR where service os offered. e.g. service on the the Sec of State for long arm service. |
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Term
| Can a D waive service of process? |
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Definition
Yes. If process is mailed by first class mail and D
1) executes and mails the waiver form to P w/i 30 days. This waives service BUT NOTHING else. e.g. lack of personal jurisdiction. |
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Term
| Is a federal court geographicly limited in the service of process? |
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Definition
| No, but only if the state that the ct is reaching into allows like with a long-arm statute. |
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Term
| What type of pleading is required under the federal rules? |
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Definition
| Notice pleadings. These only need enough detail to alolow the other side to be on notice and make a meaningful response. |
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Term
| All pleading, motions and papers need to be signed under Rule 11. What does this signature certify? |
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Definition
Certification is that after a reasonable inquiry
1) the paper is not for an improper purpose
2) legal contentions are warrented by law (or nonfrivolous argument for law change); AND
3) that factual contentions and denials of factual contentions have evidentary support (or are likely to after further investigation) |
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Term
| If you suspect that the other side has violated rule 11 what should you do? |
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Definition
A Motion for Rule 11 must be served on the opposing party but cannot be filed yet. The other party gets 21 days (safe harbor) to withdraw the document or fix the problem.
NOTE: the ct may raise Rule 11 sua sponte. |
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Term
| What are the complaint requirements? |
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Definition
A complaint filing commences an action and must contain:
1) a statement of grounds subject matter jurisdiction;
2) short and plain statement of the claim, showing entitlement to relief (in 2007 the SCOTUS ruled that one must plead facts supporting a plausable claim); and
3) demand for relief sought. |
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Term
| What 3 matters must be plead with particularity or specificity? |
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Definition
1) Fraud
2) Mistake; and
3) Special Damages |
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Term
| Under Rule 12, a D must respond to a complaint by motion or by answer within how many days? |
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Definition
| 20 days after service of process or risk default. |
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Term
| What are the 7 Rule 12(b) defenses? |
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Definition
1) Lack of subject matter jurisdiction;
2) lack of personal juridiction (Waivable);
3) improper venue (waivable)
4) insufficiency of process (problem w/ the papers) (waivable)
5) insufficient service of process (waivable)
6) failure to state a claim; and
7) failure to join indispensable party.
NOTE: those marked as waivable are waived if not raised in first Rule 12 response. |
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Term
| When must D serve an answer? |
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Definition
| An Answer is a pleading and must be served w/i 20 days after service of process. If D made a Rule 12 motion and it is denied, the answer must be served w/i 10 days after the court rules on the motion. |
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Term
| In an answer, how do you respond to the allegations? |
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Definition
1) Admit;
2) Deny;
3) State a lack of knowledge or sufficient information to admit or deny.
NOTE: Number 3 acts as a denial. a failure to deny can constitute an admission on any matter EXCEPT damages. |
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Term
| When do you plead affirmative defenses? |
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Definition
| In the Answer. EX: Statute of limitations, statute of frauds, res judicata and self-defense are all classic affirmative defenses. |
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Term
| What is a counterclaim and when is it filed? |
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Definition
| A counterclaim is a claim against an opposing party and is to be filed with D's answer. If the counterclaim arises from the same T/O it MUST be filed in the pending case or it is waived. (compulsory counterclaim) |
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Term
| What is a permissive counterclaim? |
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Definition
| A claim from D against P that does not arise out of the same T/O and can be asserted in a seperate case. |
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Term
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Definition
| A claim against a coparty that arises from the same T/O. Crossclaims are never compulsory. |
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Term
| Plaintiff has a right to amend his pleadings when? |
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Definition
| P can amend ONCE before D serves an answer. |
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Term
| Defendant has the right to amend their pleadings when? |
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Definition
| ONCE w/i 20 days of serving the answer. |
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Term
| If there is no right to amend, a party may seek the leave of the court to amend. What factors do the courts examine to determine if leave to amend should be granted? |
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Definition
| Te court will grant leave to amend if "justoce so requires" and will look to delay and prejudice. |
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Term
| If evidence is introduced at trial that does not match what was plead and the D does not object, what result? |
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Definition
| At or after trial P can move to amend the complaint to conform to the evidence. NOTE if D objects then evidence is inadmissable because it is at variance with the pleadings. |
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Term
| What is the effect of the statute of limitations and the raletion back rule? |
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Definition
| Amended pleadings "relate back" if they concern the same conduct, transaction or occurrence as the original pleading. Therefore if the original claim was not time barred, then the amended claims are admitted. |
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Term
| When may discovery tools be used? |
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Definition
| After the Rule 26(f) conference unless a court order or stipulation allows. |
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Term
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Definition
| Parties and nonparties may be deposed. Nonparties should be subpoenaed or they are not compelled to attend. |
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Term
| When taking depositions, when does a party need court approval or a stipulation? |
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Definition
| When taking more than 10 depositions OR deposing the same person twice. |
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Term
| Who can interrogatories be served on? |
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Definition
| These are written questions served on PARTIES to be answered under oath and mustbe responded with answers or objections within 30 days. No more than 25 interrogatories (including subparts) may be served. |
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Term
| What discovery tool is only available via a court order? |
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Definition
| A physical or Mental examination for a party or someone within the parties control when health is in controversy. |
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Term
| What is the scope of discovery? |
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Definition
| Anything "relevant to a claim or defense" |
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Term
| What are the 3 main ways that discovery problems are presented to the court? |
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Definition
a partial violation, a total violation and the need for a protective order. A partial violation occurs when the recieving party answers some queries and objects to others and the court does NOT uphold the objections, there may be a light sanction.
A total violation is when the recieving party fails completely to attend deposition, resond to interrogatories or respond to requests for production there is a heavy sanction. A protective order is requested form the ct when the requested prodcution is over burdensome, trade secrets, etc. |
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Term
| Under the Fed Civ Pro rules, who is a necessary and indispensable party? |
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Definition
1) Without the party the court cannot afford complete relief;
2) A's interest may be harmed if A isnt joined (practical harm); or
A claims an interest whihc subjects a party (usually the D) to a risk of multiple obligations. |
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Term
| Are joint tortfeasors necessary parties? |
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Definition
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Term
| What are the initial requirments for a class action? |
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Definition
1) Numerousity- Too many class memebers for practicable joinder
2) Commonality- there are some questions of law or fact in common to the class;
3) Typicality- Represenatives claims are typical of those in the class; and
4) Representative adequate- class rep fairly and adequately represent the class. |
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Term
| Once the intial class action requirements are met, what are the three types of cases that will be permitted. |
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Definition
1) Prejudice- class treatment is necessary to avoid harm to parties.
2) Injunction or declaritory- (not damages) where parties were treated alike by other party.
3) Damages- where a) common questions predominate; AND b) class action is the superior method to handle the dispute. |
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Term
| When a class action suit is brought under diversity of citizenship, how is the class's citizenship determined? |
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Definition
| ONLY the reps's citizenship (and not the other class members) is examined. |
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Term
| What does the Class action Fairness Act of 2005 do? |
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Definition
| This Act contains a grant of subject matter jurisdiction separate from regular diversity of citizenship. This Act allows federal cts to hear a class action if ANY class member (not just the rep) is of diverse citizenship from ANY defendant and the aggregated claims of the class exceed $5,000,000. |
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Term
| When moving for summary judgment, what must the moving party show? |
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Definition
1) there is no geniune dispute as to material fact; and
2) that the moveant is entitled to judgment as a matter of law. |
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Term
| In summary judgment, can the ct look at evidence? |
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Definition
| YES and the court will normally views the evidence in the light most favorable to the nonmoving party. |
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Term
| The right to a jury in federal ct is granted by the 7th amendment (NOT incorporated) in civil trials but not in equity. What result if the case involves both? |
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Definition
| The jury determines the facts of the underlying damage claim but NOT the injunction. |
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Term
| What is the standard for granting a judgment as a matter of law (directed verdict)? |
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Definition
| Reasonable people could not disagree on the result. |
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Term
| What is the standard for a JNOV? |
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Definition
| Same as a motion for judgment as a matter of law. At this point the court is saying the jury reached a conclusion reasonable people could not have reached. MUST have moved for judgment as a matter of law at trial to make a JNOV. |
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Term
| When must you move for a new trial? |
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Definition
| Within 10 days of judgment. |
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Term
| When must you file for an appeal? |
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Definition
| Within 30 days after entry of final judgment. |
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Term
| Interlocutory (non-final) orders are reviewable as of right to what items? |
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Definition
| Orders granting, modifying, refusing, etc. injunctions; appointing, refusing to appoint receivers; finding of patent infringement where only an accounting is left to be accomplished by trial ct; orders affecting possession of ppty, e.g. attachments |
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Term
| Unless a ct says otherwise when judgment is entered, any judgment is on the merits unless it was based on what? |
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Definition
Jurisdiction
2) venue
3) indispensable parties |
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Term
| What is the split of autority with claim preclusion? |
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Definition
| A minority view is that personal injury and ppty dmage involve different rights and therefore would not be res judicate even though the case arise out of the same T/O |
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