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MBE Civ Pro
how to make a federal case out of it
79
Law
Professional
02/01/2015

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Term
fed subject matter jurisdiction
Definition
1. federal question
2. diversity
3. supplemental
4. removal
5. legislative
Term
well pleaded complaint (for federal jurisdiction)
Definition
P's complaint must state federal cause of action (as opposed to the fact that the defendant may have a federal defense)
Term
diversity jurisdiction
Definition
1. amount in controversy exceeds $75K
2. citizens of diff states

no probate or domestic relations cases
Term
complete diversity
Definition
Every P is from diff state than every D
Term
minimal diversity
Definition
1 P diverse from 1 D

only allowed for
1. fed interpleader act
2. class actions worth more than $5 million
3. interstate mass torts
Term
domicile
Definition
place person resides & intends to remain
Term
corp citizen of
Definition
state of incorporation & primary place of business (HQ)
Term
citizenship of partnerships
Definition
every state where its members are citizens
Term
aggregating claims 1P v 1D =
Definition
can add all claims to hit amount in controversy
Term
aggregating claims 1P v multiple D =
Definition
claim against each D must hit amount in controversy
Term
aggregating claims multiple P
Definition
each P must hit amount in controversy individually or

supplemental jurisdiction - one P passes amount in controversy & other Ps claims from same transaction or occurrence & complete diversity met
Term
counterclaims have to hit amount in controversy
Definition
compulsory - no
permissive - yes
Term
supplemental jurisdiction
Definition
fed extend subject matter jurisdiction if 2nd claim arises out of same transaction or ocurrence
Term
removal
Definition
takes case from state court & moves it to fed court

proper if all Ds consent & fed court has original jurisdiction
Term
transfer
Definition
takes case from one fed court to another fed court
Term
remand
Definition
case was improperly removed & feds can send it back to state court
Term
bulge provision
Definition
service within 100 mile radius of fed courthouse for
1. impleading 3rd party Ds
2. joining necessary Ds
Term
waiving personal jurisdiction
Definition
D shows up & does not object
Term
waiving subject matter jurisdiction
Definition
you can't waive it
Term
in personam jurisdiction
Definition
jurisdiction against person
Term
in rem jurisdiction
Definition
jurisdiction against property
Term
quasi in rem jurisdiction
Definition
trying to get to a person through their stuff
Term
minimal contacts/purposeful availment
Definition
enough contact w/forum state where they could reasonably anticipate being taken to court there
Term
bases for general in personam jurisdiction
Definition
1. physical presence (except when only there to answer summons or brought by force/fraud)
2. domicile
3. consent
Term
basis for quasi in rem jurisdiction
Definition
minimum contacts (same as personal)
Term
venue proper in district
Definition
1. where any D resides if all D live in same state
2. where claim arose
Term
choice of law in transferred cases where original venue was proper
Definition
law of original forum controls
Term
choice of law in transferred cases where original venue was improper
Definition
transferee's law control
Term
erie doctrine
Definition
fed procedural law & state substantive law

only applies to diversity
Term
substantive law under erie includes
Definition
1. statute of limitations
2. burden of proof
3. choice of law
4. elements of claim
Term
venue in suing fed official (acting in scope of employment)
Definition
1. where D lives
2. where substantial amount of actions occurred
3. where P lives if no real property involved
Term
venue under Fed tort claims act
Definition
1. where P lives
2. where act or ommission occurred
Term
case against foreign state
Definition
1. where events occurred
2. DC
Term
how do feds determine state law
Definition
1. state supreme court
2. if not state supreme court, feds guess how state supreme court would rule (use state appeals court decisions)
Term
what has to be pleaded w/particularity
Definition
1. fraud/mistake
2. special damages
Term
complaint requirements
Definition
short & plain statement of claim
but must make a plausible case (fucking iqbal & twombly)
Term
motion to dismiss grounds
Definition
1. lack of subject matter jurisdiction
2. lack of personal jurisdiction (& insufficient process)
3. improper venue
4. failure to state a claim
5. failure to join a necessary party
6. forum non conveniens
Term
basic service of process
Definition
1. personal delivery (you got served bitch)
2. leaving summons where D lives w/someone of suitable age & discretion)
3. delivery to authorized agent
Term
defenses that must be raised immediately (in answer or pre-answer motion)
Definition
1. no personal jurisdiction (insufficent process too)
2. improper venue
Term
motion for judgment on pleadings
Definition
pleadings completely agree about facts
Term
motion to strike
Definition
used to delete either
1. scandalous/prejudicial & irrelevant matters
2. P can use to strike legally invalid defense
Term
timing for answers/replies
Definition
must be filed within 21 days of the previous pleading
Term
amendments as of right
Definition
one freebie within 21 days of service or within 21 days of D's response
Term
amendment relating back
Definition
amendment that would otherwise violate statute of limits would be allowed if it concerns the same conduct/transaction/occurrence as original pleading
Term
amendment to add party
Definition
1. must concern same conduct/transaction/occurrence
2. party to be added either knew or had reason to know that he'd be added
Term
when to plead affirmative defenses
Definition
must be plead in answer or it's waived
Term
certifying pleading
Definition
signed by atty to show
1. legal & factual basis for filing
2. that after reasonable inquiry there's no improper purpose
3. not frivolous
4. allegations have evidentiary support
Term
permissive joinder of parties
Definition
1. same transaction/occurrence
2. common question of law or fact

party can't be joined if it would defeat complete diversity
Term
compulsory joinder of parties
Definition
necessary parties that court has jurisdiction over
Term
necessary party
Definition
1. needed for other parties to get complete relief
2. has interest in litigation which will be impeded if litigation goes forward w/out that party
3. substantial risk of double or inconsistent liability

can't defeat any jurisdiction

doesn't include joint tortfeasors
Term
intervention
Definition
outsider who voluntarily joins in lawsuit
Term
intervention as of right
Definition
1. non-party has interest in subject matter of action
2. disposition of action may impair non-party's interest; and
3. non-party's interest isn't represented by existing parties
Term
permissive intervention
Definition
common question of law & fact between intervenor & matter at hand
Term
interpleader basics
Definition
competing claims to same property
property at issue = stake
person holding property = stakeholder
person claiming property = claimant
Term
statutory interpleader features
Definition
1. claim must exceed $500
2. nationwide service of process
3. venue proper in district where any claimant resides
4. minimal diversity
Term
compulsory counterclaim
Definition
1. must be raised now
2. same transaction or ocurrence
3. supplemental jurisdiction automatically applies
4. suspends statute of limits
Term
permissive counterclaim
Definition
1. can be pleaded whenever
2. unrelated to current matter
3. requires independent jurisdiction
Term
cross-claim
Definition
one P sues another P or one D sues another D

1. must arise out of same transaction/occurrence
2. never compulsory
Term
impleader
Definition
D sues 3rd party

has pure supplemental jurisdiction
Term
class action prereqs
Definition
1. numerousness (about 100 or so)
2. common questions of law & fact
3. typicality of claims by class reps
4. adequacy of representation by reps lawyer

judge then approves
Term
class action for state cause of action
Definition
100 or more members w/$5 million at stake requires minimal diversity

otherwise, complete diversity & one named P has claim above $75K
Term
mandatory initial disclosures
Definition
1. names & addresses of people w/discoverable info
2. copies of relevant docs or things
3. computation of damages claimed
4. applicable insurance agreements

must be made as soon as reasonably available
Term
disclosure of expert witnesses
Definition
1. names of any testifying experts
2. facts, data, qualifications, other times they testified & compensation.

at least 90 days before trial (mandatory
Term
pre-trial disclosures
Definition
must disclose list of witnesses & exhibits at least 30 days before trial

must object 14 days before trial
Term
scope of discovery
Definition
anything relevant or could lead to something relevant (admissibility be damned)
Term
what can't be discovered
Definition
1. privileged info
2. work product
Term
work product can be overcome?
Definition
yes, if show
1. need
2. info cannot be obtained elsewhere

still can't touch atty mental impressions
Term
how many depositions can party take
Definition
10 (unless court allows more)

1 per person
Term
how many interrogatories can party take
Definition
25 questions

can only be made to a party

30 days to answer
Term
involuntary dismissal without prejudice
Definition
1. lack of jurisdiction
2. improper venue
3. failure to join necessary party
Term
demand for trial by jury must be made
Definition
within 14 days of service when the issue was brought up (usually made in complaint)
Term
how many peremptory challenges
Definition
3
Term
grounds for motion for new trial
Definition
1. errors during trial that rendered judgment unfair
2. newly discovered evidence
3. prejudicial misconduct
4. excessive verdict & winner won't take less
Term
how much time to file appeal
Definition
30 days from entry of judgment
Term
standard of review for jury verdicts
Definition
verdict affirmed if supported by substantial evidence
Term
judicial finding of fact affirmed if
Definition
ruling not clearly erroneous
Term
res judicata/claim preclusion
Definition
1. final judgment on the merits
2. same parties or successors in interest
3. same claim or cause of action
Term
collateral estoppel/issue preclusion
Definition
1. same issue of fact
2. that issue actually and necessarily decided in first suit (need trial)
3. the party against preclusion is asserted must have been party in first suit
Term
judgment on the merits
Definition
1. trial
2. summary judgment
3. default judgment
4. dismissal w/prejudice
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