Term
| 1332 Diversity Jurisdiction can be between? |
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Definition
1) Citizens of different states
2) Citizens of a state against foreign citizens
3) Citizens of different states and foreign citizens are additional parties
4) Citizen of state and a Foreign state as plaintiff |
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Term
| Strawbridge --> Does the Constitution require complete diversity? |
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Definition
| The Constitution does not require complete diversity, the diversity jurisdiction statute requires that each Π be diverse from each Δ; this rule also applies to any claims involving 3rd parties or cross-claims between parties |
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Term
| Time for determination of diversity? |
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Definition
| At the time complaint is filed |
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Term
| Manipulation of Diversity |
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Definition
If the court finds that a party has been improperly or collusively joined to “manufacture” diversity where it does not otherwise exist, then there is no SMJ
Exception: Strategies where party intentionally destroys diversity are ok |
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Term
| Determination of Citizenship |
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Definition
Determined by Federal Law...
1) Natural Persons
2) Corporations
3) Unincorporated Business Entities |
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Term
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Definition
Place of fixed and permanent home to which a person intends to return when absent (look at physical presence + intent to remain indefinitely)
You retain your domicile until you acquire a new one; only have one state citizenship and domicile at a time
If a U.S. citizen is living abroad, they may acquire a foreign domicile and not be a citizen of a state or an alien, so they may not be able to bring a diversity suit.
aliens → permanent resident aliens are citizens of the state in which they are domiciled and citizens of their country of citizenship; non-PRAs are only citizens of their country of citizenship. |
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Term
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Definition
1) Citizen of the state(s) of incorporation;
2) Citizens of the place of the principal place of business;
Look at all citizenships in a diversity case; corporation is defined by reference to state law (total activities test), but does not apply to LLCs. |
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Term
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Definition
Look at where the “nerve center” of the corporation and where the “place of activity” is;
Nerve Center - Place where a corporation's high level officers direct, control, and coordinate the corporation's activity |
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Term
| Unincorporated Business Entities |
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Definition
The citizenship of all members (including general and limited partners).
special rules → a business trust is a citizen of where it’s trustee is a citizen;
National banks are citizens of the state where it’s head office is;
Political subdivisions are citizens of the state. |
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Term
| Special Rule for Direct Action Lawsuits |
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Definition
| If you can sue the insurance company directly without suing the insured, then attribute the citizenship of the insured to the insurance company as well. |
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Term
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Definition
1332 requires that there greater than $75,000.0) in controversy between the parties exclusive of interest and costs;
Can include attorney’s fees if state law or contract provides for them;
Include interest if it is part of the underlying obligation;
Jurisdictional amount attaches at the time of filing, a subsequent amendment of the pleading will have no affect on validity
When you seek an injunction in order to satisfy the amount-in-controversy requirement (subject matter jurisdiction, diversity of citizenship)?
Plaintiff's viewpoint - the activity they want to get an injunction for injures the plaintiff in an amount greater than $75K
Defendant's viewpoint - cost to comply with the injunction would cost more than $75k |
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Term
| What is sufficient to show that the amount in controversy is $75K |
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Definition
| Plaintiff's good faith assertion is enough unless it is clear to a legal certainty that she cannot recover more than $75K. |
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Term
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Definition
A facially apparent standard should be used whereby the federal court determines from the face of the complaint whether the amount in controversy is likely to exceed the JA
If a specific and sufficient amount is alleged in the complaint, then the JA is satisfied; in the absence of such allegations, court may rely on inferences that may be drawn from facts in the complaint. |
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Term
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Definition
1) a single Π may aggregate all claims against a single Δ;
2) a single Π must meet the JA for each Δ if there are multiple Δs; if there are multiple Πs and a single Δ, generally cannot aggregate unless at least one claim of one Π meets the JA and the other Πs’ claims qualify as supplemental claims because they are part of the same case or controversy;
3) if there are multiple Πs and Δs, have to meet the JA for each claim. |
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Term
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Definition
| State law apply in federal court in the absence of controlling federal law on point |
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Term
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Definition
Apply the state’s statutory and decisional law; to determine choice of law, use the choice of law rules of the state in which the federal diversity court sits.
If state law is ambiguous - look at state supreme court and lower court decisions and make an “Erie guess” as to how the state supreme court would decide that issue of law. |
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Term
| Application of state procedural rules under Erie |
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Definition
| apply state procedural rules that conflict with the FRCP when the rule is considered substantive and it would be outcome determinative; if there is no FRCP on point, then can apply the state procedural rules when you apply the Erie factors (discourage forum shopping and avoiding inequitable administration of law) and the analysis is in favor of applying the state law. |
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Term
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Definition
In diversity cases, federal courts must apply state substantive law.
Step 1 - Is there a federal law on point that directly conflicts with the state law? If so, apply the federal law (supremacy clause).
Step 2 - If there is no federal law on point, ask if it is one of the following substantive issues:
1) Elements of a claim or defense
2) Statute of limitations
3) Rules for tolling statutes of limitations, and
4) Conflict (or choice) of law rules
Step 3 - Stil not sure? Use the following three factors:
1) Outcome determinative - Would applying or ignoring the state rule affect the outcome of the case? If so, it is probably a substantive rule.
2) Balance of interests - Does either federal or state system have a strong interest in having its rule applied?
3) Avoid forum shopping - If the federal court ignores state law on the issue, will it cause parties to flock to federal court? If so, should probably apply state law. |
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Term
| Exceptions to diversity jurisdiction |
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Definition
| even if the requirements for diversity jurisdiction are satisfied, will not hear claims for divorce, alimony, child custody, probate of a testament, or adjudication of property in possession of a state probate court. |
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Term
| Federal Question Jurisdiction |
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Definition
1331 → federal courts have jurisdiction over cases arising under the Constitution, laws, or treaties of the United States; there is no jurisdictional amount.
o must be substantial and meritorious → will be dismissed if the federal claim clearly appears to be insubstantial, implausible, frivolous, foreclosed by prior decisions, or otherwise completely devoid of merit.
arising under” = complaint alleges an expressed or implied federal cause of action or a state law claims where the Π alleges a right or interest that is substantially founded on federal law. |
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Term
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Definition
| Federal courts have exclusive jurisdiction over claims arising under patent law, copyright law, interstate commerce and antitrust, bankruptcy, admiralty (subject to saving to suitors clause), internal revenue matters, postal matters, and any case where the U.S. is a party. |
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Term
| well pleaded complaint rule (Motley) |
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Definition
Look at the face of the Π’s complaint to see if there is a claim that arises under federal law;
the Δ’s answer is irrelevant and a federal defense does not supply federal SMJ;
even a federal compulsory counterclaim does not cut it; if Π pleads a state law claim that has been preempted by federal law, then there is no SMJ. |
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Term
| Supplemental jurisdiction (subject matter jurisdiction) |
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Definition
have supplemental jurisdiction over all state law claims that are so related to the claims within the court’s original jurisdiction that they form a part of the same case or controversy under Article III; use the Gibbs test of common nucleus of operative fact.
TEST: The claim we want to get into federal court must share a "common nucleus of operative fact" with the claim that invoked federal subject matter jurisdiction. This test is always met by claims that arise from the same transaction or occurence as the underlying claim.
EXCEPTION: In a diversity case, the plaintiff cannot use supplemental jurisdiction to overcome a lack of diversity.
compulsory counterclaims and cross-claims → based on the same transaction or occurrence, so they will meet the CNOF test, and there will be supplemental jurisdiction.
impleader and intervention → impleader and intervention as of right will have to arise from the same transaction or occurrence, so they will meet the CNOF test, and supplemental jurisdiction will be available; permissive intervention does not meet the CNOF test, so have to have an independent basis for jurisdiction.
other claims involving 3rd parties → will have supplemental jurisdiction if the state claim arises from the same CNOF as the claim upon which original jurisdiction is founded
special rules for diversity cases → supplemental jurisdiction is excluded when a party intervenes as Π or when the Π makes a claim against a 3rd party impleaded against the Δ; in those circumstances, have to have independent SMJ. |
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Term
| When does the court have discretion not to hear a supplemental claim? |
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Definition
1) The federal question is dismissed early in the proceedings, or
2) The state law is complex, or
3) State law issues would predominate |
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Term
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Definition
parties may be joined as Πs or Δs if relief by or against them arises from:
1) the same transaction or occurrence and
2) there is a common question of law or fact. |
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Term
| Necessary and indispensible party |
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Definition
An absentee who meets any of the follwign three tests:
1) Without A, the court cannot afford complete relief (worried about multiple suits)
2) A's interest may be harmed if he isn't joined (practical harm); or
3) A claims an interest which subjects a party (usually defendant) to a risk of multiple objections |
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Term
| What if an absent necessary and indispensable party cannot be joined because of lack of personal jurisdiction or inability to maintain diversity jurisdiction? |
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Definition
--Would the plaintiff have an adequate remedy if the suit were dismissed?
--Extent to which absence of required party might prejudice either that person or existing parties
--Can the court shape relief to avoid that prejudice?
--Would a judgment rendered in the absence of that party be adequate |
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Term
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Definition
A claim against an opposing party.
Compulsory counterclaim - arises from the same transaction or occurence. MUST BE ASSERTED IN THE PENDING CASE OR IT IS WAIVED and cannot be asserted in another action.
Supplemental jurisdiction attaches to compulsory claims so no independent jurisdictional basis is required
Permissive counterclaim - does not arise from the same transaction or occurence and theerefore may be filed in this case or in a subsequent case
Independent Jurisdiction is needed for a permissive claim and it will not be lost if not asserted |
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Term
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Definition
| by rule they have to arise from the same transaction or occurrence, so they will be subject to supplemental jurisdiction. |
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Term
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Definition
Allows a 3rd party complainant to be filed by the defendant against a 3rd party defendant who may be liable to him for all or part of the plaintiff's claim against the original defendant
Timing - Defending party may as a 3rd party plaintiff, with 14 days after serving its original answer serve a summons and complaint on a non-party who then becomes a 3rd party defendant
No problem with impleader in a diversity case even if the 3rd party defendant is not diverse from the plaintiff
Independent Jurisdiction is needed if plaintiff amends complaint to state a claim against a non-diverse 3rd party defendant |
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Term
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Definition
1) federal statute provides a right to intervene or
2) the intervenor claims an interest relating to the property or transaction that is the subject of the dispute and he is so situated that disposition in his absence will impair or impede his ability to protect his interest
supplemental jurisdiction over all interventions of right when the original jurisdiction is not diversity; if it is diversity, then only get supplemental jurisdiction when the claim is by an intervenor aligning with the Δ. |
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Term
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Definition
1) federal statute provides a conditional right to intervene or
2) there exists some common question of law or
3) fact between the principal action and the party’s claim; all have to have independent SMJ. |
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Term
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Definition
1335 --> Jurisdiction will exist if any 2 claimants to the property are diverse. Only $500 is needed for the amount in controversy
Venue is proper where any claimant resides |
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Term
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Definition
| must have an independent basis for federal SMJ; stakeholder and claimants are treated as opposing parties and there must be complete diversity between them and the JA must be satisfied; |
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Term
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Definition
| a process by which a person holding money or property claimed by two or more parties and having no interest in it himself can require the claimants to litigate with each other to determine the issue |
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Term
| procedural steps to removal |
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Definition
Can remove a case to the federal district that embraces the state court where the case was brought when the claim brought by the Π could have been brought in federal court in the first instance
1) Δ must prepare and file a notice of removal wherein he must allege the basis for federal jurisdiction
2) the notice of removal must be filed in federal court along with all pleadings and process thus filed and served on the Δ and the notice of removal must be filed in the state court where the case is pending
3) the case is then removed and the state court is divested of jurisdiction unless the case is remanded. |
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Term
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Definition
o brings all claims → all claims in the case are removed to federal court – assuming that there is SMJ over these claims;
o only Δ’s right → only the Δ can remove; no 3rd parties; also, if there are multiple Δs, they must all concur in the notice of removal by signing it or by timely filing a writing
o limitations on the right to remove → in a diversity case, if the Δ is a citizen of the forum state, then the case is not removable; cannot remove claims joined to a worker’s compensation case, or a claim under FELA or Jones Act. |
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Term
| Jury trial demand (removal) |
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Definition
if demand was already made in the state court pleadings, then do not have to renew;
Δ has 10 days to file a jury trial demand after filing notice of removal;
Π has 10 days to file a jury trial demand after service of notice of removal.
o jury trial right → in suits at common law, 7th Amendment provides for the right if more than $20 is at controversy; if the claim is a statutorily created claim, then Congress may provide for the right in the statute; if the jury trial right is not granted in the statute, then look to the remedies – if they are common law, may have a good argument for a jury trial. |
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Term
| time for removing if case is removable at the time filed in state court |
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Definition
rule say w/in 30 days of service of process and complaint;
5th Circuit rule is that if there are multiple Δs, has to be filed w/in 30 days of service on the first Δ. |
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Term
| time for removing if case becomes removable after filed in state court |
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Definition
must file w/in 30 days of receipt of a pleading, motion, or other paper from which it may be ascertained that the case is removable
additionally, if a diversity case, must have become removable within 1 year of the original filing date. |
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Term
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Definition
| federal officers and employees can remove civil and criminal actions in state court when there is a causal connection between what he has done under official authority and the prosecution/suit in state court. |
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Term
| To which federal courts can a state court defendant remove a case? |
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Definition
| Only to federal district embracing the state court in which the case was originally filed. |
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Term
| motion to remand for procedural defects |
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Definition
30 days from the date of the filing of the notice of removal in federal court
only applies to non-jurisdictional defects (timing of notice, failure to serve on adverse parties, statutory prohibition, failure of all Δs to join, presence of a local Δ);
failure to timely raise constitutes waiver. |
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Term
| motion to remand for procedural defects |
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Definition
30 days from the date of the filing of the notice of removal in federal court
only applies to non-jurisdictional defects (timing of notice, failure to serve on adverse parties, statutory prohibition, failure of all Δs to join, presence of a local Δ);
failure to timely raise constitutes waiver. |
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Term
| motion to remand for lack of jurisdiction |
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Definition
| may be raised at any time prior to entry of final judgment, and the court may notice on its own motion |
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Term
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Definition
defects in removal procedure or lack of subject matter jurisdiction; court may order the removing Δ to pay costs and fees.
o SMJ can be cured → do not have to remand if there is a SMJ defect that is cured before trial. |
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Term
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Definition
| if all claims within the original jurisdiction are resolved, may remand any remaining state law claims that were within the court’s supplemental jurisdiction considering principles of economy, convenience, fairness, and comity |
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Term
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Definition
| is not immediately appealable, but the issue is preserved for review on appeal of the final judgment. |
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Term
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Definition
| not appealable unless based on Burford abstention; if the order represents a refusal of the court to exercise plainly proper jurisdiction, then may be able to review by writ of mandamus from the court of appeal. |
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Term
| analysis for a personal jurisdiction issue |
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Definition
first ask whether or not there is a state or federal statute authorizing personal jurisdiction
if there is not, then the inquiry ends
if there is a statute authorizing the exercise of personal jurisdiction, then have to ask whether or not exercising jurisdiction violates the 14th Amendment due process clause. |
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Term
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Definition
| power to issue a judgment that binds the person |
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Term
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Definition
| power to adjudicate rights of all persons with respect to the particular item of property when the property is within the physical borders of the state. |
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Term
| quasi in rem jurisdiction |
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Definition
| Δ not in the forum, but his property is, so render judgment up to the value of the property, but the Δ is not personally bound. |
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Term
| State statutes allow personal jurisdiction over |
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Definition
1) service with process while physically present in the forum;
2) domicile in the forum state; consent (expressed or implied);
3)or Δ commits an act bringing him within the state’s long arm statute. |
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Term
| constitutional standard for due process |
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Definition
Int’l Shoe: Δ must have such minimum contact with the forum so that the exercise of personal jurisiction does not offend traditional notions of fair play and substantial justice
o purposeful availment → contacts must be a result of intentional conduct and not a mere accident; look at whether conducted activities w/in the forum state and availed themselves of the benefits of the state’s laws; placing an item within the stream of commerce (but may need more); activities of Δ make it foreseeable that he would be amenable to suit in the forum.
o fundamental fairness → exercise of jurisdiction must not violate notions of fair play and substantial justice
• is there specific jurisdiction → if Δ’s in-state activity is less than systematic or continuous, then jurisdiction only proper for causes arising from that specific conduct.
• is there general jurisdiction → if the Δ engages in systematic and continuous contact with the forum state, then the court may find a sufficient basis for exercising jurisdiction for any cause of action.
• convenience → does not have to be the most convenient forum, just must not be so gravely difficult and inconvenient that a party is unfairly put at a severe disadvantage in comparison to his opponent;
• forum state’s interest → does the forum state having a legitimate interest in providing redress for its residence.
• other factors → Π’s interest in obtaining convenient and effective relief; efficient resolution of controversies; and comity between states. |
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Term
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Definition
| all objections to venue are waivable if they are not made in a timely filed objection prior to or in the answer. |
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Term
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Definition
venue is proper in the district where…
o a substantial part of the events or omissions occurred
o a Δ resides if all Δs reside in one state |
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Term
| • causes of action arising outside of USA |
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Definition
| if all Δs do not reside in the same state, then can bring in any district with personal jurisdiction over a Δ. |
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Term
| • causes of action involving an alien Δ |
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Definition
| venue is proper in any district. |
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Term
| • residence for natural persons |
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Definition
| where the person lives; usually synonymous with domicile. |
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Term
| • residence for business entities |
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Definition
reside in any federal district in which subject to personal jurisdiction because of minimum contacts there are at the time the action is commenced; being licensed to do business in the state does not create minimum contacts per se; incorporation does create minimum contacts.
o if multiple districts w/in a state → then treat them like states for doing a minimum contacts analysis. |
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Term
| • what to do when venue is improper |
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Definition
have three options…
o if no one objects, then its waived, and the case proceeds normally
o can grant motion to dismiss and require the Π to refile in the court where venue is proper;
o can transfer to another federal court where venue was proper if in there interest of justice.
• law of transferee state will apply for Erie and Klaxton purposes. |
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Term
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Definition
can transfer to another court of proper venue for the convenience of the parties and witnesses and in the interest of justice.
o consider forum selection clauses in a contract
o in this case, apply the law of the transferee state for Erie and Klaxton purposes |
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Term
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Definition
| move to dismiss because it is more appropriate for the litigation to occur in the court of a foreign country due to the location of witnesses, evidence, or the applicability of foreign law. |
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Term
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Definition
can sue any person acting under color of state or local law for the deprivation of any rights, privileges, or immunities under the constitution or laws of the United States.
o acting under color of state law → acting under color of state or local law when enforces a state or local law that is unconstitutional or acts contrary to state or local law during the course of his employment.
o who can be liable → state officials sued for damages in their personal capacities; state officials in their official capacity when sued for prospective relief under Ex Parte Young; local officials sued in any capacity; political subdivisions; private persons acting in concert with local authorities.
o who cannot be liable → states, state agencies that qualify as an arm of the state, and state officials acting in their official capacities when sued for damages. |
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Term
| • other noteworthy tidbits |
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Definition
| no exhaustion of state administrative remedies required; concurrent jurisdiction with state courts; have supplemental jurisdiction over state law claims arising from the same CNOF. |
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Term
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Definition
1) the Π must have suffered injury in fact (actual or threatened injury) as a result of the Δ’s conduct and the Π’s interest must be within the zone of the interests protected by the federal right
2) the injury must be caused by the challenged actions
3) the injury must be redressable by a favorable judicial decisions. |
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Term
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Definition
use the 3 step injunctive relief process in FRCP
o TRO → ex parte relief before hearing on the preliminary injunction; Π must show irreparable injury will occur before the Δ can be notified and reasons why notice should not be required; expires by operation of law in 10 days and Π must post security.
o preliminary injunction → Π must show no adequate remedy at law; irreparable injury will occur if the PI does not issue and have to wait for the trial of the permanent injunction; and, probability of success on the merits on the claim for the permanent injunction.
• attorney’s fees → prevailing Π can recover reasonable fees for all hours reasonably spent by the attorney; prevailing Δ on recovers attorney’s fees if they can show that the Π acted in objective bad faith in bringing the claim. |
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Term
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Definition
cannot sue a state government, state official, or state entity in federal court absent a valid waiver of immunity to suit either by the state or by Congress acting pursuant to the 14th Amendment.
o waiver cannot be implied from engaging in conduct that Congress has declared to constitute a waiver
o waivers under 14th Amendment must express with great clarity the intent to waive immunity, Congress must identify the conduct that that transgresses the 14th Amendment; and, the legislative scheme must be tailored to remedying or preventing such conduct.
o look for situations where the state is the real party in interest with suits against state officials. |
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Term
| • Ex Parte Young exception |
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Definition
| can sue for injunctive or declaratory relief against a state official in his official capacity when there are no ongoing state judicial proceedings brought by the state official at the time the injunction is granted and the basis must be the alleged unconstitutionality or illegality of the official’s conduct. |
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Term
| Civil Rights Litigation – Against Local Officials and Entities |
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Definition
• no constitutional immunity → 11th Amendment does not protect local officials and entities against suit in federal court.
• local custom or policy → decisions of local legislative bodies; decisions of those who have final policymaking authority under state law; failure to train when the failure produced the injury; and inadequate screening that shows a deliberate indifference to the substantial risk of violating federal law.
• absolute immunity → judicial officers for their judicial acts; prosecutors when trying cases; legislative officers for legislative acts.
• qualified immunity → law enforcement officers when in reasonable good faith (objectively reasonable officer would not have known that his actions violated federal law); judges for administrative actions; prosecutors for their investigative activities or rendering legal advice or other non-trial functions of their office. |
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Term
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Definition
• federal common law → federal courts can create common law when there are gaps in statutes or silence in federal regulatory schemes; if there is no need for federal uniformity, then sometimes adopt state law as the federal common law.
• implied rights of action → will find an implied right of action when the statute does not create a right of action when the Π belongs to the class for whom the statute was enacted to benefit, there is no evidence that Congress intended not to create a right of action, whether it is consistent with the statutory scheme, and whether the matter is one traditionally handled by state law. |
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Term
| Jurisprudential Abstention Doctrines |
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Definition
Pullman
Burford
Younger
Colorado River |
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Term
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Definition
abstain from the exercise of jurisdiction in a case where the Π bring a suit in federal court to enjoin the enforcement of a state or local on a federal constitutional ground and there is a threshold issue of unclear state law in the suit whose resolution could render the federal court’s decision on the constitutional claim unnecessary.
o state law must be obviously susceptible of a limiting construction to render the federal constitutional question moot.
o effect of abstention → the court retains jurisdiction over the federal constitutional issue once the state issue is resolved. |
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Term
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Definition
federal court should abstain from exercising jurisdiction when a Π seeks injunctive or declaratory relief that would require the federal court to review state administrative decision-making and fact-finding in fields traditionally subject to state regulation.
o entanglement → the federal claim must be entangled with state law in order to warrant abstention
o effect of abstention → dismissal of entire claim. |
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Term
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Definition
abstain from exercising jurisdiction when the Π seeks an injunction or prospective declaratory relief against ongoing state criminal proceedings or quasi-criminal proceedings (like contempt)
o effect of abstention → dismissal of the federal action and state proceeding becomes forum for federal issues.
o exception → can enjoin ongoing when the Π can make a showing that the prosecution was brought in bad faith or for the purposes of harassment.
o injunctions against future prosecution → Π must show a sufficiently genuine threat of prosecution so that there is a justiciable complaint and that there is no ongoing state prosecution at the time that the preliminary injunction issues. |
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Term
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Definition
if there are parallel proceedings in state and in federal court, only exceptional grounds will justify a federal court’s abstention; the court must conclude that the state court proceedings are adequate to completely resolve the controversy and the federal court will not have to be involved at all anymore.
o factors → inconvenience of the federal forum; avoidance of piecemeal litigation; order in which jurisdiction was obtained; necessity to exercise jurisdiction over a res; and, the extent to which federal law will govern the dispute.
o insurance cases → 5th Circuit held that should abstain under Colorado River to hear a declaratory judgment suit on an insurance policy when a suit on that policy is already pending in state court. |
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Term
| Statutory Limitations on Federal Injunctions |
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Definition
• Anti-Injunction Act → may only enjoin a state court proceeding when authorized by an Act of Congress, necessary to protect federal court jurisdiction (only in rem – never in personam), or necessary to protect and effectuate its judgment.
• Tax Injunction Act → cannot enjoin state tax issues when there is a plain, speedy and efficient remedy in state court.
• Johnson Act → cannot enjoin state rate orders concerning public utilities provided the order is not affecting interstate commerce, it was made after notice and a hearing, and there is a plain, speedy, and efficient remedy at state law. |
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Term
| Service of Process in Federal Litigation -- valid service |
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Definition
when authorized by FRCP, the law of the forum state, or the law of the state in which the Δ is served; must be served within 120 days from the filing of the complaint.
o who may serve → any person over the age of 18 not a party to the suit
o waiver → can serve summons and complaint by mail w/ notice and a request for waiver of service; if Δ refuses service, then have to serve another way. |
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Term
| • methods of service of complaint for persons within the district or forum state |
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Definition
o competent adult → actual delivery to the individual (personal service) or leave a copy of the summons and complaint at his dwelling with a person of suitable age and discretion residing therein; also can serve on an authorized agent for SOP.
o infant/incompetent → use law of the forum state, so in La. would serve on the parent, tutor, or curator.
o juridical entities → serve on an officer, manager, or any other agent authorized by appointment or law to receive service of process.
o USA → serve on U.S. Attorney for the district where the action is filed and mail a copy to the Attorney General.
o state/political subdivision → serve on the chief executive officer or as otherwise provided by law. |
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Term
| • methods of service of complaint for persons outside of the district or forum state |
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Definition
o can use the forum state’s long arm service statute if there is no federal rule authorizing nationwide service (like statutory interpleader).
o if state long-arm statute does not authorize, then can serve if there are sufficient nationwide contact to make service;
o can serve anywhere w/in 100 miles of the courthouse for parties who are impleaded, added in a counterclaim, or joined as necessary and indispensible parties |
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Term
| • service of documents other than complaint or summons |
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Definition
o answer → must be filed and served w/in 20 days of service and summons and complaint or 60 days from mailing of service waiver
o pleadings, motions, orders, discovery documents → deliver or mail to attorney of record and have a certificate of service.
o La. district court rules → uncontested discovery matters do not have to be filed w/ clerk of court except notice of deposition. |
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Term
| • certification of constitutional challenge |
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Definition
| have to file notice of constitutional challenge and serve on Attorney General of the USA or the state whose law is being challenged |
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Term
| 6 pleadings permitted by FRCP |
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Definition
1) complaint,
2) answer to complaint,
3) reply to counterclaim,
4) answer to cross-claim,
5) 3rd party complaint,
6) 3rd party answer. |
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Term
| • requirements of pleadings |
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Definition
any pleading stating a claim must contain:
1) a jurisdictional statement,
2) a short and plain statement showing that the pleader is entitled to relief,
3) and a demand for judgment;
all pleadings must have:
1) A caption containing the name of the court,
2) The title of the action,
3) The file number
4) The name of the pleading
The title shall contain the name of the parties
It shall be organized in paragraphs
An attorney's signature represents a certificate of good faith |
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Term
| What is required of an answer? |
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Definition
1) Must respond to allegations of complaint
A) Admit
B) Deny
C) State that you lack sufficient information to admit or deny (acts as a denial, but cannot be used if the information is public knowledge or is in the defendant's control)
NOTE: Failure to deny can constitute an admission on any matter except damages |
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Term
| When must an answer be filed? |
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Definition
Filed within 21 days of service of process or
If the defendant has timely waived service, within 60 days after the request for waiver was sent
An answer to a counterclaim or cross-claim must be served within 21 days after being served with the pleading that states the counterclaim or cross-claim |
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Term
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Definition
| must be requested in writing no later than 10 days after service of the last pleading directed to a jury triable issue. |
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Term
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Definition
o complaint → if pleading requires an answer, can amend once without leave of court at any time prior to the filing of an answer; after, need leave of court, but policy is to allow amendments as long as it does not prejudice the other parties.
o relation back → will relate back to original complaint if adds a new claim that arises from the same conduct, transaction, or occurrence; will relate back if adds a new party if the new party receives notice of the addition to the suit w/in 120 days of the filing and the new party is not prejudiced and knew/should have known that but for a mistake in identification he would have been the named party. |
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Term
| Can a plaintiff amend his pleadings? |
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Definition
| The plaintiff has a right to amend within 21 days after the defendant serves her first response. |
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Term
| Can a defendant amend his pleadings? |
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Definition
| The defendant has a right to amend within 21 days of serving his answer. |
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Term
| What are grounds for a 12(b) motion to dismiss? |
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Definition
Lack of subject matter jurisdiction -- any time, never waived
Lack of personal jurisdiction -- waived unless first raised in Answer or pre-answer motion
Improper venue -- waived unless first raised in Answer or pre-answer motion
Insufficiency of process -- waived unless first raised in Answer or pre-answer motion
Failure to state a claim -- any time, never waived, even at trial
Failure to join an indispensible party -- any time, never waived, even at trial
Insufficient service of Process -- waived unless first raised in Answer or pre-answer motion |
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Term
| • 12(c) motion for judgment on the pleadings |
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Definition
| cannot be filed until all pleadings are filed; the 12(c) motion alleges that the pleadings warrant a judgment for the moving party as a matter of law; if the motion refers to matters outside of the pleadings, then treat as a MSJ. |
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Term
| • Rule 11 Motion for Attorney or Party Unreasonableness |
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Definition
all pleadings must be signed by attorney or party; signing = certification that to the best of the signor’s knowledge, information, and belief formed after reasonable inquiry, the paper being filed is not being interposed for an improper purpose, the claims and/or defenses are warranted by existing law or by a nonfrivolous argument for its extension, modification, or reversal, and that allegations have evidentiary support.
o motion for sanctions → if Rule 11 is violated, then can be sanctioned; a party cannot file until 21 after serving the motion on the opposing party and the challenged paper has not been withdrawn or amended.
o not applicable to discovery matters |
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Term
| • required disclosures/initial disclosure |
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Definition
must disclose identity of witnesses and documents that the disclosing party may use to support its claims or defenses; do not have to disclose if used solely for impeachment purposes
duty to disclose is continuing; failure to comply is automatic exclusion
Experts
- Must Identify Experts who may be used at Trial and produce a written
report containing opinions, data used, qualifications, compensation for
study, etc. |
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Term
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Definition
| must make initial disclosure w/in 14 days of the discovery conference and the pretrial disclosure at least 30 days before trial |
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Term
| Does it include electronic information? |
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Definition
| includes electronic information as long as producing it does not result in an undue burden or costs. |
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Term
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Definition
oral examination or written questions; can take 10 without leave of court
initiate by filing a notice of deposition and serve on counsel of record |
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Term
| Are non-parties compelled to attend a deposition? |
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Definition
Not unless they are served with a subpoena.
Subpoena duces tecum --
Requires the deponent to bring material with her to the deposition. |
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Term
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Definition
1) generally, a deposition can always be used to impeach a trial witness
2) a deposition of a party or representative of an organization, then can use for any purpose by the opposing party
3) deposition may be used for any purpose if:
- the witness dies before the trial
- the witness lives more than 100 miles from the place of trial
- witness is outside the country without the contrivance of the offering party
- the witness is unable to attend because of age, infirmity, or imprisonment
- or the party is unable to procure attendance by subpoena. |
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Term
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Definition
can be used for discovery against a party; maximum of 25 are allowed but can get more with leave of court
have to be answered in writing and under oath
answering party can offer to give access to business records in lieu of answers provided that the burden is substantially the same as providing the answer. |
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Term
| • production of documents and things |
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Definition
A request for the production of documents or things or permission to enter upon land -- you have to describe the item or category of items sought with reasonable particularity
May be served on any party, and the party must have possession, custody or control of the documents, things, or property sought to be inspected
Subpoenas may be served on non-party witness to produce |
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Term
| • mental or physical examination |
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Definition
When the mental or physical condition of a party is in controversy, a court may order a party to submit to an examination by a physician, psychologist, or other certified examiner;
mental or physical condition of a party must be at issue;
must make a motion and have a hearing; move must show good cause. |
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Term
| • requests for admissions |
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Definition
Request for admissions may be sought by any party. Admitted matters are conclusive in litigation
party must admit or deny and things admitted are deemed conclusively proven in that litigation. |
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Term
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Definition
| matters relevant to the claim or a defense of any party – does not matter if admissible at trial; test is whether or not the thing sought to be discovered is reasonably calculated to lead to the discovery of admissible evidence. |
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Term
| • commencement of discovery |
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Definition
| does not commence until the discovery conference which is approximately 99 days from the date of service of the complaint. |
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Term
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Definition
| protects the mental impressions of the parties and their agents and documents prepared by them in anticipation of litigation |
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Term
| to obtain evidence protected by the work product doctrine |
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Definition
have to show a substantial need and an inability to obtain by any other means;
After parties confer in good faith effort to resolve discovery dispute, a protective order may be entered to protect against disclosure of "mental impressions, conclusions, opinions, or legal theories of an attorney or another representative of a party concerning the litigation"
have to give notice that withholding the evidence b/c of the work product claim. |
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Term
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Definition
failure to comply can result in
- contempt,
- deeming facts in dispute admitted,
- striking pleadings,
- denial of opportunity to present evidence,
- dismissal,
- and default;
- also includes expenses and attorney’s fees.
o motion for → must certify that the moving party conferred in good faith with the other party in an effort to obtain discovery without court intervention; sanctions for failure to comply with disclosure rules is self-executing. |
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Term
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Definition
Rule 26(f) Meeting
- At least 14 days before scheduling conference, the parties meet to discuss claims, defenses and settlement.
Must form a Discovery Plan and Present it to the
court in Writing within 10 days
B. Scheduling Order
- Court Enters an Order scheduling CUT-OFFS for Joinder, Amendment, Motions,
etc.
C. Pre-trial Conference
- Court holds a pre-trial conference(s) as needed to Expedite the Case and Foster
Settlement. A FINAL pre-trial Conference determines the issues to be tried and
evidence to be admitted. Recorded in the pre-trial conference order is stuff that
supercedes the pleadings; may be amended ONLY to prevent manifest injustice
• pre-trial conference → set schedules for discovery, briefing, conferences and other matters; secure pretrial stipulations for uncontested facts; decide evidentiary matters; regulation of expert testimony. |
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Term
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Definition
no genuine issue of material fact and mover is entitled to judgment as a matter of law;
may be filed at any time by any party until 30 days after the close of discovery;
support with affidavits and, if filed after discovery, discovery material;
if mover meets his burden of proof, then the burden shifts to the opponent to come forward with evidence that supports his claim or defense or else MSJ will be granted;
facts are construed to the benefit of the non-moving party; judge cannot weigh the evidence.
o if filed by Π → must prove each and every element of his claim and defeat any defenses to the “no genuine issue of material fact” standard.
o if filed by Δ → point to a lack of evidence to support some essential element of the Π’s claim so that there is no genuine issue of material fact. |
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Term
| • judgment as a matter of law |
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Definition
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Term
| • judgment as a matter of law |
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Definition
may be made at any time before the motion is submitted to the jury; specify the judgment sought and the law and facts that entitle the mover to judgment; when you file during the trial, you preserve your right to renew the motion most-trial;
o standard for granting → once a party has been fully heard on an issue, if the court finds that a jury could not have a legally sufficient basis for finding for the nonmoving party, then the court must grant the JML.
o renewal after trial → if denied, then the mover can renew w/in 10 days of the entry of judgment; court can either allow the verdict to stand, order a new trial, or grant JML. |
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Term
| • certification of partial final judgment |
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Definition
| an order determining the merits concerning fewer than all of the claims or dismissing fewer than all of the parties is not a final judgment and is not appealable unless the trial judge makes and express determination that there is no just reason for delay and makes an express direction for entry of judgment; court of appeal also has to grant the appeal. |
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Term
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Definition
| • at close of evidence a party may file a written request for jury instruction |
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Term
| • objections to jury instructions |
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Definition
| must make objections and state them on the record before the jury retires for deliberation or the objections are waived unless the instructions are plain error. |
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Term
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Definition
• voluntary dismissal → Π may dismiss without prejudice prior to answer or if both parties so stipulate after answer IF hasn’t already been a prior voluntary dismissal of the same action.
• involuntary dismissal → normally with prejudice unless for a jurisdictional defect, venue defect, or nonjoinder of a necessary and indispensible party
• judgment on partial findings → in a bench trial, at the close of the Π’s case in chief, Δ may move for dismissal, and if the evidence cannot support a judgment in favor of the Π after the court weighs evidence and draws inferences, then the case will be dismissed with prejudice. |
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Term
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Definition
| only granted when the judgment is against the clear weight of the evidence; must move for w/in 10 days from the entry or judgment. |
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Term
| • motion for relief from judgment |
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Definition
o Must be made no more than 1 year after judgment →
- mistake, inadvertence, surprise or excusable neglect;
- newly discovered evidence which could not have been found by due diligence in time to move for a new trial;
- fraud, misrepresentation, or other misconduct by the adverse party.
o filed within a reasonable time → judgment is void; judgment is satisfied, released or discharged; any other reason justifying relief from the judgment. |
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Term
| Appeals from a Final Judgment -- time and method for appealing |
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Definition
file notice of appeal with the clerk of the district court w/in 30 days from the entry of an appealable judgment.
o suspended by → motions for JML, new trial, alter or amend judgment, relief from judgment.
o may reopen time for appealing → if a party does not receive notice of entry of judgment w/in 21 days, then court may reopen the time for appealing if a motion is filed w/in 7 days of discovery of the entry of judgment. |
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Term
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Definition
an automatic stay of execution is entered until 14 days after the entry of judgment
judge has discretion to enter a stay after the automatic stay has terminated upon motion of a party and making proper arrangements for security from the judgment-debtor.
o diversity case rule → if appellant entitled to a stay under certain conditions as set forth under state law, then entitled to a similar stay in the federal court under similar conditions. |
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Term
| • essential requirements to have a class action |
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Definition
1) joinder impractical because of numerosity of class; 2) claims of the class members have common questions of law and fact;
3) claims of the class representatives are typical of the members of the class;
4) and class representatives will fairly and adequately protect the interests of the class. |
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Term
| • categories of class actions |
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Definition
o limited fund → multiple claimants to a limited resource or asset (think interpleader) and class members may not opt out; notice optional but desirable.
o injunctive or declaratory relief → primarily in civil rights cases; cannot opt out; notice optional but desirable;
o damages → questions of law or fact common to members of the class predominate and class treatment is superior to other methods of adjudication; must give notice to members of class, and they may opt out. |
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Term
| • effects of class certification |
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Definition
| members are bound by the judgment’s res judicata effect, and cannot dismiss or compromise claim unless court approves and notice is given to class members. |
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Term
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Definition
| if SMJ is based on diversity, then diverse citizenship is decided by looking at the class representatives and not all of the members of the class; to reach the JA, if the suit is against a single Δ, then if one member has the $75,000.01 amount, then under Exxon/Mobile, other class members can rely on supplemental jurisdiction; if does not fit within that doctrine, then each member of the class must meet the JA. |
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Term
| • CAFA Class Action Fairness Act |
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Definition
applies to classes of 100+ and the aggregate amount in controversy is $5 million +; if applicable, the only have to have minimal diversity between one class member and one Δ.
o special removal rules → not subject to 1 year time limitation; all Δs do not have to join in removal; removal proper even if a Δ is a citizen of the forum state; can seek appellate review of a remand order. |
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Term
| Multiparty Multiforum Jurisdiction Act -- jurisdictional requirements |
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Definition
if 75 people killed in a single accident in a discreet location, then only need minimal diversity between a single Π and Δ if…
o seeking remedies for injuries from physical harm; substantial minority of Πs are not citizens of 1 state whose law will govern most claims and the primary Δs are citizens of that state; and the accident either occurred in a state that is different from the residence of 1 Δ, 2 Δs reside in different states, or substantial parts of the accident took part in different states.
• other special rules → nationwide service of process authorized; venue lies in any district where 1 Δ resides; all claimants may intervene as Πs; can remove 1 claim that would have been within MMJA jurisdiction and consolidate with all other claims from the same accident. |
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Term
| Res Judicata Effect of Judgments |
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Definition
• state court judgments → give same preclusive effect in federal court and courts of other states as would be accorded in the courts of the rendering state; if state law gives decisions of administrative agencies acting in a judicial capacity preclusive effect, then federal courts must also.
• federal court judgments → question of federal law, so state courts must look to federal common law in determining the preclusive effect of federal judgments.
Claim Preclusion (res judicata)
You only get to sue on a claim once.
1) Case 1 and 2 were brought by the same claimant against the same defendant
2) Case 1 ended in a valid final judgment on the merits
3) Case 1 and 3 asserted the same claim
--Majority view -- any right to relief arising from transaction or occurence
--Minority view -- there are separate claims for property damage and for personal injuries becasue those are different primary rights
Issues Preclusion (collateral estoppel)
Precludes relitigation of a particular issue litigated and determined before.
1) Case 1 ended in a valid, final judgment on the merits
2) The same issue was actually litigated and determined in Case 1
3) The issue was essential to the judgment in Case 1.. Without this issue, the judgment in Case 1 would have been different
4) Issue preclusion can only be asserted against someone who was a party to Case 1 |
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Term
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Definition
• under Article I powers, Congress can create special federal courts or vest trial jurisdiction in an administrative agency with certain limitations…
o public rights cases can be heard in an Article I court in the first instance;
o private rights cases generally cannot be heard in Article I tribunals if they constitute typical judicial business.
• a delegation of Article III judicial power to an Article I tribunal will probably be okay if some Article III court has the power to review the findings of the Article I court. |
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Term
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Definition
Habeus Corpus is a judicial procedure for challenging the legal authority under which a person is held in custody
• custody requirement → have to be incarcerated, released on bond, or on parole.
• relitigation of constitutional claims → the federal court can reexamine federal constitutional claims even if they were adjudicated in state court; however, cannot raise new constitutional claims for the first time in the petition for a writ of habeas corpus; must have exhausted all state remedies – direct review and post-conviction relief.
o exception → 4th Amendment (unreasonable search and seizures) claims are not reexamined if they have been fully and fairly litigated in state court.
o procedural default → Habeus corpus cannot be used to present new issues of federal law as basis for reversing a conviction, even if issue has been raised in state courts
- Federal courts may only grant habeus corpus on a claim previously adjudicated by a state court when the state court decision was contrary to, or involved in unreasonable application of, clearly established federal law as determined by SC or when the state court decision was based on unreasonable determination of facts
A federal court may not entertain a habeus corpus petition unless prisoner has exhausted state remedies for review of constitutional error, including direct appeal to the state SC court and post conviction methods of review
• AEDPA regulation --> requires that federal courts may only grant habeas corpus on a claim previously adjudicated by a state court where the state decision was contrary to or involved an unreasonable application of clearly established federal law as determined by SCOTUS or when the state decision was based on an unreasonable determination of the facts.
• factual determinations --> determinations of fact by the state court after a hearing supported by a reliable and adequate record are presumed correct, but petitioner may overcome by clear and convincing evidence.
• successive habeas petitions → cannot file a successive habeas petition with new claims without getting permission from the circuit court of appeals.
• venue → where petitioner is incarcerated or where he was convicted. |
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