Civil Procedure Flash Cards

Civil Procedure
Personal Jurisdiction
1.
Civil Procedure
Limitations on Personal Jurisdiction
2.
Civil Procedure
3 Types of Jurisdiction
3.
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Personal Jurisdiction
Court’s power over a person or item of property.
I. Personal Jurisdiction
Limitations on Personal Jurisdiction
Must Have
1. A statute granting personal jurisdiction
1a. Jurisdiction assumed cannot exceed limitations of
statute or Constitution
2. Sufficient minimum contacts with forum state such that
assumption of jurisdiction is fair and reasonable.
3. Federal courts analyze personal jurisdiction as if they
were courts of the forum state.
3 Types of Jurisdiction
In personam
Power over the person of a particular defendant
In rem
Power to adjudicate the rights of all persons in the world over
a particular item of property
Quasi in rem
Power to determine the rights of particular individuals with
respect to specific property within the court’s control. Does
not bind the defendant personally; cannot be applied against
other property belonging to the defendant.

Civil Procedure
5 Situations Typically Allowing In Personam Jurisdiction
4.
Civil Procedure
Constitutional Limits on In Personam Jurisdiction
5.
Civil Procedure
Contact
6.

5 Situations Typically Allowing In Personam Jurisdiction
1. Presence: ∆ is present in forum state and is personally

served
2. Domicile: ∆ is domiciled in forum state
3. Citizenship: ∆ is a citizen (but living abroad)
4. Consent: ∆ consents to jurisdiction
5. Long Arm Statute: ∆ is in reach of long arm statute
Constitutional Limits on In Personam Jurisdiction
Traditional Rule: Physical Power

Modern Due Process: Contact + Fairness + Notice
Contact
Sufficient minimum contacts with forum state so that expercise
of jurisdiction would be fair and reasonable.
and
Defendant purposefully availed herself of the privilege of
conducting activities in the forum state
and
Defendant knows or reasonably anticipates that it is
foreseeable that she may be haled into court

Civil Procedure
Fairness
7.
Civil Procedure
Notice
8.
Civil Procedure
In Rem / Quasi In Rem
9.

Fairness
Exercise of jurisdiction must not offend the traditional

notions of fair play and substantial justice.
Is claim related to ∆ ’s contacts in the forum state?
Does ∆ engage in systematic and continuous activity in
forum s?
Is jurisdiction convenient to ∆ ?
Or is it gravely difficult and inconvenient?
Does forum state have a legitimate interest in providing
redress?
Judicial Efficience? Social Policies?
Notice
Best practical means of notice required

Notice must be received
In Rem / Quasi In Rem
In Rem: property within the state only.

Quasi In Rem
• Disputes between parties over property (the property is
the subject of the dispute and is enough to assert jurisdiction)
• Disputes unrelated to the property (need more than just
the property to assert jurisdiction)

Civil Procedure
Diversity Jurisdiction
10.
Civil Procedure
Determining Citizenship
11.
Civil Procedure
Ancillary Jurisdiction
12.

Diversity of Citizenship Jurisdiction
Complete diversity at time of action required.

Interpleader Exception: minimal diversity + $500 in controversy
Alienage Jurisdiction: Alien + Citizen but not Alien + Alien
Diversity at time action commences; not before or after.
Amount in Controversy: >$75,000
II. Diversity of Citizenship Jurisdiction
Determining Citizenship
Individuals: permanent home to which they intend to return.

Children: same as parents.
Corporations: nerve center or muscle test
Foreign corporations: alien or citizen of state in which
principle business is conducted if in business in U.S.
Unions / Trade Associations: every state a member resides in
Ancillary Jurisdiction
Same transaction or occurrence

Asserted by a party other than the plaintiff

Civil Procedure
Intervention
13.
Civil Procedure
Substitution
14.
Civil Procedure
Impleader
15.

Intervention
Traditionally, no need to prove independent basis of jdx

Modernly, must prove supplemental jdx
Substitution
Substitution: citizenship of original party controls

Replacement: citizenship of new party controls
Impleader
3rd party practice

No diversity needed unless π asserts claim against 3rd party

Civil Procedure
Cross Claims
16.
Civil Procedure
“In Controversy”
17.
Civil Procedure
Aggregation
18.

Cross Claims
Co-parties sue each other; same side of the “v”

If no independent SMJ, then use ancillary jdx
“In Controversy”
Collateral consequences, interest, costs DON’T COUNT

Attorney’s fees count.
Interest that is part of claim counts.
Punitives count.
Aggregation
π can aggregate all claims against a single ∆

π can only aggregate against multiple ∆ ’s if they're jointly
liable
Cannot aggregate based on separate or concurrent liabilities
Multiple π ’s can aggregate only if enforcing a single right in
which they have a common or undivided interest.

Civil Procedure
Counterclaims
19.
Civil Procedure
Erie
20.
Civil Procedure
2 Actions That Cannot Be Brought in Diversity
21.

Counterclaims
Cannot combine π claim and ∆ counterclaim to get $75,001

Compulsory counterclaims: can use supplemental jdx
Permissive counterclaims: no ancillary jdx; must be > $75k
Permissive = not from same transaction or occurrence.
Plaintiff in state court with claim <$75,001 cannot remove
based on amount of counterclaim.
π w/ small claim can keep ∆ with big claim in state court by
filing first
Erie
Federal court sitting in diversity applies state substantive law

and federal procedural law
If unclear whether state law is substantive, apply outcome
determinative test: If state law will change outcome, then
apply it unless federal law is arguably procedural.
Twin Aims of Erie:
• Avoid forum shopping
• Avoid inequitable application of law
2 Actions That Cannot Be Brought In Diversity
1. Divorce
2. Probate

Civil Procedure
Multi-Party Multi-Forum Jurisdiction Act of 2002
22.
Civil Procedure
Federal Question Jurisdiction
23.
Civil Procedure
Federal Corporations
24.

Multi-Party Multi-Forum Jurisdiction Act of 2002
At least 75 dead from single accident
Only one π need be diverse with one ∆ and
• 1 ∆ resides in a state different from accident site; or
• Any 2 ∆ ’s reside in different states; or
• Substantial parts of the accident took place in different
states
• Any π may intervene
• Nationwide service of process is allowed
Federal Question Jurisdiction
Arising under the constiution, laws, or treaties of the U.S.

Well pled complaint: not anticipating a federa defense
III. Federal Question Jurisdiction
Federal Corporations
If corporation created by act of Congress, not automatic FQJ

unless U.S. owns >50% of the corporation.

Civil Procedure
Pendent Jurisdiction
25.
Civil Procedure
Venue
26.
Civil Procedure
Venue Rules
27.

Pendent Jurisdiction
Claims: can exercise jdx over state claims if:

1. Common Nucleus Of Operative Facts
and
2. π Would Ordinarily Be Expected To Try All Claims In One
Judicial Proceeding
Okay to hear state claim even if federal claim dismissed
Pendent Parties: ∆ ’s can invoke in FQ or Diversity; π ’s only
in FQ
Venue
Which district courthouse to hear the case in.

SMJ is about power; Venue is about convenience
IV. Venue
Venue Rules
(1) A judicial district where any ∆ resides if all ∆ ’s reside in
same state
(2) A judicial district in which a substantial part of the events

or omissions in controversy occurred; or a substantial part of
the property in controversy is situated
If no district satisfies 1 or 2, then

• Diversity Actions: A judicial district in which any ∆ was
subject to PJ at time action commenced
• All Other Actions: a judicial district where any ∆ is
found
IV. Venue

Civil Procedure
Residence
28.
Civil Procedure
Other Venue Rules
29.
Civil Procedure
Removal
30.

Residence
Individuals  residence = domicile
Corporations  residence = any jdx where subject to PJ
Unincorporated Assns: residence = place of business
IV. Venue
Other Venue Rules
Local action venue = where disputed property is located
Waiver: improper venue waived unless timely objection made
Transfer: for convenience to any jdx where matter could have

originally been filed
Law: apply law of transferor state if original venue proper;

otherwise apply law of transferee state
IV. Venue
Removal
Original jurisdiction necessary
Can remove if case could have been filed originally in fed ct
If removing for diversity, no ∆ can be citizen of state where
action is filed
Federal defense insufficient grounds for removal
State court jurisdiction not needed
Only defendants can remove
Venue in district court where state action is pending
30 day notice required
V. Removal

Civil Procedure
Limit on Defendant’s Ability to Remove
31.
Civil Procedure
Separate and Independent Claims
32.
Civil Procedure
State-Federal Conflicts
33.

Limit on Defendant’s Ability to Remove
If removal for diversity, if one ∆ is a citizen of state where

state court action was brought, cannot remove.
Dismissal of nondiverse party allows removal
IV. Venue
Separate and Independent Grounds
A whole case can be removed in multi-claim, multi-party cases

if they are separate and independent claims.
IV. Venue
State-Federal Conflicts
Pending: A federal court will not enjoin a pending state court

action unless it interferes with a federal court proceeding.
Threatened: A federal court will not enjoin a threatened state

court action unless irreparable harm is clear and imminent
(usually limited to a serious interference with 1st Amendment
rights) and the appellate remedy is clearly inadequate.
VI. Conflict of Jurisdiction

Civil Procedure
Abstention
34.
Civil Procedure
Grounds for Abstention
35.
Civil Procedure
Procedure for Abstention
36.

Abstention
Federal court abstains, retains jdx, requires parties to litigate

in state court
Grounds For Abstention
State law is unclear and could be intepreted to avoid a federal

Constitutional question;
or
I there is a state administrative regulatory plan that would be
disturbed by the federal court taking the case
Procedure For Abstention
Litigants proceed in state court; federal court stays the action.

Civil Procedure
Federal Intervention
37.
Civil Procedure
Service of Process
38.
Civil Procedure
Extensions Never Granted For
39.

Federal Intervention
π must show:
1. Great, immediate, irreparable Harm
2. Bad faith in the prosecution of state action; or
3. Harassment or other unusual circumstances calling for
federal equitable relief
Service of Process
Non-party over 18; in person; agent; left at principle residence

By mail if service waived under Rule 4(d)
Service for parties outside the forum state:
Long arm statute
3rd party ∆ or required parties within 100 miles
Interpleader
Foreign for Fed. Ques. if sufficient minimum contacts with U.S.
VII. FRCP
Extensions Never Granted For:
Renewed JMOL
Motion to Amend Judgment
Motion for New Trial
Each are limited to 10 days; no extensions permitted
VII. FRCP

Civil Procedure
Interlocutory
40.
Civil Procedure
Complaint
41.
Civil Procedure
Pre-Answer Motions
42.

Interlocutory
Preliminary Injunctions: to preserve status quo; notice and a

hearing for adverse party required.
TRO: Irreparable harm; effort to notify; bond. 10 day max.
VII. FRCP
Complaint
Statement of Jurisdiction
Short statement of the claim showing π entitled to relief
Demand for judgment and relief
VII. FRCP
Rule 12(b) Motions

(i) Lack of Subject Matter Jdx Anytime
(ii) Lack of Personal Jdx
∆ must file first time
(iii) Improper Venue
he files a motion or
(iv) Insufficiency of Process
answer, whichever is
(v) Insufficiency of Service of
first. If not, waived.
Process
(vi) Failure to state a claim upon
which relief can be granted Anytime prior to trial
(vii) Failure to join an or at trial
indispensable party
VII. FRCP

Civil Procedure
Answer
43.
Civil Procedure
Counterclaims
44.
Civil Procedure
Inconsistent Claims or Defenses
45.

Answer
Must deny or admit each averment of the complaint

Failure to deny constitutes admission.
Must state any affirmative defenses raised.
If no Rule 12 motion, must answer within 20 days of service
If service waived must answer within 60 days of waiver request
If Rule 12 motion filed, must answer within 10 days of court’s
denial or postponement of the motion
VII. FRCP
Counterclaims
Compulsory
Same transaction or occurence
Use ancillary jurisdiction to overcome diversity
Permissive
Any claims
VII. FRCP
Inconsistent Claims or Defenses
Okay
VII. FRCP

Civil Procedure
Reply
46.
Civil Procedure
Amendments and Supplemental Pleadings
47.
Civil Procedure
Relation Back
48.

Reply
Only required by π if ∆ counterclaims.

Due within 20 days of service of answer or order of court
VII. FRCP
Amendments and Supplemental Pleadings
One free amendment before response is served

If no response served, within 20 days of service of pleading
Thereafter, upon leave of court
VII. FRCP
Relation Back
Same Events: Amendments relate back to the date of the
original pleading if the same events are involved.
New Parties: Relates back if new parties added and within the
time for service of process, if new party had sufficient notice
and knew or should have known that but for a mistake, they
would have been named in the original complaint.
New Events:Supplemental pleadings related to events occurring
after the original pleading require permission of the court
VII. FRCP

Civil Procedure
Rule 11 Certification
49.
Civil Procedure
Rule 11 Sanctions
50.
Civil Procedure
Compulsory Joinder of Parties
51.

Rule 11 Certification
Attorney certifies to the best of their knowledge, after

reasonable inquiry, they are informed and believe:
1. Not presented for improper purpose (harassment, etc.)
2. Basis in law or non-frivolous argument for change in law
3. Allegations have or will have upon discovery, evidentiary
support
4. Denials are warranted on the evidence or lack of
information as noted
VII. FRCP
Rule 11 Sanctions
Violation of Rule 11 certification can result in sanctions:

Sua sponte
On motion of opposing party after serving proponent with 21
day warning notice
VII. FRCP
Compulsory Joinder of Parties

1. Complete relief can't be granted to existing parties in his
absence; or
2. Disposition in non-party’s absence impairs his ability
protect his interests; or
3. Whether judgment in the party’s absence would be
adequate; and
4. Whether the plaintiff will be deprived of an adequate
remedy if the action is dismissed
VII. FRCP

Civil Procedure
Where Joinder of Parties is Impossible
52.
Civil Procedure
Permissive Party Joinder
53.
Civil Procedure
54.

Civil Procedure
55.
Civil Procedure
56.
Civil Procedure
57.

Civil Procedure
58.
Civil Procedure
59.
Civil Procedure
60.

Civil Procedure
61.
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62.
Civil Procedure
63.

Civil Procedure
64.
Civil Procedure
65.
Civil Procedure
66.

Civil Procedure
67.
Civil Procedure
68.
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69.

Civil Procedure
70.
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71.
Civil Procedure
72.


Civil Procedure Flash Cards

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Civil Procedure

Limitations on Personal Jurisdiction

More Free Outlines: http://c.finamore.home.comcast.net or http://finamore.net

Court’s power over a person or item of property.

Limitations on Personal Jurisdiction

More Free Outlines: http://c.finamore.home.comcast.net or http://finamore.net

5 Situations Typically Allowing In Personam Jurisdiction

Constitutional Limits on In Personam Jurisdiction

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1. Presence: ∆ is present in forum state and is personally

Constitutional Limits on In Personam Jurisdiction

Traditional Rule: Physical Power

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In Rem / Quasi In Rem

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Exercise of jurisdiction must not offend the traditional

Best practical means of notice required

In Rem / Quasi In Rem

In Rem: property within the state only.

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Complete diversity at time of action required.

II. Diversity of Citizenship Jurisdiction

Individuals: permanent home to which they intend to return.

II. Diversity of Citizenship Jurisdiction

Same transaction or occurrence

II. Diversity of Citizenship Jurisdiction

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Traditionally, no need to prove independent basis of jdx

II. Diversity of Citizenship Jurisdiction

Substitution: citizenship of original party controls

II. Diversity of Citizenship Jurisdiction

3rd party practice

II. Diversity of Citizenship Jurisdiction

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Co-parties sue each other; same side of the “v”

II. Diversity of Citizenship Jurisdiction

Collateral consequences, interest, costs DON’T COUNT

II. Diversity of Citizenship Jurisdiction

π can aggregate all claims against a single ∆

II. Diversity of Citizenship Jurisdiction

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2 Actions That Cannot Be Brought in Diversity

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Cannot combine π claim and ∆ counterclaim to get $75,001

II. Diversity of Citizenship Jurisdiction

Federal court sitting in diversity applies state substantive law

II. Diversity of Citizenship Jurisdiction

2 Actions That Cannot Be Brought In Diversity

II. Diversity of Citizenship Jurisdiction

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Multi-Party Multi-Forum Jurisdiction Act of 2002

Federal Question Jurisdiction

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Arising under the constiution, laws, or treaties of the U.S.

III. Federal Question Jurisdiction

If corporation created by act of Congress, not automatic FQJ

III. Federal Question Jurisdiction

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Claims: can exercise jdx over state claims if: