Glossary of CivPro
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- What are the three necessary elements of Jx?
- Three types of Base Jx
- In Personam
- CA: venue, generally (not real-property cases)
- Superior Court of county where
- D or any one of many Ds reside at the time of filing
- location where physical injury occurred
- location where K was entered into
- either party resides for a divorce
Or, any county if D is out of state or of unknown residence.
Of, if D is about to leave the state, then P's county, D's county, or any county where D is served notice.
- CA: procedurally, how does change of venue work?
- It's a waivable objection. Motion to transfer.
After that point, however, courts may still allow a discretionary venue change.
- When does a federal court have original Jx over a case?
- When P's COA implicates a Federal Question, and when federal law (statutory or common) has explicitly given federal courts the power to hear cases on that specific question.
- When do Federal courts have exclusive Subject Matter Jx?
- Where it has been granted explicitly by federal law. Otherwise, it is concurrent with State Jx.
- When may a case be removed from State to Federal Court?
- - All Ds must agree.
- Move is made withing 30 days.
- if Federal court has original Jx, citizenship of parties doesn't matter.
- if Federal court does not have original Jx, then no D may be resident of state where original case was brought.
- Requirements for Federal Diversity Jx
- > %75,000 in contention
Not a single P or D reside in same state
Not a Family Law CoA
- When does the Supreme Court have original Jx?
- Cases involving ambassadors (of the US or foreign ambassadors)
Cases where one party is State.
- P brings a suit under diversity Jx, claiming >$75K in damages. P ends up being awarded less than $75K. What ramifications?
- Judge has discretion to impose court costs on P.
- What states is a Corporation deemed to be a resident of?
- State where it is chartered
Principal state of business
- For Fed Diversity Jx, how is amount in controversy calculated?
- Value of the CoA to P, not the cost to D.
Can be a patchwork of claims
- Federal Venue for a a case founded only on diversity of citizenship.
- If all Ds reside in one state, then any district where any D resides.
District where substantial part of the events/substantial part of the property giving rise to the CoA occurred/exist.
- Can federal cases be transferred to another venue?
- Yes, but only to another venue where the case could have originally be brought.
- Generally, what overall challenges are waivable?
- Generally, Base Jx, Notice Jx, and Venue challenges are waivable. Non-venue subject matter challenges are not.
- Federal: What motions challenging Jurisdiction or Venue are not waived if not filed in the answer or initial motion?
- Subject Matter Jx
Failure to state a claim upon which relief can be granted.
- What are the difference between CA and Federal courts, when D wants to challenge Jx?
- CA: CA is tricky because of the general/special appearance difference. Historically, the wrong kind of answer/motion by D would give the court personal Jx automatically. Now, notice challeges can be joined with base and subject matter challenges. But a venue challenge bundled in will waive the personal Jx challenge.
Fed: All challenges come up front. In fact, base, notice, and venue challenges are waived if not challenged up front.
- If a motion to quash is denied, what must D do in a CA court to get a higher court to review the ruling? Federal?
- In CA, a denial to quash is appealed immediately. The appeal must happen within 10 days. After that, D's motion to quash is waived. D must wait for the result of the appeal before filing an answer on the merits.
In a federal court, D does not waive the right to challenge the denial to quash on appeal simply by subsequently pursuing the case on the merits in the lower court. So, D should let the case run its course in the lower court. If D made the motion to quash in that first answer/motion, he will be able to take the issue up again on appeal.
- What is a certification of a ruling?
What must be shown?
- Certification is an immediate appeal to a higher court to issue a judgment on a specific issue. The lower court must approve the party's motion for certify a question, and then the higher court must accept it.
The higher court has a three-part test:
- The question must be controlling (i.e. it might result in a wrongly decided case.)
- There is substantial ground for difference of opinion (e.g. different district court rulings)
- Judgment will materially advance the ultimate termination of the litigation.
- In a federal court where the CoA deals with state law, how should differences in law be resolved?
- Substantive Law:
- State law governs
- If there is a specific Federal statute, then it is used.
- If there is no specific Federal statute, then use the outcome determinative test (forum shopping and unequal application of laws)
- Contrast Ultimate fact pleading with Conclusory and Evidentiary pleading.
- Ultimate Fact Pleading: "D’s willful misconduct, in that, aware that he was drowsy, continued to drive the vehicle with the result that he fell asleep at the wheel causing the accident"
Conclusory pleading states only that D's willful misconduct caused accident, without saying how.
Evidentiary pleading states only facts about the situation without stating that D's misconduct caused the accident at all.
- What is the exception to the need to plead Ultimate Facts in Code pleading?
- Negligence: Often, P has no idea what D did wrong. It is enough for P to say that D negligently caused the injury.
- What are the differences between Federal and Code pleadings?
- The major difference is that Federal pleadings do not have to plead ultimate facts; notice to the party of what causes of action may arise is sufficient. Code pleadings must have a substantively valid prima facie cause of action. Federal pleadings may simply imply what CoAs might exist.
Code pleadings are more lax with negligence.
Federal pleadings must spell out in ultimate facts any CoA regarding fraud or mistake.
- In Code Pleading what are D's possible responses (So what, No, and Yes But)?
Which are waivable?
- So What: Demurrer
- General Demurrer
- Special Demurrer (waiveable)
Yes, But: Affirmative Defense
- In Federal Pleading what are D's possible responses (So what, No, and Yes But)?
Which are waivable?
- So What:
- Motion to Dismiss for Failure to State a Claim
- Motion for a More Definite Statement (waivable)
Yes, But: Affirmative Defense
- What must D do if P has filed a verified complaint?
- If D has a denial in his answer, then D must answer each point in the complaint individually: denied, accepted, or not enough info.
Note: there are verified complaints only in Code Pleading.
- What is the difference between Federal and Code Pleading countersuits?
- Federal counter claim: filed in answer.
Code cross complaint: filed in separate document.
- When must a countersuit be filed?
- if it arises out of the same transaction, then it is mandatory.
if different transaction, then permissive.
- What is ancillary jurisdiction? When does a federal court have/not have it.
- Jx over a counter-claim that would not otherwise be within federal Jx.
If the main case drops out, ancillary Jx remains if the counter-claim was compulsory. If the counter-claim was permissive, no independent ancillary Jx.
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