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civil procedure SJCL(Baz)


undefined, object
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what are punitive damages? what are the guideposts to consider?
Over and beyond compensatory damages. Three guideposts to consider for punitive damages is to weigh the damages on:
·Rephrensibility of Defendant’s Conduct: How horrible is Defendant’s actions? Should he be punished?
·Ratio: is amount awarded substantial between actual and punitive damages? Excludes Defendant’s wealth.
·Sanctions for Comparable Misconduct: Trial judge looks at punitive damages and, if excessive, he can reduce it.
what are the two prongs of due process?
1.Substantative: laws are fair; capable of being understood.
2.Procedural: Notice plus the opportunity to be heard.
what are the two types of remedies?
In order to qualify for equitable relief, you must show what three things?
1.An inadequate remedy of law (the legal remedy would be inadequate)
2.Irreparable harm
3.A balancing of the conveniences of the parties
what is declaratory relief?
Judgment defining the rights of the parties.
what are Lis Pendens Statutes?
a filing in the county to show you have interest in the real property. Can file after a suit begins. Figuring out who the real owner is before anyone makes a claim on that property. Simply puts the world on notice that, “I hold interest in that property.” (If you’re buying the property, you’re buying the lawsuit. Basically makes the property unsalable.)
what is the criteria for pre-judgment attachment?
to follow due process clause:(Same for TRO)
1.Affidavit or declaration based upon personal knowledge
2.Reviewed by a court, a judicial officer (not an administrative officer)
3.Pre-attachment hearing or if there is an exigent circumstance, an immediate post-attachment hearing.
4.Some states require that a company must post a bond.
what is awarding attorney fees pursuant to common fund?
When Plaintiffs have created or preserved a fund of money, they may be allowed to receive fees from that fund. (Federal court)
what are attorney fees awarded according to substantial benefit?
When a group of people receive concrete benefits from a court’s decision, they may be required to contribute to paying fees (e.g., a shareholder suing a corporation. If the shareholder wins, he can recover from the profit of the case to pay for its attorney’s fees.) The people who benefit must have some legal entanglement to each other. (Federal Court)
what is attorney fees awarded persuant to Private Attorney General and what factors are reviewing in their award?
This is the only theory rejected by federal courts. (CA law). May recover on three factors:
i.Importance of public policy interest
ii.Necessity for private enforcement
iii.Number of people must benefit (can’t do it just to serve your own interest)
can attorney fees be awarded in regards to Civil Rights actions?
yes, if you prevail in a civil rights action, you are entitled to attorney’s fees. What if you win on some issues, but not on others? What if it’s a nominal judgment? Grey area.
can someone waive personal jurisidiction?
what is the traditional basis for personal jurisdiction?
what is the significance of pennoyer vs neff?
Jurisdiction over people and things within borders and not outside of boarders.
·Service within the state is both necessary and sufficient to establish jurisdiction over Defendant.
·Created some problems industrially. In state service is no longer expected.
what is in Personam jurisdiction?
A state has jurisdiction over its people within its borders (territories) – brought against a person – e.g., suit for damages arising out of a tort or breach of contract; binds Defendant personally.
what is in rem jurisidiction?
State’s jurisdiction over things/property within its borders; determines ownership, settles rights of all people who claim an interest in the action, is directly against property – including marriage (can get divorce.)
what is quasi in rem jurisdiction?
Settles property rights of only specific people
what is the modern basis for personal jurisdiction?
1. Giving notice
2. Within the grasp of the long-arm statute
3. minimum contacts
4. fairness factors
what is the mullane notice?
Notice must be reasonably calculated, under all circumstances, to inform the interested parties of the pendency of the action.
·Must satisfy means of notice according to statute AND according to the constitution.
what is a long arm statute?
Long arm statute is the power of the court to exercise personal jurisdiction over a Defendant within its long arm statute.
will a federal court use a states long arm statute?
what is the significance of international shoe?
A court may exercise jurisdiction over an out of state (non-resident) Defendant if that Defendant has minimum contacts with the forum state evidencing his presence in that state so that exercise of jurisdiction does not offend traditional notions of fair play and substantial justice.
in cases with foreign defendants that do not have sufficent minimum contacts with any one particular state, may the consideration of the aggregate total of contracts with the U.S. as a whole and if there are sufficent minimum contracts,can a case be brou
yes, but it can be brought in federal court only
the concept of minimum contacts can be seen to perform two related, but distinguishable functions, what are they?
1.Protects Defendant against the burdens of litigating in a distant or inconvenient forum.
2. Acts to ensure that the States, through their courts, do not reach out beyond the limits imposed on them by their status as coequal sovereigns in a federal system.
if there has been continuous and systematic activities related to the state 24/7, jurisdiction...
has never been doubted.
what is a isolated yet related activity in regards to personal jurisdiction?
These activities arise from or are related to the suit. factors we look at are
1. mcgee
2. hanson v deckla
3. volkswagon and asahi
4. purposeful availment
5. fairness factors
what is the significance of mcgee in regards to personal jurisdiction?
sending one letter was purposeful direction because it was the Defendant himself who sent the letter.
what is the significance of hanson v deckla in regards to personal jurisdiction?
no purposeful direction when Plaintiff moved to another state and Defendant simply forwarded Plaintiff’s mail to that state. Defendant had no control over the direction of the mail.
what is the significance of volkswagon and asahi in regards to personal jurisdiction?
1. Merely putting a product in the stream of commerce is not purposeful direction and does not equal minimum contacts.
2. The fact that you know the product will specifically go to another state is not enough to have jurisdiction. You have to cause your product to go to that state.
3. Concept of what the Defendant has done to make it foreseeable to them that they can reasonably anticipate being haled into another jurisdiction?
what is the significance of the fairness factors?
This will illustrate how foreseeable it was for that person to be haled into court
what is the significance of burger king?
A contract is not necessarily a contact in this court
Changed International shoe to a two prong test:
1. Minimum Contacts
2. Fairness Factors (BIPES)
what are the fairness factors?
1. Burden on defendant
2. Interest of the forum state in litigating the dispute.
3. Plaintiff's interest in obtaining convenient and effective relief
4. Efficient resolution of the controversy between the states; the interstate judicial system's interest.
5. Shared interest of the several states in furthering fundamental substantive social policies.
perkins held that held that there is jurisdiction over corporations that have their headquarters in the forum state, even if there is no contact with that state. what decision overruled perkins?
what is the significance of helicopteros?
Decided against Perkins jurisdiction. Held that there is no jurisdiction when there is only continuous and systematic activity within the forum state and it is unrelated to the injury.
·Must still use fairness factors in unrelated yet continuous activities.
·Related contacts are premised on specific jurisdiction.
may isolated or casual and not related contacts establish jurisdiction?
no, These activities are considered to be random, fortuitous and attenuated. Jurisdiction is no good.
what are the three types of circumstances where courts have negated personal jurisdiction using the fairness factors irrespective of what minimum contacts say?
1. corporations
2. international defendants
3. domestic and family law matters
what is subject matter jurisdiction?
jurisdiction over the nature of the case and the type of relief saught. Federal courts canhear federal question or diversity cases.
can subject matter jurisdiction be waived?
no, either the court has it or dosent
in what matters do the federal courts have exclusive jurisdiction?
a. Patents or copyrights.
b. Admiralty law
c. Anti-trusts
d. Bankruptcy
what are the four keys to get into the federal courthouse?
1. Federal question (§1331)
2. Diversity (§1332)
3. Supplemental (§1367)
4. Removal (§1441)
when can lack of subject matter jurisdiction may be raised?
at any time during the proceedings, even on the first time on appeal
can you only attack subject matter jurisdiction by a direct attack in federal courts?
what is concurrent jurisdiction?
both state and federal court have jurisdiction
what is exclusive jurisdiction?
only state court or federal court has jurisdiction
what is a "well pleaded complaint"?
an original or initial pleading that sufficiently sets foth a claim for relief by including:
1. the grounds for the courts jurisdiction
2. the basis for the relief claimed
3. demand for jugment
so that a defendant may draft an answer that is responsive to the issues presented.
is there federal question jurisdiction if Plaintiff is only anticipating a federal defense from Defendant?
for a federal diversity action, what is the minimum dollar amount requested in the complaint?
are attorneys’ fees and costs including interest included in a $75,000 request under diversity?
Will the court measure all of the claims against one Defendant to see if it meets the amount in controversy?
what is aggregation of Claims?
When the Plaintiff has met the amount in controversy, he may add other claims against the same Defendant to the federal court, where they wouldn’t have been heard otherwise
If no single Plaintiff meets the amount in controversy, will aggregation by multiple Plaintiffs satisfy the amount in controversy?
what is the barf for amounts in controversy?
The party seeking to invoke the federal jurisdiction only has to show that there is some possibility that the amount in question exceeds the amount in controversy unless it appears to some legal certainty that the claim is really for less than that.
if the Plaintiff sues in state court for less than the amount in controversy and the Defendant ‘s counter-claim is for more than the amount in controversy, can Plaintiff still remove to federal court?
when is diversity determined?
when the complaint is filed
what is complete diversity?
the named Plaintiffs must be diverse from the named Defendants.
what is domicile?
your permanent residence, which remains your residence until you establish a new one. Citizenship is determined by domicile.
what is dual citizenship for corporations in regards to diversity actions?
a corporation shall be deemed to be a citizen of any State by which it has been incorporated and of the State where it has its principal place of business.
what is the muscle and nerve test?
Must decide, what is their personal place of business?
*The state of incorporation; or
*Their principle place of business
§ If not the headquarters, then we must perform the muscle and nerve test
· If the claim is a contract action, more than likely, the principle place of business would be the headquarters.
· If the claim is a product liability matter, the principle place of business may be the manufacturing center.
what is the significance of an unincorporated association?
citizenship in all states where its members reside. Almost impossible to sue in federal court unless it’s a federal issue
what is alien jurisdiction?
we see it as being a 51st state. So, someone from Spain cannot sue someone from France on a diversity c/a. They are both from the same state. At least one party must be an American citizen; otherwise, there is no jurisdiction
what is the significance of 1332 a(3)
where you have citizens of different states who are diverse, we will ignore aliens put on either side. We don’t care if they are additional parties on Plaintiff’s side or Defendant’s side. So, someone from CA and someone from Spain can sue someone from NY and someone from France in federal court under diversity, even though France and Spain are considered the same state.
what is a resident alien?
an alien who lives in the US permanently is deemed a citizen of the state in which he/she resides.
what is a non-resident alien?
there is automatic diversity and can sue in any federal court.
can a claimant assign their claim in order to create diversity?
can americans living abroad bring a diversity action in federal court?
no diversity because the one living abroad is not a citizen of any state, even though she/he is still an American citizen.
what is supplemental jurisdiction?
Supplemental jurisdiction is afforded to any 3rd party claim, which arises from the same nucleus of operative facts so as to form part of the same case or controversy, even if the requirements for federal question or diversity are not met.
The District Court may decline to exercise supplemental jurisdiction over a claim if:
*The claim raises a novel or complex issue of state law.
*The claim substantially predominates over the claim or claims over which the District Court has original jurisdiction.
*The District Court has dismissed all claims over which it has original jurisdiction.
*There are exceptional circumstances in which the court may decide to decline supplemental jurisdiction.
Once a federal question is before the court, can Plaintiff can bring in pendent claims or parties ?
yes, as long as they arrive from the same nucleus of operative facts.
*If a case is dismissed for want of federal question jurisdiction, every other claim pendent to that is dismissed as well.
what is the significance of ancillary jurisdiction?
*Anytime a Defendant joins an additional claim or additional party, then it falls under ancillary jurisdiction. The Defendant added to the suit must have a direct relationship to the claim.
*Plaintiffs do not get the benefit of ancillary jurisdiction.
what is removal?
Defendant wants case to be heard in federal court when it was originally brought by plaintiff in state court. Can only be removed if it could have been brought in federal court in the first place.
if defendant wants to have case heard in federal court, but it is filed in state court instead, and it is a federal question can it be removed?
if the defendant wants to remove to federal court and it is not a federal question, what must be looked at to remove the action?
1. Not in defendant’s home state
2. All defendants’ must agree
3. Must be removed within 1 year
if the case is removed to federal court from state court, where exactly does the case go?
Case is removed to the federal court in the district where the state court sits
can one defendant remove if he is being sued for something independent where there is more than one defendant?
yes, A removal is not a responsive pleading
In removal, if the claim for which there is a federal jurisdiction is a diversity claim, does the presence of a second claim where there is no diversity defeat the Defendant’s ability to remove to the federal court?
yes, the whole case must stay in state court.
Where the claim for which there is a federal jurisdiction is a federal question claim, and there is another claim that does not meet the federal question jurisdiction, can the Defendant may remove the whole case?
If the state court action is filed in the forum state of one of the Defendants, can the case be removed to federal court?
no the defendant has already had the advantage of his home state's laws.
are federal defenses a basis for removal to federal court?
is removal an appearance on the merits?
no, it does not waive consent to personal jurisdiction. still have to establish personal jurisdiction once the case is removed.
can you defeat removal by adding Defendants to who Plaintiff is suing for the sole purpose of destroying diversity?
what are the three related concepts of consent?
1.Consenting to the jurisdiction of the court (e.g. Carnival Cruise Line): Consenting to jurisdiction is binding.
2.Forum-Selection Clause: tantamount to consenting to jurisdiction. E.g., “Any dispute arising under this agreement shall be litigated exclusively in State X and not elsewhere.”
3.Choice of law: (not the same as consent to jurisdiction) Sometimes parties will not explicitly consent to jurisdiction or have a forum selection clause. However, there will be a choice of law provision. When parties agree to be governed by laws of a particular state.
what is lex loci?
the law of the place; if it is a tort action it would be the law of the place where the tort occurred.
what is lex fori?
law of the forum. Most courts, if not forced to use lex loci, prefer to use their own state’s law. If the court decides to apply their own laws, the forum must have a significant contract or aggregation of contacts to the claims asserted by Plaintiff, so that such an application is not unfair or arbitrary. If a judge was to use lex fori or the balancing test, then there has to be contacts with his state so as not to violate Shoe.
in federal court, when do you have to object to personal jurisdiction?
at the earliest opportunity, or else it is waived
what are the three aspects to appearances?
1. special
2. limited
3. general
what is the significance of FRCP 12(b)(2)?
you must object to personal jurisdiction in your first pleading. If you don’t, you waive your right to contest jurisdiction. If you put your objection to jurisdiction in your answer, you’re expected to bring a motion to have it heard before the court soon after.
what is a general appearance?
Contesting a dispute when jurisdiction is binding on you
what is a special appearance?
When someone comes into court solely to object to jurisdiction
what is a limited appearance?
Attaching someone’s property to try to get them into court, Defendant can make a limited appearance subjecting himself to jurisdiction to the dollar amount of the property he had in the state. “I’m here only in protecting my interest in the $10,000 I have in my property.” No longer exists since it violates Shoe.
what is venue?
·Refers to the place within a jurisdiction in which a given action is to be brought.
·Statutory creation to assure that the court ultimately decides the case is connected somehow to the lawsuit.
what is Federal court 28 USC Sec. 1391(A)
* Where any defendant resides if all from the same state
* Where a substantial part of the events or omissions giving rise to the claim occurred, or where property is situated
* Where any defendant is subject to personal jurisdiction
what is Federal court 28 USC Sec. 1391(B)
venue regarding federal question
Where any defendant resides if all from the same state
* Where a substantial part of the events or omissions giving rise to the claim occurred, or where property is situated
*Where any defendant can be found
what is Federal court 28 USC Sec. 1391(c)
* Where corporation is subject to personal jurisdiction
* If state has multiple jurisdictions, treat jurisdictions as different states, choose jurisdiction where corporation has most significant contacts
who can bring a remand?
plaintiff only
what are some factors that could cause a case to be remanded?
*Cause of action improperly removed
* Lack of subject matter jurisdiction
* Court’s discretion (state law predominates)
NOTE-Must file for remand within 30 days of removal
what are the four rules for a transfer?
1. change of venue
2. cure or waiver of defects
3. multi-district litigation
4. cure for want of jurisdiction
what is 28 usc 1404?
one of the transfer rules
Change of Venue 28 USC Sec. 1404
* Witnesses, Interest of justice, Convenience of parties
* Both courts are proper venue. Take law from original court.
what is 28 usc 1406?
Cure or Waiver of Defects
original court did not have proper venue, the court can dismiss case or transfer it to a court where it can be heard. The new court’s law will govern.
what is 28 usc 1407?
Multi-District Litigation
* Multiple plaintiffs from multiple districts.
* Pre-trial discovery heard before one judge (generally where injury occurred.)
* Judicial panel decides where to hear case.
what is 28 usc sec 1631?
Cure Want of Jurisdiction

Have venue, but no personal or subject matter jurisdiction.
* Can transfer to court with proper jurisdiction.
* Keep filing date from original court.
A court that otherwise is a proper court may decline to exercise jurisdiction where there is an alternative forum (different system) that is better suited to decide the case.
what factors does the court take into consideration concerning forum non conveniens?
Things to take into consideration:
* Witnesses, Interest of justice, Convenience of the parties
Also, the 5-fairness factors:
Burden on the defendant
Interest of the state in resolving disputes
Plaintiff’s interest
Efficient resolution of conflicts between states
Social policy
To satisfy the burden to dismiss on forum non conveniens grounds, Defendant must show that?
*An adequate alternative forum exists; and
*The public and private interest factors weigh heavily in favor of dismissal.
what are Private Interest Factors in regards to forum non conveniens?
1.The relative ease of access to sources of proof;
2.The availability of compulsory process for attendance of the unwilling;
3.The cost of obtaining attendance of the willing;
4.The possibility of view of the premises, if view would be appropriate;
5.All other practical problems that make trial of a case easy, expeditious, and inexpensive.
what are the public interest factors in regards to forum non conveniens?
1.The relative ease of access to sources of proof;
2.The availability of compulsory process for attendance of the unwilling;
3.The cost of obtaining attendance of the willing;
4.The possibility of view of the premises, if view would be appropriate;
5.All other practical problems that make trial of a case easy, expeditious, and inexpensive.
what is the significance of Erie Railroad Co. v. Tompkins (1938)?
·Federal court sits as another state court in diversity cases and will interpret the law, as they believe the state court would decide.
·Federal courts must apply state substantive law and federal procedural law.
for the purposes of erie, are state statute of limitations procedural or substantive?
If there is no decision by the state court involving substantive law, what is the federal court supposed to do in regards to deciding the case?
the federal court must apply what they find to the state law giving “proper regard” to relevant rulings of other courts of the state. In this respect, the federal court may be said, in effect, sitting as a state court.
what is the two prong test of Erie?
*To reduce forum shopping
*To avoid inequitable administration of the laws
what is the significance of Guaranty v. York (1945)?
Outcome-determinative test
– you can’t apply federal procedural law, if it affects the outcome of the case. We want the same result in federal court, as it would have been in state court.
-If the rule determines the outcome, then federal court must follow state law.
-If does not affect the outcome, then the federal court can follow federal law.
what is the concern with the outcome-determinative test?
Problem with outcome-determinative is that there are certain procedural matters that could clearly affect the outcome of the case.
what is the significance of Byrd v. Blue Ride Electric Cooperative (1958)?
"Balancing test.⬝ Balances federal interest vs. state interest.
what was the rationale for byrd being decided?
people were starting to push that outcome determinative test to absurd limits. So the federal court said that the outcome determinative test is not the sole test to be used. "We’ll balance the interests"
what is the three parts of the byrd analysis?
1.Integral part of the state statute
2.Importance of the federal interest
3.Outcome determinative
what is the significance of Hanna v. Plumer (1965)?
·Modified outcome determinative test by saying that if FRCP is on point, apply it (unless the court makes a determination that the FRCP was unconstitutional.)
·FRCP’s are procedural, are good, and prevail over state laws.
can a state procedural requirement state a standard above what the FRCP would require?
what is the significance of Gasperini v. Center for Humanities, Inc. (1996)?
·How do federal courts define excessive damages? Must shock the conscience.
·State courts? Must deviate materially.
what is reverse erie?
Filing a federal question case in state court
in regards to reverse erie, how do we apply substantive and procedural law?
·Substantive law = federal law. Federal question in state court, use federal law.
·Procedural law = state law (except in case of right to a jury trial, since we will always allow federal law for jury trials.)
what are the three burdens for a plaintiff?
1.Burden to plea: Simply enough to show that Plaintiff is entitled to relief in Federal Court. In state court Plaintiff has established facts to constitute a cause of action.
2.Burden to produce evidence (burden of production) Not only does Plaintiff plead it, but also he has to prove it with evidence.
3.Burden of Persuasion: Am I entitled to judgment by the evidence that I’ve produced?
what is notice pleading?
·A short and plain statement of the claim showing that the pleader is entitled to relief. Simply puts Defendant on notice about why he is being sued.
what is code pleading?
·The pleadings actually frame what the issues are at trial.
·Requires a statement of facts constituting a cause of action.
if you’re in a notice-pleading jurisdiction, can you still do a code pleading?
what is frcp 8?
(a) claims for relief
(b) defenses form of denials
(c) affirmative defenses
(d) effect of failure to deny
(e) pleading to be concise and direct: consistency
(f) construction of pleading
what is frcp 9?
(a) Capacity
(b) fraud, mistake, condition of the mind- must be stated with particularity
what is a frcp 12(e) motion?
Motion for a more definite statement
1) Need more info before D can answer.
2) If D answers, D cannot use this.
3) P must respond within 10 days or court will dismiss.

**** not highly favored in court******
what is frcp 12(b) 1?
Objection to subject matter jurisdiction. Can be raised at anytime
what is frcp(b) 2?
Objection to personal jurisdiction. Must be in 1st pleading
what is frcp(b) 3?
Objection to venue. Must be in 1st pleading
what is frcp(b) 4?
Insufficiency of process. Content of service. Must be in 1st pleading
what is frcp(b) 5?
Insufficiency of service of process. Manner of service (left w/child etc.) Must be in 1st pleading.
what is frcp(b) 6?
Failure to state a claim upon which relief can be granted. Can be raised at anytime
what is frcp 15 (a)?
Can amend complaint once before responsive pleading. After responsive pleading, must have leave of court, as long as it arises from the same transaction.
what is frcp 15(b)?
Can amend pleadings to conform to evidence. (ie from negligence to intentional tort)
what is frcp 15(c)provisions?
15c(1) Relation back is permitted by the law that provides the statute of limitations.
15c (2) Claim or defense asserted arose out of the Conduct, Transaction, or Occurrence set forth in original claim
15c (3) Amendment changes party if (2) is satisfied and the new D has received notice so is not prejudiced and knew or should have known that, but for the mistake, the action would have been brought against the party. Must be done within 120 days (120 days from date of service or date of s/l is unsettled.)
what is frcp 15(d)?
Supplemental pleadings-Court may permit plaintiff to include additional things that happened since the original pleading. Need leave of court. Not to cure defects.
what is frcp 11?
FRCP 11 Sanctions

1)Holds to account anyone who signs pleadings. Must give person notice of violation. Court may award sanctions, and doesn’t have to give money to aggrieved party.
2)Safe Harbor- litigant can escape sanctions by withdrawing within 21 days of having service of motion for rule 11.
when can a court decline use supplemental jurisdiction?
1367(C) Court can decline to use supplemental jurisdiction if:
* Exceptional circumstance compels court to decline
* Novel or complex issue of state law
* Dismissed all claims over which it had original jurisdiction (most used)
* Substantial state law claim predominates over federal claim
*It’s the courts discretion whether or not to hear the case (1441, 1367)
what is the significance of free vs abbott labs?
Court should exercise jurisdiction if it can. Interprets 1367(c) to almost be obsolete.
what is frcp 1?
scope of rules-one form of action
* the federal rules of procedure in the united states district courts in all suits of a civil nature whether cognizable as cases at law or in equity or in admiralty... they shall be construed and administered to secure the just, speedy and inexpensive determination of every action
what is frcp 2?
there shall be one form of action to be known as "civil action"
what is frcp 3?
a civil action is commenced by filing a complaint with the court.
what is frcp 4?
(A) FORM. summons shall be signed by the clerk, bear the seal of the court etc
(b) ISSUANCE- upon or after filing the complaint, plaintiff may present a summons to the clerk for signature and seal
(c) service with complaint
(d) waiver of service; duty to save costs of services
what is frcp 5?
what is frcp 6?
What is frcp 7?
(a) pleadings
(b) motions and other papers
(c) demurrers, pleas, etc abolished
what is frcp 10?
(a) captions-names of parties
(b) paragraphs seperate statements
(c) adoption by reference; exhibits
what is frcp 12?
Objections and defenses
*12(b) 1- Objection to subject matter jurisdiction. Can be raised at anytime.
*12(b) 2- Objection to personal jurisdiction. Must be in 1st pleading.
*12(b) 3- Objection to venue. Must be in 1st pleading.
*12(b) 4- Insufficiency of process. Content of service. Must be in 1st pleading
*12(b) 5- Insufficiency of service of process. Manner of service (left w/child etc.) Must be in 1st pleading.
*12(b) 6- Failure to state a claim upon which relief can be granted. Can be raised at anytime. (Watch for conversion to 12 (c), and R56 [summary judgment].) (precludes future suits)
what is frcp 14?
(A)WHEN DEFENDANT MAY BRING IN A THIRD PARTY- at any time after a commencement of the action a defending party, as a third party plaintiff, may cause a summons and complaint to be served upon a person not a party to the action who is or may be liable to the thirdparty plaintiff for all or part of the plaintiffs claim.
(b) when plaintiff may bring in a third party- when a courterclaim is asserted again a plaintiff, the plaintiff may cause a third party to be brought in under circumstances which under this rule would entitle a defendant to do so
what is 28 usc 1331?
Federal Question (1331)-Federal courts can hear cases arising under a federal question (constitution, treaties, acts of congress.)
1.Well-pleaded complaint arising under the constitution, treaties, or acts of congress.
2.Congressional intent- did congress intend a private right of action or is a private remedy given.
what is 28 usc 1367?
1367(C) Court can decline to use supplemental jurisdiction if:
* Exceptional circumstance compels court to decline
* Novel or complex issue of state law
* Dismissed all claims over which it had original jurisdiction (most used)
* Substantial state law claim predominates over federal claim
*It’s the courts discretion whether or not to hear the case (1441, 1367)
what is 28 usc 1441?
(a) any mater brought into federal court which has original jurisdiction may be removed by the defendant to the district court
(b) any civil action which the district courts have original jurisdiction founded on a claim or right arising under the constitution treats or laws of the united states shall be removable without regard to the citizenship or residence of the parties.
(c) the court may at is discretion determine all issues before it, or in its discretion remand all maters in which state law predominates.
do plaintiffs get the benefit of Rule 14, 19, 20, and 24 in regards to supplemental jurisdiction?
what is a compulsory counterclaim?
frcp13a- a claim that must be filed that arises out of the same transaction or occurance. The court alway has smj over these claims
what is a permissive counterclaim?
frcp 13b- a pleading may be filed against an opposing party. It us unrelated to the original cause of action. Must have subject matter jurisiction.
once a party has filed a crossclaim, can they file an additional claim that is unrelated to the cross claim?
yes so long as you have independent subject matter jurisdiction.
are 13g's always permissive?
yes, so you dont have to raise them at that the time of the orignal claim. you can bring a lawsuit later.
Once the underlying jurisdictional claim is dismissed on the merits, does the court have the discretion to hear the 13 g claim?
yes the court has discretion
If a claim was dismissed on the merits, can the 13g be dismissed?
no, the court already has jurisdiction
May persons other than those made parties to the original action be made parties to a counterclaim or cross-claim?
in accordance with the provisions of rule 19 and 20 can be made parties.
Can 13h's only be attached to a counterclaim or cross-claim?
What is the logically connected test?
Courts can go to a more broad definition of "out of the same transaction or occurrence" and say that a claim is compulsory because the relationship is so close; logically connected. Courts will allow this under 13a
When may a defendant bring in third party?
Rule 14: at any time after commencement of the action a defending party, as a third-party Plaintiff, may cause a summons and complaint to be served upon a person not a party to the action who is or may be liable to he third party plaintiff.
Pursuant to Rule 14, may a third-party defendant assert any claim against the plaintiff arising out of the transaction or occurrence.
Yes, so long as the court has subject matter jurisdiction of the plaintiff's claim against the third party plaintiff
Are rule 14 claims always permissive?
May a plaintiff take the benefit of supplemental jurisdiction under rule 14 if he is being countersued against?
yes, this is because he is in the posture of a defendant.
When may a party join a claim pursuant to rule 18?
a party asserting a claim to relief as an original claim, counter-claim, cross-claim, orthird-party claim, may join, either as independent or as alternative claims, as many claims, legal equitable, as the party againstan opposing party
what is the question we must ask in consideration of rule 18 joinder of claims
does the court have the power to decide that claim? it requires a determination of subject matter jurisdiction
May a single plaintiff aggregate the claims to equal the amount in controversey?
Once you have a claim against someone, may you join other claims against that person?
yes pursuant to 18a. the 13b can be filed by itself without having any other claims pending first.
what is rule 19
Persons to be joined if feasible.
what are the factors the court looks at to join people pursuant to rule 19?
1. In the person absense complete relief can not be granted
2. the persons claims an interest relating to the subject of the action and is so situated that the deposition of of the action may: imped the persons ability to protect that interest: increase the chance of parties incurring doubl, multiple or otherwise inconsistent obligations:
what does the court do if joinder is not feasible pursuant to rul 19?
the court will look at the following factors:
1. to what extent a judgment rendered in the persons absence might be prejudicial to the person or those already parties
2. the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures the prejudice can be lessened or avoided
3. whether a judgment rendered in the persons absence will be adequate
4. whether the plaintiff will have an adequate remedy if the action is dismissed for non joinder
what is a necessary party?
we join them if there is personal jurisdiction and subject matter jurisdiction. We do this to:
1. provide complete relief
2. to avoid prejudice
Howdo we get around not dismissing the case if the other party was truly a necessary and indispensable party?
under rule 14, and section 1367 defendant has benefit of bring in another for indemnity and it wouldnt destroy diversity.
Everytime you add a new party to a lawsuit, must what you ascertain?
1. are they a proper party
2. Personal jurisdiction
3. subject matter jurisdiction
what is the barf for the mullane notice
personal jurisdiction is the power of a court to make a binding order against a defendant by giving notice within the grasp of the states long arm statute. The notice must be reasonably calculated to inform the defendant as to why he is being sued.
discuss a motion for summary judgment?
a motion for summary judgment is appropriate when there is no disputed issue of material fact so the case can be decided as a matter of law
what is the scope of discovery?
the scope of discovery extends to any material, not privileged, relevant to the claim or defense of any party
what are the two types of privileged information?
attorney client
work product
what are the two levels relating to attorney work product?
absolute privilege- the attorneys notes, theories and mental impressions of the case is privileged.
Everything else (witness statements, sketches of the scene) are qualifiedly priviledge: to get them it must be proved: that there is a substantial need, and that it is unavailable
discuss removal
when the defendant wants the case to be heard in federal curt instead of a state court. it can only be removed if the case could have been filed there in the first place

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