Civpro1

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Civpro1
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2012-04-10 03:11:28
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Civil procedure cooley
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McDonald Civ Pro 1
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  1. What question does personal jurisdiction seek to answer?
    What state or states we can file our lawsuit in, what states have the power to hear this claim.
  2. What does subject matter jurisdiction tell us?
    Whether we have a federal option in our case, whether it falls within the llimited subject matter jurisdiction of federal courts.
  3. What is venue?
    What federal court that we can file in, e.g. in Michigan can you file in the East or Westeren district.
  4. What is the Erie Doctrine?
    A doctrine from the Erie case that tells us what to do in the case of a conflict of federal and state law.
  5. What is pleading?
    the drafting of actual materials needed to file a lawsuit or respond do it.
  6. What is simple joinder?
    the basic rules having to do with the abiltity to join multiple claims in a single lawsuit or multiple parties in a single lawsuit
  7. What is a collateral attack?
    A seperate suit on the validity of a judgement in a case you did not appear, only works on jurisdictional issues.
  8. What were the 3 old pennoyer ways of getting PJ?
    Physical service in the state, attachment of property in the state, voluntary appearance in court.
  9. What were the 3 basic types of in rem actions?
    • Pure in rem: declaration against the property against the whole world
    • Quasi in rem: Declaration of the propert as pertains to a single dispute and lawsuit.
    • Quasi in rem 2: where property is attached soley for the purposes of getting jurisdiction.
  10. What is the civil status exception?
    States have the authority to deterimine the civil status of a person in that state (e.g. divorced) regardless of what effect that has on the status of others.
  11. What standard did international shoe create in PJ?
    Created the minimum contacts standard, such that the maintanance of the suit doesn't offend traditional notions of fair play and justice.
  12. Define specific and general jurisdiction?
    • Specific: jurisdiction that comes from obligation related to a specific activity in the state.
    • General: jurisdiction that comes from so much activity in the state that any kind of case can be brought.
  13. Where are individuals and corporatoins always subject to suit (general jurisdiction?)
    • Corps: Where they're incorporated
    • Peeps: Where they're domiciled
  14. When is a person domiciled (When are they citizens of a state?)
    When they are a resident of a state with the intent to remain a resident in that state. That is their domicile.
  15. Is it possible for a person to be subject to general jurisdiction no where?
    Yes, if they are an American citizen domiciled over seas, they don't meet the definiton of the citizen of any state or citizen of a foreign nation, therefore, no general jurisdiction anywhere.
  16. What situation can never create a purposeful contact?
    The unilateral acts of a third party, even if unintentioanl contact is created.
  17. What are the reasonableness factors for PJ?
    • Burden of defendant
    • Plaintiff's interesting in conveneint and effective relief
    • Forum state's interest in adjudicating
    • Interstate judicial system's interest in efficient resolution
    • Shared intereswt in the several states of furthering social policy.
    • Please Bring Falco Interesting Sandwiches
  18. What was Brennan's dissent in World Wide Volkswagen?
    That either minimum contacts or reasonableness should establish personal jurisdiction. This is not law, though.
  19. what is the stream of commerce theory in personal jurisdiction?
    When you introduce something into the stream of commerce with the expectation that it will be sold in that state. Must arise from an effort to serve that market directly or indirectly
  20. What is removal?
    Moving from state to federal court.
  21. What are the kinds of contacts required for general jurisdiction?
    Substantial, systematic, and continuious (not continual) contacts with the state.
  22. Define systematic and continuious
    Organized, day to day operations that are uninterrupted.
  23. What did brennan try to do in helicopteros?
    Create a middle tier of jurisdiction, wherein claims that related to acts done within the state were subject to PJ. Tried to seperate arises out of or relates to into seperate catergories.
  24. What was the new Good year PJ standard?
    For general jurisdiction, a business must feel "at home" They must be either in a center of white collar or a center of blue collar work, or where they incorporated.
  25. Flow Chart of PJ?
    • Looking first for minimum contacts (not a step in the analysis, just the overall standard)
    • First we look for purposeful contacts. If no, no PJ
    • If yes, we look for predictability both general and specific. For general, we ask if the contacts are substantial, systematic, and continous. If yes, GJPJ, if no, we go to
    • Specific jurisdiction: Did the claim arise out of or relate to behavior in that forum state? If yes, SJPJ if no, no PJ.
    • If we found either GJPJ or SJPJ, then we do a fair play and substantial justice test. (Please Bring Falco Interesting Sandwiches) When minimum contacts are well estasblished, low weight given to reaonsabless test, if tenuous, high weight given to the test.
  26. What are the 3 ways to show purposeful contacts in PJ?
    Direct contacts, stream of commerce theory, effects test.
  27. What are the two different o'connor and brennan stream of commerce standards?
    Brennan: must show awareness that product would be sold to consumers in that state, O'Conner says awareness + some additional measure showing that you intended it to be sold in that state (advertising, etc.)
  28. What are the two super factors in reasonableness?
    Forum State and Plaintiff's interests.
  29. What is the effects test?
    Applies only to intentional torts, must have knoweledge that the effects of that conduct, the harm caused by it, would be felt in the forum state. Must expressly aim the tortious conduct at something within that state. Subjective test.
  30. What is the zippo sliding internet scale?
    • Passive informational: No PJ
    • Interactive site: Have to look at effects on the forum state.
    • interactive commercial sales: Always PJ
  31. How can you use relates to in a PJ case? What about arises out of? How does reasonabless tie in in both cases?
    • Must make an affirmative showing of reasonableness using the interesting sandwiches test for relates to.
    • for arises out of, the defenant can instead use PBFIS to make a compelling showing of unresonableness.
  32. How do your provide notice of a suit?
    Waiver procedure (must show compelling reason not to waive) hand in person, serve usual place of abode to a person of suitable age and discrestion then residing therein. Serve an appointed agent. Can also look at state laws.
  33. What are the rule 12 objections?
    Subject Matter

    Personal jurisdiction

    Improper of Venue

    Insufficency of process

    Insufficency of service of process

    Failure to state a claim.

    Failure to join a party.
  34. When must you bring rule 12 claims?
    Bring them at answer or first pre answer motion, otherwise waived. Only exceptions are subject matter (can be brought any time without any party action) and failure to state a claim( can be brought all the way up to the time of trial)
  35. How do you serve process to a corp?
    Serve an officer, serve the registered agent in their place of incorporation, serve a managing or general agent.
  36. What is federal question jurisdiction?
    Using the well pleaded complaint rule, does the claim arise under the constition, laws, and treaties of the united states? Remember, not looking at possible federal issues or federal defenses, the claim itself must arise under.
  37. What is the well pleaded complaint rule?
    You look for federal ingredients in the allegations essential to state the cause of action, no unneeded parts of anticipated defenses.
  38. What is the only exception to the idea of federal-state concurrent jurisdiction?
    Only when a statute specifically strips the states of the jurisdiction (anti-trust, securites fraud, patents) do the states not have jurisdiction over any potential federal issue.
  39. What is the creation test in federal question jurisdiction?
    You look for the law that created the cause of action, and look at whether it's a federal or state law.
  40. Whats the ingredient that sometimes comes up in federal question jurisdiction?
    Substantiality: can't make frivilous federal claims just to get into federal court, really wanting to adjudicate the serious state claims.
  41. What is diversity jurisdiction?
    subject matter jurisdiction where there are no citizens of the same state(look at domicile) on opposite sides of the V. and the amount in controversy exceeds 75000 dollars.
  42. When do we determine citizenship in a SMJ-DJ case?
    Domicile (physical residence with intent to remain indeifnitely) at time of filing case.
  43. What is the rule for mixing domestic and foreign citizens in DJ?
    Both sides must have one domestic if mixing domestics and foreign on same side.
  44. What is the rule of citizenship of partnerships?
    The partnership is a citizen of each state that the partners are citizens of. If one is US Stateless, then no DJ can be found anywhere.
  45. Where is a corporation a citizen for purposes of DJ?
    Principle place of business (nerve center) and place of incorporation.
  46. What are the two kinds of caes where the federal courts do not have DJ no matter what?
    Domestic relations (divorce, custody, etc) and Probate.
  47. in federal courts, Can you refile in state court if dismissed for lack of SJ? for lack of PJ?
    lack of SJ, yes, always. Lack of PJ, can't refile in same state.
  48. How do we determine amount in controversy?
    Use legal certainty test, presumption of validity, must prove to a legal certainty that claim is really for less to justify dismissal. That they get less in the end is irrelevent, it's a good faith belief that they could get over 75000.
  49. What is aggregation?
    The adding up of claims, one plaintiff may add up all his claims to try to surpass the 75001 threshold. Does not allow combining plaintiffs claims.
  50. What is supplemental jurisdcition?
    • If you have an anchor claim that meets SMJ, you can bring any other claims that is part of the same case of controversy (arise out of the same core of operative facts.)
    • Important, Rachel. Make sure I know both things in there, not just one.
  51. Does court have to exercise supplemental jurisdiction?
    No, it's discrestionary.
  52. What is removal?
    when the defendant has the case removed from state to federal court. Must first give notice, then establish the jurisdiction of the federal court (put down grounds)
  53. What's the exception to removal?
    Can't remove from state where defendant is citizen if jurisdiction is diversity based.
  54. How long do you have to get notice after being served?
    30 days. If the grounds for removal are added to case later (prayer increased,etc.) then you have 30 days from then.
  55. Who must consent to removal?
    all defendants in case.
  56. How do we determine venue with individual defendants?
    Judicial district where any defendant resides if all defendants are residents (same old domicile stuff) of same state.
  57. How do we determine venue in states with multiple districts in the case of corporations?
    We treat each district like a mini state, do a minimum contacts analysis.
  58. Transfer vs. forum non conveniens
    Transfer is when you move to a different district within the same court system, e.g. 6th circuit court to 9th circuit court. Forum non conveneins is a dismissal, telling them to refile in another court.
  59. what are the public and private factors of FNC
    Public: administrative difficulties, interesting in having local controversies adjudicated at home, interest in trial in a familar forum, avoidance of conflict of laws, unfairness of burdening citzens of other forum with jury duty.

    Private: ease of access to proof, avaliaiblty of compulsory process, cost of witnesses attendance, viewing the scene, other practical matters related to makign the trial, eaxy, expeditious, and inexpensive.
  60. Where can you transfer?
    Any court that could have heard the claim or any district to which all parties have consented.
  61. What is forum non conveniens?
    Defendant only motion, dmisses, changes the judicial system completely.
  62. What is the erie doctrine flow chart?
    • If there is no conflict, apply both state and federal law.
    • If there is one, determine teh source. If it's a federal rule of civil procedure, ask if it is constitional? Presumed yes.
    • If it's a federal procedural statutute, is it constitional exercise of power? Presumed yes.
    • If it's a federal practice, use the outcome determative test. If no, apply federal rule
    • If yes, does it defeat the twin aims of erie? If no, federal rule,
    • If yes, balance state and federal interests. If federal interest wins, use federal, if state wins, use state.
  63. What are the basics of a complaint?
    Must have courts name, title, file number designation, name all parties, title of other pleadings, subject matter jurisdiction, short plaint statemnt of claim, demand for relief.
  64. What do federal courts now require after twombly and ichball?
    Fact based pleading, must have sufficient facts to prove your case. Two steps: identify elements not entitled to assumption of truth (legal conclusions) and throw them out. then look at the remaining facts and see if they plausibly form an avenue for relief.
  65. What are the two kinds of pleading?
    • Fact based: state all the facts of the case in order to form your case.
    • Noba style: Short legal conclusions stating cause for relief, facts will come out in discovery
  66. What does rull 11 state?
    Everything must be signed, and all signed materials must be accurate represetnations to the best of a persons knowledge.
  67. What do you do in an answer
    Either admit truth of claims, deny claims, or claim no knoweldge of truth or falsity of claims.
  68. What is the standard for rule 11 violations of dishonest answers?
    No pure heart defense, it's an objective standard, would a reasonable inqury reveal the information?
  69. How long do you have to amend an answer?
    21 days as a matter of course.
  70. How long do you have to answer?
    If you waived service of process, 60 days, if not, 21 days.
  71. Explain default judgement steps?
    First, go to clerk, file affadavit of default. Extablish default, and affadavit stating what they owe you. If sum certain established, clerk cfan grant relief, if not, must apply to court for entry of default. Ask whether they have appeared, if no, granted, if yes, they must be given 7 days notice of default judgement to dispute it. Must still prove damages to the court.
  72. When you may amend your compalint as a matter of course?
    You have 21 days after serving, or if there is a responsive pleading required, 21 days after serivice of the pleading, or 21 days after serivce of rule 12 motion.
  73. When can you relate back to the original date of complaint?
    When defendants should have known that you were suing them, but through some small error, you weren't techniically suing them. Also, when there was notice of the possiblity of this claim being brought, e.g., it's a smaller subset of your larger claim.
  74. When can you do a joinder as a plaintiff.
    A party assering a clai, cross claim or counterclaim may join as independent claims as many claims as it has agaisnt the opposing party. A party may join two claims even thoug one is contingent on the disposition of the other.
  75. What about joinder by defendants?
    • two kinds. compulsory: same transaction or occurance as plaintiff's claim. (must bring, can't bring in seperate suit)
    • Permissive: different transaction/occurrence (court discrestion)
  76. What's a cross claim?
    a claim between two co parties, supplemental jurisdiction exists if needed, and they arise out of the same core of operative facts.
  77. What is a long arm statute?
    A statute that allows a state to bring claims against citizens of other states, some are non limiting, requireing only constiitonal analysis, others are limiting, requring you to follow their state by state rules.
  78. what are the twin aims of erie?
    To prevent forum shopping and make sure that citizens of different states are treated the same
  79. explain the two models of transient jurisdiction
    • Scalia: if you can physically serve them in the state, you have PJ
    • Brennan: if they're in the state, you have minimum contacts.
  80. how do you set aside defualt judgements?
    Under 55c, you must show good cause for your default.
  81. what is the permanent residnet alien jurisdiction stripping provision?

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