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###CIV PRO###
2012-07-15 04:06:50

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  1. A courts personal jurisdiction is limited by the state long arm statute in which is sits to having jurisidiction over what five scenarios?
    Defendant is present in the state and served with process

    Defendant has sufficient contacts with the state

    Defendant is domiciled in the state

    Defendant is a US citizen

    Defendant consents to jurisdiction
  2. Constitutional Limitations on Personal Jurisdiction? 
    • Contacts
    • Defendant must have had mimum contacts with the forum such that the exercise of juridiction would be fair and reasonable

    • Fairness
    • Furthermore, the exercise of jurisdiction must not offend the tranditional notions of fair play and substantial justice .

    • Notice
    • Lastly the defendant must recieve notice with and have a chance to appear and be heard.  
  3. For the purpose of personal jurisdiction, what are the 3 factors that go into mimumum contacts?
    Defendant must exibit purposeful availment of the protection of the states laws

    • Defendant must know or reasonably anticipate that activities will make it
    • Forseaeble that she may be hauled into court
  4. Factors that comprise the fairness element of personal jurisdiction?
    Claim is related to the defendants contacts with the forum (Specific Jurisdiction)

    Defendant engages in systematic and continous activity in the forum state such that the defendant essentially at home therein (general jurisdiction). This cannot be based on mere purchases or sales but must be based on presence. 
  5. What two factors go into determining citzenship of an individual for the purpose of diversity jurisidiction?
    Permanent home

    Intent to return or remain there
  6. What is the citzenship of an CORPORATION for the purpose of diversity jurisidiction?
    A corporation has two citizenships:

    1. A corproation is deemed a citizen of every state that it is incorporated in

    2. And where its principle place of business is located 
  7. What is Supplemental Jurisdiction under Diversity Jurisdiction?
    Under a supplemental jurisdiction statute a claim may have jurisdiction even if it is not a federal question or a meet diversity requirements if it has a Common Nucleus of Operative Fact. 

    However, supplemental jurisdiction may never be used to overide complete diversity.

     There are also certain situations that supplemental jursidiction may not be used. 
  8. When may supplemental jurisdiction not be used? 
    1. When it would defeat the complete diversity requirement 

    2. Claims by Plaintiffs against:

             a. Impleaded Parties

             b. Compulsory or permissibly Joined Parties (if unable     to join compusory party this could lead to dimissal)

    4.  By parties who are to be compulsorily joined as plaintiffs

    5. By persons seeking to intervene as plaintiffs  
  9. What three things to remember about amount in controversy?
    Amount is determined by plaintiff's good faith allegation (includes attorney's fees)

    Plaintiff may aggregate amount of all his claims against the defendant or if multiple defendants are jointly and severally liable

    Counterclaims do not count  
  10. If in federal court based on federal question jurisdiction federal law applies.

    In cases in federal court based on diversity jurisdiction the court will have to choose what law to apply. Under the Erie doctrine:
    If there is no conflict between federal and state law, federal law will be used procedurally and state law will be used substantively. 

    If there is a conflict, then if there is an arguably procedural federal directive on point, federal law will apply. 

    If not, court will examine whether the choice of law is outcome determinative or whether the plaintiff was forum shopping, in which case law will be applied.  
  11. Federal Question Jurisdiction is when:
    A civil action arising under the Constitution, federal laws, or treates appears as part of the Plaintiff's cause of action. 
  12. In Federal Question Jurisdiction, courts have suppliemental jursidcition over both:
    Pendent claims and 

    Pendant parties

    even though they do not have federal subject matter jurisdiction if they arise out of the same nucleus of operative fact 
  13. There are three general rules for venue. Venue is proper in any district where:
    Any defendant resides if al defendants reside in the same state 

    A substantial part of the events giving rise to the claim occured

    If no proper venue based on the above, then venue is proper anywhere the defendant is subject to personal jurisdiction.  
  14. For the purpose of venue, a defendant is a resident where: 

    (individuals and corporations) 
    Individuals: domicile 

    Business Entities: anywhere the entity is subject to personal jurisdiction - (long arm statute: act, consent, presence and service, this is not the same for determing diverstiy)   
  15. Removal of a claim from state court is proper when:
    It is the defendant attempting to remove and:

    1. The case could have originally been filed in federal court (fed. question or diversity) 

    2. And if diversity, no defendant is a citzen of the state where the action is filed  
  16. What is the proper procedure for removing a claime from state court? (two considerations)
    Court will determine if a diversity basis if by a preponderance of the evidence the plaintiff's claim is worth more than 75k. If not district court will keep the claim case in state court. 

    The defendant must make the notice of removal 30 days after he recieves notice.

  17. How is proper service made and may parties be served outside the state?
    Proper service is made by anyone over the age of 18 who is not a party to the case. Should be made to  the person byu aternatively may be mailed or left at the house. 

    • Out of state service is proper when:
    • A. 100 miles from the court 
    • B. Permited by federal statute: impleader
    • C. If federal question anywhere if the defendant has Sufficient contacts with the US. 
  18. What three things constitute proper pleading?
    • 1. The grounds for federal pleading 
    • 2. A short statement of the claim showing that the pleader is entitled to relief
    • 3. A demand for judgmeent or relief  
  19. There are two types of counterclaims. What are they are and what is something to remember about the first type?
    Compusory counterclaim. Arises out of the same tranaction or occurence. Must be pleaded or it is barred. Supplental jurisdiction applies here. 

    Permissive counterclaim. May be pleaded but does not have to be. 

  20. What are the two types of joinder?
    Compusory and 

  21. What three considerations go into compulsory joinder of parties? 
    Should the absentee be joined? (complete relief without him? will his absence impair ability to protect his interst? Will his absence leave other parties with risk of multiple or inconsistent obligations?)

    Can the absentee be joined? (if personal jurisdiction will joinder destroy complete diversity?)

    • Should action proceed without the absentee? (extent of prejudice, can it be minimized, adquacy of judgment without absentee)
  22. Permissive Joinder of Parties can happen when:
    Claims arises out of same series or occurences or 

    Ther eis a common wquestion of fact or law common to all parties  
  23. Jouinder of Claims with multiple plaintiffs (class action)
    Numerosity of class such that individual actions impracticable

    Common questions of law or fact to the class

    Named parties interests are typical of the class

    Named parties adequately represent the interests of the absent members and:

    • a. seperate actiosn would create risk of inconsistent results
    • b. injunctive relief is appropriate for the class as a whole or
    • c.  common questiosn predominate 
  24. When does Res Judicata (claim preculsion) bar a subseqent lawsuit?
    When a final judgment on the merits has been rendered on a particualr cause of action 

    Plaintiff is barred from trying same case again later 

  25. When is a different susbsequent cause of action barred barred by collateral estoppel (issue preclusion)
    Judgment for plaintiff or defendant is conclusive in a subsquent action on a diferent cause of action as to 

    issues actually litigated and essential to the judgment of the first action. 
  26. Summary Judgement
    no geniune issue of material fact
  27. Process in Federal Court (A WASP)
    "Abode, Waiver, Agent Service, State Methods, Personal"
  28. Transfer to a different federal court is proper when?:
    New venue proper based on subject matter jurisdiction + discretion
  29. What is the definition of propert Discovery in Federal Court?
    Automatic prompt disclosure
  30. Work Product 
    Attorney's mental impression never; all else - showing
  31. When will a party recieve Summary Judgment?
    When there is no genuine issue of material fact - the burden to prove this is on the moving party
  32. Judgment as a Matter of Law:
    Insufficient evidentiary basis + No reasonable jury could find for that opposing side 
  33. Finality and Appellate Review in Federal Court
    Parties are barred from relitigating claims or issues which they have already fully and fairly litigated
  34. Appellate Review:
    "Only final orders, except partial or controlling legal issues (interlocutory order)"
  35. Procedural vs. substantive choice of law in erie
  36. Be ready to go both ways on SoL:
    • "SoL are traditionally procedural, except if told of 'borrowing statute' -> use shorter time limit, looking at both forum and other state. If applying another state's law which creates substantive right, use that SoL."
    • Modern trend to treat SoL as substantive