Civil Procedure 1

Card Set Information

Author:
luisb6278
ID:
52125
Filename:
Civil Procedure 1
Updated:
2010-12-01 21:46:06
Tags:
civil procedure civ pro
Folders:

Description:
rules
Show Answers:

Home > Flashcards > Print Preview

The flashcards below were created by user luisb6278 on FreezingBlue Flashcards. What would you like to do?


  1. Rule 8
    when filing a complaint, must state why Federal court has SM jurisdiction
  2. FRCP 12(b) (1)-(6)
    • (1) lack of SMJx
    • (2) lack of PJx
    • (3) improper venue
    • (4) insufficient process
    • (5) insufficient service of process
    • (6) failure to state a claim upon which relief can be granted
    • (7) n/a
    • (2-5) are golden (waived via 12(h)(1)
  3. FRCP 11 (a)-(c)
    • (a) all documents must be signed by attorney
    • (b) all motions/pleadings/papers in good faith
    • (c) sanctions: error must have occurred 21 days prior to motion for sanctions; must be used only to deter improper conduct. (usually requires malice)
  4. FRCP 4(k)(1)A
    • Fed Long arm rule
    • Serving a summons or filing a waiver of service establishes PJx over D, who is subject to general jx in the state where the district court is located.
    • - Fed court will use the state's LAS of which it is located.
  5. Long Arm Statutes analysis
    • 1. Determine if D's contacts satisfy state statute.
    • 2. if not, then throw out. If yes, then must pass due process and constitution.
  6. 28 USC 1331

    " subject Matter jx"
    Federal Question

    • district courts have original jx of all civil actions arising out of constitution, laws or treaties of US
    • - per Mottley (RR case) need at least one question of fed law to bring to Fed court under SMJx
    • - potential defenses pertaining to Fed law not enough
  7. 28 USC 1332(a) 1-4

    "diversity"
    • (a) district courts have original jx for civil cases > $75k and is between
    • 1. citizens of different states
    • 2. citizens of US and foreigners
    • 3. citizens of different states and foreigners are additional parties to the case
    • 4. a foreign state as plaintiff and US citizen as D.
    • *an legal alien residents considered citizens of domiciled state.
  8. 28 USC 1441 "removal" (a)-(c)
    (a) a case initiated in state court may be removed by D to fed court in same district if fed court has original jx

    (b) any case with fed original jx, and arising from US constitution, laws, treatises can be removed to fed court regardless of citizenship status.

    (c) when a case has fed question (1331) and joined state law issues, fed court can hear entire case or remand state issues back to state court and only hear fed issues.
  9. 28 USC 1391 (a)

    "Venue for DIVERSITY"
    • (a)(1): district where any D lives, if all D's live in same state
    • (a)(2): where substantial part of events or omissions giving rise to the cause of action occurs (location of property)
    • (a)(3): where any D is subject to PJx at time of action is commenced
  10. 28 USC 1391 (b)

    "venue for FEDERAL QUESTION"
    • (b)(1): same as a1
    • (b)(2): same as a2
    • (b)(3): FALLBACK: in a judicial district where any D is found
  11. 28 USC 1391 (c)

    "corporations"
    • used to determine where a corp is domiciled, not venue
    • - corp deemed to reside where it's subject to PJx at time of suit (principle place of business, state incorporation,
    • - subject to min contacts test
    • -does not establish venue, after establishing domicile, then do 1391a or b analysis to find venue
  12. 28 USC 1391 (d)

    "aliens"
    an alien may be sued in any district.

    must still have PJx
  13. Pennoyer v. Neff
    • two tiers of PJx
    • 1. Physical presence in state
    • 2. Property located in state
    • -or property must be attached at commencement of suit
  14. International Shoe v. Washington
    • Establishes PJx for a non resident D not physically present in forum state when...
    • 1. certain minimum contacts
    • 2. PJx does not offend Traditional Notions of fair play and substantial justice
    • - Systemic and continuous activity that is foreseeable
    • - case extends PJx to corporations not just individuals.
  15. Mcgee case
    - single act done in forum state will satisfy MC if act consisted of D reaching out in forum state.
  16. Hanson v. Deckla
    • - unilateral activity does not establish MC in a forum state
    • -must have purposeful availment: purposely engaged in activities in a state where you will "benefit" from the activities
  17. Shaffer v. Heitner
    • - quasi in rem is unconstitutional if the property is not the subject matter of the dispute.
    • - thus only MC if property is subject matter of dispute.
    • - consolidates en personum and en rem jx via MC.
    • - eliminates quasi en rem jx
    • - consolidates all PJx per ISC (MC and TNFP)
  18. World Wide Volkswagen v. Woodson
    • - Product Liability
    • - Divides MC into 2 inquiries
    • 1. MC initial analysis
    • 2. Fair and Reasonable anaysis
    • ***more later.
  19. MC initial analysis
    • 1. State directed activities
    • 2. foreseeability
    • 3. Purposeful Availment (benefit from forum state)
    • ***While = must have foreseeability and PA
    • ***Brennen = Foreseeability alone
    • - stream of commerce
  20. Fair and Reasonable analysis
    • 1. D's burden
    • 2. P's interest
    • 3. State Interest
    • 4. Interstate judicial system / efficiency
    • 5. Shared interest / social policy
  21. Asahi
    • - products liability
    • - MC analysis 3 views
    • 1. O'Conner Test
    • 2. Brennan test
    • 3. Stevens Test
    • -fair and reasonable same, all agree unfair so case dismissed. but different views on determining MC
  22. MC O'Conner Test
    • - MC require PA
    • - PA is state directed activities and placing product into stream of commerce (foreseeability).
    • - foreseeability = placing product in stream of com.
    • - based on burden to D
    • - without PA, no MC
    • - harder to establish MC with O'Conner because must show foreseeability and state directed activities
  23. MC Brennen test
    • - Foreseeability is enough for MC
    • - Foreseeability = getting a benefit from forum state
    • - based on on states interst
    • - more broad than O'Connor, easier to obtain PJx
  24. MC Stevens Test
    • - MC does not matter
    • - Volume, value, and nature of product (hazard to society)
    • - social policy
  25. Burger King Corp.
    • - K case
    • - choice of law, (not forum selection)
    • - K terms not enough for MC
    • - determine who reached out to whom (PA)
    • - K expressly provides Foreseeability if in terms
    • - MC establish Jx as long as fair and reasonable
    • - if MC are strong, then F/R is presumed,
    • - if MC is weak, then must be strongly unfair
    • - balancing test
    • - analyze MC 1st, if weak then must analyze F/R
  26. Pavlovich
    • - internet hacker code case
    • - Effects Test: modified Brennen test
    • - MC only if you did something in Forum state
    • - posting was passive, thus no MC thus no PJx in CA
    • - ***compare to LL Bean (not passive)
  27. 5th amendment
    • - due process clause
    • - pertains to fed Jx
    • - not state Jx
  28. 14th Amendment
    • - state due process
    • - state equal protection
  29. Burnham

    "divorcee gets sued when visits kids in CA"
    • - Transient presence
    • - Scalia: TP good enough for specific PJx
    • - based on history and precedent
    • - need not always apply MC test per Shoe
    • - Brennen: must analyze per Shoe. D is in CA voluntarily, thus PA, benefited from CA (fire, roads, police, laws)
    • ***use both on exam.
    • *** applies to individuals only, not corporations.
  30. Carnival Cruise

    "consent" and "forum selection"
    • - K case with forum selection clause
    • - issue with consent
    • - Clause is enforceable due to P's interest
    • - considered fair, because no malice and D benefited from cheap prices.
    • - dissent said not fair because not bargained for.
    • - nowdays admiralty law protects consumers, but not company to company.
  31. NOTICE and in Rem Jx

    Mullane case
    • - trustee posts in NY newspaper despite knowing addresses of P's
    • - Due process requires reasonable notice
    • - if D's location is known, must serve
    • - constructive notice not sufficient
    • - if D's location NOT known then constructive notice is OK.
  32. Gibbons v. Brown
    • - Long Arm Statute (LAS)
    • - here FL limited to general Jx only, not specific Jx
    • - found this case unrelated to previous suit against husband, thus no general Jx per LAS of FL.
    • - must determine PJx by 1st analyzing LAS, then do MC test per constitution.
    • - 4k1a
  33. Gator v. LL Bean
    • - Gen Jx
    • - must have substantial and systematic contacts
    • - if MC satisfied, must still pass F/R analysis
    • -
  34. How do you determine if general Jx?
    • - per Gator v. LL. bean
    • - LL Bean made lots of money out of CA
    • - if contacts are "substantial and systematic" = GJx
    • - must still apply F/A analysis to determine if it is fair.
    • - if passes F/A analysis, then you have GJx
    • - Internet dealings analyzed via "sliding scale" test
  35. Sliding Scale Test for internet dealings
    • Elements
    • 1. Business done over the internet
    • 2. Internet contacts with forum state that are substantial and continuous and systematic
    • ***LL bean was determined to have substantial MC to justify GJx in CA
  36. Venue
  37. Forum Non Conveniens
    • - piper aircraft case (scottland)
    • - 2 prong test, determine if foreign process is fundamentally flawed, would prevent fairness
    • then require Parties to consent to foreign court without any SOL limitations.
  38. 28 USC 1367

    "Supplemental Jx"
    • - if Fed ct has original jx over case, can exert Supp Jx over related state issues tied to case
    • - may choose to only hear fed issues and not state issues (ameriquest mortgage co.)
    • -(c) lists reasons why court may not exercise supp jx
  39. 28 USC 1367(c)
    • 1. The claim raises a novel or complex issue of state law
    • 2. State claim predominates case
    • 3. Dist court has dismissed all fed questions issues
    • 4. for any other reasons the court wants

What would you like to do?

Home > Flashcards > Print Preview