Civil Procedure Midterm

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Civil Procedure Midterm
2010-12-07 15:44:08
Civil Procedure Midterm

Midterm Flash Cards
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  1. What does the Massachusetts long arm do?
    lists specific categories of jurisdiction authorization including authorization in suits arising from a defendant’s actions.
  2. Name the Massachusetts long arm categories?
    A. Transacting business in Massachusetts,

    B. Contracting to supply goods or services in Massachusetts,

    C. Causing tortious injury by an act in Massachusetts,

    D. Causing a tortious injury by an act outside Massachusetts if the defendant regularly does business or engages in a persistent course of conduct or has substantial revenues derived from goods used in Commonwealth.

    E. Also authorizes PJ over persons domiciled in or corporations organized under the laws of or having a principal place of business in MA.
  3. How do you determine sufficient minimum contacts in the forum state?
    • (1) Is the activity by D in the forum state such that
    • he would reasonably expect to hailed into court there?

    • (2) Did D intentionally avail himself of the activity so that he purposefully availed to benefits and
    • protections of law? (roads, EMS, etc) OR
    • was the activity Purposefully Directed
    • towards forum state?

    • (3) Relatedness: To determine (1) & (2) must
    • look at nature and extent of D’s forum activity (both related and unrelated): Are the contacts sufficiently related to the cause of action?
  4. What are the reasonableness/ convenience factors?
    (1) Burden on the D

    (2) P’s interest in obtaining convenient/effective relief

    (3) Forum states interest in adjudicating dispute

    (4) Interstate judicial efficiency (where all the witnesses and evidence are)

    (5) Shared states interest in social policies (policy all states should share)

    (6) Who has the burden of proof?
  5. What are the rules for evaluating Minimum Contacts and Reasonableness/ Convenience factors?
    (a) Remember that reasonableness factors can overrule MC factors – where it is so inconvenient that it would deny D forum

    • (b) Also, if strongly in favor of forum, may make
    • reasonable even with very little MC.
  6. What is transient jurisdiction?
    Whenever an individual is voluntarily and physically present, they’re subject to PJ
  7. What is General Jurisdiction?
    D’s contacts with forum so extensive that they don’t have to relate to case {Continuous & Systematic}
  8. What is valid notice for individuals?
    1. May serve the individual personally

    2. Leave at the dwelling house or usual abode

    3. Within a person suitable of age

    4. Deliver to an agent who has been appointed

    5. Borrow service form the state where the federal court sits, or

    6. Where the service is to be effected.
  9. What is valid notice for Corps, Associations and Partnerships?
    1. Officer

    2. Managing general agent

    3. Or any other agent authorized by appointment or by law to receive process

    4. Must be sufficiently connected with the company
  10. What is the test for notice according to due process?
    (1) Must actually inform

    (2) Must be reasonably calculated

    (3) Driven by practicality (can it even be done?)

    (4) Pick method MOST likely to work
  11. What is the opportunity to be heard?
    • Whenever there is a potential deprivation of
    • liberty or property (even temporary) as a result of gov’t action, there is a due process right to be heard.
  12. What is the legal test for opportunity to be heard?
    • a) Must look at private interest of D that will be
    • affected:How serious is the deprivation? Can’t sell property? Etc.

    • b) Interest of the party that’s seeking interference
    • (P):must have exigent circumstances à 1) D hid to avoid service 2) hid assets & prop 3) D is about to remove property fraudulently

    c) Government Interest including the function involved and the fiscal and administrative burdens that the additional procedural would entail

    d) Examine the risk of erroneous deprivation: how bad would it be if you were wrong?
  13. What is subject matter jurisdiction?
    jurisdiction over case matter not parties
  14. What are the two different types of subject matter jurisdiction?
    • 1. Diversity Jurisdiction
    • (>75k & diverse citizens)

    2. Federal Question Jurisdiction
  15. What is the Well-Pleaded complaint rule?
    (1) P’s complaint must contain a federal Q/issue

    • (2) Fed matter/ Q raised in complaint must be central
    • & substantial
    • (a) Fed ct can dismiss if state law is more domineering in matter OR
    • (b) If state law is more significant and should be heard by a state ct

    • (3) Louisville v. Mottley: cannot state a
    • fed Q as a defense, needs to be on the face of P’s complaint.
  16. How do you determine centrality of a federal issue?
    • (1) Where the federal statute/law creates the
    • cause of action (if state law governs what they’re suing for à state ct)

    (2) Where federal law is necessary to construe

    (3) Where federal law preempts state law
  17. What is supplemental jurisdiction?
    Where P asserts a claim that is under federal juris (diversity, fed Q, alienage) it is permissible for the fed ct to hear the entire disputes b/w the parties, including other claims that arise from the same “nucleus of operative facts” but could NOT be brought in fed ct alone.
  18. Can you use supplemental jurisdiction based on diversity?
    If P files claim in fed ct using ONLY diversity, they cannot use supplemental jurisdiction. (But D can as long as under the same case or controversy)
  19. What is removal jurisdiction?
    When a Defendant is removing from state to federal court.
  20. What is the rule for removal jurisdiction?
    1. First look if there is Fed Juris originally (diversity/>75k OR fed Q or alienage) AND

    2. Then look to see if its 30 days after complaint was filed

    3. Needs to be filed in state & fed ct
  21. What are the places for correct venue?
    • 1. Where ALL D’s reside (residence = domicile=intent to stay)
    • a) If all D’s in different places (airplane crash ex) then look at other below

    2. Where events occurred or where property is

    3. FALLBACK: Where D is subject to PJ
  22. Why would you transfer?
    Transfer to a ct where case is better suited, convenient, where evidence is.
  23. Where must you transfer to?
    Must be a transfer to a place where original suit “might have been brought” (i.e. where PJ, SMJ, and venue are proper)
  24. What are the rules for transfer under subject matter jurisdiction if venue was originally proper?
    (a) For diversity cases, fed ct has to apply the same state law as the district it sits in. P gets to lock in the law of the state they originally filed suit.

    (b) For fed Q. up to ct
  25. What are the rules for transfer under subject matter jurisdiction if venue was originally improper?
    (a) For diversity and fed Q, P doesn’t get the advantage of original law, the new venue applies their own law (state law)
  26. What are the use of forum selection clauses?
    The court is not bound by them.
  27. What is a Forum Non Conveniens?
    common law doctrine allowing ct in one system to dismiss case in which venue proper so that case can be brought in a diff legal system where it is more desirable for trial to occur (typically another country)