Federal Jurisdiction

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apgiering
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94113
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Federal Jurisdiction
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2011-07-15 15:26:58
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NY Bar Exam
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NY Bar Exam
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  1. What is personal jurisdiction?
    The ability of the court having subject jurisdiction (i.e., jurisdiction over the type of case) to exercise power over a particular defendant or item of property.
  2. How does the Due Process Clause limit personal jurisdiction?
    Parties directly affected by the court action must receive fair and adequate notice of the action. Furthermore, there must be minimum contacts between the defendant or property and the forum state so that the assumption of jurisdiciton is fair and reasonable.
  3. Absent some special federal provision, how must each federal court analyze personal jurisdiction?
    As if it were a court of the state in which it is located.
  4. What are the three types of personal jurisdiction?
    • In personam jurisdiction;
    • In rem jurisdiction; and
    • Quasi in rem jurisdiction.
  5. When does in personam jurisdiction exist?
    When the forum has power of the person of a particular defendant.
  6. Is an in personam judgment entitled to full faith and credit in all other states?
    Yes.
  7. When does in rem jurisdiction exist?
    When the court has power to adjudicate the rights of all persons in the world with respect to a particular item of property.
  8. When does quasi in rem jurisdiction exist?
    When the court has power to determine the rights of particular individuals with respect to specific property within the court's control. Unlike in rem jurisdiction, quasi in rem jurisdiction does not permit the court to determine the rights of all persons in the world.
  9. Does a quasi in rem judgment bind the defendant personally or be enforced against any other property belonging to the defendant?
    No.
  10. In what situations do most states have in personam jurisdiction by statute?
    • Defendant is present in forum state and is personally served with process;
    • Defendant is domiciled in forum state;
    • Defendant is a U.S. citizen (though domiciled abroad);
    • Defendant consents to jurisdiction; and
    • Defendant has committed acts bringing him within forum state's long arm statute.
  11. Is service plus even transitory presence a sufficient basis for in personam jurisdiction?
    Yes.
  12. Does service by fraud or force invalidate personal jurisdiction?
    Yes.
  13. Do nonresidents who are parties or witnesses in a judicial proceeding have immunity from personal jurisdiction?
    Yes. If A goes to CA as a witness, B cannot serve process on him in CA under "gotcha" jurisdiction.
  14. What is a person's domicile?
    The place where a person maintains her permanent home.
  15. If a person lacks capacity, how is domicile determined?
    By law.
  16. Can a federal court subpoena a United States citizen domiciled abroad to return to give testimony?
    Yes.
  17. How can a defendant consent to jurisdiction?
    Consent may be express or implied, or through the maing of a general appearance. A person can give advance consent by contract or through appointment of an agent to accept service of process.
  18. What is a "special appearance"?
    A defendant can object to the court's exercise of jurisdiction. This special appearance must be made in the defendant's initial pleading to the court.
  19. When do typical long arm statutes allow for jurisdiction?
    When, e.g., a tort occurs iwthin the statem or a cause of action arises out of the "transaction of business" or ownership of property in the state.
  20. What does the constitution require for valid personal jurisdiction?
    Sufficient minimum contacts so that the exercise of in personam jurisdiction over the defendant is fair.

    And the exercise of jurisdiction must not offend the traditional notions of fair play and substantial justice.
  21. What are sufficient minimum contacts for valid personal jurisdiction?
    The contacts must show that the defendant (i) purposefully availed herself ot he forum state's laws; and (ii) knew or reasonably should have anticipated there her activities in the forum made it forseeable that she may be "haled into court" there.
  22. When will a court be more likely to find that jurisdiction is fair and reasonable?
    If the claim is related to the defendant's conduct with the forum ("specific jurisdiction'), or if the defendant engages in systematic and continuous activity int he forum state ("general jurisdiction").

    The court will also consider other factors: (i) whether the forum is "so gravely difficult and inconvenient" that the defendant is put at a severe disadvantage; the forum state's legitimate interest in providing redress for its residence; the plaintiff's interest in obtaining convenient and effective relief; the interstate judicial system's interest in efficiency; and the shared interest of the states in furthering social policies.
  23. What is "specific jurisdiction"?
    The claim is related to the defendant's contacts with the forum.
  24. What is "general jurisdiction"?
    The defendant engages in systematic and continous activity int he forum state.
  25. What is the due process requirement of notice?
    A reasonable method most be used to notify the defendant of a pending lawsuit so that she may have an opportunity to be heard.
  26. If the plaintiff appointed the defendant's agent for the service of process under a contractual right for the plaintiff's benefit or the appointment is by operation of law, will the agent's failure to notify the defendant prohibit jurisdiction?
    Yes.
  27. What are the notice requirements for cases involving multiple or unknown parties?
    The best practical means of notice available must be used. However, if certified mail is used, and the mail is returned as unclaimed, the plaintiff cannot proceed in the face of such knowledge when other practicable means to serve the defendant exist.
  28. For what actions do most states have statutes providing for in rem jurisdiction?
    Condemnation, title registration, distribution of estate assets, grant of divorce when only the complaining spouse is present and subject to personal jurisdiction, etc.
  29. What is constitutionally required for the exercise of jurisdiction over property in an in rem action?
    The presence of the property in the state.
  30. Does a court have in rem power over property outside the state?
    No.
  31. Does a court have in rem property brought inside the state by fraud or force?
    No.
  32. In an action where the court has in rem jurisdiction, must persons whose interests are affected and whose addresses are known be notified?
    Yes, at least by ordinary mail.
  33. What are the two types of quasi in rem actions?
    • Disputes between parties over their rights in property within the state; and
    • Disputes unrelated to the property.
  34. Does the minimum contacts standard apply to quasi in rem actions?
    Yes.
  35. In disputes between parties over their rights in property within the state (a quasi in rem action), what is the necessary minimum contact?
    The close connection between the litigation and the contact.
  36. In disputes unrelated to the property (a quasi in rem action), is the mere presence of the property within the state a sufficient contact?
    No. There must be some other basis to exercise jurisdiction (e.g., such contacts exist so that in personam jurisdiction over the defendant would be proper.
  37. One one defendant and one plaintiff are co-citizens of the same state, is there diversity jurisdiction?
    No. Every plaintiff must be of diverse citizenship from every defendant. This is the rule of "complete diversity."
  38. What is the amount of controversy requirement of a diversity of citizenship jurisdiction case?
    The matter in controversy must exceed the sum or value of $75,000, exclusive of interest and costs.
  39. When are "minimal diversity" and an amount in controversy over $500 or more sufficient to confer jurisdiction?
    Under a federal interpleader statute exception.
  40. Does a federal court have subject matter jurisdiction over disputes between a citizen of a state and an alien?
    Yes.
  41. Does a federal court have subject matter jurisdiction over disputes between two aliens?
    No.
  42. When must diversity of citizenship exist?
    At the time the suit is instituted.

    It need not exist at the time the cause of action arose, and it is not defeated if, after commencement of the action, a party later becomes a citizen of the same state as one of his opponents.
  43. How do you determine the state of citizenship fo a natural person?
    It depends on the permanent home to which he intends to return.
  44. What is the citizenship of a child?
    That of her parents.
  45. Where is a corporation a citizen?
    Every state of its incorporaiton,a nd also if its one principal place of business.
  46. What is a corporation's principal place of business?
    The state from which its high level officers direct, control, and coordinate its activities, which will usually be the state where its corporate headqaurters are located.
  47. What is the citizenship of corporations chartered in foreign countries?
    These corporations are deemed exclusively a citizen of the foreign country and thus an alien for diversity purposes.

    If the foreign corporation has its principal place of business in this country, it is also a citizen of the state in which that place is located.
  48. Where are unincorporated associations (such as partnerships or labor unions) citizens?
    They are citizens of each state of which any member is a citizen.

    NOTE: A limited liability company is treated like an unincorporated association for citizenship purposes.
  49. What is the citizenship of a legal representative?
    The legal representative of the estate of a decedent, an infant, or an incmpetent is deemed to ahve the same ci tizenship as the decedent, infant, or incompetent.
  50. How is diversity determined in class actions?
    On the bais of the citizenship of the named members of the class who are suing.
  51. Is a United States citizen domciled abroad an alien?
    No. Alienage depends on nationality, not domicile.
  52. Is a United States citizen domiciled abroad a citizen of any state?
    No.
  53. Is a permanent alien a citizen?
    Yes, of the state in which he is domiciled.
  54. What happens if a party attempts to create diversity by a sham transaction, such as assigning a claim for collection purposes only to create diversity?
    The courts look throguh the transaction and declare that diversity does not exist.
  55. Can you create diversity in class actions by properly selecting named plainttiffs to bring the action on behalf of others?
    Yes.
  56. Can a party create diversity by changing his state citizenship after the cause of action accrued but before suit is commenced?
    Yes. However, the change must be genuine and not temporary.
  57. Can claims be assigned to defeat diversity?
    Yes.
  58. Is fraudulent joinder of an in-state defendant to defeat diversity a bar to removal?
    No.
  59. In determining whether diversity exists, can the court look beyond the nominal designation fo the parties in the pleadings and realign them according to their true inteersts in the dispute?
    Yes. Thus, realignment may create diversity ort destroy it.
  60. In shareholder derivative actions, will the court realign the corporation as a defendant to determine diversity?
    Yes.
  61. What is the doctrine of ancillary jurisdiction (now called supplementary jurisdiction)?
    A court may entertain claims taht could not, by themselves, invoke federal question jurisdiction or diversity jurisdiction if the claims arise from a common nucleus of operative fact as the claim that invoked federal subject matter jurisdiction.
  62. When can supplemental jurisdiction not be used?
    For cases based solely on diversity, supplemental jurisdiction may not be used to support claims (i) by plaintiffs against impleaded parties, compulsorily or permissively joined parties, or intervening parties; (ii) by persons who are to be compulsorily joined as plaintiffs; and (iii) by persons seeking to intervene as plaintiffs.
  63. Is there ancillary jurisdiction for claims by or against intervenors?
    No. Such a claim can proceed only if an independent basis for jurisdiction can be shown.
  64. When a party is substituted, whose citizenship controls?
    The ccitizenship of the substituted party is disregarded, and that of the original party controls; thus, diversity jurisdiction is not affected.

    COMPARE: If a party is replaced (e.g., because plaintiff sued the wrong party) rather than substituted, the citizenship of the replacement party controls, and diversity jurisdiction could be lost.
  65. Is any diversity or specific amount in controversy required in third-party practice between the third-party defendant and the third-party plaintiff or the original plaintiff?
    No, unless the plaintiff asserts a claim against the third-party defendant.
  66. What is a cross-claim, and when may it be asserted?
    A claim by one co-party against another. It may be asserted if the claim arises from the same transaction or occurrence as the underlying dispute.
  67. If the cross-claimant does not have an independent subject matter basis (i.e., diversity of citizenship or federal question jurisdiction), can the cross-claim be asserted in federal court?
    Yes, through the ancillary form of supplemental jurisdiction.
  68. How is the jurisdictional amount (must be in excess of $75,000) determined?
    From the plaintiff's good faith allegation.
  69. When can a complaint be dismissed under the jurisdictional amount requirement?
    If there is no legal possibiliy of a recovery exceeding the jurisdictional amount.
  70. Is jurisdiction retroactively defeated if the amount actually recovered is less than the jurisdictional amount?
    No.
  71. What is "in controversy" for purposes of the amount in controversy requirement for diversity jurisdiction?
    Attorneys' fees that are recovered by contract or by statute; interest that constitutes a part of the claim itself (as distinguished from interest payable by virtue of a delay in payment), and a punitive damage claim permitted under state substantive law.

    BUT collateral consequences of the judgment (e.g., rights to payment of future installments on disability policy), interest and costs are excluded.
  72. Can a plaintiff aggregate all her claims against a single defendant for purposes of meeting the jurisdictional amount?
    Yes.
  73. Can a plaintiff aggregate her claims against several defendants for purposes of meeting the jurisdictional amount?
    Only if the defendants are jointly liable to the plaintiff. She cannot aggregate liabilities based on separate claims or concurrent liabilities.
  74. Can several plaintiffs aggregate their claims for purposes of meeting the jurisdicitonal amount?
    Only if they are seeking "to enforce a single title or right in which they have a common or undivided interest . . . ."
  75. When can claims that do not meet the amount in controversy requirement invoke supplemental jurisdiction?
    If they arise from the same nucleus of operative fact as a claim that involved diversity of citizenship jurisdiction.

    However, supplemental jurisdiction cannot be used to override the complete diversity requirement.
  76. Can supplemental jurisdiction be used to override the complete diversity requirement?
    No.
  77. Can a defendant's counterclam be combined with the plaintiff's claim to reach the jurisdictional amount?
    No.
  78. Does a compulsory counterclaim need to meet the jurisdictional amount requirement?
    No, as the court may hear it under its supplemental jurisdiction.
  79. Must a persuasive counterclaim (one arising out of an unrelated) transaction have an independent jurisdicitonal basis?
    Yes. Thus, it must meet the jurisdictional amount requirement.
  80. Can a plaintiff who claims $75,000 or less in a state courrt action who is met with a counterclaim for more than $75,000 remove the suit to federal court?
    No, regardless of whether the counterclaim is compulsory or permissive, because removal is permitted only by defendants.
  81. Can a plaintiff with a small claim require a defendant with a large claim to litigate it in state court?
    Yes, simply by being the first to file.

    NOTE: Even though this is a traditional rule, there is a trend allowing removal.
  82. What is the Erie doctrine?
    A federal court in a diversity case will apply its own procedural law, but must apply the substantive law and conflict of laws rules of the states in which it is sitting.
  83. How do courts determine whether a state court rule is substantive or procedural?
    Courts use the "outcome determinative" test--a state law rule that substantially determines "outcome" of the litigation must be applied. However, if a federal rule is "arguably procedural," it will be applied.
  84. Will federal courts exercise diversity jurisdiction over domestic relations or probate proceedings?
    No.
  85. What must a claim involve in order to fall under the probate exception to diversity jurisdiction?
    The actual probate or annulment of a will, or it must seek to reach property in the custody of a state probate court.
  86. When does the Multiparty, Multiforum Trial Jurisdiction Act apply to accidents?
    When at least 75 people have died from a single accident at a discrete location. Minimal diversity is required; i.e., one plaintiff must be of diverse citizenship of one defendant. One of three other conditions must be met: (i) one defendant must reside in a different state from the place where a substantial part of the accident took place; (ii) any two defendants must reside in different states; or (iii) substantial parts of the accident must have taken place in different states.

    Finally, anyone with a claim arising from the accident is permitted to intervene as a plaintiff even if she could not have maintained an action in the district in which the case is pending, and nationwide service of process is allowed.
  87. What are the requirements of federal question jurisdiction?
    A question arising under the Constitution, laws, or treaties of the United States must appear as part of the plaintiff's cause of action.
  88. Does the existence of a defense based on a federal law create federal question jurisdiction?
    No. A complaint does not raise a federal question if it does so only in anticipation of some defense.
  89. Is it essential for federal question jurisdiction that the federal statute expressly provide for a civil cause of action for a violation?
    No. There can be an implied right of action.
  90. Does federal question jurisdiction arise merely from the fact that a corporate party was incorporated by an act of Congress?
    No, unless the United States owns more than one-half of the corporation's capital stock.
  91. What is pendent (supplemental jurisdiction)?
    • Pendant claim jurisdiction; and
    • pendant party jurisdiction.
  92. What is pendent claim jurisdiction?
    If a plaintiff has both federal and state claims, the federal court has discretion to exercise pendant jurisdiction over the claim based on state law if the two claims "derive form a common nucleus of oeprative fact" and are such that the plaintiff "would ordinarily be expected to try them all in one judicial proceeding."
  93. What is the effect of the dismissal of a federal claim on pendent claim?
    The federal court can still exercise pendent jurisdiction over the state claim.

    However, the state claim should probably also be dismissed it the federal claim is dismissed before trial.
  94. In what cases can pendent party jurisdiction arise?
    1) Cases in which (i) The plaintiff sues more than one defendant; (ii) There is a federal jurisdiction over the claim against one defendant; (iii) The claim against the second defendant does not invoke federal question or diversity of citizenship jurisdiction; and (iv) The claim against the second defendant arises from the same nucleus of common fact as the claim against the defendant.

    2) Cases in which multiple plaintiffs assert claims against one defendant. Here, assuming again the second plaintiff's claim is derived from the same nucleus of fact, the second plaintiff might invoke supplemental jurisdiction to support a state law claim in a federal question case.
  95. Is there an amount in controversy requirement in federal question cases?
    No, with the limited exception for cases brought against private parties under the Consumer Product Safety Act.
  96. In which cases is jurisdiciton fo the federal courts exclusive of the state courts?
    • Bankruptcy proceedings;
    • Patent and copyright cases;
    • Many cases where the United States is involved;
    • Cases where consuls and vice-consuls are sued as defendants;
    • Antitrust cases;
    • Actions against foreign states removed from state courts to federal courts;
    • Postal matters;
    • Internal Revenue Service cases;
    • Securities Exchange Act cases; and
    • Admilralty cases (only in limitation proceedings and maritime actions in rem).
  97. How do you distinguish subject matter jurisdiction from venue?
    Subject matter jurisdiction is the power of the court to adjudicate the matter before it. Venue relates to the proper district in which to bring the action. Subject matter jurisdiction is a question fo power or authority; venue is a question of convenience. Subject matter jurisdiction cannot be conferred by agreement, venue can be. A court can have subject matter jurisdiction without having proper venue.
  98. What is venue?
    Venue relates to the proper district in which to bring the action. Venue is a question of convenience.
  99. Can venue be conferred by agreement?
    Yes.
  100. Can a court have subject matter jurisdiction without having proper venue?
    Yes.
  101. Where is venue in civil action in the federal courrts proper?
    • A judicial district where any defendant resides, if all defendants reside in the same state;
    • A judicial district in which a substantial part of the events or omissions giving rise to the claim occured, or a substantial part of property that is the subject of the action is situated; or
    • If there is no district anywhere in the United States that satisfies these requirements, (i) for actions based solely on diversity, a judicial district in which any defendant is subject to personal jurisdiction at the time the action is commenced or (ii) for actions not based solely on diversity, a judicial district in which any defendant may be found.
  102. How is an individual's residence determined for federal venue purposes?
    By the person's domicile.
  103. How is a corporation's residence determined for federal venue purposes?
    A defendant corporation is deemed to reside in any jurisdiction in which it is subject to personal jurisdiction.
  104. How is an unincorporated association's residence determined for federal venue purposes?
    By where it does business.
  105. Where must "local actions" be brought?
    Local actions must be brought in a district where the property that is the subject matter of the action is located.
  106. Can venue be waived by the parties?
    Yes. Venue is considered to be waived unless timely objection is made to the improper venue.
  107. Even if venue is proper, where may a court transfer a case for the convenience of the parties?
    To any court where it could have originally been filed.
  108. If original venue is improper, is transfer more appropriate than dismissal?
    Yes, except in extraordinary circumstances.
  109. What is the standard for transfer?
    The "interest of justice." The transferee forum must have subject matter jurisdiciton and in personam jurisdiciton over the defendant, and venue must be proper.
  110. What is the law applicable upon transfer?
    If original venue was proper, apply the law of the state in which the transferor court sits.

    If original venue was imprioer, apply the law of the state inw hich the transferee court sits.

    NOTE: The law of the transferor court applies even where the plaintiff, having chosen an inconvenient (but proper) venue in the first place, later seeks a transfer for convenience.
  111. When may an action orginally filed in state court be removed to federal court?
    • The case could have originally been filed in a federal court; and
    • For cases removed on the basis of diversity, no defendant is a citizen of the state where the action is filed.
  112. As of what date is jurisdiction tested for the purposes of determining if an action may be removed to federal court?
    As of the date of removal, but some courts have held that original jurisdiction must have existed both at the time the suit was instituted in state court and at the time of removal.
  113. Can a defendant remove on the basis that he has a defense grounded in federal law?
    No, since the existence of a federal defense is insufficient to confer original federal question jurisdiction.
  114. Does the state court need to have had jurisdiction for a case to be removed to federal court?
    No. Even when the state court has no jurisdiction because the action is exclusively federal, the federal court may hear and decide the case under its removal jurisdiction.
  115. Can plaintiffs exercise the right of removal?
    No.
  116. If there is more than one defendant, how many must join in the petition for removal?
    All.
  117. Which federal court has venue if a case is removed from state court?
    The federal district court "embracing the place where such [state] action is pending.
  118. When there are multiple claims or multiple parties, when may a defendant remove a whole case to federal court?
    If it contains "a separate and independent claim or cause of action" within federal question jurisdiction.
  119. When will removal be permitted when no federal question is involved and diversity does not exist because a party is a co-citizen of the opposing party?
    If the nondiverse parties are thereafter dismissed from the action and there is complete diversity between the remaining parties.
  120. Is an action removable when jurisdiction of the federal court is based on diversity and one of the defendants is a citizen of the state in which the state action was brought?
    No.
  121. Can a case be removed on the basis of diversity jurisdiction more than one year after it was commenced in state court?
    No.
  122. What is the procedure for removal?
    A defendant seeking removal must file a notice of removal in the federal district court in the district and division within which the action is pending. A copy of the notice should be sent to the other parties and to the state court. Once this is done, the state court can no longer deal with the case.
  123. When must the notice of removal be filed?
    Within 30 days after defendant receives notice, through service of a summons, pleading, amended pleading, etc., that the case is or has become removable, but (for diversity cases only) in no event more than one year after the case was commenced.
  124. Can the plaintiff file a motion to have the case remanded to the state court?
    Yes. A case will be remanded if there is no federal jurisdiction. The federal court has discretion to remand a case to state court once all federal claims have been resolved, leaving only state claims over which there is no diversity jurisdiction.
  125. Does the Full Faith and Credit Clause extend to federal courts?
    Yes. Therefore, recognition of judgments is required between state and federal courts and between federal courts.
  126. Can a federal court enjoin a pending state court proceeding?
    No, unless expressly authorized by statute or when necessary in aid of its jurisdiction, or to protect or effectuate its judgments. If the state action is not enjoined, the case coming to a final decision first will have preclusive effect on the other.
  127. Can federal courts enjoin a threatened state criminal proceeding?
    No, unless irreparable harm is clear and imminent (usually limited to a showing of serious First Amendment rights) and the appellate remedy is clearly inadequate to provide relief.
  128. What prohibits a federal court from hearing a case that is pending in state court?
    Unless abstention applies, nothing.
  129. On what grounds will a federal court abstain and require a litigant to seek relief in a state court (while retaining jurisdiction)?
    • If the state law is unclear and could be interpreted to avoid the federal constitutional question; or
    • If there is a state administrative regulatory plan taht would be disturbed by the federal court taking the case.
  130. What must the litigants do after the federal court abstains?
    Present their issues to the state court in light of their federal contentions. The federal court will ordinarily stay the federal action rather than dismiss it.
  131. When may federal intervention on constitutional grounds occur?
    If the federal plaintiff can demonstrate: (i) great and immediate irreparable injury; (ii) bad faith in the prosecution of state action; or (iii) harassment or other unusual circustamces calling for federal equitable relief.
  132. How is an action commenced under the federal rules of civil procedure?
    By filing a complaint iwht the court. This filing will satisfy the statute of limitations in federal question cases and in diversity cases where the state rule is similar. If the state rule is that action is commenced, for statute of limitations purposes, only upon service of process, that rule must be applied in a diversity case.
  133. Who may serve process under the FRCP?
    Any person who is at least 18 years old and not a party to the action.
  134. What constitutes valid service of process under FRCP?
    Personal service, service left at the defendant's usual place of abode, or service upon an authorized agent of the defendant is valid service of process. Alternatively, service may be made as proided by state rules or by mail under the waiver of service provision.
  135. When will the court acquire personal jurisdiction over parties served outside the state?
    • Under the state's statutes and rules for extraterritorial service;
    • If they are third-party defendants or required to be joined for just adjudication, if served within 100 miles from the place where the action is pending;
    • If out-of-state service is permitted by federal statute (e.g., interpleader); and
    • For cases that involve a federal question, if a defendant is served with process, provided that he is not subject to general jurisdiction in any state, that he has sufficient contacts with the United States, and that jurisdiction is not prohibited by statute.
  136. How may a party be served in a foreignc ountry?
    • As provided in an international agreement;
    • In absence of an agreement, as provided by the foreign country's law or as directed by a foreign official;
    • By personal service or mail (return receipt requested), unless prohibited by the foreign country's laws; or
    • By any method the court orders that is not prohibited by international agreement.
  137. May a corporation be served by personal service?
    No.
  138. May a minor or incompetent person be served by personal service or mail?
    No.
  139. Do the federal courts recognize immunity from service of process of parties, witnesses, and attorneys who enter a state to appear in another action?
    Yes.
  140. Is service valid to confer personal jurisdiction if a party was induced by the plaintiff's fraud or deceit to enter a state so that he could be served?
    No.
  141. Which time periods can never be extended under FRCP, but must be filed within 28 days of entry of judgment?
    • Renewed motion for judgment as a matter of law;
    • Motion to amend judgment; and
    • Motion for a new trial.
  142. Can a party seek a preliminary injunction prior to trial to preserve the status quo?
    Yes. The adverse party must be given notice and an opportunity to be heard.
  143. When can a party seek a temporary restraining order ("TRO")?
    If irreparable injury will occur before the hearing on the prelimninary injunction can be held, to preserve the status quo until the hearing.
  144. Can a TRO be imposed without notice of the hearing?
    Yes, for the issuance of the TRO for a maximum 14-day period if three conditions are met: (i) the moving party states specific facts in an affidavit or verified complaint of the irreparable injury she will suffer if the TRO is not granted; (ii) the moving party certifies in writing the efforts she made to notify the adverse party and the reasons why notice should not be required; (iii) the moving party provides security to pay for any damages incurred by the adverse party if the court later finds he was wrongfully restrained.
  145. Although a TRO may be issued without notice of hearing, must a person have actual notice of the TRO (or any injunction) before he may be held in contempt for violating it?
    Yes.
  146. Do federal courts follow notice or fact pleading?
    Notice pleading. Hence, they generally require less specificiy than state pleadings. The plaintiff must state facts supporting a plausible claim.
  147. What are the requirements of federal notice pelading?
    The plaintiff must state facts supporting a plausible, not just possible, claim.
  148. What must a complaint state to plead a cause of action?
    • Grounds of federal jurisdiction;
    • A short statement of the claim showing that the pleader is entitled to relief; and
    • A demand for judgment for relief, which may be in the alternative.
  149. Whcih defenses can a defendant raise in a pre-answer motion under Rule 12(b)?
    • Lack of subject matter jurisdiction;
    • Lack of personal jurisdiction;
    • Improper venue;
    • Insufficiency of process;
    • Insufficiency of service of process;
    • Failure to state a claim upon which relief can be granted; or
    • Failure to join an indispensable party.
  150. Which defense can be raised anytime, even on appeal?
    Lack of jurisdiction ove rthe subject matter.
  151. Which defenses are waived if not raised by motion or answer, whichever is first?
    • Lack of personal jurisdiction;
    • Improper venue;
    • Insufficiency of process; and
    • Insufficiency of service of process.
  152. Which defenses may be raised anytime before trial or at trial?
    • Failure to state a claim upon which relief can be granted; or
    • Failure to join a party under Rule 19 (indispensable party).
  153. Can a party move for a more definite statement before responding to a pleading that is vague?
    Yes, under FRCP 12(e).
  154. Can a party move to have stricken any insufficient defense or any redundant, immaterial, or scandalous matter before responding to a pleading?
    Yes, under FRCP 12(f).
  155. What must the answer contain under FRCP?
    A specific denial or admission of each averment of the complaint, or a general denial with specific admissions of the averments admitted. If the defendant is without knowledge or information sufficient to form a belief, a statement to that effect constitutes a denial. A failure to deny constitutes an admission. The answer must also state any affirmative defenses the defendant may have.
  156. Must an answer contain any affirmative defenses the defendant may have?
    Yes.
  157. How long does defendant have to return an answer?
    21 days after service, if no Rule 12 motion is made.

    However, a defendant to whom a complaint was mailed and who waives formal service must answer within 60 days after the request for waiver was mailed to her.
  158. If a Rule 12 motion is made and the court does not fix another time, when must the responsive pleading be served?
    Within 14 days after the court's denial or postponement of the motion.
  159. If the court granted a Rule 12(e) motion, when is the answer due?
    Within 14 days after service of a more definite statement.
  160. What can the court do to a defendant who fails to answer?
    Enter a default judgment against him.
  161. What is a compulsory claim?
    If the claim arises from the same transaction or occurence as the plaintiff's claim, it must be pleaded as a counterclaim or it will be thereafter barred.

    NOTE: A federal court has ancillary (supplemental) jurisdiction over a compulsory counterclaim that otherwise does not meet the requirements for diversity of citizenship or federal question jurisdiction.
  162. What is a permissive claim?
    A non-compulsory claim the defendant has agaisnt the plaintiff (i.e., does not arise from the same transaction or occrurence). It may be asserted if it meets the jurisdictional requirements for filing a claim in federal court.
  163. Can a party set out inconsistent claims or defenses?
    Yes. A party may set out as many alternative claims or defenses as he may have, regardless of consistency.
  164. Is a reply by the plaintiff to the defendant's answer required?
    If the court orders the plaintiff to file one.
  165. Does a plaintiff need to reply to an affirmative defense?
    No; he is deemed to deny or avoid the allegation in the defense.
  166. When can a pleading be amended?
    A pleading may be amended once within 21 days of its service, or, if the pleading is one to which a respoinsive pleading is required, 21 days after service of a responsive pleading or pre-answer motion. Thereafter, leave to amend is by consent or by leave of court, which may be freely given.
  167. Must an amendment to a pleading satisfy due process requirements?
    Yes.
  168. Do amendments relate back to the date of hte original pleading?
    Yes, if the same events are involved.
  169. Does an amendment naming a new adverse party relate back?
    Yes, if, within the time for service of process, the new party had sufficient notice to avoid prejudice and knew (or should have known) that, but for a mistake, she would have been named originally.
  170. Do supplemental pleadings, which relate to matters occuring after the original pleading, require permission of the court?
    Yes.
  171. Under Rule 11, what does an attorney (or unrepresented party) certify to the best of her knowledge, information, and belef formed after an inquiry reasonable under the circumstances to the court upon presenting papers?
    • The paper is not presented for any improper purpose (harassment, delay, etc.);
    • The legal contentions therein are warranted by existing law or a nonfrivolous argument for the modification of existing law or the establishment of a new law;
    • The allegations and factual contentions either have, or upon further investigation or discovery, are likely to have, evidentiary support; and
    • Denials of factual contentions are warranted on the evidence or, if specified, are reasonably based on a lack of information and belief.
  172. Does the court have discretion to impose sanctions against a party who presents a paper to the court in violation of FRCP 11?
    Yes. The matter may be raised in eihter of two ways: (i) the court, on its own initiative, may enter an order describing the matter that appears to violate Rule 11 and direct the proponent to show cause why sanctions should not be imposed, or (ii) the opposing pary may serve a motion for sanctions on the propoonent, and if the proponent does not withdraw or correct the matter within 21 days, the opposing party may then file the motion for sanctions with the court.
  173. What may Rule 11 sanctions consist of?
    Either nonmonetary directives or montary penalties, including payment of expenses or attorneys' fees incurred because of the improper paper.
  174. When must parties join as plaintiffs (compulsory joinder)?
    • Complete relief cannot be given to existing parties in his absence;
    • Disposition in his absence may impair his ability to protect his interest in the controversy; or
    • His absence would expose existing parties to a substantial risk of double or inconsistent obligations; and
    • Such a party is amenable to process and her joinder will not destroy diversity or venue.
  175. What must the court decide when joinder is not feasible?
    Whether the action can proceed in the party's absence or must be dismissed. The court must consider the following: (i) whether the judgment in the party's absence would prejudice him or the existing parties; (ii) whether the prejudice can be reduced by shaping the judgment; (iii) whether a judgment in the party's absence would be adequate; and (iv) whether the plaintiff will be deprived of an adequate remedy if the action is dismissed.
  176. When may parties join as plaintiffs or be joined as plaintiffs (permissive joinder)?
    • Some claim is made by each plaintiff and against each defendant relating to or arising out of the same series or occurences or transactions; and
    • There is a question of fact or law common to all the parties.
  177. Do the rules permitting broad joidner affect the requirements of jurisdiction?
    No. There must be complete diversity and each claim must satisfy the jurisdictional amount, except that plaintiffs with a common undivided interest in a claim exceeding $75,000 may join in asserting it even if their individual share in the interst is $75,000 or less.
  178. Can there be supplemental jurisdiction over claims by permissively joined plaintiffs?
    Yes.
  179. Can a plaintiff join any number and type of claims against a defendant?
    Yes. When multiple claims are involved, it is essential only that at least one of the claims arise out of a transaction in which all were involved.
  180. May a plaintiff join two claims if success on the first is a prerequisite to the second?
    Yes.
  181. When jurisdiction is based on diversity of citizenship between the plaintiff and the defendant, can the plaintiff aggregate all claims that he has against the defendant to satisfy the jurisdictional amount?
    Yes.
  182. When jurisdiction is based on a federal question claim, can a nonfedera claim be joined?
    Only if it is regarded as part of the same case or controversy as the federal claim.
  183. What are the requirements of a class action under FRCP 23?
    A class is proper if a) the class is so numerous that joinder of all members is impracticable; b) there are questions of law or fact common to the class; c) named parties' interests are typical of the class; d) named parties' interests are typical of the class; and e) one of the following three situations is present: 1) separate actions would create a risk of inconsistent results or impair the interests of unnamed parties; 2) the defendant has acted or refused to act on grounds applicable to the class and injunctive or declaratory relief is appropriate for the class as a whole; or 3) common questions of law or fact predominate over individual issues and a class action is superior to alternate methods of adjudication.
  184. When can a court determine that a class action is not appropriate?
    At any time.
  185. What are consideratios in determining whether to certify a class?
    • The interest of individual control;
    • The extent and nature of litigation elsewhere on the same subject;
    • The desirability of a joint trial; and
    • The difficulties in managing a class action.
  186. What must a court define when certifying a class?
    The class and the class claims, issues, or defenses. The court must also appoint class counsel.
  187. What are the requirements of class counsel in a class action?
    Counsel must fairly and adequately represent the interests of the class.
  188. What is the effect of judgment in a class action?
    All members of a class will be bound by the judgment rendered in a class action except those in a common question class action who notify the court that they do not wish to be bound.
  189. If a substantive claim of the individual representing the class is mooted, does this render the class action moot?
    No.
  190. When is notice to all members of the class required?
    Only in common question suits so that class members can opt out. Notice to members of the class in other class suits is discretionary within the court.
  191. Althoguh discretionary, what must notice to class members in a class action case state?
    • The nature of the action;
    • The definition of the class;
    • The class claims, issues, or defenses; and
    • The binding effect of a class judgment.
  192. In class actions founded on diversity, whose citizenship is taken into account to establish jurisdiction?
    The named representatives of the class.
  193. In a class action founded on diversity, must one class representative's claim exceed $75,000?
    Yes, as the amount in controversy may be aggregated only in the rare situation in which the claims of the parties or "joint" or "common." However, class members with claims not exceeding $75,000 may invoke supplemental jurisdiction as long as complete diversity is not destroyed.
  194. May class members with claims not exceeding $75,000 invoke supplemental jurisdiction in a class action founded on diversity?
    Yes, as long as complete diversity is not destroyed.
  195. Must the court approval the dismissal or settlement of a class action?
    Yes.
  196. What is required before a court can approve the settlement of a class action?
    The class must satisfy the requirements of certification. Notice of settlement must also be given.
  197. In a "common question" class action, may the court provide the parties with a second opportunity to opt out?
    Yes. It is discretionary.

    A fairness hearing also must be held.
  198. When is subject matter jurisdiction established under the Class Action Fairness Act ("CAFA")?
    • Any class member (not just the representative, but anyone in the plaintiff class) is of diverse citizenship from any defendant;
    • The amount in controversy in the aggregate (i.e., adding all the class claims together) exceeds $5 million; and
    • There are at least 100 members in the proposed class or classes.
  199. If a class meets the CAFA requirements, may any defendant remove the case from state to federal court?
    Yes, rather than all defendants.
  200. If a class meets the CAFA requirements, can the case be removed even if a defendant is a citizen of the forum?
    Yes.
  201. Is there federal court jurisdiction under CAFA if the primary defendants are states, state officials, or other governmental entities against whom the court may be foreclosed from ordering relief?
    No.
  202. Is there federal court jurisdiction under CAFA if a class action solely involves a claim under federal securities laws or it relates to the internal affairs of a corporation and is based ont he laws of the state of incorporation?
    No.
  203. Does CAFA have provisions designed to defeat federal jurisdiction inc lass actions that are relatively local in nature?
    Yes, a district court must decline jurisdiction provided by CAFA if (i) more than two thirds of the members of the proposed plaintiff class are citizens of the state in which the action was filed; (ii) a defendant from whom "significant relief" is sought is a citizen of the state; and (iii) the "principal injuries" were incurred in the state in which the action was filed.

    A district court may decline jurisdiction provided by CAFA if more than one-third but less than two-thirds of the proposed plaintiff class are citizens of the state in which the action was filed and the "primary defendants" are also citizens of that state. In that case, the court considers whether (i) the claims involve matters of national interest; (ii) the claims will be governed by the law of the state in which it was filed; and (iii) the state has a "distinct nexus" with the class members, the alleged harm, or the defendants.
  204. What must a shareholder allege and prove in order to sue to enforce a right of the corporation that those in control of the corporation refuse to assert in a shareholder derivative suit under FRCP 23.1?
    • She was a shareholder at the time of the transaction complained of (or received her shares thereafter by operation of law);
    • The action is not a collusive effort to confer jurisdiciton on the court that it would otherwise lack; and
    • She made a demand on the directors and, if required by state law, on the shareholders; or the reasons why she did not make such demands. For this requirement, facts must be pleaded with particularity.
  205. Must the class representative be able to fairly and represent the class in a shareholder derivative action?
    Yes, just as in a Rule 23 class action.
  206. How do you determine jurisdictional amount in a shareholder derivative suit?
    The jurisdicitonal amount looks to the damages allegedly suffered by the corporation.
  207. When is venue proper in a shareholder derivative suit?
    When the corporate oculd have sued the same defendants (i.e., usually int he state of its incorporation).
  208. Is a corporation treated as a plaintiff or defendant in a shareholder derivative suit under the federal court's diversity jurisdiction?
    The corporation is treated as a plaintiff for the purposes of determining jurisdictional amount (i.e., the court will look to the corporation's damages).

    The corporation is generally treated as a defendant for purposes of determining whether there is diversity among the parties.
  209. What is an interpleader suit?
    A suit initiated by a person in the postion of a stakeholder to require the adverse claimants to determine which has the valid claim to the stake.
  210. When does an interpleader suit apply?
    If separate actions might result in double liability against the stakeholder.
  211. What are the requirements of Rule 22 interpleader?
    • Complete diversity between the stakeholder and all adverse claimants and in excess of $75,000 in issue; or
    • A federal question claim.
  212. Do normal service and venue rules apply in a Rule 22 interpleader action?
    Yes.
  213. What are the requirements of Section 1335 ("statutory") interpleader?
    • Minimum diversiy between the claimants (one claimant must be diverse from the other); and
    • $500 in issue.
  214. What service and venue rules apply in a Section 1335 interpleader action?
    Service may be nationwide and venue is proper where any claimant resides.
  215. What is the mnemonic for Rule 122 and statutory interpleader?
    Rule 22 interpleader must follow the Regular Rules.

    Statutory interpleader has Special, Simpler Standards.

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