Download Civil Procedure: Subject Matter, Personal Jurisdiction, Service, and Diversity and more Exams Nursing in PDF only on Docsity!
answers 2024
Subject Matter Jurisdiction - power of a court to enter judgment that is binding against particular subject matter(s); Can the court hear this kind of case? Federal Court Subject Matter Jurisdiction - Congress defines the particular subject matters that federal courts are able to hear; federal courts will hear cases with diversity jurisdiction and cases that involve a dispute over $75,000 or more Diversity Jurisdiction - all cases in law and equity involving an arising between citizens in different states Personal Jurisdiction - power of a court under the Constitution to enter judgment that is a binding order against the particular defendant(s) before the court in a particular case; Can this defendant be bound? General Jurisdiction - a court may assert general jurisdiction over foreign corporations to hear any and all claims against them when their affiliations with the state are so "continuous and systematic" as to render them essentially at home Goodyear Dunlop Tires Operations v. Brown - A bus accident outside of Paris killed two boys from NC. A defective tire contributed to the accident. They sued
answers 2024
Goodyear USA and 3 of the Goodyear's subsidiaries (Turkey, Paris, and Luxembourg). Goodyear USA submitted to the trial in NC, but the subsidiaries objected through lack of jurisdiction Holding: the connection (tires "stream of commerce") between the foreign subsidiaries and the forum state (NC) is so limited that it is an inadequate basis for general jurisdiction. Rule: A state court may not exercise general jurisdiction over a foreign subsidiary of a United States-based corporation unless it engages in continuous and systematic activities in the forum state. Daimler AG v. Bauman - Alleges that MB Argentina collaborated with Argentinian state security forces to kidnap, detain, torture and kill πs and their relatives. ∆ is Daimler because MB Argentina was a subsidiary wholly owned by Daimler's indirect subsidiary (MBUSA). Daimler's affiliations with California are not so substantial that they justify this suit being heard there. Daimler and MBUSA are incorporated and have their principal places of business outside of California. Holding: Daimler is not at home in Cali and cannot be subjected to general jurisdiction there
answers 2024
Rule: A forum selection clause is not fundamentally unfair solely because the clause was not negotiated. Test for Citizenship in Diversity Disputes - Citizenship is determined by place of domicile. Individuals are citizens of the place in which they are domiciled. Domicile - established by physical presence in a place in connection with a certain state of mind concerning one's intent to remain there Removal Statute - allows the defendant to remove a case to federal court if the case has the ability to be moved Reasons for Filing a Case in a Specific Court - it's a court you are more familiar with as a lawyer, formal vs. informal courts, jury pools Two Kinds of Notice of Service of Process - Waiver of Service and Summons Waiver of Service - inexpensive and informal method of notice; involves mailing the defendant the complaint; if the defendant agrees to waive service the suit can proceed
answers 2024
Summons - an order to appear in court that is required if a defendant does not cooperate; Lawyer drafts a summons and takes it to the clerk of the court who signs and seals it. The summons and the complaint are "served" (delivered) to the defendant in one of the ways authorized by Rule 4. Complaint - drafted after plaintiff has decided which court to bring a particular action; document that commences a civil action; a copy must be filed with the court; a copy must be delivered to the defendant Rule 1 - the federal rules of civil procedure govern the procedure in all civil actions and proceedings in the United States district courts. They should be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding. Rule 2 - There is one form of action--the civil action. Rule 3 - a civil action is commenced by filing a complaint with the court Rule 4 (a) - (1) [Contents] A summons must:
answers 2024
A summons--or a copy of a summons that is addressed to multiple defendants-- must be issued for each defendant to be served. Rule 4 (c) - [Service] (1) A summons must be served with a copy of the complaint. The plaintiff is responsible for having the summons and complaint served within the time allowed and must furnish the necessary copies to the person who makes service. (2) Any person who is at least 18 years old and not a party may serve a summons and complaint. (3) At the plaintiff's request, the court may order that service be made by a United States marshal or deputy marshal or by a person specially appointed by the court. Rule 4(d)(1) - [Waiving Service] (1) Requesting a Waiver. An individual, corporation, or association that is subject to service under Rule 4(e), (f), or (h) has a duty to avoid unnecessary expenses of serving the summons.
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The plaintiff may notify such a defendant that an action has been commenced and request that the defendant waive service of a summons. The notice and request must: (A) be in writing and be addressed to the individual defendant or for a defendant subject to service (B) name the court where the complaint was filed (C) be accompanied by a copy of the complaint, 2 copies of the waiver form, and a prepaid means for returning the form (D) inform the defendant using the form of the consequences of waiving and not waiving service (E) state the date when the request is sent (F) give the defendant a reasonable time of at least 30 days after the request was sent or at least 60 days after the request was sent to the defendant outside any judicial district of the US to return the waiver (G) be sent by first-class mail or other reliable means Rule 4(d)(2) - [Waiving Service]
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Rule 4(e) - [Serving an individual within a Judicial District of the US] Unless federal law provides otherwise, an individual--other than a minor, an incompetent person, or a person whose waiver has been filed--may be served in a judicial district of the United States by: (1) following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made; or (2) doing any of the following: (A) delivering a copy of the summons and of the complaint to the individual personally; (B) leaving a copy of each at the individual's dwelling or usual place of abode with someone of suitable age and discretion who resides there; or (C) delivering a copy of each to an agent authorized by appointment or by law to receive service of process. Rule 4(h) - [Serving a Corporation, Partnership, or Association]
answers 2024
Unless federal law provides otherwise or the defendant's waiver has been filed, a domestic or foreign corporation, or a partnership or other unincorporated association that is subject to suit under a common name, must be served: (1) in a judicial district of the United States: (A) in the manner for serving an individual; or (B) by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process and--if the agent is one authorized by statute and the statute so requires--by also mailing a copy of each to the defendant; or (2) at a place not within any judicial district of the United States, in any manner for serving foreign individuals except not personally delivered Rule 4(k)(1)(A) - serving a summons or filing a waiver of service establishes personal jurisdiction over a defendant who is subject to the jurisdiction of a court of general jurisdiction in the state where the district court is located; basically makes personal jurisdiction power of federal courts congruent to the state courts in which the federal court sits
answers 2024
(E) a written notice, appearance, demand, or offer of judgment, or any similar paper. Rule 5(a)(2) - (a) [Service: When Required] (2) If a Party Fails to Appear. No service is required on a party who is in default for failing to appear. But a pleading that asserts a new claim for relief against such a party must be served on that party under Rule 4. Rule 5(a)(3) - (a) [Service: When Required] (3) Seizing Property. If an action is begun by seizing property and no person is or need be named as a defendant, any service required before the filing of an appearance, answer, or claim must be made on the person who had custody or possession of the property when it was seized. Rule 5(b) - (b) Service: How Made. (1) Serving an Attorney. If a party is represented by an attorney, service under this rule must be made on the attorney unless the court orders service on the party.
answers 2024
(2) Service in General. A paper is served under this rule by: (A) handing it to the person; (B) leaving it: (i) at the person's office with a clerk or other person in charge or, if no one is in charge, in a conspicuous place in the office; or (ii) if the person has no office or the office is closed, at the person's dwelling or usual place of abode with someone of suitable age and discretion who resides there; (C) mailing it to the person's last known address--in which event service is complete upon mailing; (D) leaving it with the court clerk if the person has no known address; (E) sending it by electronic means if the person consented in writing--in which event service is complete upon transmission, but is not effective if the serving party learns that it did not reach the person to be served; or (F) delivering it by any other means that the person consented to in writing--in which event service is complete when the person making service delivers it to the agency designated to make delivery. (3) Using Court Facilities.
answers 2024
following discovery requests and responses must not be filed until they are used in the proceeding or the court orders filing: depositions, interrogatories, requests for documents or tangible things or to permit entry onto land, and requests for admission. (2) How Filing Is Made--In General. A paper is filed by delivering it: (A) to the clerk; or (B) to a judge who agrees to accept it for filing, and who must then note the filing date on the paper and promptly send it to the clerk. (3) Electronic Filing, Signing, or Verification. A court may, by local rule, allow papers to be filed, signed, or verified by electronic means that are consistent with any technical standards established by the Judicial Conference of the United States. (4) Acceptance by the Clerk. The clerk must not refuse to file a paper solely because it is not in the form prescribed by these rules or by a local rule or practice. Rule 7 - [Pleadings allowed; form of motions and other papers]
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(a) Pleadings. Only these pleadings are allowed: (1) a complaint; (2) an answer to a complaint; (3) an answer to a counterclaim designated as a counterclaim; (4) an answer to a crossclaim; (5) a third-party complaint; (6) an answer to a third-party complaint; and (7) if the court orders one, a reply to an answer. (b) Motions and Other Papers. (1) A request for a court order must be made by motion. The motion must: (A) be in writing unless made during a hearing or trial; (B) state with particularity the grounds for seeking the order; and (C) state the relief sought. (2) Form. The rules governing captions and other matters of form in pleadings apply to motions and other papers. Rule 8(a) - [General Rules of Pleading]
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(2) Denials--Responding to the Substance. A denial must fairly respond to the substance of the allegation. (3) General and Specific Denials. A party that intends in good faith to deny all the allegations of a pleading--including the jurisdictional grounds--may do so by a general denial. A party that does not intend to deny all the allegations must either specifically deny designated allegations or generally deny all except those specifically admitted. (4) Denying Part of an Allegation. A party that intends in good faith to deny only part of an allegation must admit the part that is true and deny the rest. (5) Lacking Knowledge or Information. A party that lacks knowledge or info sufficient to form a belief about the truth of an allegation must so state, and the statement has the effect of a denial. (6) Effect of Failing to Deny. An allegation--other than one relating to the amount of damages--is admitted if a responsive pleading is required and the allegation is not denied. If a responsive pleading is not required, an allegation is considered denied or avoided.
answers 2024
Mulane v. Central Hanover Bank & Trust Co. - Central Bank is the trustee of a common pool trust, made up of smaller trusts. Central Bank petitioned the court for settlement of its first account as trustee. Rule: An elementary and fundamental requirement of due process, in any proceeding which is to be accorded finality, is notice reasonably calculated, under all the circumstances, to apprise interest parties of the pendency of the action and afford them an opportunity to present their objections Holding: Published notice towards parties whose interests or addresses are unknown does not violate due process, but it does if they are known persons whose whereabouts are also known. Gibbons v. Brown - Ms. Gibbons sues Mr. Brown in FL. Two years later, MRS. Brown sues Ms. Gibbons in FL because (she claims) Ms. Gibbons subjects herself to personal jurisdiction in FL by bringing a prior claim there. Ms. Gibbons objects saying this is inadequate under FL's long-arm statute. FL long-arm statute - a ∆ who is engaged in substantial and not isolated activity within this state...is subject to jurisdiction whether or not the claim arises from that activity.
