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What is In Personam Jurisdiction? correct answer: When the forum has power over the person of a particular ∆.
- Must meet statutory limitations; AND
- Must meet constitutional limitations. IPJ Statutory Limitations correct answer: 1. Physical presence at time of personal service. Transitory presence + service OK. Service by fraud/force invalid. CA does not grant immunity from PJdx to nonresidents who are parties or witnesses to a proceeding. 2. Domicile. 3. Consent. Express, implied, though general appearance, by K, or appointed agent. *4. CA LAS. * Constitutional Limitations of IPJ correct answer: 1. Sufficient MINIMUM CONTACTS with the forum; AND
- NOTICE Traditional Due Process Rule correct answer: Presence, residence, or consent. Modern Due Process Rule correct answer: 1. MINIMUM CONTACTS; AND
- Fairness Minimum Contacts correct answer: 1. ∆ PURPOSEFULLY AVAILAED herself to the forum state thus invoking the benefits and protections of that forum's laws; AND
- ∆ KNOWS OR REASONABLY ANTICIPATES that her activities in the forum render it FORESEEABLE to be haled into court there. Fairness correct answer: Fair play an substantial justice factors ROCS
- Relatedness between claim and contact i. Gen. JDX: Systematic & Cont activity in forum ii. Spec. JDX: Claim is related to ∆'s contact w/ forum 2. Other factors: i. π's interest in obtaining convenient and eff. relief ii. interstate judicial system's interest in efficiency iii. interests of states in furthering social policies 3. Convenience to ∆: Forum OK unless so gravely difficult and inconvenient that ∆ is at severe disadvantage (e.g. witnesses, evidence; not wealth) 4. Forum State has legit interest in providing redress for its resident.
Exceptions to Complete Diversity? correct answer: Interpleader Exception: "Minimal Diversity" Alienage JDX: SMJ over citizen of State v. Alien but not Alien v. Alien. Where is a US Citizen, Adult domiciled? correct answer: 1. Presence in the state; AND
- Intent to make it her permanent home Where is a US Citizen, Child domiciled? correct answer: Citizenship of Parents. Where is a US Citizen, dependent/incompetent domiciled? correct answer: Their actual domicile and not their representative. Where is a Corp. domiciled? correct answer: 1. State of incorporation; AND
- PPB Tests for PPB? correct answer: 1. Muscle Center: Executives in one state and physical operations predominantly in another state
- Nerve Center: Executives in one state and physical operations in many states - use nerve center PPB for Corps chartered in foreign countries? correct answer: Alien for diversity purposes; also a citizen of state where has PPB.
Citizenship of Unincorporated Associations and LLC's? correct answer: Each state where any member is a citizen. Citizenship of Legal Representatives? correct answer: Same citizenship as dependent, infant, or incompetent. Citizenship of Class Actions? correct answer: Citizen determined by NAMED MEMBERS of the class Citizenship of Non-residents US citizens and Aliens? correct answer: US Citizen domiciled abroad: NOT a citizen of any state AND is NOT an alien. Permanent Resident Alien: IS a citizen of the state in which he is domiciled. Amount In Controversy correct answer: Must exceed $75k exclusive of costs and interest as declared in π's good-faith allegation in complaint. Is dismissed if there is NO LEGAL POSSIBILITY of a recovery exceeding. What amount is "in controversy"? correct answer: 1. Atty's fees recoverable by K or statute;
- Interest that constitutes part of the claim itself;
- Punitive damages allowed under state substantive law
Well pleaded complaint rule correct answer: π's claim, properly pleaded, must "arise under" federal law to enforce a federal right. Supplemental JDX - GR correct answer: Ct may entertain additional claims that could not, by themselves, invoke federal question or diversity JDX IF the claim shares a common nucleus of operative fact (same transaction or occurrence) as the underlying claim that invoked Federal SMJ Limitations on Supplemental JDX in Div cases correct answer: π cannot use SuppJ to overcome lack of Diversity Discretionary Factors For Ct on whether to hear a Supplemental claim correct answer: 1. Federal question dismissed early in proceedings;
- State law claim is complex; OR
- State law issues would predominate CA SMJ correct answer: All 58 counties have ONE superior court that can exercise general SMH over all civil matters. But CA courts CANNOT hear federal questions that invoke exclusive federal jurisdiction. How is a CA civil action classified? correct answer: π determines classification considering:
- Amount of demand;
- relief sought;
- value of property; OR
- amount of lien in controversy
CA Limited Civil Action correct answer: AOC <=$25k and restrictions are placed on SMJ over equitable claims, declaratory relief actions, and requests for ancillary relief No claimant can recover more than 25k CA Unlimited Civil Action correct answer: AOC >$25k; claimant can recover any amount CA Small Claims correct answer: π is individual: AOC <=$7.5k π is entity: AOC <=$5k Can CA claims be aggregated? correct answer: Yes. Same rules as fed except for Class Actions Can a CA claim be reclassified? correct answer: Yes. A case can be reclassified it was misclassified or if subsequent envier makes clear that original classification should be changed BUT court DOES NOT LOSE. How can a CA case be reclassified? correct answer: 1. π amends complaint > automatic reclassification if fee paid
- π moves to reclassify or court can do it sua sponte. How is a CA case reclassified from Unlimited>Limited correct answer: Court must find that recovery greater than 25k is virtually unobtainable
π's options for a procedurally improper removal? correct answer: π may move to remand to state court w/i 30d of removal. π's options for a substantively improper removal? correct answer: π or FedCt may move to remand at ANY time. Remand after all fed claims resolved correct answer: Fed court has discretion to remand case to state court once all federal claims are resolved, leaving only state claims over which there is no diversity JDX. Where is Federal Venue proper? correct answer: 1. All ∆'s in same state - where any ∆ resides.
- Transitory actions - Substantial part of events/omissions giving rise to claim occurred;
- Local Actions - Substantial part of property If none of the above, then
- Div: any district where any ∆ is subject to PJdx @ time when action commenced; OR
- Actions NOT solely based on Div - district where any ∆ is found. Residence for Federal Venue purposes correct answer: Individuals: Person's domicile Corps: Wherever subject to PJdx when case is FILED Unincorporated Entities: wherever it does business Proper venue in Federal Local Actions? correct answer: Action related to ownership, possession, or injury to LAND must be filed in district where land lies.
Can improper venue be waived? correct answer: Yes; unlike SMJ, Venue is considered waived UNLESS timely objection in pre-[;ending motion or answer. CA Venue in Transitory Actions correct answer: County where ANY ∆ resides at filing, but if no ∆ resides in CA, venue proper in ANY county in CA. CA Venue in K Cases correct answer: Venue ALSO proper in county where K entered or to be performed CA Venue in Wrongful Death Cases correct answer: Venue ALSO proper where injury occurred. CA Venue in Mixed Actions correct answer: COA in which the ∆'s or COA's are subject to different venue rules. Venue proper in the county where ANY ∆ resides UNLESS policy or compelling reason requires venue to be elsewhere. CA Venue when ∆ is a Corp or other business association correct answer: Venue is proper in county where:
- K is made/to be performed;
- Obligation or liability arises;
- Breach occurs; OR
- Entity has its PPB. CA Venue when ∆ is UNINCORPORATED ass'n/p'ship correct answer: Venue proper in county in which
- If PPB filed w/ SEC - County of PPB
- Moving party establishes i) the alt forum is SUITABLE; AND ii) Private AND Public interest balance in favor of the alt forum Timing to file motion based on Forum Non Conveniens correct answer: ∆ brings w/i the time to respond to the complaint IF he HAS NOT previously generally appeared. MUST at least file motion w/ general appearance. NOTE: ∆ who already filed an ANSWER may still bring FNC mxn. Erie Doctrine - Generally correct answer: In DIVERSITY cases, fed courts apply fed PROCEDURES but must apply state SUBSTANTIVE law and CONFLICT OF LAW rule of the state where COA is in. Three questions to ask when unclear whether State law rule is substantive or procedural correct answer: 1) Is there a FEDERAL law ON POINT that DIRECTLY conflicts with state law? Y: Apply FED law (supremacy clause) N: -> 2 2) Is there an ARGUABLY PROCEDURAL federal directive on point? Y: Apply FED N: -> 3 3) Is the matter PROCEDURAL? Y: Apply FED
N: Apply State law When should you definitely use state law? correct answer: When it is CLEARLY SUBSTANTIVE
- elements of claim/defense
- SOL
- Rules for tolling SOL
- Conflict/choice of law rules Factors for determining whether the matter is procedural correct answer: 1. outcome determinative
- balance of interests
- deterrence of forum shopping When is a law/rule outcome determinative? correct answer: Would apply/ignoring state rule affect outcome of case? Y: probably substantive > use state law How to balance the interests of FED and State law? correct answer: Does either the federal or state system have a strong interest in having its rule applied? Evaluating avoiding forum shopping? correct answer: If FED court ignores state law on the issue, will parties flock to federal court? Y: use state law CA - Conflict of Law General rule correct answer: FED court sitting in CA hearing a DIVERSITY case MUST apply CA's CONFLICT OF LAW rules in determining applicable substantive law.
Can a FED court enjoin a threatened state court proceeding? correct answer: Fed ct MAY NOT enjoin a THREATENED state criminal proceeding UNLESS irreparable harm is clear and imminent AND appellate remedy is clearly inadequate Abstention - GR correct answer: Unless abstention applies, nothing prohibits a FED court from hearing a case that is pending in state court. When must a court Abstain? correct answer: A FED court will abstain and require a litigant to seek relief in state court if:
- State law is unclear and could be interpreted to avoid federal constitutional question; OR
- If there is a state administrative regulatory plan that would be disturbed if FED court took case. FED - Service of Process requirements correct answer: 1. By any NON-PARTY at least 18 and
- to ∆ within 120d of filing case or will be dismissed w/o prejudice FED - types of service? correct answer: 1. Personal service: Process papers given to Δ personally ANYWHERE in FORUM state. 2. Substituted service: Permissible if 1) At Δ's USUAL abode; AND 2) Served someone of SUITABLE age AND discretion who RESIDES there. 3. Waiver by mail: Deemed complete when Δ executes waiver AND waiver is filed. Regular mail to Δ a copy of complaint + TWO copies of waiver form, w/ prepaid return method. Δ liable
for costs of svc if w/o good cause for returning waiver. Δ has 30 days [not 20 days] to return waiver. 4. Service on Δ's agent: Permissible if receiving service is w/i scope of AGENCY 5. State law: Process as permitted by state law of the state where fed ct SITS or where svcs is effected. CA - type of service? correct answer: 1. Personal service: // fed ct 2. Substituted service 3. Service by mail 4. Service by publication 5. CA: Corporations: Deliver process to registered agent OR officer OR general manager for service of process. Served personally or upon someone apparently in charge during usual office hours CA - Substituted Service correct answer: Deemed completed 10d after mailing and is permissible if:
- Personal service FIRST CANNOT W/ RSBL DILIGENCE BE HAD; AND
- Service completed a. @ ∆'s usual abode or mailing address (not PO box); b. left with COMPETENT member of household that is 18; c. That person is informed of the contents; AND d. process is also mailed via first class mail. CA - Service by Mail correct answer: Deemed complete when Δ executes waiver. FIRST-CLASS mail, postage prepaid to Δ w/ TWO copies of waiver and self-addressed stamped envelope to
CA - Immunity from Process correct answer: NO such immunity Subsequent papers DO NOT follow these rules and may be served by delivering/mailing to party's atty. Add 5 days for response due. What documents are "pleadings?" correct answer: Complaint, answer, various motions, {demurrer}, {cross-complaint} Rule 11 - Document Certification correct answer: Requires atty (or pro se party) to sign all docs (except discovery docs) certifying to the BEST OF her knowledge and belief, after REASONABLE inquiry that...
- Doc is not for improper PURPOSE (e.g. harassment, delay, etc.);
- Legal contentions are warranted by LAW (i.e. non-frivolous); AND
- Factual contentions AND denials have EVIDENTIARY SUPPORT (OR are likely to after further investigation). Continuing certification: Certification is effective EVERY time position is presented to court (e.g. filing, oral advocacy) Rule 11 Sanctions for violations - FED correct answer: 1. Ct enter OSC re: why sanctions should not be imposed; OR
- Opposing party may SERVE mxn for sanctions on proponent. If proponent DOES NOT w/d or correct matter within 21 DAYS, opposing party may then FILE mxn for sanctions.
CA Sanctions for violated rules of court correct answer: 1. Ct assesses whether the party seeking distinctions has exercised DUE DILIGENCE;
- 21-day safe harbor applies to mxns by a party AND to court's own motion; AND -Note: NO safe-harbor for "frivolous" or purely "harassing" filings. Can file IMMEDIATELY but must give notice of mxn and opportunity to be heard.
- Mxn for sanctions brought by a party for ' improper purpose will ITSELF be subject to a mxn for sanction Requirements for FED Complaint correct answer: The complaint is the principal pleading by Π. Filing commences action. Requires "Notice Pleading" with...
- Statement of SMJ;
- Short and plain stmt of CLAIM (enough to put other party on ntc and make a REASONABLE response) and showing entitled to relief; AND
- Demand for relief sought. Requirements for CA Complaint correct answer: "Fact Pleading" with...
- Stmt of the "ULTIMATE FACTS" on each ELEMENT of each COA in ordinary and concise language (requires more detail than fed cts); AND
- Demand for judgment for relief to which pleader claims to be entitled. i.Note: NO dmgs stmt in PI or wrongful death or puni's. Δ can ask for stmt of dmgs (due w/i 15 days) +3) If limited civil case, must state so in caption
