Civil Procedure Final Exam questions and answers 2024, Exams of Nursing

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answers 2024

Subject-Matter Jurisdiction - Decides "Federal Forum" v. "State Forum"

• Diversity Citizenship
• Federal Question (you have the option of federal) Diversity Jurisdiction Requirements - 1. Amount in Controversy: P's Claim more then $75,000. Claim must be made in "good faith"

2. Complete Diversity: "Across the V", no plaintiff can reside int he same state as any defendant. When does Diversity Jurisdiction apply? - When a plaintiff sues a defendant in federal court, and there is no federal claims/cause of action. If there is no federal law in the case, the only way they can be in the federal law is through DIVERSITY. (Amount in Controversy/Complete Diversity) Federal Question Jurisdiction - If there is any FQJ it can be heard in federal court, but it still doesn't have to be. Even if there is diversity it can still be heard in state court, FQJ just gives you the option to go to federal.

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Well-Pleaded Complaint Rule - In determining whether there is federal question, we look at the plaintiffs complaint, nothing else. Even if plaintiff has federal defense or counter claim, what determines FQJ is determined by the plaintiffs cause of action.

• Cause of action CANNOT be a state law action w/ anticipation of a defense of a federal action/law. -DOESNT matter if there is a "federal ingredient", if cause of action is based on STATE LAW, there is NO FQJ. Holmes "Creation" Test (determining FQJ) - Similar to/Goes hand and hand with WPCR. When looking at plaintiffs complain, what law provides plaintiff with a remedy? State law or Federal law? If YES, FQJ exists Private Right of Action - When congress says you have a right to enforce a particular statute. Supplemental Jurisdiction - Can ONLY be applied to:

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1. Original Jurisdiction, AND
2. Federal Question Jurisdiction Supplemental Jurisdiction on "Pendent Parties" in a diversity claim? - NO! EXCEPTION: Multiple P's suing 1 D, only 1 Plaintiff per defendant has to satisfy the amount in controversy, pending there is CNOF. COMPLETE DIVERSITY also required when talking about claims filed by the Plaintiff. Pendent claims/parties - Additional parties sued by PLAINTIFF in her complaint.

• 1 federal claim/others are state law claims
• Doesn't work in diversity cases, only federal
• MUST satisfy common nucleus of facts Ancillary claims/parties - Additional parties sued by defendant, after plaintiff files her complaint usually by:
• counterclaim (suing back),
• cross-claim (suing other defendant), OR
• third party complaint (if I'm liable to you its because X did this wrong too)

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• MUST satisfy common nucleus of facts (if you want it to be covered under supplemental jurisdiction Common Nucleus of Operative Facts (CNOF) - All issues, both federal and state, arise under the same issues and are factually connected. (same facts in the same case). EXAMPLE: If all the claims arise from the same car accident, then they arise from a CNOF. What party/parties must satisfy the amount in controversy when there are multiple claims? - If you have 1 P suing multiple Ds, each D must satisfy the amount in controversy. Removal Jurisdiction - P sues D in STATE COURT. D REMOVES to Federal Court (Where all defendants want to end up). If P could have filed in federal, then defendant has the option to remove there. Remanding - P files motion to remand. Judge decides if the case should go back to state or stay in federal. 30 days to remove a case to federal court. After 30 days, its improper and you are stuck in state court.

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Dismissing - P sues D in FEDERAL COURT. Federal court dismisses the case for subject-matter jurisdiction. P re-files in state court. Removal Jurisdiction for Diversity Cases - - Removable ONLY IF NONE of the defendants are "Domiciled" in state in which action is brought. -Defendant cannot remove to federal court if defendant is sued in state of domicile (ONLY IN DIVERSITY CASES NOT FQJ), Why? *Because the reason we have Diversity Jurisdiction is to protect out of state defendants from prejudice. If defendant is sued in there home state, then there will probably be no prejudice. EX: If P is suing Multiple D's (for same claim), even if one D lives in state where suit is brought, NONE of D's can remove. Personal Jurisdiction - - Determines courts power to hear a case about a particular piece of property or a particular person.

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-FULL FAITH and CREDIT MUST be given to judgments of other states. When exercising Personal Jurisdiction - 1. Is PJ authorized by states "Long Arm Statute"?

2. Does PJ comply with "Due Process Clause"?
3. Would PJ be "Specific" or "General"? (Specific: PA, FF)
4. Foreseeability Long Arm Statute - law which gives a local state court jurisdiction over an out-of- state company or individual whose actions caused damage locally or to a local resident. The legal test is whether the out-of-state defendant has contacts within the state which are "sufficiently substantial." An accident or injury within the state usually shows such a substantial contact. This is particularly important when a driver from one state is sued in another state for damages caused by his/her negligence there. It also can be employed if a product shipped from out-of-state fails, explodes or causes damage to a local person who sues in the state where he/she resides. The long-arm statute allows him/her to get local court jurisdiction over the defendant.

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Due Process Clause - 14th Amendment: No state shall "deprive any person of life, liberty,or property, without due process of law". "In Personam" Jurisdiction - 1. A person may ALWAYS be sued in the state in which they reside 2."Tagging" - can be served in another state,

3. person may be subject to suit in state in which he has minimum contacts "In Rem" Jurisdiction - - Property provides the basis for jurisdiction, and the underlying dispute is about the property itself "Quasi in Rem" Jurisdiction - - The dispute is not about the property itself but the property provides jurisdiction for the case (Pennoyer) In Rem and Quasi in Rem Limitations - the maximum amount the plaintiff can receive in the underlying lawsuit is limited to the value of the property. Any

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judgment in the underlying lawsuit can be enforced only in the state where the property is located. *Two-Steps in Establishing Personal Jurisdiction - 1) Purposeful Availment

2. Fairness Factors **1) Purposeful Availment - - Ensures Defendant wont be haled into court based on "random" and "fortuitous" contact or unilateral activity of a third person.

• Person MUST direct their activities "toward the forum state" *This requirement is an absolute minimum, if there is nothing the defendant has done to direct their activities toward the state, there can not be personal jurisdiction.

2. Fairness Factors - 1. BURDEN on the D

2. Forum States INTEREST in the dispute
3. P's interest in OBTAINING (effective/convenient) RELIEF
4. Interstates judicial interest in OBTAINING efficient RESOLUTION

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5. SHARED INTEREST of several states to further fundamental social policies. Foreseeability - The defendants "conduct and connection" with the forum state are such that he should reasonably anticipate being haled into court there. Mere likelihood that a "product" will find its way into the forum state is NOT ENOUGH. Minimum Contacts (Basic Rule) - "Due process requires only that in order to subject a defendant to a judgment in personam (PJ), if he isnt present within the territory of the forum, he must have certain minimum contacts with that forum state so a suit there does not violate "Traditional notions of fair play and substantial justice." "random" and "fortuitous" General v. Specific Jurisdiction Difference - Purposeful Availment DOES NOT need to be as substantial in "Specific"

1. Specific Personal Jurisdiction - -Defendant must deliberately engage in activities or create a "SUBSTANTIAL CONNECTION" with the forum state.

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-The "SUBSTANTIAL CONNECTION" between the defendant and the forum state necessary for finding of minimum contacts must come about a Persons contact with the state and why they are being sued there. HAS TO BE THIS SUBSTANTIAL CONNECTION -Ask: Whether the contacts with the forum state is why you are being sued there? Stream of Commerce (ONLY really works in SPJ) - -ONLY APPLIES when product malfunctions in "Forum State". -Foreseeability: placement of a product into stream of commerce alone ISNT Sufficient for PA NEED intent/purpose to serve the market in the "forum state" EXAMPLE: advertising, marketing, designing product -"SUBSTANTIAL CONNECTION" between D and forum state necessary for establishing "minimum contacts" must come about by "An action of the defendant purposefully directed towards the forum state.

2. General Personal Jurisdiction - -Defendant must have "CONTINUOUS AND SYSTEMATIC" contacts with forum state.

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*This is a much higher threshold then Specific. -Basically because there is no link between your connections with the forum state and the reason your being sued. Its fair to sue you there for anything because YOU HAVE SO MANY CONTACTS THERE. Principle Place of Business - "Nerve Center Test"- Location of corporations decision making authority and overall control. Internet Jurisdiction - Zippy Scale:

1. Passive Websites
2. Active Websites
3. Passive Websites - Electronic billboard, does nothing but provide information to the consumer, it is only an ad, no ability for the consumer to engage in any activity except for looking. Passive websites are generally not found to create jurisdiction. *MIUCH LESS LIKELY TO CONSTITUTE PA

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2. Active Websites - A company or proprietor is selling his goods over the internet. It is like a virtual store in every state. Only specific jurisdiction is exercised in these cases; it does not mean there are sufficient contacts to subject the defendant to jurisdiction everywhere. *MIUCH MORE LIKELY TO CONSTITUTE PA "Calder effects test" - To satisfy the test the defendant "must have (1) committed an intentional act, which was (2) expressly aimed at the forum state, and (3) caused harm, the brunt of which is suffered and which the defendant knows is likely to be suffered in the forum state." "Consent" to Personal Jurisdiction - Three types:
3. Implied Consent: Waiver
4. Implied Consent: Sanction
5. Express Consent

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Implied Consent - 1) Waiver: If a D fails to object to personal jurisdiction in the answer or in a motion to dismiss, he waives his objection to PJ and is deemed to have consented to it.

2. Sanction: A Defendant can also be "deemed" to have consented to PJ as a sanction for misconduct, typically related to providing discovery on personal jurisdiction. ......Sanctions are generally in respect to discovery. When P asks for information about D's contacts with forum state and D fails to provide that information, D may be found to have impliedly consented to the jurisdiction. Express Consent - A. Express contractual provisions by which the parties consent to PJ in a given forum are typically enforced, unless they are "fundamentally unfair." B. One can expressly consent by signing a forum selection clause which waives any objection to personal jurisdiction. There is a contractual limitation on forum selection clause called the fundamental fairness test. If one selects a forum known to be incredibly inconvenient for one party it may be unenforceable.

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Personal Jurisdiction in Federal Court (4k) - 1) Serving a summons or filing a waiver of "service" establishes personal jurisdiction over a defendant: a) who is subject to the jurisdiction of a court of general jurisdiction in that state where the district court is located, OR b) when authorized by a federal statute.

• In PJ if you are a resident of somewhere you can always be sued there. Thus, if you are a resident of the United States you may be sued anywhere in the United States. If D disagrees with the venue of suit, D can file for venue transfer. There can also be national minimum contacts. If a foreign company/person has minimum contacts in the United States, he can be sued in the United States. Waiver of PJ Objection in Federal Court (12h) - - A party waives any defense listed by: A) Failing to either:
  1. Make it by motion under this rule; OR

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2. Include it in a responsive pleading or in an amendment allowed by the rule as a defense. LACK OF PERSONAL JURISDICTION: Objecting to PJ in Federal Court (12.b.2) - - Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required [answer]. But a party may assert the following defenses by motion... Procedures for challenging PJ in Federal Court - 1) In a motion to dismiss filed at the beginning of the lawsuit, IF SUCCESSFUL, it means the plaintiff has to re-file in another venue, it does not mean that the case is over, it would be a motion to dismiss granted without prejudice.

2. As an affirmative defense, included in an answer to plaintiff's complaint;
3. On appeal, but only if you preserved your objection by raising it either in your answer or in a motion to dismiss; OR

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4. Collaterally - Make no appearance in the lawsuit filed in a court that lacks PJ over you; allow a default judgment to be entered against you; and then object to enforcement of the resulting judgment on grounds of personal jurisdiction. If you choose this option, you waive all of your defenses on the merits; you can object to the enforcement of the judgment solely on the grounds of PJ. Procedures for challenging SMJ in Federal Court - 1) In a motion to dismiss filed at the beginning of the lawsuit or as an affirmative defense, included in an answer to plaintiff's complaint. [Rule 12(b)(1) - not waivable]
5. By "suggesting" that SMJ does not exist, at any point during the lawsuit, or on the court's own motion. [Rule 12(h)(3)]
6. By motion, after a final judgment has been issued in the case. [Rule 60(b)(4)]
7. On appeal (even if you did not preserve the issue below). "Domicile" - - Fixed and permanent home in which you intend to return.

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• How to Change your Domicile:
  • Move to a different State, AND
  • Intend to remain there. *When determining where someone lives, several factors are taken into account: Where do the children go to school? Where are your bills mailed too? Where did you open your bank account? Where did you register to vote? Etc. 1391 A) Venue Generally (Diversity Cases) - -"Diversity Jurisdiction cases" be brought ONLY in:

1. A judicial district where any defendant resides, if all defendants resides in the same state
2. A judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, OR

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3. A judicial district in which any defendant is subject to personal jurisdiction at the time the action is commenced, if there is no district in which the action may otherwise be brought. B) Venue Generally (Non-Diversity Cases) - - A civil action wherein jurisdiction is NOT founded solely on diversity of citizenship may, except as otherwise provided by law, be brought ONLY in:
4. A judicial district where any defendant resides, if all defendants resides in the same state
5. A judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, OR
6. A judicial district in which any defendant may be found, if there is NO district in which the action may otherwise be brought 3 Options for Federal Court Venue - 1. If ALL defendants reside in the SAME STATE, a judicial district where ANY defendant resides;

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2. A judicial district where a "substantial part of the events giving rise to the cause of action occurred"; OR *ONLY go to 3 if 1 and 2 don't apply
3. IF 1 and 2 DON'T apply, in ANY judicial district where at least one defendant is subject to personal jurisdiction. C) Venue (Corporations) - -For purpose of venue..., a defendant that is a corporation shall be deemed to reside in any judicial district in which it is subject to PJ at the time the action is commenced. -In a state which has more than one judicial district and in which a corporation is subject to PJ..., such corporation shall be deemed to reside in any district in that state within which its contacts would be sufficient to subject it to PJ if that district were a separate state.... D) Venue (Aliens) - -An Alien may be sued in any district

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IMPROPER VENUE

Objecting to Venue in Federal Court (12.b.3) - -Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required, BUT a party may assert the following defenses by motion: (3) Improper Venue Procedures for Challenging Improper Venue in Federal Court - 1. In a motion to dismiss filed at the beginning of the lawsuit

2. As an affirmative defense, included in an answer to plaintiff's complaint
3. On appeal, but only if you preserved your objection by raising it either in your answer or in a motion to dismiss, OR
4. Via a motion to transfer venue, often filed together with a motion to dismiss, based on improper venue [28 U.S.C. 1406(a)], OR filed after answering the complaint (assuming you have preserved your objection to venue via an affirmative defense)

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Venue Transfer - Two Types:

1. Mandatory (1406a)
2. Discretionary (1404a)
3. Mandatory Transfer of Venue (1406a) - A) The district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought. B) Nothing in this chapter shall impair the jurisdiction of a district court of any matter involving a party who does not impose timely and sufficient objection to the venue [Venue can be waived.] *Usually states MUST transfer
4. Discretionary Transfer of Venue (1404a) - -For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.

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*Usually states MAY transfer Steps to Request Discretionary TOV - 1. The plaintiff could have filed the case in the transferee forum (PJ exists over defendants and venue is proper); AND

2. The transferee forum is a more convenient forum than the judicial district in which the case was filed (based on location of witnesses, evidence, etc.); OR party requesting transfer would suffer prejudice if case is not transferred (e.g., due to pretrial publicity). Forum non-conveniens - A court may decline to exercise their jurisdiction over a claim if a more appropriate forum is available (balance of state interest and parties convenience.

• Although the general rule is that a court should not dismiss a case on grounds of forum non conveniens unless there is an alternate forum in which the plaintiff can pursue a remedy, this rule only requires that the plaintiff be able to file a proper lawsuit in that alternate forum.
• When all or most of the significant events, witnesses and evidence are centered in one location, then a court must dismiss a case brought in another location

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under the doctrine of forum non conveniens unless the alternate forum provides the plaintiff with absolutely no remedy. Factors to decide Forum non-conveniens - 1. If the plaintiff is a resident

2. If the witness are located in the forum
3. Which forum is more familiar Forum non-conveniens: List of Factors re Doctrine - 1) Private Interests of the Litigants

2. Public Interests of States and Courts (Have local controversies decided at home")

1. Private interests of the Litigants - A. Ease of proof - where is the evidence? i. Can witnesses be forced to appear? ii. Cost of obtaining willing witnesses iii. View of the premises, if appropriate B. Burden on D? C. Enforceability of judgment

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D. Any other private considerations, such as a change in the substantive law governing the dispute

2. Public Interests of States and Courts - - Forum state courts burdened with complex litigation unrelated to the forum

• Jury duty imposed upon people who have no connection with the litigation?
• Application of foreign law required? Forum non-conveniens - Limitations - 1) Case will not be dismissed unless another, "more convenient" forum exists, where P may sue the D(s) i. D may create an alternative forum by agreeing to waive any objection to personal jurisdiction in that forum, and/or agreeing to waive a statute of limitations defense that would bar filing in that forum ii. Law in the alternative forum may be worse for the plaintiff, but it must provide some remedy for claimed injuries

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2. If P is a US resident, balance of factors must be overwhelmingly in favor of dismissal; doctrine is typically applied when P resides outside the US
3. Many state courts do not recognize FNC; it is a common law doctrine (created by courts), not statutory or based on the Constitution. Due Process Requirement for Service of Process - - Notice must be "reasonably calculated, under all circumstances," to give the party notice of the action and an opportunity to respond (Mullane)

• "Nonexclusive" list of Factors: a. How effective is the method of service? i. Most effective method is personal service, but is also the most costly. b. What alternative methods are available? c. How effective/burdensome/costly are the alternatives? d. What type of interest is at stake?