1
Q
personal jurisdiction
A
- power over the parties
2
Q
PJ is clearly constitutional if ∆ is
A
- domiciled in the forum OR
- consents OR
- voluntarily present in the forum when served with process
3
Q
there must be relevant contact between ∆ and the forum state… 2 factors to be addressed
A
- contact must result from purposeful availment, not required that the ∆ set foot in forum (∆ must reach out to the forum in some way)
- it must be foreseeable that ∆ could be sued in the forum
4
Q
specific jurisdiction
A
where the claim arises from ∆’ contact with the forum
5
Q
general jurisdiction
A
∆ must be at home in the forum and may be sued there for a claim that arose anywhere in the world
6
Q
where is a human at home
A
where domiciled
7
Q
where is a corporation at home
A
- state of incorporation
2. PPB
8
Q
fairness factors for jurisdiction are only assessed in what kind of cases
A
specific jurisidction
9
Q
determining fairness of jurisdiction
A
- relative wealth of the parties not determinative
- even if hard for ∆ to get to the forum it is C unless ∆ can show that it puts her at a severe disadvantage in the litigation
10
Q
in a specific jurisdiction case, how do we determine whether jurisdiction is fair
A
- burden on ∆ and Ws
- state’s interests (always implicated if P is citizen of forum state)
- P’s interests
11
Q
diversity of citizenship and alienage cses
A
- case is either i) between citizens of different states OR ii) between a citizen of a state and a citizen of a foreign county AND
- amount in controversy exceeds $75k
12
Q
complete diversity rule
A
no good if any P is a citizen of the same state as any ∆
13
Q
how do you establish a new domicile
A
- physical presence in the state
2. intent to make the state one’s permanent home
14
Q
timing for citizenship
A
citizenship at time complaint is filed
15
Q
citizenship of corporation
A
all states or nations where they are incorporated and state or nation of PPB
- thus corporation can be citizen of 2 states at a time
16
Q
corporation’s PPB
A
where managers direct, coordinate and control business activities
17
Q
citizenship of unincorporated company
A
shares citizenship with all members
18
Q
citizenship of decedents, minors, incompetents
A
representative’s citizenship is irrelevant, us the citizenship of the decedents, minors, incompetents
19
Q
amount in controversy
A
- must exceed $75k not including costs or interest
- look to what P claims in good faith, not to what they recover
20
Q
aggregation of claims for amount in controversy
A
- aggregate claims of one P against ∆ even if claims are unrelated
21
Q
cases a federal court will not hear
A
divorce, alimony, probate, child custody
22
Q
federal question cases
A
claim in P’s complaint arises under federal law
- citizenship of parties irrelevant
- amount in controversy irrelevant
23
Q
SMJ over additional claims
A
diversity and F? cases get into federal court… once there additional claims may be asserted as long as there is SMJ over them (F? or diversity)
24
Q
supplemental jurisdiction
A
- if not F? or diversity can still come in if the case is already there
25
test for supplemental jurisdiction
- test is always met when the claim arises from the same transaction or occurrence as the one in the case
- must share common nucleus of fact with the claim that invoked federal SMJ
26
limitation for supplemental jurisdiction
by statute certain claims cannot invoke supplemental jurisdiction even though they meet the test
27
non-federal, non-diversity claim can be heard in federal court if it meets the test UNLESS...
1. asserted by a P
2. in a diversity of citizenship case AND
3. when there are multiple Ps and one of them does not meet the amount in controversy requirement
28
court may decline supplemental jurisdiction if...
underlying claim is dismissed early on in the case
29
removal
transfers the case from a state trial court to a federal trial court
- only ∆ can remove a case
30
when must removal occur
∆ must remove within 30 days of service of the first paper that shows the case is removable
31
eerie doctrine
no general federal CL... general CL of K, torts, property is state law and federal courts must apply that state substantive law in a diversity case
32
P may lay venue in any district where
- all ∆s reside OR
- a substantial part of the claim arose
- if all ∆s reside in different districts of the forum state P can lay venue in the district where any ∆ resides
33
if the original district is an improper venue the court may...
1. dismiss the case OR
| 2. transfer in the interest of justice
34
forum non conveniens
- stays or dismisses
35
in order to satisfy federal question jurisdiction, the federal question must appear in
the P's complaint
36
when a P has both federal and state based claims against a ∆ and diversity jurisdiction does not exist, the federal court has
discretion to exercise supplemental jurisdiction over the state law if the two claims derive from a common nucleus of operative fact and are such that a P would ordinarily be expected to try them all in one judicial proceeding
37
which party can exercise the right of removal
only the ∆
38
federal jurisdiction basedon diversity of citizenship is defined in terms of "complete diversity" which means
no P may be a citizen of the same state as any ∆
39
for purposes of diversity jurisdiction, a corporation is considered to be a citizen of
every state in which it is incorporated and the 1 state it has its principal place of business
40
to satisfy the amount in controversy requirement for diversity jurisdiction, a P may
aggregate unrelated claims against a single ∆
41
Erie Doctrine
a federal court exercising diversity jurisdiction applies state substantive law and federal procedural law
42
when does the Erie Doctrine not apply
courts exercising federal question jurisdiction - here a federal court will apply federal substantive and procedural law
43
in federal question case, the action is always deemed commenced for SOL purposes when...
the complaint is filed with the court
44
in diversity cases, the action is deemed commenced for SOL purposes when
the state rule for determining when the action is commenced
45
in federal court, if a person travels to another jurisdiction solely to be a W in a court action, he
is immune from service of process
46
when may failure to state a claim upon which relief can be granted be raised
any time prior to trial or at trial
47
when must lack of personal jurisdiction, improper venue and insufficient service of process be raised
at the time ∆ files a motion or in his answer
48
generally, amendments to pleadings relate back to the date the original pleading was filed if...
the amendment concerns the same conduct, transaction, or occurrence that was set forth in the original pleading
49
if it is determined that an absentee's interest in the subject matter of the case would be affected by judicial determination of a case, the court has PJ over the absentee and joining him would not destroy jurisdiction or venue, he...
must be joined as a party to the case
50
under certain circumstances, a ____ may be issued without notice to the other party
temporary restraining order (if the moving party gives specific facts in an affidavit or in the verified complaint to establish that immediate and irreparable injury will result to the moving party before the adverse party can be heard in opposition)
51
the 7th A guarantees a trial by jury in all cases where
the claim is "at law" and the amount in controversy exceeds $20
52
what is a verdict in which the jury finds for the P or ∆, determines the damages or relief to be given and answers specific questions of fact
general verdict with special interrogatories
53
special verdict
jury receives a series of questions regarding each ultimate fact, then the court makes legal conclusions based on those facts
54
summary judgment must be granted if, from the pleadings, affidavits, and discovery materials, it appears that _____, and the moving party is entitled to judgment as a matter of law
no genuine dispute of material fact exists
55
when can the court grant a motion for judgment as a matter of law
once the nonmoving party has been fully heard and the court has found that a reasonable jury would not have a legally sufficient basis to find for the nonmoving party on that issue
56
a new trial may be granted when the verdict is...
excessive, inadequate, or against the weight of the evidence
57
a court may, under FRCP 41(b) order an involuntary dismissal against a P on the ∆'s motion or on its own for...
- failure to prosecute the case
- comply with FRCP OR
- comply with a court order
58
when does claim preclusion apply
1. the earlier judgment is a valid, final judgment on the merits
2. the cases are brought by the same claimant against the same ∆ AND
3. the same cause of action is involved in the later suit
59
under doctrine of issue preclusion (collateral estoppel) a judgment in a prior case will be sufficient to bind the P or ∆ in subsequent actions on different causes of action as to issues that were
actually litigated and essential to the judgment
60
4 factors for preclusion
1. the party against who the judgment will be used had a fair opportunity to be heard on critical issues
2. the posture of the case is such that it would not be unfair or inequitable to apply issue preclusion
3. the issue in the first case is identical to the issue in the second case
4. there was a final judgment on the merits
61
when must a motion for relief from judgment because the judgement is void be brought
within a reasonable amount of time but there is no outermost deadline
62
in state court and frequently in federal court (absent consent or waiver), PJ is limited by...
state statutes and the due process clause
63
for a ∆ to have such minimum contacts with the forum that the exercise of PJ over him would be fair and reasonable, the court must find
he purposefully availed himself of that forum AND it was foreseeable that his activities would make him amenable to suit in the forum
64
venue is proper in a civil action in a
judicial district in which any ∆ resides, if all ∆ are residents of the state in which the district is located
65
assume that venue was proper in the district where a suit was originally brought... is transfer to another district permitted and if so, where
transfer is permitted to another district where the action might have been brought, or to which all parties have consented
66
before making initial disclosures, a party must...
make a reasonable inquiry into the facts of the case
67
during discovery, electronically stored information need not be produced if the responding party identifies it as
not reasonably accessible because of undue burden or cost
68
absent a showing of substantial need and undue hardship, the "work product" made by a party or representative of a party is not discoverable if...
made in anticipation of litigation
69
when may a court order a mental or physical exam of a party
if the party's mental or physical condition is in controversy AND good cause is shown
70
if a party has provided incomplete discovery, the other party may...
move to compel discovery
71
how are venue provisions affected when the US is the ∆
venue provisions are slightly broader... venue is proper where P resides if no real property is involved in the action
72
when the original venue is improper, transfer is preferred and will be allowed...
in the interest of justice
73
a court can have SMJ without having proper
venue
74
an objection to improper venue can be...
waived
75
venue can be conferred by agreement and ____ cannot be conferred by agreement
SMJ
76
if a court lacks PJ, it can still...
transfer the case
77
when a transfer is based on the ground that venue was improper, which law applies in the transferee court
the law of the transferee court
78
where venue is proper in the district where a suit is originally brought, transfer to another district is...
permitted to another district where the action might have been brought, or a district to which all parties have consented
79
venue is considered to be waived unless...
a timely objection is made
80
for venue purposes, where may a ∆ who is not a resident of the US be sued
in any judicial district
81
where is a business entity ∆ deemed to reside for venue
any judicial district in which ∆ is subject to the court's PJ with respect to the action
82
when a transfer is based solely on convenience, the law of ____ applies in the transferee court
the transferor court
83
how does an original court's lack of PJ affect its power to transfer a case
it has no effect - does not preclude the court from transferring the case, nor does it require the court to dismiss the case
84
venue is proper in a civil action in a judicial district in which any...
∆ resides if all ∆s are residents of the state in which the district is located
85
federal court may have SMJ over a class action so long as
1. any class member is of diverse citizenship with any ∆
2. the amount in controversy in the aggregate exceeds $5m AND
3. there are at least 100 members in the class
86
a party serving process may follow the service of process rules for the state in which the federal court sits or the state where service of process is to be effected in
all federal actions
87
notice to class members of dismissal or settlement of a class action is required unless...
the judgment will not bind the class
88
common question class action
questions of fact or law common to members of the class that predominate over individual issues
89
generally, amendments to pleadings relate back to the date the original pleading was filed if...
the amendment concerns the same conduct, transaction, or occurrence set forth in the original pleading
90
garnishment
court order directing money or property in the hands of 3rd party be seized
91
replevin
process by which P takes possession of and holds disputed property during the lawsuit
92
attachment
process by which another's property is seized in accordance with a writ or judicial order for the purpose of securing a judgment yet to be entered
93
if one party files in federal court and an opposing party files in state court, the federal court is prohibited from enjoining the state court proceedings unless doing so is...
1. expressly authorized by statute
| 2. necessary in aid of its jurisdiction or to protect or effectuate its judgments
94
complaint must include
- statement of grounds for jurisdiction
- statement of claim showing claimant is entitled to relief
- demand for judgment for relief (may be in the alternative)
95
an answer that does not contain specific denials or admissions of each averment in the complaint must then contain...
general denial with specific admissions to certain averments to be valid
96
if a default is entered against a ∆, he loses the right to
contest liability, but he still may be heard at the hearing for damages
97
supplemental pleading
pleading relating to matters occurring after the date of an original pleading
98
what jurisdictional issue may ∆ raise for the first time on appeal
lack of SMJ but NOT lack of PJ
99
rule 11 sanctions may consist of monetary penalties and nonmonetary directions and may be imposed on...
parties, attorneys, or law firms
100
P is not required to reply to ∆'s answer unless...
the court orders P to do so
101
in general pleadings should consist of short plain statements, but when establishing fraud or mistake they must be alleged with...
particularity
102
a party may bring an interpleader action based on federal question jurisdiction under...
Rule 22 or federal interpleader act
103
in federal question cases, the action is always deemed commenced for SOL when...
the complaint is filed with the court
104
written agreement to arbitrate is enforceable unless...
ground for revocation exists
105
members of common question class action who did not opt out when notified of pendency of an action may ope out of settlement if...
permitted by court on its discretion
106
intervention of right
applicant wants to intervene in an action because she has an interest in the property that is subject matter of the action and the disposition of the action may impair her ability to protect that interest
107
prior to the scheduling conference required under FRCP 16b, the parties must
confer to consider claims and defenses, the possibility of settlement, initial disclosures, any issues concerning the preservation of evidence and a discovery plan
108
in order for a class action to be founded on diversity jurisdiction, the court must consider...
the citizenship of all named class representatives and whether one of the claims exceeds $75k
109
if ∆ waives service of process she
does not waive the right to object to venue and PJ
110
if it is determined that an absentee's interest in the subject matter of the case would be affected by a judicial determination of a case he...
must be joined as a party if the court has PJ over him and his joinder would not destroy SMJ or venue
111
time period for filing renewed motion for judgment as a matter of law or a motion for a new trial may...
never be extended (must be filed within 28 days)
112
how may a party consent to PJ
express consent, implied consent or voluntary appearance
113
the court may consolidate actions before it only when the actions
have a common question of law or fact
114
for the court to grant a motion for judgment as a matter of law, the court must find...
a reasonable jury would not have a legally sufficient basis to find for the nonmoving party on that issue
115
to receive a jury trial, a party generally must
file a written demand and serve it on all parties within 14 days after the service of the last pleading directed to the jury-triable issue
116
a new trial may be granted when the verdict is...
excessive, inadequate or against the weight of the evidence
Barbri
flashcards
Decks in class (21)
# Cards
-
Wills42
-
TX Estate Administration15
-
TX Trusts and Fed Estate Gift Tax62
-
Consumer Law53
-
Fed Civ Pro116
-
TX Civ Pro42
-
Constitutional Law53
-
Corporations24
-
Real Property127
-
TX Real Property Distinctions16
-
Oil and Gas41
-
Torts55
-
Sales and Leases9
-
Agency and Partnerships45
-
Contracts42
-
Family Law17
-
Community Property10
-
Tax15
-
Secured Transactions13
-
Payment Systems12
-
Bankruptcy15
