Professional Documents
Culture Documents
Civ Pro 1 Flowchart
Civ Pro 1 Flowchart
statute
2) Would Exercising jurisdiction here comport with
Personal Jurisdiction [go after any of Ds assets you can find!
Does the
ariseCredit]
from Ds contacts with the forum state, or is it unrelated
Full claim
Faith and
Arise from contact
to the forum state?
Unrelated
DoesSpecific
D have Minimum Contacts within
In Rem Jurisdiction: Based on property in the state and judgement is limited to the property
In Rem: Action to determine ownership of specific property against the world
Quasi in rem I: Action to adjudicate ownership/title of property between identified parties
Quasi in rem II: Court asserts jurisdiction based upon the in-state property which is attached,
but the claims do no
concern ownership/title of the property
- After Sheffer v Heitner have to apply International Shoe (minimum contacts)
Even if the property satisfies minimum contacts, the contacts have to be related to the
Notice:
-
Must be reasonably calculated under all of the circumstances to apprise interested parties and afford
them an opportunity to be heard
o Actual notice not always constitutionally necessary
If sender learns notice was definitely not received, they have to take further action
Posting notice on property and publication are traditional means, but typically not enough
o Publication upheld where location is unknown/unascertainable
Actual notice is insufficient if Summons and Complaint arent delivered according to the rules.
Service:
(within US): An individual (other than minor, incompetent person, or person who filed waiver) may be
served by:
- Following state law in the state where the court is or where service is made; or
- Do any of the following:
o Delivering a copy of the summons and complaint to the individual personally
o Leaving a copy of each at the persons dwelling with someone of suitable age and discretion
who resides there
o Delivering a copy of each to an agent authorized by appointment or by law to receive service
(outside US): By any internationally agreed means that is reasonably calculated to give notice
- If no agreement, or no means in agreement, then by means reasonably calculated
o As prescribed by foreign countrys laws
o As the foreign authority directs; or (unless prohibited by foreign country)
Delivering to individual personally
Using any form of mail that requires a signed receipt
o Or by any other means not prohibited by international agreement that the court orders
For corporations: they must be served
- In a judicial district of the US
o Following state law in the state where the court is or where service is made; or
o By delivering to an officer/agent
Summons and Complaint & Waiver
Summons must: name court and parties; be directed to D; state the name and address of Ps attorney, or if
unrepresented- of P; state the time D has to appear and defend; notify D that failure to appear and defend will
result
in a default judgement against D for the relief demanded in the complaint; be signed by the clerk; and bear the
courts seal
P is responsible for serving within the time allowed- 90 days after complaint is filed within the US, but extensions
available for good cause
Service can be made by any person 18 or older and not a party in the action (attorney okay)
Waiver: P can notify D about the action and request they waive service to avoid unnecessary expenses.
If D does not waive then he pays for expenses for service and any attorney fees required to collect on those
expenses.
D has 30 days to return the waiver after request was sent -60 days if outside the US
Request must: be in writing and addressed to D or Ds agent authorized to receive service; name the court where
complaint was filed; include the complaint, 2 copies of the waiver form, and a prepaid means for returning the
form;
inform D of the consequences of waiving/not waiving the service; state the date the request was sent; be sent First
Class Mail or other reliable means
The connection from any P to any D has to fulfill diversity, so if 3 Ps and 3 Ds, no P can be a citizen of the
same state as any D.
The only way to have a foreign country vs a foreign country is if they are connected to US parties on their
respective sides and the US parties are not in the same state as each other.
Policy: If you are not on your home turf, then you do not want to be overpowered by your opponents state
laws. Federal Judges have positions for life/until impeachment while state judges are elected this could leave
the state judge with a bias toward constituents. It is more expensive to litigate in federal court because there
are more hoops involved. Diversity gives a more neutral forum to prevent state bias. For alienage, to show the
world that you can have fairness in federal court if you are a foreign citizen.
Court takes into account many factors when determining if someone intends to remain in a state, such as:
voter registration, location of their job, where they pay taxes, if they bought a house, etc.
Jurisdictional Amount: the court accepts on Good Faith that P is asking for a reasonable amount (sometimes D
can prove otherwise). If it is over the jurisdictional amount you are good. We do not want entire cases thrown
out if the final damages do not reach the minimum amount. P has to pay Ds legal costs if P loses; winning P
can sometimes collect too.
Jurisdictional Amount: Has to be MORE THAN $75,000 so $75,000.01 works.
Interest and Costs/Attorney Fees do not apply
Punitive Damages do not count in Breach of Contract only
P can combine all claims that P has against D whether they are related or not (aggregation)
Each P has to meet statutory amount with respect to each D to qualify (some small exceptions)
o Exception 1: Joint tort-feasors under same claim (P can recover full amount from either)
o Exception 2: If 2 Ps joint suing one D and 1 P meets the amount, there may be a basis for supplemental
jurisdiction over the other as long as theyre related
o Exception 3: If non-monetary (like injunction) then if value to P or cost to D is over the amount. Different
courts look at it from one side or the other depending on circumstances.
Federal Issue: Determined when considering the claim P is actually asserting. Disregard any assumed issues that D
is expected to raise.
Except: Patents, plant variety protection, or copyright infringement
Well-Pleaded Complaint Rule: In determining whether there is a federal question- only if Ps actual
claims set out on the face of the complaint determines if there is a federal question. Not Ds
anticipated counterclaim (exceptions for: copyright, patent, federal trademark, bankruptcy, and
plant variety protection claims)
There are few federal exceptions to a state courts
State Law Claims with Embedded Federal Issue: A
general jurisdiction (states can hear federal issues
except some) -bankruptcy, federal securities laws,
patent, copyright, and federal antitrust law (also
admiralty and maritime cases)
Declaratory Judgement/Relief: If you are
threatened with a lawsuit, you can ask court if you
are infringing on anyones rights. This saves time
and money (other party may wait a while to sue
and that whole time the money rolls up) [Often
with patent infringement if someone sends a
cease and desist]
Strategically it lets you choose the forum as long
Removal: State
Federal
- Diversity
- Federal Issue
- Federal only
cases
With respects to defects in the removal- other than lack of subject matter jurisdiction- the P must make a
motion to remand a case to state court within 30 days of the filing of the notice of removal in federal
court
If a federal court grants a motion to remand, a fed court clerk must mail a certified copy of remand order
to the state court which then proceeds with the case
the district courts granting a motion to remand and remanding a removed action to state court in not
reviewable on appeal. Note, however, that a party would have the right to appeal the district courts denial
of a motion to remand the case to state court, but because of the final judgement rule applicable in federal
courts, the D would not have an immediate right to appeal and would have to wait until a final judgement
in the case
if it appears any time before final judgement that the fed court lacks subject matter jurisdiction, the case
must be remanded back down to State court
if after removal to federal court, the P seek to join additional Ds who would destroy diversity, the court
may deny joinder or permit joinder and then remand to action to state court
Venue
Transfer of
Venue
Transfers for:
Convenience (1404) Discretion of Court
Improper Venue (1406) Court discretion to
dismiss or transfer in the name of justice
Court 2
Was originally
Court 2 applies
filed in proper
choice of law
venue
analysis of Court
Originally filed
1
Court 2 applies
1406