Study your flashcards anywhere!

Download the official Cram app for free >

  • Shuffle
    Toggle On
    Toggle Off
  • Alphabetize
    Toggle On
    Toggle Off
  • Front First
    Toggle On
    Toggle Off
  • Both Sides
    Toggle On
    Toggle Off
  • Read
    Toggle On
    Toggle Off

How to study your flashcards.

Right/Left arrow keys: Navigate between flashcards.right arrow keyleft arrow key

Up/Down arrow keys: Flip the card between the front and back.down keyup key

H key: Show hint (3rd side).h key

A key: Read text to speech.a key


Play button


Play button




Click to flip

79 Cards in this Set

  • Front
  • Back
Subject-Matter Jurisdiction
3 sources of subject-matter jurisdiction:
federal question, diversity of citizenship, or supplemental jurisdiction
Well-Pleaded Complaint Rule
Rule for federal question jurisdiction

Plaintiff's CLAIM ITSELF must "arise under" federal law
Diversity of Citizenship Jurisdiction
Exists if:
• Opposing parties are citizens of different states; and
• Amount in controversy EXCEEDS 75,000

Exactly 75,000 is not enough
Citizenship of Individuals
Citizenship is the state of her domicile AT TIME CASE IS FILED

Domicile established by:
1. Presence in state AND
2. Intent to make it permanent home

Note: Executors deemed to be citizens of same state as decedent
Citizenship of Corporations
2 citizenships
• State of incorporation AND
• Principal place of business (where the manager's coordinate and direct corporate activity)
Aggregation of Claims for Amount in Controversy Requirement
• Plaintiffs with two unrelated claims against one defendant—can aggregate the claims
• Two different plaintiffs against one defendant—cannot aggregate (no matter how similar the claims)
• One plaintiff against multiple defendants—can aggregate if they are joint tortfeasers under one claim
Counterclaims for Amount in Controversy Requirement
• Compulsory counterclaim (arising from same transaction or occurrence): within jurisdiction of court regardless of the amount.
• Permissive counterclaim (not arising from same transaction or occurrence): must possess an independent jurisdictional basis for federal jurisdiction (amount of claim must be in excess of 75,000)
Valuing Claims of Injunction for Amount in Controversy
If EITHER test is met:
1. Plaintiff's benefit if granted
2. Defendant's cost of compliance
Domestic Relations Exception to Diversity Jurisdiction
• Issuances of divorce, alimony or child custody decrees are subject to state law and won’t be heard in federal court
Supplemental Jurisdiction
Where federal courts have jurisdiction (through federal question or diversity), they will also have supplemental jurisdiction over claims that “derive from a common nucleus of operative fact”

Cannot use supplemental jurisdiction to overcome lack of diversity but CAN use to meet amount in controversy
Rule 14 Exception to Supplemental Jurisdiction
• Rule 14 permits a defendant to bring 3rd party into action if they may be liable for all or part of any judgment against defendant in the action.

• When a PLAINTIFF brings a claim against a person made party under Rule 14, supplemental jurisdiction will NOT apply

• The claim must possess a satisfactory independent basis for subject matter jurisdiction
5 Bases for Personal Jurisdiction
• Transient presence: person is physically present in the forum state when served (absent fraud)
• Domicile: Person is domiciled in the state where the court is located.
• Consent: Person provides valid consent to the court’s personal jurisdiction
• Appearance: Person appears in the court regarding the cases against the person
• Minimum Contacts: A person who is not domiciled in the forum state may possess sufficient minimum contacts with the forum state to authorize personal jurisdiction
Determining Domicile
A state is a person’s domicile if there is:
• A physical presence in the state (residency); and
• The person possesses an intent to reside there indefinitely (1st Rest.) or to make it his home for the time at least (2nd Rest.)
A person can have many residences, but only one domicile
Domicile determined objectively (property records, tax records, registrations, etc.)
Personal Jurisdiction Based on Appearance
• Party may object to and directly attack the jurisdiction of a court at the outset of the case.
• However, if the objecting party seeks affirmative relief from the court, the objection to jurisdiction is waived and the attack will fail
Personal Jurisdiction Based on Minimum Contacts
A person who has never been present in a state may be subject to personal jurisdiction that would require the person to defend against a lawsuit in the state if the person possesses:
o “Sufficient minimum contacts” with that forum state:
o Such that requiring the person to appear and defend in a court there would not;
o “offend traditional notions of fair play and substantial justice.”
Memorize this
Minimum Contacts: Continuous and Systematic Contacts
• If defendant’s contacts with the forum state are continuous and systematic, then personal jurisdiction is appropriate in any case involving any matter regarding that party.
• This is “General Jurisdiction”
• This rule applies to foreign defendants
• Websites: likelihood that owner of website would be subject to personal jurisdiction may be proportionate to the extent to which the website is interactive
Minimum Contacts: Sporadic Activity
• If the defendant’s activity in the forum is sporadic, instead of continuous and systematic, the defendant may be subject to personal jurisdiction only if the cause of action arises out of that state activity
• This is “Specific Jurisdiction”
Minimum Contacts: Purposeful Availment
• Exercise of personal jurisdiction is more likely if a party “purposefully availed” itself of the forum state (invoke the benefits and protections of its laws)
Minimum Contacts: Reasonableness
• Overall question is whether the assertion of jurisdiction is reasonable under the circumstances
• Ask: Whether the defendant should have reasonably anticipated being haled into court there.
• World-Wide Volkswagen and Asahi
o Minimum contacts do not result from simply placing product into the “stream of commerce,” even if that placement occurred knowing that the forum state was the product’s ultimate market
Notice and Opportunity to be Heard
In addition to jurisdiction, Due Process requires that party receive notice and opportunity to be heard or else judgment not enforceable against that party.
• Notice: service of process must be “reasonably calculated to adequately inform a defending party of the nature of the cause of action”. Defendant must also have a reasonable time to respond and prepare a defense to the cause of action
• Opportunity to be Heard: parties to a dispute entitled to receive an impartial hearing in a court of their claims and defenses
Limitations on Personal Jurisdiction: Forum-Selection Clauses
• Factor but not dispositive of the issue of personal jurisdiction
• Inequality of bargaining powers is relevant
• Ask:
o Does the forum selected have some connection to the contract? And
o Has a party overreached by attempting to include the clause in the contract?
Limitations on Personal Jurisdiction: Fraud, Force and Privilege
• Jurisdiction obtained by fraud/force is invalid
• Representatives of foreign sovereigns who are in forum state on business are generally immune from service.
• People present in forum state for litigation may not be subject to personal jurisdiction as a result of service of process upon them in that state.
In Rem Jurisdiction
• Court’s jurisdiction over property located in the forum state
• Adjudicate the entire world’s rights vis-à-vis a piece of property
• Judicial determination binding with respect to all possible interest holders if reasonable notice of the proceeding was given
Quasi In Rem Jurisdiction
• Initiated when plaintiff seizes property within a forum state by means of attachment or garnishment
• Court may decide issues in a case unrelated to the property but amount of judgment limited to the value of the property seized
• Judgment cannot be sued upon in any other court
• Supreme Court has severely limited, if not eliminated, quasi in rem jurisdiction
Final Judgment Rule
• Appeals can only be taken from a final judgment
• Final judgment: nothing remains for court to decide, just execute the judgment
• Court may sever, for appeal, parts of a multi-claim case by:
o Making a finding that no just reason exists for delay
o Directing entry of judgment as to certain claims or parties
Collateral Order Exception
Interlocutory orders may be appealed immediately if they satisfy following criteria:

1. Distinct from the merits of the case

2. Involves an important legal question; and

3. Is essentially unreviewable if parties must await final judgment (claim of immunity from suit under 11th Amendment, for example)
Conditions of Removal
A case originally filed in state court may be removed to federal court for adjudication on the merits if:
• The case could have been originally filed in a federal court (subject matter jurisdiction exists)
• A federal statute provides for removal
• Only a defendant may remove a case
• All defendants must agree to remove a case
• The grounds for removal are included in at least one claim of a plaintiff.
o Thus the grounds cannot be based on an Affirmative Defense or a Counterclaim; and
Fraudulent Joinder
• If a party fraudulently joins a party in order to destroy diversity to prevent removal, the defendant may remove the case if he would have been able to remove the case in the absence of the fraudulent joinder
• Joinder is “fraudulent” when there is absolutely no chance that the cause of action against the purported defendant will succeed.
Time to Answer in Removal Cases
Defendant must answer and/or present defenses within:
• 21 days after the receipt of a copy of the complaint or summons; or
• Within 7 days after the filing of the notice of removal, whichever period is longest
Receipt of copy of complaint need not be through service
Time to Demand Jury in Removal Cases
If moving party is the removing party:
• Must serve a demand within 14 days after filing the notice of removal
If moving party is not the removing party:
• Serve a demand within 14 days after service of the notice of removal
Party who made express demand for trial by jury in accordance with state law doesn’t need to demand again
Local Actions
--Must be filed in the district where the land lies

Transitory Actions
--Plaintiff may lay venue in any district where:
1. A district where any defendant resides, if they all reside in the same state or
2. A substantial part of the claim arose

If neither of those can be satisfied then:

If Diversity only: any district in which the defendants are subject to personal jurisdiction

If Fed-Question (with or without Diversity): In a district in which any defendant may be found
Determining where they "reside" for purposes of venue
Humans reside in the district where domiciled

Corporation resides in all districts where they're subject to personal jurisdiction
Venue in Removal Case
• Don’t examine the venue tests
• Venue proper in the district in which the state court sits
Discretionary Venue Transfer
If venue improper, transfer to another court within that judicial system

Even if venue is proper, court has discretion to transfer based on convenience and “THE INTERESTS OF JUSTICE” to transfer venue

1. Location of the evidence
2. Judicial efficiency
3. Convenience of the parties
4. Convenience of the witnesses

Note: can only transfer to a venue where plaintiff could have originally filed:
This means personal jurisdiction and venue must exist and cannot have been waived
Forum Non Conveniens
If there is another court that is more convenient and that court is in another judicial system (foreign country)

Either dismiss or stay the action

Same factors as discretionary venue transfer
Claim against opposing party

Raise in the Answer

--Arise "out of same transaction or occurrence" as plaintiff's claim
--Must be raised or waived
--Will be covered by Supplemental Jurisdiction

Permissive: don't need to raise it now but if you do, needs independent ground for subject-matter jurisdiction (if diversity over 75,000)

“Same transaction or occurrence”
Same standard are “common nucleus of operative fact” for supplemental jurisdiction
• Same issues: whether the issues of law and fact in the claims are nearly identical
• Same evidence: Whether the same evidence would refute/support the claims
• Logical relationship: Whether a logical relationship exists between the claims
• Res Judicata: whether res judicata would preclude a later lawsuit on that cross-claim or counterclaim
Amendment of Pleadings
Plaintiff may amend once within Defendant's first response

Defendant has right to amend once within 21 days of serving his answer

If no right to amend, court will grant "if justice so requires"
Court looks at:
--Futility of Amendment
Relation-Back Doctrine (for Amendment of Pleadings)
For Statute of Limitations
• New Claims
o If arose out of same transaction or occurrence—relate back to date of original pleading
• New Parties
o Claim will not relate-back unless:
 Notice: new defendant had actual notice of the suit such that it would not be prejudiced in being required to respond
 Mistake: New defendant must know or should have known that, but for a mistake in the identification of the proper party, it would have been served earlier
12(b) Motion to Dismiss
1. Lack of Subject-Matter Jurisdiction (Not waivable)

2. Lack of Personal Jurisdiction (waivable)

3. Improper Venue (waivable)

4. Insufficiency of Process (problem with the papers) (waivable)

5. Insufficient Service of Process (waivable)

6. Failure to State a Claim

7. Failure to Join Indispensable Party
Motion to Dismiss—Failure to State a Claim
• Whether, on the face of the complaint, a defendant is entitled to judgment (fail to allege cause of action, etc.)

• Complaint construed in light most favorable to non-moving party

If every fact in the complaint were true, would plaintiff win?

Only look at the face of the complaint
Motion for Summary Judgment
Moving party must show:
1. There is no genuine dispute as to material issue of fact; and
2. That she is entitled to judgment as a matter of law

View evidence in light most favorable to non-moving party

--This looks at evidence (affidavits) and that evidence must be admissible (no hearsay)

--Unverified pleadings are not evidence but may be relevant if D failed to deny an allegation (may be treated as fact)
Motion for Judgment as a Matter of Law (JMOL)
After other side has been heard at trial

Standard: "There is no legally sufficient evidentiary basis for a reasonable jury to find for the non-moving party

Court views evidence in light most favorable to nonmoving party
Compulsory Joinder of Parties
Necessary and Indispensable Parties
3 tests for "necessary"
1. Without A, the court cannot accord complete relief among existing parties
2. A's interest may be harmed if he is not joined
3. A claims an interest which subjects a party (usually D) to multiple obligations

If necessary, then see if joinder is "feasible"
Will be "feasible" if:
1. There is personal jurisdiction over him; and
2. Joining him will not destroy diversity

If he cannot be joined:
1. Proceed without him; or
2. Dismiss

Decide that by looking at three factors to see if "indispensable"

1. Is there an alternative forum available (maybe state court)?

2. What is the actual likelihood of harm to Bob?

3. Can the court shape relief to avoid that potential harm?

If indispensable--dismiss
Permissive Joinder of Plaintiffs
Join claims in single action when those claims:
• “arise out of a single event and share at least one common issue of law or fact”
• Must have subject matter jurisdiction to hear the claims of these plaintiffs
Permissive Joinder of Defendants
Permit plaintiff to join defendants in action when claims against each defendant:
• “arose from a single transaction and share a common issue of fact or law”
• Joinder may be defeated if court lacks subject matter jurisdiction over a joined claim
Allows third-party plaintiff to bring a claim against a third-party defendant who may be liable to the third party plaintiff for derivative/secondary liability
• Cannot be used to assert direct liability
o For direct claim, try Joinder
Certification of Class Actions
1. Numerosity: the class is so numerous that joinder of all members is impracticable

2. Commonality: Questions of law or fact common to the class

3. Typicality: The claims or defenses of the representative parties are typical of the claims or defenses of the claims

4. Adequacy of Representation: The representative parties will fairly and adequately protect the interests of the class

-- 2 parts
1. Whether the representative’s interests are aligned closely enough with other members to ensure fair representation

2. Counsel experienced and qualified to carry out the litigation to fairly and adequately protect interests of the class

Also required for Damages Actions (the only class actions allowed in Massachusetts):
1. PREDOMINATE: Questions of law or fact common to the members of the class predominate over any questions affecting only individual members

2. SUPERIORITY: Class action is SUPERIOR METHOD to handle the dispute
Subject Matter Jurisdiction in Class Actions
Either federal question jurisdiction or Diversity

For diversity, only examine named plaintiff
--Must be diverse from all defendants
--Must have claim exceeding 75,000
Depositions by Oral Examination
• Give reasonable notice to every other party
o State time and place and names and addresses of people to be deposed
• Subpoena to person deposed
o Place, date and time
• Subpoena duces tecum
o Request person produce certain materials
Renewed Motion for Judgment as Matter of Law
• Must have moved for motion for judgment as matter of law to preserve this motion
• Granted if no legally sufficient evidentiary basis for a jury to find in favor of non-moving party
• Must be made within 28 days of judgment
Motion for New Trial
Within 28 days of judgment

1. Prejudicial (not harmless) error at trial makes judgment unfair (wrong jury instruction or evidentiary ruling)

2. New evidence that could not have been obtained with due diligence for the original trial

3. Prejudicial misconduct of party or attorney or third party or juror

4. Judgment is against the weight of the evidence

5. Excessive or inadequate damages

Grant of New Trial less drastic than RJMOL
Preservation of Error
• Must object to ruling to preserve matter for appeal
o Contemporaneously to the ruling; and
o With particularity regarding grounds for objection
• Objection to evidence sustained then must make offer of proof to show what evidence was purported to prove
o In order to challenge the ruling on appeal
• Plain Error Exception to Contemporaneous Objection Requirement
o Flaw so obvious that failure to rectify would seriously affect fairness and integrity
o Affect substantial rights and unfair prejudicial impact on jury’s deliberations
• Harmless Error Rule
o Any error that does not affect substantive rights cannot be grounds for appeal
o Standard: whether error would likely have affected trial’s result
Res Judicata: Claim Preclusion

1. The prior judgment is final, valid, and "on the merits"

2. The same "cause of action" (or "claim") is involved in the later lawsuit (measured by "same transaction or occurrence" test)

3. The cases are brought by the SAME CLAIMANT against the SAME DEFENDANT
Collateral Estoppel: Issue Preclusion
Prevents party from re-litigating issues (as opposed to entire claims) that have been previously litigated and determined in a prior action

Traditional Requirements:

1. Valid and final judgment rendered in prior action

2. Issue of fact actually litigated, determined, and essential to the judgment

3. Same issue arises in subsequent action

4. Same parties are litigants in both actions

Modern Requirements:
1. Replaces “same parties” requirement with:

“party to be precluded had full and fair opportunity to litigate same issue in prior action”

2. Allows plaintiff to use determination in a another case against the defendant in the plaintiff’s favor
Permanent Injunction
• Permissible only after full trial
• Plaintiff must establish that:
o Plaintiff will suffer irreparable injury unless injunction issued
o Plaintiff’s threatened injury outweighs any harm proposed injunction may cause to opposing party
o Injunction would not be adverse to the public interest
Temporary Restraining Order
• Sought in emergency situations when notice to other party unfeasible (ex parte)
o This is the key characteristic
• Moving party must meet 3 conditions:
o Irreparable Injury
 That will result to applicant before adverse party can be heard in opposition
o Efforts Made
 Efforts to give notice and reasons supporting claim that notice should not be required
o Security
 Provide bond to compensate defendant in event TRO wrongfully entered
• Limited to 14 days absent good cause
Preliminary Injunction
• Often sought after TRO set to expire
• After moving party provides notice to non-moving party; and
• After non-moving party has an opportunity to be heard
Factors courts examine:
• Likelihood of Success on Merits
• Irreparable Injury
• Harm to Others (if injunction is entered)
• Public Interest
Accountability of Counsel (Rule 11)
• Signature of counsel
• Representations
o No improper purpose
o Legal Grounding
 Existing law or
 Non-frivolous argument
o Evidentiary Support
 Have or, if specifically identified, likely to have after further investigation or discovery
o Denials
 Denials of factual contentions warranted on the evidence or, if specifically identified, reasonably based on lack of information/belief
Sanctions For Rule 11 Violations
• By motion
o Serve motion and give other party 21 days to withdraw or correct before presenting to court
• On Court’s initiative
• Nature of Sanctions
o Limited to that which is sufficient to deter repetition of the conduct or comparable conduct by others similarly situated
Complete Diversity Rule
No diversity if ANY plaintiff is a citizen of the same state as ANY defendant
Timing for Removal
Must be within 30 days after service of the first document that makes case removable (dismissal of defendant that was preventing diversity)

But, in diversity case, no removal more than 1 year after case was filed in state court
Erie Doctrine
Ask: Is there a federal law (constitution, stature, FRCP, or FRE) on point that directly conflicts with state law? Under Supremacy Clause--follow federal

If none, ask: is this issue one of the easy ones?
1. elements of a claim or defense
2. statute of limitations
3. rules for tolling statutes of limitations
4. conflict (or choice) of law rules

If no federal law and not an easy one: If issue is substantive, she must follow state law. Throw in 3 tests, and come to a reasonable conclusion:
1. Outcome-Determinative: would applying or ignoring the state rule affect outcome of case? If so, it's probably a substantive rule, so should use state law

2. Balance of Interests: Does either federal or state system have strong interest in having its rule applied?

3. Avoid Forum-Shopping: If federal court ignores state law on this issue, will it cause parties to flock into federal court? If so, should apply state law.
Law applied after venue transfer
Court to which case is transferred applies the choice of law rules of the original court
Service of Process
1. Summons (formal court notice of suit and time for response)
2. Copy of the complaint

Federal: 120 days after filing case or case dismissed without prejudice)
Massachusetts: 90 days

By Who:
Federal: Any non-party
Massachusetts: Process server

Substituted:Their usual place of abode
--Federal: leave with someone of suitable age and discretion
--Massachusetts: Don't need to leave with anyone

Service on their Agent
Waiver of Service
Mail to defendant a copy of complaint and two copies of waiver form.

If Defendant executes and mails waiver form to P within 30 days, D waives formal service

If he does not, P must serve D personally or by substituted service

D must show good cause for failing to return waiver or must pay expenses of service
1. Statement of grounds for SUBJECT MATTER JURISDICTION
2. Short and plain statement of the CLAIM, showing entitled to relief;
3. Demand for RELIEF sought

Must plead facts supporting a PLAUSIBLE (not just possible) claim

3 matters must be pleaded with even more detail--PARTICULARITY OR SPECIFICITY:
1. Fraud
2. Mistake
3. Special Damages
Defendant's Response
Defendant must respond to Complaint within 21 Days after Service

Respond in 1 of 2 ways:
1. By Motion; or
2. By Answer

If he responds with Motion then must file Answer within 14 days after court rules on motion
Affirmative Defenses
Statute of Limitations
Statute of Frauds
Res Judicata

These are raised in the Answer or they're waived
Scope of Discovery
Anything relevant to a claim or defense

"Relevant": "reasonably calculated to lead to the discovery of admissible evidence"

Privileged material is not discoverable
Notice in Class Action
For damages action: must provide individual notice (usually by mail) to all reasonably identifiable members

Tells them:
1. They can opt-out
2. They'll be bound if they don't
3. They can enter a separate appearance through counsel
Amendments to Pleadings and Amendments to Pretrial Orders
Amendments of pleadings granted "if justice so requires"

Amendments of Pretrial Orders only granted if necessary "to prevent manifest injustice"
Exceptions to the Final Judgment Rule
1. Collateral Order Exception
2. Orders involving injunctions
3. Certified Questions
4. Writs of Mandamus or Prohibition
--Requires a showing that the trial court decision is beyond its jurisdiction or violated a mandatory duty owed by the trial court.

--Only available if an appeal will be insufficient and trial court's actions constitute a serious abuse of power that must be immediately corrected
Abstention, Generally
Federal court has a "duty to adjudicate a controversy properly before it" and may abstain "only in the exceptional circumstances where the order to the parties to repair to the State court would clearly serve an important countervailing interest."
Pullman Abstention
Operates only when the state court's resolution of unsettled state law issues may eliminate the need of resolving a difficult federal law issue.

2 Elements:

1. Case must present an unsettled question of state law; and

2. The question of state law must be dispositive of the case or would materially alter a question presented.

If court invokes Pullman abstention it should stay the federal question until the matter has been sent to state court for a determination of the uncertain state law issue
Burford Abstention
Appropriate only if federal adjudication would interfere with a state's administration of a complex regulatory scheme.

State courts would likely possess a greater expertise in a particularly complex area of law such as a complex regulatory scheme.
Younger Abstention
Where federal court is asked to enjoin the actions of state officials

3 requirements:

1. Pending or on-going state proceedings which are judicial in nature

2. The state proceedings must implicate an important state interest; and

3. The state proceedings must afford an adequate opportunity to raise any constitutional issues
Colorado River Abstention
When both federal and state court proceedings are being carried on to determine the rights of the parties with respect to the same issues of law.

It would waste judicial resources for both courts to carry on.

Apply a balancing test
--Must be evidence of factors that disfavor proceeding with the federal litigation, such as risk of inconsistent rulings with respect to particular piece of property; or

Clear evidence of a federal policy favoring unitary adjudication of the claims at issue.

Balance is heavily weighted in favor of the exercise of jurisdiction
Full Faith and Credit Clause
State, federal, and territorial courts are required to give state/federal court judgments the same credit they would receive in the courts of the rendering state.

Although lack of subject matter jurisdiction is not waived by failure to raise the issue, if it is raised and court incorrectly decides it has jurisdiction, that objection would be barred by issue preclusion (collateral estoppel) and so if enforced in another court--required to give it effect.