Frcp Bar Exam Prep Outline

Federal Civil Procedure Outline

FREQUENTLY TESTED TOPICS: Personal Jx, Subject Matter Jx

JURISDICTION AND VENUE

Subject Matter JX: federal question, diversity, supplemental, concurrent

Federal Question: original jx over all civil actions arising under Constitution, fed laws (when a cause of action/remedy created), treaties, admiralty/maritime, habeas corpus. Must be apparent from fair reading of plaintiff’s complaint. Defedant’s use of federal defense will not, by itself, give rise to federal question jx.

• Habeas corpus (civil action against jailor/custodian) must be based on one of the following: 1) violation of DP of 5th/14th; 2) violation of double jeopardy of 5th/145h; 3) violation of prohibition of compelled self-incrimination of 5th/14th; 4) violation of right not be subject to cruel and unusual punishment under 8th.

• Habeas corpus only available when state court’s determination contrary to clearly established fed law. Must exhaust all state court remedies first.

• Habeas corpus must be brought within 1 year of final judgment

Diversity: original jx when litigants are citizens of different states/countries, and amount in controversy over $75k

• $75k amount may not include costs of litigation (exception: can include attorney’s fees when winning party statutorily allowed to collect)

• burden on D to prove the amount in controversy is “to a legal certainty” not in excess of $75k

• maj: amount in controversy determined by amount sought by P (P’s viewpoint rule)

• min: amount in controversy determined by value of consequences which may result from the litigation (either viewpoint rule)

• P can aggragate all claims against one D, but may not aggregate claims against multiple Ds (unless the claims are common and undivided)

• If the suit seeks an injunction, the amount in controversy is either the injunction’s worth to P, or the cost of the injunction to the D

• Complete diversity required: no jx if any P and any D share citizenship (domicle) of same state (must be met only at time lawsuit is filed – diversity jx not distinguished if D moves to P’s state)

• Person’s domicile: 1) physical presence in state; AND 2) intent to remain indefinitely. Can only have 1 domicile.

• Alien admitted to permanent residence in US: citizen of state in which he is domiciled.

• Corporation domicile: wherever the corporation is incorporated, and wherever it has its principal place of business (multiple domiciles possible). Principle place of business = “nerve center” – place from which high level officers direct, control, and coordinate the corporation’s activities

• Unincoporated association’s domicile: citizenship of all members of association. In class actions, an unincorporated association is citizen of state under whose laws the association is organized and the state of principle place of business

Supplemental Jurisdiction: fed court can hear claims that it does not have original jx over if those claims arise out of the same transaction or occurrence as a claim over which the court would have jx.

• Applies to: state law claims that do not involve diversity jx, sharing transaction with fed claim

• Claims arise out of the same transaction/occurrence if: 1) same transaction/occurrence; or 2) common nucleus of operative fact

• Supp jx may include claims that involve joinder/intervention of add’l parties, even if there would otherwise not be fed jx over those parties. In a diversity case, supplemental jx may be exercised over claims of a party other than the P if the only reason the other party’s claims do not qualify for diversity jx is amount in controversy.

• (weird joinder rules)

• court may deny supplemental jx when:

  • state claim raises novel/complex issues of state law

  • state law claim substantially predominates over the claim over which the court has jx

  • court has dismissed all claims over which it had jx

  • “exceptional circumstances” + “other compelling reasons” to decline jx

Concurrent Jurisdiction: if case could also have been brought in state court. Both state and fed laws or policies may apply, resulting in conflict of laws.

Removal: case originally brought ins tate court may be removed to fed court if P could have brought case in fed court. D has right to remove.

• If based on diversity, all of the Ds must be diverse from P.

• fraudulent joinder rule: right to removal not defeated if D was fraudulently joined for purpose of defeating diversity jx and preventing removal. Must prove: 1) no possibility hat P would be able to establish CoA in state court against in state D; or 2) outright fraud in P’s pleading of jx facts

• D has right to remove when P is suing in jx that is not D’s home state. But no right to remove when P sues D in state court located in D’s home state because no risk of being “Homered”

• If basis for removal is FQJ and appended to fed question claim is a state claim not within original or sup jx of fed court (or a claim that has been made not removable by statute), entire case removed to fed court fed judge must sever non-removable pieces and remand back to state court

• To remove, D must file notice in fed court in distriction where action urrently pending. Must be filed within 30 days of service of initial pleading or when pleading amended to make case removable. Each D receives a 30 day period to remove (so if D’s are joined later on, and original D’s initially did not seek removal in time but the new D does, all Ds can be removed). Case removable on basis of diversity may not be removed more than 1 year after commencement of action – unless P acted in bad faith to prevent D from removing.

• All Ds must consent to or join in removal for removal to be proper.

• Venue = district court where the state court is located

• Removal is allowed only for state court cases. Agency/administrative proceedings cannot be removed to fed court

• If P believes case was improperly removed, she can bring motion to remand case to state court. Motion must be brought within 30 days of filing of removal notice (unless based on defect in SMJ). D...

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