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Frcp Bar Exam Prep Outline

Law Outlines > Civil Procedure Outlines

This is an extract of our Frcp Bar Exam Prep document, which we sell as part of our Civil Procedure Outlines collection written by the top tier of U.C. Berkeley School Of Law (Boalt Hall) students.

The following is a more accessble plain text extract of the PDF sample above, taken from our Civil Procedure Outlines. Due to the challenges of extracting text from PDFs, it will have odd formatting:

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: o state claim raises novel/complex issues of state law o state law claim substantially predominates over the claim over which the court has jx o court has dismissed all claims over which it had jx o "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 nonremovable 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 has burden to show removal was proper.

Territorial JX: authority of court to bind party to the action. 3 ways to establish territorial personal jx: 1) fed court has territorial jx over state in which that fed district is located; 2) 2) fed statute that creates CoA may provide that fed courts have nationwise jx; or 3) 3) 100 mile bulge rule = fed court may exercise jx over D outside the state in which court is located if D is joined under FRCP 14 or 19 and is served within 100 miles from where summons was issued. D must have type of minimum contacts with the 'bulge' that would support personal jx for court in the bulge. Personal Jx: court's authority over a D. in personam, in rem, quasi in rem. Must be established separately for each D.
? Routes to get in personam jx1) D domiciled in forum jx; 2) or D is physically present in jx and is served with process while present (but D's presence must be voluntary and not a result of fraud); 3) or D consents to personal jx through express agreement or impliedly (if state statute that non resident has consented to personal jx if non resident engaged in particular activity that state has substantial interest in regulating 4) or D waives objectsion to personal jx - doesn't make motion to dismiss for lack of personal jx or include it in responsive pleading 5) or a D has systematic and continuous contacts with forum state: regularly engaging in business in state, maintaining a facility, or being physically present in state on regular basis. Constant physical presence not required. 6) Specific Jx when claim against D arises out of/is related to D's presence or connection with forum state 7) Long Arm Statute: fed court may exercise personal jx if authorized by state's long arm statute (LAS = set out types of contacts that will support jx). Typically, type of contacts that estabslish personal jx = 1) D transacts business within the state; 2) D contracts to supply goods and services anywhere in the state; or 3) D owns, uses, or possesses any real property within the state. Must meet fairness under DP.
? Due Process requirements = notice and minimum contacts o Notice: reasonable method of service of process o Minimum contacts: cannot "offend traditional notions of fair play." Looks at nature of D's rlshp with forum state and whether D would have reasonably expected to be haled into forum state court. o If D purposefully avails self to privilege of conducint activities within forum state - minimum contacts requirement satisfied (but merely placing product in stream of commerce is not enough) o If D has minimum contacts with forum state, D bears burden of proving that it would be fundamentally unfair for him to litigate in that state in order to avoid court's personal jx. Factors considered; 1) burden on D; 2) interests of forum state; 3) P's interests in obtaining relief; 4) interstate judicial system's interest in efficiency; 5) shared policy intersts of the state

?In rem Jx - 1) real or personal property of value located within state where fed court is located; 2) court seizes the item; 3) owner of property received proper notice of the proceeding o If D no longer domiciled in forum state, may still be subject to in rem jx if: 1) CoA domestic in nature; and 2) forum state was place of matrimonial domicile, d abandoned P in forum state, or agreement or settlement for support entered into in forum state. Quasi in rem jx: 1) real/personal property of value located within state or terrotiral limits of fed court; 2) D owns the property; 3) property is being attached or seized; and 4) D has been provided proper notice of the proceedings o Must be minimum contacts. Presence of property sufficient to meet minimum contacts requirement if the dispute concerns the parties' rights in the property itself. o Rarely used gap filler: only applies when constitutional requirements (minimum contacts + finding that jx does not offend trad'l notions of fair play and substantial justice) are satisfied but in personam jx is not available because of state's long-arm statute.

Service of Process and Notice
? Service must occur within 120 days of filing the complaint.
? Summons must be: 1) signed by the clerk; 2) identify the court and parties; 3) be directed to the D; 4) state the name and address of either the P's attorney or P itself; 5) notify the D of time period within which it must appear or file and answer, and the potential for a default judgment; 6) seal of the court
? Summons must be served with a copy of the complaint.
? Service must be completed by non party, 18 years old.
? D may waive service upon request of P. request for waiver must: be in writing, addressed to D, sent through first class mail or otherwise reliable means, identify court where complain filed, inform D of consequences of waiving/not waiving, state date on which request sent, allow D reasonable time to return the waiver (at least 30 days for D's within same judicial district or at least 60 days for Ds located outside judicial district), and provide D with extra copy of request and prepaid postage.
? D has duty to waive service if D is: 1) located with in judicial district that is litigating the case; 2) located in foreign country at time of service; or 3) corporation, partnership, association
? Consequences of D's waiver: doesn't need to answer complaint until 60 days after waiver request (if sent to D outside of US, D has 90 days)
? Consequences of D not waiving: court may impose expenses incurred in making services, as well as reasonably expenses in motions required to collect service expenses. Failure to receive waiver request would constitute good cause, but belief that complaint is unfounded or filed in wrong court does not.
? If P fails to effect proper service - case dismissed for insufficiency. D's failure to raise objeciont to insufficiency of service in pre answer motion or in answer, waives D's right to object VENUE, FORUM NON CONVENIENS, TRANSFERS

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