Louisiana Bar Exam Flashcars (2011) Federal Jurisdiction

7/27/2019 Louisiana Bar Exam Flashcars (2011) Federal Jurisdiction

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P v. D in 1332 suit w/ state K law claim in LA fed courtParties dispute whether LA, AR or OK K law applies

Choice of law rules also vary in these three statesWhat choice-of law rules should be followed by federal judge inLA?

1. What is the Klaxon rule?2) what is result of applying Klaxon here?

1. Under eerie, fed ct must apply same choice of law rulesused by state supreme ct of forum state (here, LA).

2. Use LA choice of law rules in LA civil code these willdetermine choice of K law

P v. D in LA fed ct.Fed law allows 3 peremptory challenges & state code of

procedure allows 6.Which rule applies in fed court?

1. When fed law [here statute] prescribes a procedural rule for fed courts and that rule directly conflicts with state procedural

rule, which law governs in fed ct?2. which rule applies here?

3. assume that two competing rules set forth in state procedural code and in FRCP? Which governs in fed court?

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1) in fed ct, federal procedural rule will govern here bccongress enacted it

2) fed statute allowing only 3 challenges3) FRCP will govern wherever there is direct conflict w/ state

rule

B lived and worked in NY for 20 yrs, owned home there. B sold NY homeand spends equal time between homes in CA, NM & FL B plans to sell NMand FL homes and kids live in CA. B now citizen of which state?

1) B' citizenship is based on dom state, def'd as ________ and has ________ 2) Presumably B's original dom & cit state was ____ based on fact that heis described as ____ and _____.3) In order to change dom & Citizenship, B must be _____ in new stateand __________ there. If two requirements not satisfied, then B will _____.4) Evid that B has not yet formed _____ in a new state: _____ 5) What if B told his friends several times, during last 3 years that heintends to ever return to NY?6) What extra facts could show that B has acquired citizenship in CA?

1) phys presences & intent to remain indefinitely2) NY, owning home and working there3) present in new state and acquire intent to remain indef there; if 2 rqmts notmet then, B will remain NY citizen4) owns homes in 3 states; spends equal time in each state; at indefinite futuredate, plans to keep only CA home5) intent doesn't show intent to remain indefinitlely in any new state4) extra evid: driver's license or car registration in new state; registeringto vote; getting job &or paying taxes in CA

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P(LA) v. D1( TX) & D2 (undoc alien from Mex) in fed crt.P alleges claim against each D >75k.

Can P invoke 1332 in this suit?

1. What is citizenship of any alien under 1332?

2. Does 1332 allow suit by P against D1 and D2?3) Can P bring 1332 against D2 alone?4) Assume P's cousin N (french) was passenger in P's car and that N has claim

against each D1 and D2 >75k; can P and N join together as Ps in 1332 sutiagainst D1 and d2?

5) Does complete diversity requirement apply to aliens?6) What are 2 examples of suits arising from this accident that may not beheard in fed court under 1332 bc they are not authorized by lang of Art III?

7) Assume that G is another injured passenger in P's car and he is a permanentresident alien from Canada and that he is dom'd in LA. What is G's citizenship

under 1332?

1) citizen of foreign country of citizenship not residence etc2) y, bc it is a suit bt diverse US citizens w/ an alien as add'l party .

3) Y, bc P needs a federal forum for suit between US citizen and alien.4) Ys, a suit between diverse US citizens and aliens ads add'l parties5) yes, aliens from same foreign country can't be on both sides

6) any alien may not file suit against another alien alone (MX v. FR-no!); any alien may not file against another alien when US citizen is an add'l

party only on 1 side of suit (MX TX v. FR no!)7) G is a LA citizen PRA are citizens of state of dom for 1332; maj of fed

cts also say he retains both LA citizenship and Canadian citizenship

7) When Do You Raise an SMJ Defect?

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When Do You Raise an SMJ Defect?

May be raised by any party at any time from the time the case is filed through trial andappeal.

Challenge made by 12(b)(1) motion to dismissToo late to challenge after appeal is final

D or P can raise defect on appealThe federal court may notice the defect on its own motion: Sua Sponte okay.

Effects of SMJ Defects

Effects of SMJ Defect

RULE: If the case was originally filed in federal court, and the defect is noticed, the caseis dismissed .

Exception : When there is a defect only as to one party (e.g. NotDiverse), the court can partially dismiss the case only as to that non-

diverse party and the suit can proceed.RULE : If the case was removed to federal court, and the defect is noticed, thecase is remanded to the state court.

CANNOT do partial remand in the event of a defect. Have toremand the entire case.Here, file a motion for remand, not motion to dismiss

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Outcome Determination Test:

Outcome Determination Test:

Used to determine whether a rule is substantive (must be used) or procedural (doesnthave to be used). If the rule would be outcome determinative if used, its likely

substantive and should be applied in the federal suit under Erie.Want to avoid forum shoppingthis is why the forum state substantivelaws apply.

Corporations, est'ing citizenship for diversity

State Citizenship = (1) All states of incorporation, AND (2) Single state of PrinciplePlace of Business (PPB)

Principle Place of Business : Hertz rule Principle place of business is the corporationsnerve center .

Nerve Center = The place where a corporations officers direct, control, andcoordinate the corporations activities.

In practice, this should normally be the place where the corporation

maintains its headquarters .If officers work at several different locations, look to thecenter of overall direction, control, and coordination .Look to actual direction, control, or coordination. (Not justa mail drop boxbare office with a computer.)

Foreign Corporations : If a corporation is incorporated in a foreign country, thisestablishes foreign country citizenship for that business. So, a corporation that isncorporated in France will have French citizenship for 1332 purposes. But, if it

aintains its PPB in LA, then it will have both French and Louisiana citizenship.

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Non-Corporate citizenship, diversity purposes:

State Citizenship = All state citizenships of all membersMembers of a non-corporate entity may be individuals, corporations, or other non-corporate entities. Apply the applicable rules to those members, and thats

the non-corporate entitys citizenship.Sui Generis Rules :Business Trust : Citizenship of all its trustees , none of its shareholders

National Bank : Citizen of the state in which the head office is locatedState Agency or Political Subdivision : State itself is not a state citizen,neither is an agency that is the alter ego of the state. When an agencyor political subdivision is separate and distinct from the state, it willhave citizenship.

Direct Action Suits, diversity

Direct Action Suit = Suit brought only against the insurer of the insured party, not theinsured party.

State Citizenship: The citizenship of the insured party will be attributed to theinsurer, even though the insured party has been omitted from the suit. The insurer

also keeps its own citizenship. The two are combined.Congress adopted this rule to prevent manufacture of diversityRule doesnt apply if the insured is a party to the suit, or if the plaintiff is suinghis own insurance company.

P(LA) v. D1 Builder (MS), D2 Ins (Del, Cal) in direct action suit

D is insurer of Design Firm (LA) not sued as D.

Can fed ct hear suit under 1332?

3) What requirement does language of 1332 impose on direct action suit that isfiled in fed ct?

4) Why did Congress adopt this?

5) Does Fed court have 1332 SMJ over the suit filed by P owner?

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1) citizenship of insured party omitted from suit will be attributed toinsurer, together w/ the insurer's other citizenships

2) to prevent the manufacture of diversty

3) NO, the LA citizenship of omitted design firm will be added to D'scitizenship

Minimal Diversity Requirements These are exceptions to the rule that complete diversity is required. Strawbridge is

only an interpretation of 1332, not Article III, so Congress can modify the rule.

Interpleader Under 1335: 1335 creates SMJ where the 1332 requirements cant bemet. In a 1335 suit, the defendant becomes the stakeholder and the plaintiff becomesthe claimant. The stakeholder can invoke SMJ under 1335 as long as two of theclaimants are citizens of different states.

Multiparty/Multiforum SMJ Under 1369: When 75 or more victims are killed in asingle accident in a discrete location, only one plaintiff must be diverse from only one defendant.

Class Actions: As long as all class representatives are diverse from all defendants,

diversity is satisfied. The members of the class dont need to be diverse from thedefendants.

P filed Complaint in Fed ct.

D filed Mtn to Dismiss for lack of SMJ bc of insufficient jurisdictional amount (JA)

1. What if complaint says P seeks 80k?

2. What if complaint instead sets 3 factual allegations about nature of damages(several operations req'd; out of work for 6mos; emotional distress requiring

psychological treatment)?3. If state-ct petition includes same 3 factual allegations what JA showing

required by D n Notice of Removal?

4. IF P files Complaint in fed ct and D files Mtn to Dismiss on grounds of insufficient JA, what showing must D make for Mtn to be granted?

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1) good; this is a specific & ufficient amount that exceeds 75k so satisfies thefacially apparent rule; P is likely to exceed JA

2) P may rely on inferences ddrawn from fact. Here, infer cost of severaloperatiosn and all medical bills, infer the amt of lost wages for 6 mos; infer cost

of therapy. Can satisfy JA by inferences

3) Same rules as P filing complaint; D makes same showing.

4) D must show that P cannot recover JA to legal certainty at the pleadingstage.

RULE: JA attaches at ________ Subsequent amendment has ______.

If the P receives a judgment of less than the JA originally pled, effect?

the time of filing/notice of removal; no effect

this doesnt retroactively defeat the JA and dismissal isnt required (as long as P pled ingood faith).

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P LA v. D(IL) in LA state court; D files notice of removal to fed ct uder 1332

P's intial disclosures (discovery phase) show that P seeks 135k in damages; 100k for pain and suffering included; Later D obtains ruling that state law limits P to 30k pain &suffering. This means only have 65k claim. Does fed court still have good SMJ under

1332?

1) When will determination be made by fed ct as to whether JA rqmt satisfied incase filed in fed ct?

2) When for state suit removed to fed court by D?

3) Why will fed ct find that good SMJ under 1332 continues to exist in P's case evenafter ct rules that her recovery limited to 65k under state law?

1) date of filing of complaint

2) date of filing of notice of removal

3) bc p sought 135k in state suit on date of removal and post-filing events that reduce amt cannot effect SMJ

Installment Contracts: In a suit for non-payment of installments, only the amount of installments actually due is the amount in controversy UNLESS (1) one party

sues to cancel the K based on fraud , or (2) there is an acceleration clause inthe K. In that case, the total amount is the amount in controversy.

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Determining JA

Standard of Calculation: Facially Apparent Rule Ct determines from the face of thecomplaint whether the amount in controversy is likely to exceed the JA.If a P alleges a specific and sufficient amount, this satisfies Ps burden

If P does NOT allege a specific amount, or if the specific amountalleged is not enough, ct will rely on inferences that may be drawn from factsin the complaint to see whether the amount in controversy will exceed the JA.

Seller & Buyer agree to installment K w/ 120k value. B agreed to pay monthlyinstallments of 10k. B paid (20k) but then failed to make 3 payments due

(30k). P S v. D b for 1332 in fed court. P seeks 30k for past due installmentsand ENTIRE future amount due.

1. What is usual rule for measuing amt in controversy for contract/debt suit for non- pyament of installments?

2) What are two situations where entire amount of K/debt will qualify as amount incontroversy?

3) what is amount in controversy in Seller's 1332 suit against buyer?

1) this amount depends on direct legal effect of judgment under governing K law:it may be total value or may be unpaid installments.

2) what are 2 situations where entire amount of K/debt will qualfy as amt in

controversy? a) P sues to cancel K for fraud; b) P's suit is based on K w/acceleration clause.3) Acceleration clause puts whole amount in controversy

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Aggregation Rules:Single Plaintiff, Single Defendant

Single Plaintiff, Single Defendant

1. RULE : A single plaintiff CAN aggregate multiple claims against asingle defendant. The aggregated claims can be related or unrelated.

1. E.g. P has a tort claim against D for 40K, a contract claim for $30K, and an insurance claim for $10K. P can aggregate allthree claims, insufficient standing alone, to satisfy the JA.

2. NB: 1367 also provides SMJ for multiple claims against a single Dwhen one claim satisfies the JA and is related to the other claims(common nucleus of operative fact). Narrower in scope thanaggregation doctrine of 1332.

Aggregation Rules:Single Plaintiff, Multiple Defendants

1. RULE : Single plaintiff CANNOT aggregate value of claims againstdifferent defendants in order to satisfy JA. Must have the JA for each

claim against different defendants.1. 1367 unavailable cant have supplemental jxn over Rule 20co-defendants.

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Aggregation rules: Multiple Plaintiffs, Single Defendant: Multiple plaintiffs CANNOT aggregate their claims against a single defendant to satisfy

JA under 1332, where one plaintiffs claim exceeds JA. Also cannot aggregate against a singledefendant where none of their claims exceed JA.

1. EXCEPTION : Under 1332, multiple plaintiffs can aggregateclaims that are based on Single Title or Right or a

Common and Undivided Interest.2. 1367 also availablemultiple plaintiffs suing one defendantmay aggregate, but ONLY if: (1) all plaintiffs are diversefrom the defendant; (2) at least one of the plaintiffs has aclaim that can serve as the original claim because it satisfies1332 JA requirement; (3) the claims of the other plaintiffssatisfy the 1367 requirement because they are so related tothe original claim that they form the same case/controversy.(so related = common nucleus of operative facts)

1. This is unavailable to plaintiffs without a claim thatmeets 1332 JA.

Aggregation rules: Multiple Plaintiffs, Multiple Defendants

1. RULE : Multiple plaintiffs CANNOT aggregate claims against multipledefendants to meet JA. Each plaintiff must have requisite amount incontroversy with each defendant.

1. 1367 unavailable no supplemental jxn over Rule 20 co-defendants.

P (Bank LA) v. D Ava (LA) in fed court for 80k loan balance and 120 unpaid fees. PBank's c/a implicitly based on state law. P anticipates that D will raise defense of

federal law under RESPA. P has found fed decision to rebut RESPA defense. Does fedct have good SMJ?

1) Is there good smj under 1332?

2) For P to invoke 1331, a fed question must arise in suit according to the well-pleading

complaint rule. So what allegations in complaint will be required by pleading rules for P bank's contract suit?

3) If q of fed law does arise in the suit, how will occur?

4) will fed ct have SMJ under 1331?

5) what is the mottley rule?

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1) no lack of complete diversity

2) onlly that the K law allows recovery of unpaid fees and the loan balance

3) as an anticipated defense in answer relying on RESPA law

4) Mottley's rule denies the fed ct the autority to base 1331 on a federal defense.

The Mottley Rule : Federal question must appear in Ps well-pleaded complaint. Federal or State petition. Cts look to the face of the complaint to see if the suit arises

under Federal law. May be express or implicit . (E.g. What type of damages is Pseeking? What references does P make?)

NB: A federal defense does not supply 1331 jurisdiction . Neither does anticipation of a federal defense. The federal questionmust be in the complaint .

Ray, LA citizen, sends demand letter for damages to property caused by emissions fromlocal plant. Plant says complying with regs so not liable. Wants to seek dec judgment in

fed court before ray can sue in state court.

1) What fed statute provides remedy mll seeks?

2) What benefits does this remedy provide?

3) What showing is required to obtain this remedy?

4) Why will fed ct not have SMJ to hear mill's suit if the dispute w/ ray were over compliance with state act rather than federal statute.

5) If the mill seeks a dj that their emissions comply with the federal PEA, will thefederal court have SMJ?

1) S 2201 Fed Declaratory Judgment Act

2) It declares rts w/ effect of final judgment and allows P to seek injucntion to enforcethe judgment

3) show that dispute is definite, concrete & immediate; show that DJ will resolve thedispute; show that no further factual develop of claim will occur in future

4) BC 2201 DJACt doesn't supply SMJ, only a remedy and no SMJ exists for 1331 for

interp of state law's statute5) Under Skelley Oil (case), the mill must show that it could bring a hypothetical

coercive suit for damages or injunction against Ray which suit would satisfy the Mottleyrule. (When Congress passed the DjAct, Congress expressly said wasn't intended to

disturb Mottley rule)

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Rule 18 : Claim Joinder You can join as many claims as you want against a single defendant. They dont have to

be related.

Rule 20 : Party Joinder Same Transaction or Occurrence Test

Joinder of Plaintiffs : Persons may be joined as co-plaintiffs if theyassert a right to relief arising out of the STO, and there is somecommon question of law or fact w/claims of other plaintiffs.Joinder of Defendants : Any defendants may be joined if the relief sought against them arises out of the STO.

1367: No Supp. Jxn over defendants who are joined in 1332cases. Need independent jxn. 1367 expressly prohibits it in1332 context.

Rule 13 : Counterclaims (Must be brought in the answer )

Compulsory : Arises out of the STO. Rough factual overlap btw claims.1367: Supp. Jxn attaches to compulsory counterclaims andno independent jxn required.If you dont assert it, you lose it.

Permissive : Can be completely unrelated to claim against you. Nofactual overlap required.

1367: Doesnt attach to permissive counterclaims. Needindependent jxn for them.If you dont assert it, you dont lose it.

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Rule 13 : Cross-Claims (Must be brought in the answer )

MUST arise out of STO that is the subject of the original action or thesubject of a counterclaim.1367: Supp. jxn attaches to cross-claims, no independent jxn required.

1) P v. D w/ claim 1 and claim 2: May be joined claims be unrelated under R18?

2) P v. D1 (Claim 1) and D2 (claim2): What rule 20 showing needed for party joinder?

3) What add'l showing must be made for fed court to hear these suits?

1) Y, single P may join all claims against single d.

2) For party joinder, or co-Plaintiffs or co-Defendants to be joined, claims must arisefrom STO

3) You must always show good SMJ in addition 1367: No Supp. Jxn over defendantswho are joined in 1332 cases. Need independent jxn. 1367 expressly prohibits it in 1332

context.

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Two (LA) Stakeholder seeks ruling as to who is entitled to Ray's settlement

proceeds where value is 62k and claimants are Tex creditor and LA successionrep:

Which type of interpleader suit will Town bring?

4) 1335 bc the tx claimant is diverse from LA claimant and 62k is sufficient (more than500)

P (LA) v. D (iowa) in fed court w/ 3 claims. Claim #1 is Title 7; Claim 2 is statetort law (25k); Claim 3 is property law (5k)

1. What statute will supply SMJ for Title 7 claim and why?2) Does value of this claim matter?

3) Why is there no basis for 1332 SMJ over sam's state-law tort claim 2 for 25k?

4) Why is there no basis for 1331 SMJ over S's state-law tort claim for 25k?5) So what is the only SMJ that is available for Sam's state-law tort claim?a The original claim here is:

b Supplemental claim here is:c How can Sam show required relationship bt these claims? By sowing that

requirement of ____ is satisfied bc ________ that they form ______ under

______ which can be demonstrated by sowing that they share a _______________. d) ON facts hre, this showing can be made bc _____?

P (LA) v. D (iowa) in fed court w/ 3 claims. Claim #1 is Title 7; Claim 2 is state tort law(25k); Claim 3 is property law (5k)

1. What statute will supply SMJ for Title 7 claim and why? 1331 Fed q bc a fed ca arisesunder fed law

2) Does value of this claim matter? No, no JA for fed question jxn3) Why is there no basis for 1332 SMJ over sam's state-law tort claim 2 for 25k?

It is too small, must be over 75k 4) Why is there no basis for 1331 SMJ over S's state-law tort claim for 25k? It is a state

law c/a & nothing in facts to show arises under fed law.5) So what is the only SMJ that is available for Sam's state-law tort claim? 1367 a The original claim here is: Title VII 1331

b Supplemental claim here is: state law claim

c How can Sam show required relationship bt these claims? By showing that requirement of 1367 is satisfied bc they are so related that they form same case or controversy under article iii which can be demonstrated by showing that they share a CNOF .

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Rule 14 : Impleader

what is it? When allowed? 1367 jxn?

Impleader allowed when 3D may be liable to the D for all or part of the Ps original

claim.

Must be brought w/in 14 days after D serves his original answer by serving a summonsand complaint on the non-party, who then becomes 3D. Leave of court must be obtainedif filed more than 14 days after filing answer.1367: Supp. jxn attaches to impleader claims made by defendant .

No problem with impleader even if the 3D isnt diverse from the plaintiff in a 1332 case.

BUT, if the P wants to amend to state a claim against the 3D, she must showindependent jxn. 1367 expressly prohibits supp. jxn in 1332 cases involving R14 3Ds.

An impleaded 3D may file a R 14 claim against the p if the claim arises out of the STOthat gave rise to Ps claim. (1367 applies)

P may file a R14 claim against an impleaded 3D if the claim arises out of theSTO that gave rise to Ps claim. BUT, this is only permissible in 1331 cases P cant rely on 1367 in a suit where Ps claim against D is based on 1332and where the Ps Rule 14 claim cant satisfy 1332 requirements.

P(LA) v. D1 (iowa) w/ 3 claims: Title VII; state tort 25k; property 5k P (LA) v. D2 (LA) w/ one claim based in state tort law (25k).

1. What SMJ is available for P's state law tort claim against D2 (LA)? 1367 a) Original claim here is: Title VII 1331 claim against D12. Supplemental claim here is: P's state law claim against D2.3. How can P show the required relationship between these claims. By showingthat requirement of 1367 is satisfied bc they are so related that they form part of thecase or controversy under art III which can be demonstrated by showing that claimsshare CNOF ,

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P(LA) v. D1 (iowa) for state law claim (80k) and v. D2 for same state law claim(80k).

2. What SMJ defect prevents P v. D2 under 1332?

3. Can P bring under 1367 against D2?

P(LA) v. D1 (iowa) for state law claim (80k) and v. D2 for same statelaw claim (80k).

4. What SMJ defect prevents P v. D2 under 1332? lack complete diversity

Can P bring under 1367 against D2? No expressly prohibted by 1367(b)

What are the scenarios in which a claim brought by means of joinder device in

FRCP will qalify for 1367 status of supplemental claim in suit in which P's claimserves as original claim?

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What are the scenarios in which a claim brought by means of joinder device inFRCP will qalify for 1367 status of supplemental claim in suit in which P'sclaim serves as original claim?

1. a compulsory counterclaim under R13

2. a cross-claim under R13

3. impleader claim by D against 3d party D under R 14

4. R14 claim by 3d party D against P

5. R14 claim by P agianst 3d Party D in suit where P's claim against D is basedon 1331 (not diversity)

6. An intervention of right claim under R24 by D-intervenor in suit where P'sclaim against D is based on any source of SMJ

7. An intervention of rght claim under R24 by P-intervenor in suit where P'sclaim against D is based on source of SMJ other than 1332

A compulsory Counterclaim is a claim that is brought against an ___ party in suit,and under R13 this type of claim must arise out of ________ that gave rise toP's claim.

Therefore, such claim necessarily satisfeis the 1367 requirement that it must be _______ to P's claim against D that it forms _____ as demonstrated by how itshares a ________ w/ P's claim

A compulsory Counterclaim is a claim that is brought against an opposing party insuit, and under R13 this type of claim must arise out of the STO that gave rise to P'sclaim.

Therefore, such claim necessarily satisfeis the 1367 requirement that i t must be sorelated to P's claim against D that it forms the same case or controversy asdemonstrated by how it shares a CNOF w/ P's claim

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Cross claim: describe

what rule does it arise out of

requirements?

A cross-claim is brought against co-party in suit under R13 must arise out of STOthat gave rise to P'sclam.

Therefore, such claim necessarily satisfies 1367 requirement that it must be sorelated to P's claim aginst D that forms same case or controversy under art III asdemonstrated by how it shares a CNOF w/ P's claim

Summary: When is 1367 not available to provide SMJ in scenarios involving useof joinder devices?

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Summary: When is 1367 not available to provide SMJ in scenarios involving useof joinder devices?

5. A permissive counterclaim under Rule 13.6. A Rule 14 claim by the plaintiff against a third-party defendant where Ps claim

against D is based on 1332 SMJ and Ps Rule 14 claim cant satisfy 1332requirements.

7. A permissive intervention claim under Rule 24An intervention of right claim by a plaintiff-intervenor where Ps claim is based on 1332and the intervention claim cant satisfy 1332 requirements

An intervention of right claim under R 24 requirements:

1) that intervenor claims an interest relating to the property or transaction that is thesubject of 's claims

2) the intervenor is so sitauted that disposing of action may as a practical matter impair or impeded intervenor's ability to protect its interest assuming that existing

parties do not adequately represent that interest

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Removal: where to file

8. Where to File Notice : Federal district encompassing the location of the state court where thestate court claim was filed. (under 1441)

Procedure for removal - multiple Ds

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9. O btain the agreement of all ds to join in filing the Notice of Removal.10. File the Notice in the federal court w/ub 30 days of the date that formal service (not

copies) (def'd = receipt of state court petition and state court citation; or complaint/summons) was made on the first defendant to receive it. (1446)

11. The Notice must provide a short and plain statement of the jurisdictional grounds for

removal.12. All ds must sign the Notice and attach a copy of all state court process, pleadings, andorders.

1. NB: All ds dont necessarily have to sign, but if they dont they must file atimely written indication of consent to the filing of the Notice.

13. Ds must file the Notice and attached documents in the fedd.ct encompassing thelocation of the st. ct. where the suit was filed.

14. Promptly serve the P w.a copy of the Notice and the attached documents, and provide amemo explaining the reasons why the suit was removed.

File a copy of the Notice and attached documents with the st ct where the s uit was filed, alongwith a copy of the memo served on P. This filing effects the removal to fed ct. NB: Atthis point, state court loses jxn. It may not proceed, even if removal was improper.

Time Limits: When Do They Begin to Run? (for removal)1. Cases That Were Removable at Time of State Court Filing;2. Cases That Become Removable

Cases That Were Removable at Time of State Court FilingOnly One D: Notice filed w/in 30 days of service of complaint & summons(petition/citation)Multiple Ds: Notice filed w/in 30 days of date on which the first defendant wasformally served.

Cases That Become RemovableOnly One Dt: Notice filed w/in 30 days of receipt of a pleading, motion, order, or

other paper from which it may be ascertained that the case became removable.Multiple Ds: Notice must be filed within 30 days of first defendants receipt of theamended pleading, motion, etc. from which it may be ascertained that the case

became removable.One-Year Time Limit for 1332

If a diversity case is non-removable when filed, and +1 yrpasses after filing of thestate court suit, it is too late to seek removal if it later becomes removable.This does NOT apply to cases that were removable when filed (where D didnt getserved)

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P has how long to object to defect in removal procedure?How to object?

30 days from date of filing of notice of removal; object to defect by making timely motionfor remand

If case is non-removable bc of lack of SMJ when filed, can it become removable later?

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Yes when good SMJ exists P may amend comlaint to add a qustion arising under fed law for 1331 or in a suit against multiple D's may dismiss claim against the D who is not diverse

so that 1332 satisfied.In th

In these sitautions, where non-removable case becomes removable, then under 1446 the30 day time limit for filing notice of remand starts to run on date when state ct DRECEIVES by service or otherwise a copy of an amended pleading, motnion, order, or other paper FROM WHICH IT MAY FIRST BE ASCERTAINED THAT THE CASEHAS BECOME REMOVABLE. If there are multiple Ds, then time limit starts to run ondate when 1 st D receives paper.

Procederal defects in removal procedure to which may object

15. Procedural Defects : 30 days from filing of the Notice of Removal1. Untimely Notice filing2. Failure to give adverse parties notice of the removal3. Violation of statutory prohibition on removal (e.g. Workers Comp, FELA,

JONES ACT, all writs act )4. Failure of all defendants to join5. Presence of a local D in a diversity case6. Untimely filing of Notice after expiration of one-year time limit in a

diversity case.Effect of Failure to Timely Object (w/in 30 days): Operates as a waiver . Federal courthas no power to remand for procedural defects sua sponte.

Note: if filed in wrong fed dct, then grounds remedy of transferring the removed case

Note: SMJ Defects: No time limit. Federal court may remand at any time until judgmentis final following last appeal. Remand may be triggered on motion of any party, or bythe court sua sponte.

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An SMJ deect will exist in removed case and remand is ______ if D relies on 1331 butcannot show that claim in P's state court complaint _________ as required by Mottley.

An SMJ defect will exist in a removed suit and remand is req'd if D relies on 1332 butcannot show that there is ______ and show by ____ that amount in controversy in P'sstate court suit will > 75,001.

If at time of filing notice of removal, D relies on 1332 and the lack of complete diversityis unnoticed, and if subsequently the claim against the non-diverse D is ______ so thatcomplete diversity exists in suit at time __________ then under Caterpillar the verdict inthe removed suit will be jurisdictionally valid under 1332 bc SMJ defect that existed at

_____ will have been ____ and remand will no longer be justified

An SMJ deect will exist in removed case and remand is required if D relies on 1331 butcannot show that claim in P's state court complaint ARISES UNDER as required byMottley.

An SMJ defect will exist in a removed suit and remand is req'd if D relies on 1332 butcannot show that there is COMPLETE DIVERSITY and show byPREPONDERANCE that amount in controversy in P's state court suit will > 75,001.

If at time of filing notice of removal, D relies on 1332 and the lack of complete diversityis unnoticed, and if subsequently the claim against the non-diverse D is DISMISSED sothat complete diversity exists in suit at time at the time of trial then under Caterpillar the verdict in the removed suit will be jurisdictionally valid under 1332 bc SMJ defectthat existed at ON DATE OF REMOVAL will have been CURED and remand will nolonger be justified

If at time of filing notice of removal, D relies on 1332 and the lack of complete diversityis unnoticed, and if subsequently the claim against the non-diverse D is DISMISSED sothat complete diversity exists in suit at time at the time of trial then under Caterpillar the verdict in the removed suit will be jurisdictionally valid under 1332 bc SMJ defect

that existed at ON DATE OF REMOVAL will have been CURED and remand will nolonger be justified

However, if in preceding ex, if lack of diversity goes undiscovered until ______, andthen claim against non-diverse D is dismissed, it is too late for 1332 SMJ defect to becured and________ required

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If at time of filing notice of removal, D relies on 1332 and the lack of complete diversityis unnoticed, and if subsequently the claim against the non-diverse D is DISMISSED so

that complete diversity exists in suit at time at the time of trial then under Caterpillar the verdict in the removed suit will be jurisdictionally valid under 1332 bc SMJ defectthat existed at ON DATE OF REMOVAL will have been CURED and remand will nolonger be justified

16.However, if in preceding ex, if lack of diversity goes undiscovered until AFTER TRIAL BEGINS , and then claim against non-diverse D is dismissed, it is too late for 1332 SMJ defect to be cured and REMAND R equired

If P fraudulently joins non-diverse D to create a 1332 SMJ defect and prevent removal, aremoved case will not be remanded if D shows that there is ______________

If P fraudulently joins non-diverse D to create a 1332 SMJ defect and prevent removal, aremoved case will not be remanded if D shows that there is NO REASONABLEBASIS FOR P'S RECOVERY AGAINST THE NON-DIVERSE D.

THIS IS THE FRAUDulent JOINDER DOCTRINE

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Even though good SMJ exists in removed case, a P's timely motion to remand will begranted if the D's rely on 1332 SMJ when any of these defects in removal procedureexist:

1) if 1 of Ds is a citizenship of the orm state in which original state court suit was filed,this is grounds for remand bc the removal of a 1332 case with forum state D is violationof removal rpocedure under 1441

2) If suit in state court is not removable originally bc of SMJ defect created by lack of complete diversity, and if suit becomes removable as a 1332 case because of dismissalof non-diverse party, then the suit will qualify for removal UNLESS it becomesremovable MORE THAN 1 year after filing o state court petitoin or complaint in whichcase this is grounds for remand as violation o 1446.

D1 and D2 file Notice of removal on 12/12/07. P files timley motion to remand on12/30/07 to raise defects in removal procedure. Fed D ct judge erroneously issues order denying P's motion and P's atty wants review.

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Not immediately appealable bc it is only an interlocutory order not final judgment;

P can request certification ruling for interlocutory review, but up to discretion offedcircuit ct.

P could seek writ o mandamus but rarely granted

If p files notice of appeal on the erroneous remand decision after final judgment enteredat trial, then can appeal the merits.

Three types of Personal jurisdiction

17. In Personam : Court has power over the person of a particular defendant.1. Judgment against a defendant entitled to full faith & credit in all other

states.2.

18. In Rem : Court has power to adjudicate rights of all persons in the world withrespect to particular item of property .1. Limited to situations where the property is located in the state and where

its necessary for the state to be able to bind all persons regarding propertys ownership and use

2.19. Quasi In Rem : Court has power to determine whether particular individuals

(not all individuals) own specific property within the courts control.1. NB: Judgments rendered under QIR jxn do not bind the defendant

personally.

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4 statutory limits on personal jurisdiction

1. Physicial presence if served while in state then OK 2. Domiciled In personam jxn over people domiciled in the state.3. Consent -

1. Express : Contract, appointment of agent for service of process.2. Implied : In-state activities of the D3. Voluntary Appearance : Making a general ct appearance without

challenging personal jxn.1. Special Appearances Way for the D to appear and object to

cts exercise of personal jxn without consenting to jxn.4. Long arm jurisdiction: Nonresidents who perform or cause to be performed certain

acts in the state.

LA long arm statute tort cases when LA law permits PJ

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20. LA Long-Arm Statute:21. Tort Cases :

1. Nonresident who caused injury or damage in the state by an offense or quasi-offense committed in the state.

2. Nonresident who caused injury or damage in the state by an offense or quasi-offense committed outside the state.1. Only if the offender regularly does or solicits business in LA, or

engages in any other persistent course of conduct, or derives revenuefrom goods used and consumed or services rendered in LA.

Manufacturers: If at the time of placing the product/component into the stream of commerce the manufacturer could have foreseen, realized, anticipated, expected that the

product may eventually be found in LA due to the nature of the product or themanufacturers marketing practices.

Steps to determine whether there is PJ over D.

1. statutory basis under LA law physical presence, LA domiciliary? Consent to jxn?Long arm jxn?

2. limits on long arm jxn under DP?1. Minimum contacts?2. Offense to traditional notions of fair play and substantial justice

(Do sufficient minimum contacts exist between defendant and the forum state such thatmaintenance of the suit does not offend traditional notions of fair play & substantial

justice?)

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Determining whether LA has minimum contacts for PJ for general jxn over D? Specific jxn?

General Jurisdiction: (Ds contacts unrelated to the cause of action but its fair to subject him to suit)Minimum ContactsThat are Continuous and Systematic and (fifth court) SubstantialAnd not merely Casual and Isolated.

If they ARE just casual and isolated, to assert PJ you need to have a cause of action thatactually arises from those activities, and not from activities outside the forum)

Specific Jurisdiction: (Ds contacts with forum give rise to cause of action)1) Minimum Contacts2) That are not merely Accidental3) That result from Purposeful Availment of the protections & benefits of the forum state4) AND must be Foreseeable that the defendants activities make her amenable to suit in

the forum.a. Contractual Relationships : Use the Burger King factors:

i. Site of the K negotiations and signing

ii. Terms of the Kdo they require one states law to apply?iii. Anticipated future consequencesiv. Actual course of dealing between the parties

2. Once minimum contacts are established, you must also establish that

m aintenance of the suit doesnt offend traditional notions of fair play & substantial justice

Factors to consider, after determining there are minimum contacts,

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23. Factors to Consider :

1. Relatedness of Claim to Contacts w/State2. Burden on Defendant

1. Has to be a serious burden3. Forum States Interest in Providing Relief 4. Convenience for Plaintiff 5. Interstate Efficiencyconsidering location of witnesses and evidence

Forum States Interest in Substantive State Policies

Two types of venue available

1. venue in the fed district in which a substantial part of the acts or omissionsgiving rise to the claim occurred1. virtually always available2. also available where substantial aprt of property that is subject of action is

situated.3. Extremely rare: where c/a arises outside of US, then this type of venue

unavailable.2. Where only 1 D, venue in fed district in which D resides

1. always available where only 1 D.2. If multiple Ds, then venue lies in any fed district where any one D r esides

ONLY as long as all D's happen to reside in same state.

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Definitions of residence for venue purposes:

For persons, residence will be in district where he or she lives;

For entities, including corp AND non-corp entities, residence in fed district in whichentity is subject to PJ bc of existence of minimum contacts in that federal district

1. note: incorporation in a state is sufficient for minimum contact; so isinjuring P with your defective product

2. Contrast: diversity rules1. persons: Domicile: (1) Physical Presence and (2) Intent to

Remain Indefinitely2. corporate entities: (1) All states of incorporation, AND (2) Single

state of Principle Place of Business (PPB) (ppb determined bynerve center test)

3. non-corp State Citizenship = All state citizenships of allmembers

Special Venue rulesaliens

in rem action involving real property

Waiving Venue Objections:

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3. Special Venue :4. Suit Against an Alien : Venue proper in any federal district court.

In Rem Action Relating to Real Property: Venue proper in district(s) where the propertyis.

Waiving Venue Objections: Defects in venue may be waived by the parties. If a partywishes to object, he must either file a pre-Answer Rule 12(b) motion to dismiss for improper venue, or by pleading in the Answer. If an objection isnt timely made in oneof these ways, the objection to venue is deemed waived.

Transfer of Venue

When Venue is Improper : Options

When Venue is Improper : Options1406 : Motion to Transfer Venue (Improper to Proper)

Standard for Granting : Transferee court must have good SMJ and PJ Transfer is appropriate in the interest of justice .Effect : Substantive State Law of the Transferee Court Will Apply (Erie)

This avoids plaintiffs choosing improper venue with helpful state law, thentransferring to another ct w/proper venue

Rule 12(b) : Motion to Dismiss Suit Due To Improper Venue OR object in answer If party files this, and venue is improper, the ct should dismiss the case.P will be forced to file suit in the federal ct where venue is proper

Waive objection

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Transfer of venue; When Venue is Proper : Options

5. When Venue is Proper : Options1. 1404 : Motion to Transfer Venue (Proper to Proper)

1. Standard for Granting :1. Transferee court must have good SMJ and PJ.2. Transfer is appropriate for the convenience of the parties and

witnesses and is in the interest of justice .1. Ct gives significant weight to Ps original choice of forum/venue2. If there is a Forum Selection Clause in a K btw the parties, ct will

also take this into account, but it isnt dispositive.2. Effect :

1. Substantive State Law of Transferor Court Will Apply (Erie exception forum state law doesnt apply)1. This avoids forum shopping

2. Statute of Limitations laws of transferor court govern.

1. Transferee ct. cant dismiss because SOL expired in its own state.State Choice-of-Law Rules of Transferor Court Govern (Klaxon; Erietransferor statesubstantive apply, so its choice-of-law rules also apply)

According to the removal statute 1441, the state suit must be removed to the federal D ct ___________ where suit was _______ and venue is proper there, _______________

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Fed district encompassing location of state court where suit was filed and venue is proper there,even if wouldn't be proper venue under the venue statute 1391

1) What statutes provide SMJ for a 1983 suit?2) When is D acting under color of state law as required by 1983?3) What violations covered by 1983?4) What remedies are available in 1983 suit?5) When may P recover reasonable atty fees?6) When will D recover such fees?

1) What statutes provide SMJ for a 1983 suit? 1331 fed q & 1343

2) When is D acting under color of state law as required by 1983? under color of state lawdef'd as equivalent of state action (where off-duty law enforcement exercising responsibility of on-duty, then under color of state law ALSO: Acting in the course of employment

Even when officer acts contrary to state or local law, hes acting under the color of

law if in the course of his employment.3) What violations covered by 1983? violations by state, local officials of rights est'd by federal constitution, federal statutes, or fed caselaw4) What remedies are available in 1983 suit? Damages, injunctions, DJs5) When may P recover reasonable atty fees? Only if P wins6) When will D recover such fees? Only if D wins and court finds that P litigated in objectivebad faith

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Who can be sued under 1983 in fed ct?Who cannot be sued?

6. Who can be sued, and for what?State officials in their personal capacitiesdamagesState officials in their official capacitiesinjunctive relief or declaratory judgment. Nodamages.Local officials sued in any capacitydamages, injunctions, declaratory judgment.Local govt. entitiesparishes, cities, school boards, etc.

7. Who can NOT be sued? (I.e. Who does not qualify as a person under 1983?)

The StateA State Agency that qualifies as an Arm of the StateA state official sued in his official capacity for damagesAll these guys are immune from suit under the 11 th Am. 1983 suit cant be broughtagainst them in state or federal court.

Explain the Ex Parte Young doctrine.

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Ex Parte Young doctrine: establishes legla fiction that when a state official violates fed

law that official loses the cloak of state authority that entitles the official to 11th

Aimmunity.P can only sue for equitable relief no damages, BUT must satisfy 2 conditions:

1. Must be no ongoing state judicial proceedings against the federal P brought bystate official D at time injunction granted AND

2. The basis for injunctive relief must be alleged violation of federal law by stateofficial

Appealability of order denying claim of 11 th A immunity against a state official in hisofficial capacity?

An order denying 11 th A immunity defense is IMMEDIATELY APPEALABLE bc order satisfies the requirements of the collateral order doctrine :1. order must conclusively determine a disputed question (here denial is conclusive.)

1. order must resolve an important issue separate from merits (immunity is a

threshold issue)2. order must resolve an issue that is effectively unreviewable later 1. (here, ther purpose of immunity will be defeated by yrs of litigatoin

against Ds before the judgment is final and immunity denial becomesotherwise reviewale)

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When suing a city law enforcement officer, what to prove 1983 claim against, relying on

1343 & 1331?

defenses for city official?Damages available?

When suing City for acts of cty officials, P must show action of City was taken pursuantto ______ such as (4 things)

When suing a city law enforcement officer, what to prove 1983 claim against, relying on 1343 &

1331? P must show that officer acted under color of state law by action taken pursuant to customor policy such as enforcement of statute by city officer (note: if suing in personal capacity, P need not show custom or policy)

custom or poliy: Look to legislative decisions, policymaker decisions, failure to train,inadequate screening of employees (deliberate indifference)

defenses for city official? Officer has common law qualified immunity defense for acts done inreasonble good fatih; std is whether reasonable officer would have known that acts violated clearly-est'd constitutional rights

o This only applies to law enforcement & executive branch officials

Damages? IF P can show officer's deliberate indifference to constitutional rights, then mayreceive punitive damages in personal capacity suit

When suing City for acts of cty officials, P must show action of City was taken pursuant tocustom or policy such as (4 things) : a) laws stats or ordinances enacted; b) decisions by policymakers; c) failure to train city officials; d) inadequate screening of employees.

Immunity under 11a for prosecutors?

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Prosecutors : Absolute immunity when trying states case asa judicial officer. Only qualified immunity for non-judicial

functions (like investigation). NO immunity against suits for injunctive relief.

Standing requirements?

Standing requirements- Standing : Party must have some personal or real stake in the resolution of the

issue. Actual Injury required. How to determine whether theres actual injury?o Injury in Fact : P must have suffered some actual injury or be facing

immediately threatened injury as a result of Ds conduct .o Causation : Injury must be traceable to the action.o Redressability : Injury must be able and likely to be redressed by

favorable decision.

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Standard for Obtaining an Injunction: TRO & Preliminary (FRCP 65)

Standard for Obtaining an Injunction: TRO & Preliminary (FRCP 65)TRO:- Standard for Granting :

o Irreparable injuryo Reasons why notice to D shouldnt be given

- Cant exceed 14 daystemporary injunction until hearing on prelim injunction- Security must be posted- D can file to dissolve or modify TRO

Preliminary Injunction:- Standard for Granting :

o No adequate remedy at lawo Irreparable injury if P has to wait for trial on the claimo Probability of success on the merits to obtain permanent injunction

later o Balance of the equities favors P

- Security must be posted

Standard for getting Dec Judgment?

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- Standard for Obtaining a Declaratory Judgment (2201)- Can only be used to get a lawsuit into court that could have been there anyway .

Pullman abstention:- Requires federal courts to abstain from issuing an injunction to enjoin the

enforcement of a state or local statute , where the following conditions are met:The plaintiffs claim is based on federal constitutional

groundsThere is a threshold issue of unclear state law in the suitwhose resolution could render the federal decision onconstitutionality moot.

- Result of Pullman Abstention : A stay on the federal suit while parties go tostate court to resolve the state law issue.

o If P Wins on State Law Issue : The fed ct will dismiss the federal suit

o If P Loses on State Law Issue : The fed ct proceedings will moveforward

Burford Abstention

Requires federal court to abstain from exercise of jxn in a case where P seeks either an injunction or a declaratory judgment in a suit that would require the ct to review state administrativedecision making and fact-finding in fields traditionally subject to state-law regulation . Suchfields include: Natural resource allocation, insurance regulation, oil field permits, eminent domain,successions.

- Exception : When the Ps federal/constitutional question can be easily separated fromreview of agency fact-finding, abstention is unnecessary.

o Also, no Burford Abstention for suits for damages .- Pro-Abstention Factors :

o Agency head has exclusive authority to enforce the state regs that govern Psclaim

o There is already a hearing scheduled to address Ps administrative complaint.o Correct resolution depends on agency expertiseo If the fed ct issues the relief desired, this ruling may conflict with later decision

by the Agency.- Result of Burford Abstention : Dismissal

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Younger Abstention

Requires federal ct to abstain from where the P seeks an injunction or declaratory judgment against ongoing criminal proceedings . Also applies where there are ongoingcivil cases that implicate a vital state interest (e.g. C&F, welfare payments, civilobscenity, etc). Does not apply to all civil cases.

- Exceptions :o No abstention if prosecution is in bad faitho No abstention if prosecution is intended to harasso No abstention if Plaintiff lacks meaningful opportunity to raise the

constitutional issue as a defense in state court.- Result of Younger Abstention : Dismissal.

o Younger will be triggered if state officials commence a state prosecution after the federal suit is filed, but before there have beenany proceedings on the merits in fed ct. Case will then be dismissed.

Does Younger abstention ever apply in civil cases? Y, when P seeks inj against pendingcivil judicial proceedings that implicate vital state interest (interest in charct and fitness)

I. Colorado River Abstention

II. Requires federal court to abstain, sometimes, in cases where there are parallel state and federal cases (same parties/same issues). Need to avoid piecemeal litigation.

III. Pro-Abstention Factors :1. State case filed first2. Issues of state law in both cases3. All relevant parties present in state ct litigation4. State ct more convenient for most parties

Result of CO River Abstention: Dismissal.

IV. Tax Injunction Act

V. Federal ct may not enjoin the assessment, levy, or collection of any tax

under state or local law where a plain, speedy, and efficient remedy maybe had in state ct .VI. Exception : No abstention if the plaintiff cannot get an adequate remedy in

the state cts.

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Basic Service Rules: ________ is not a qualified server (2 things)

Service of complaint must be made when?If service is late, the court must extend time only if ________ If service is late and _______, the court may dismiss the complaint

________________.

Service of answer must be made within ___________ If service was waived by D, then answer must be served ________.

VII. Basic Service Rules :VIII. A party to a suit is not a qualified server IX. Anyone under 18 is not a qualified server X. Service of complaint must be made within 120 days of filing complaint

1. If service is late, the court must extend time only if plaintiff can show goodcause

2. If service is late and plaintiff cant show good cause, the court may dismissthe complaint without prejudice and allow P to refile and perform timelyservice.

XI. Service of answer must be made within 21 days of service of summons/complaint .

1. If service was waived by D, then answer must be served within 60 days of date P sent request for waiver

Waiver of Service: Requirements for valid Waiver XII. First-class mailXIII. Request to waive serviceXIV. One copy of the complaintXV. Two copies of the waiver formXVI. Defendant must execute one copy of the waiver form.

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Waiver Time Limits- Defendant has 30 days from date of sending of request for waiver to execute

waiver - If Defendant waives service, he has 60 days from date of sending of request

to file his answer .

General Waiver Rules- Once Plaintiff receives the executed waiver form, he must file the executed

waiver in federal court as a substitute for proof of service- Ds waiver does NOT constitute waiver of right to object to other defects.- If D refuses waiver, and lacks good cause to refuse, he must:

o Reimburse P for costs charged by a private process server o Pay reasonably attorneys fees for preparing motion for costso Reimburse P for ct costs for the filing fee for the motion.

These charges will NOT be imposed if the waiver was procedurally deficient . (i.e. didn't send 2 copies of waiver

form or failed to provide prepaid means of returning)

Methods for Service, Absent Waiver 1. Service on Competent Adult Individuals

a. Delivery at Dwelling : May be made on the individual himself, or byleaving a copy of the petition and citation at his dwelling house or usual place of abode with a person of suitable age and discretion

(this can be a person under 18 y.o., depending on the facts) b. Delivery to Agent : Delivery to an agent who is authorized byappointment or law to receive service of process.

i. This can happen anywhere (like outside the gym)c. Delivery at Office : Must be made personally on the individual sued.

2. Service on a Corporationa. Can be made to any officer, agent, or other authorized agent.

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Requirements for a complaint:

Must contain: a) jurisdictional statement; b) short and plaint statement showing that pleader is entitled to relief; c) demand for judgment for relief

Shall contain a caption (name of ct title of action, file nmber and name of pleading)

Title shall contain names of parties

shall be organized by paragraphs

Atty's signature representas a certificate of GF

Pleading must be simple, concise, and direct; pleading are to be liberally construed

1. Answers & Defensesa. Denials : All allegations in the pleading should be denied or admitted.

Lack of knowledge about an allegation functions as a denial.i. Some defenses must be affirmatively plead in the answer, or

they will be waived. b. Time Limits :

i. 21 days after service, if service isnt waivedii.60 days after date request for waiver was sent, if service is

waived

2. Jury Trial Demanda. Three Requirements :

i. Make it in writingii.Make it within 14 days of service of last pleading (usu. the

Answer)iii. If its not made in the served pleading (complaint or

answer), file it in a reasonable time after serviceIf these rules arent followed, as long as the 14 days arent up, either party can filea separate demand for a jury trial w/in the time limit.

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P Home Buyer v. D1 Seller & D2 Realty Co in 1332 suit filed in fed courtP claims D1 breached implied warranties & D2 was negligent in dutiesafter suit filed, P learns D1 has knowledge of termite damages, so more damages

possible. P seeks to recover new type of damage claim that is not in Complaint.

1) What should P do in order to bring new claim now?2) What will the P's amendment add to his complaint?3) What if Answers of D1 and D2 have been filed already BUT NOT YET

SERVED?4) After the answers of D1 and D2 have been filed and served, what must P do?5) What are 2 conditions that are required for P to bring new claim and show that

it is not time-barred bc it relates back to his original Complaint?6) Can P meet the requirement that his new claim arises from the same conduct

transaction or occurrence as the claims in his original complaint?7) When may P amend original complaint to add new D?

P Home Buyer v. D1 Seller & D2 Realty Co in 1332 suit filed in fed courtP claims D1 breached implied warranties & D2 was negligent in dutiesafter suit filed, P learns D1 has knowledge of termite damages, so more damages

possible. P seeks to recover new type of damage claim that is not in Complaint.1) Given fact that P has right to amend his Complaint ONCE as a matter of course, he

should file an amended complaint before rec's service of D's answer.2) It will add new claim for damages for damages based on D1's knowledge of termites3) At this point, P still has right to file his amended Complaint.4) Now, P must seek leave to amend by filing R15 motion to amend.5) a) P must show that his new claim would have been timely if brought in original

complaint (Ie no px) AND b) that the new claim arises from the same conduct,transaction, or occurrence as claims in his original complaint.

6) P can meet this requirement because all his claim arise from house sale , the occurrence

of termite damage, and the knowledge of D1 in not disclosing damage.7) P may amend during period of 120 days after P filed Complaint, as long as P gives newD notice of bein added to the complalint

Time limits for amending the Complaint

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AmendmentTime Limits: Either party may amend its pleading (complaint or answer) once as a matter of course within 21 days after serving it .

Any time after 21 days, party must get leave of court or consent of the opposing party to amend.

Rules for Relating back Relation Back: Amendment can relate back to the date the original pleading was filed.

3. Amendment to Add a Claim :a. New claim must have been timely when the original complaint was filed.

b. New claim must arise from same conduct, txn, or occurrence as the claimsin the original complaint.

i. So, even if at the time of amendment the new claim would be time- barred, if you meet the above criteria, it wont be.

Amendment to Change Party or Name of Partyc. Time Limit : P may change/add a party any time during the 120 day window

after filing the complaint, as long as he gives the new defendant notice.d. Requirements : (For relation back: changing a party)

i. Must assert a claim/defense against a new party that arose out of thesame conduct, txn, or occurrence

ii. Newly named party must have been given adequate notice i ii. Newly named party must have known or should have

known that omission occurred because of mistake

4. Rule 12(b) Motions (and when they must be asserted) :a. Lack of SMJ : ?

b. Lack of PJ : ?c. Improper Venue : ?d. Insufficient Process : ?e. Insufficient Service of Process : ?f. Failure to State a Claim Upon Which Relief May be Granted : 12(b)(6)

i. ?g. Failure to Join Indispensable Party Under Rule 19 :

i.

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Rule 12(b) Motions (and when they must be asserted) :5. Lack of SMJ : At any time, never waived.6. Lack of PJ : Either in pre-Answer Rule 12 motion or in Answer. Otherwise waived.7. Improper Venue : Pre-Answer Rule 12 Motion on in Answer. Otherwise waived.8. Insufficient Process : Pre-Answer Rule 12 Motion on in Answer. Otherwise waived.9. Insufficient Service of Process : Pre-Answer Rule 12 Motion on in Answer. Otherwise

waived.10. Failure to State a Claim Upon Which Relief May be Granted : 12(b)(6)

a. in Answer b. Pre-Answer Rule 12(b)(6) Motionc. Rule 12(c) Motion after pleadings close (judgment on pleadings)d. Summary Judgment motion30 days after close of all discovery

11. Failure to Join Indispensable Party Under Rule 19 :a. Same 4 ways as above, but also may raise the defense at trial.

Motion 12(b)(6) 2 ways to fail to state a claim4 ways to assert the defense

A party may fail to state a claim by asserting a legal theory not cognizable as matter of law; court willl grant when legal claim not plausible.

Or a party may fail to state a calim by failing to allege suficient facts to support anotherwise legally cognizable claim.

4: in answer, in pre-answer R12b motion; in R12c motion after pleadings close; R56

MSJ until 30 days of close of all discovery

Judgment on the Pleadings (R12c motion).After pleadings clsoed, a party can assert as matter of law that Comlaint or

Answer insufficient and seek judgment on pleadings. (ie if px has run)If court asked to consider matters outside pleadings, then converted to motionfor summary jdugment under R56.

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What are the benefits of raising any 12b motions in pre-answer R12 motion?

D's act of serving the motion suspends the time for serving responsive pleading (usuallyanswer) until court has ruled on motion. After D rec's notice of court's ruling, then Dwill have 14 days to file answer from then.

P v. D in fed court. After P filed Complaint, D filed answer w/o raising 12 b defenses. Now D wants to raise 3 12(b) defenses.1) how should D present defense of lack of PJ now?2) How shold D present defense of failure to state claim now?3) How present failure to join indispensable party now?

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P v. D in fed court. After P filed Complaint, D filed answer w/o raising 12 b defenses. Now D wants to raise 3 12(b) defenses.

how should D present defense of lack of PJ now? P should file and serve an amended answer now to raise defense before

21 days expire for right to amend as matter of course after service of original answer; if 21 days are up, make motion to amend

How shold D present defense of failure to state claim now? Either D should raise the defense in 12c motion for judgment on

pleadings after pleadings close or D should raise at trial How present failure to join indispensable party now?

Same as failure to state a claim.

What remedy is obtained and what goals are served by a 12c motion?2) what are circs under which R 12c would raise a 12b defense?3) What are the earliest and latest times to file a R12c motion?What are three key circs that provoke party to file R12c motion?What is std for granting R12c motion?

What remedy is obtained and what goals are served by a 12c motion? Prevailing party gets final judgment in its favor; thus disposes of case on merits and another goal is to present 12bdefenses that relate to defects of the pleadings

what are circs under which R 12c would raise a 12b defense? Circ would occur either when partyomitted 2 particular defenses from R12b motion or answer (namely failure to state a claim or

failure to join indisp parties); or when a party wants to present other 12b defenses against after losing a pre-answer 12b motion raising them

What are the earliest and latest times to file a R12c motion? Earliest = anytime after pleadingsclosed; latest isn't expressly stated except that filing of motion must not be so late as to delaytrial.

What are three key circs that provoke party to file R12c motion? Pleadings are closed; no mat facts remain at issue; dispute can be resolved on pleadings;

What is std for granting R12c motion? Grant it when moving part is entitled to JML; Judge must accept factual allegations of non-moving party as true but not leg al conclusions; deny if issue of fact remains in dispute.

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P v. D in fed court. P doesn't make jury trial demand in Complaint. D doesn't make jury trialdemand in answer. Day after answer filed, P calls Clerk's office to demand jury trial.

1) What 3 requrirements for either P or D to receive jury trial under R. 38?2) Is it possible for either party ot receive jury trial under these facts?

P v. D in fed court. P doesn't make jury trial demand in Complaint. D doesn't make jury trialdemand in answer. Day after answer filed, P calls Clerk's office to demand jury trial.

3) What 3 requrirements for either P or D to receive jury trial under R. 38?1. make jury trial demand IN WRITING either in served pleading (complaint or

answer) or in separate signed and served document2. maek demand w/in 14 days of service of last pleading (usually answer) raising

or responding to claim on which jury trial is sought.3. If jury trial demand is not made in served pleading, then file the jury trial

demand with the court w/in a reasonable time. 4) Is it possible for either party ot receive jury trial under these facts?

1. Neither party has satisfied requirements so far and now that naswer has been filed,either party has 14 days to serve jury trial demand on opposign party; if servedlater, judge has discretion to allow it or not.

Documents

Louisiana Bar Exam Flashcars (2011) Federal Jurisdiction