Federal Civil Procedure: Jurisdiction, Venue, and Service of Process, Quizzes of Kinesiology

Download Federal Civil Procedure: Jurisdiction, Venue, and Service of Process and more Quizzes Kinesiology in PDF only on Docsity! TERM 1 28 USC 1331 DEFINITION 1 Federal Question US District court shall have original jurisdiction of all civil actions arising under the constitution, laws, or treaties of the US TERM 2 28 USC 1332 DEFINITION 2 (a) District courts shall have original jurisdiction over all civil actions where the disagreement is of $75,000 or more. And if the case is between citizens of different states, citizens of a state and a citizen of a foreign country, citizens of different states where foreign citizens are additional parties, and a foreign country as plaintiff against the citizens of a state or different states(b) if the plaintiff is found to be entitles to less than $75,000, the district court may deny costs to the plaintiff and may impose costs on the plaintiff. TERM 3 1332 (c) DEFINITION 3 A corporation shall be deemed a citizen of the state or the foreign country in which it was incorporated or the state or foreign country where they have their principal place of business. Unless we are dealing with an insurance claim, whether the insurance company is incorporated or unincorporated, the shall be deemed a citizen of : (A) Every state & foreign state of which the insured is a citizen (B) Every state and foreign state by which the insurer has been incorporated; and (C) the state or foreign state where the insurer has its principal place of business TERM 4 28 USC 1359 DEFINITION 4 PARTIES COLLUSIVELY JOINED OR MADE A district court shall not havejurisdiction of a civil action in which any party has been improperly or collusively made or joined to invoke the jurisdiction of such court TERM 5 28 USC 1367 DEFINITION 5 SUPPLEMENTAL JURISDICTION(a) Except as provided in (b) and (c), in any civil aciton of which the district courts have original jurisdictionthe district courts shall have supplemental jurisdiction over all other claims that are so related that they arise out of a common nucleus of operative fact. Such supplemental jurisdiction shall include claims that involve the joinder or intervention of additional parties. TERM 6 1367 (b) DEFINITION 6 (b) in any civil action which the district courts have original jurisdiction solely on section 1332 , the district courts shall NOT have supplementaljurisdiction under subsection (a) over claims by plaintiff against persons made parties under rule 14,19,20,or 24,or over claims by persons proposed to be joined as plaintiffs under rule 19, or seeking to intervene as plaintiffs under rule 23, when exercising supplemental jurisdiction would be inconsistent with 1332's jurisdictional requirements TERM 7 1367 (c) DEFINITION 7 (c) the courts may decline to exercise supplementaljurisdiction under subsection (a) if: the claim arises a novel or complex issue of state law the claim substantially predominates over the claim or claims over which the district court has original jurisdiction The district court has dismissed all claims over which it has original jurisdiction; or in exceptional circumstances, there are other compelling reasons for declining jurisdiction TERM 8 1391 (a) DEFINITION 8 Venue generally. (a) Applicability of section(1) this section shall govern the venue of all civil actions brought in district courts of the United States TERM 9 1391 (b) DEFINITION 9 (b) Venue in general. A civil action may be brought in:(1) a judicial district in which any defendant resides (domicile), if all defendants are residents of the state in which the district is located;(2) A judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated; or(3) If there is no district in which an action may otherwise be brought as provided in this section (if 1&2 don't work), any judicial district in which any defendant is subject to the courts personal jurisdiction with respect to such action. TERM 10 1391 (c) DEFINITION 10 (c) Residency for all venue purposes (1) a natural person, including an alien lawfully admitted for permanent residence in the US, shall be deemed to reside in the judicial district in which that person is domiciled (2) an entity w the capacity to sue and be sued in its common name under applicable law, whether or not incorporated, shall be deemed to reside, if a defendant, in any district which defendant is subject to courts PJ w respect to the civil action in question and, if a plaintiff, only in the judicial district in which it maintains its principal place of business; and TERM 21 28 USC 1652 DEFINITION 21 State laws as rules of decision The laws of the several states, except where the constitution or treaties of the US or acts of congress otherwise require or provide, shall be regarded as rules of decision in civil actions in the courts of the United states, in cases where they apply TERM 22 RULE 4 DEFINITION 22 Summons(a) (1) Contents. A summons must:(A) Name the court and the parties; (B) be directed to the defendant; (C) State the name and address of the p's attorney or plaintiff; (D) State the time within which the defendant must appear & defend;(E) Notify the defendant that a failure to appear will result in a default judgment against the defendant for the relief demanded in the complaint; (F) be signed by the clerk; and (G) bear the court's seal. (2) Amendments. The court pay permit a summons to be amended. TERM 23 RULE 4 (c) DEFINITION 23 (c) Service.(1) In general. A summons must be served with a copy of the complaint.(2)By whom. Any person who is at least 18 yrs old and not a party may serve a complaint.(3)By marshal or someone specially appointed. At the plaintiff's request, the court may order that service be made by a united stated marshall or deputy marshal or one specially appointed by the court. TERM 24 RULE 4(d) DEFINITION 24 (d) Waiving service(1) Requesting a waiver. an individual, corp, or association that is subject to service under rule 4e,f,or h has a duty to avoid unnecessary expenses of serving. And may notify defendant of action and request that the defendant waive service. The notice must: (A) be in writing and be addressed: (i) to the individual defendant; or (ii) for a defendant subject to service under rule 4h, to an officer, a managing or general agent, or any other agent authorized by law to receive service of process TERM 25 RULE 4(d) (1)(B-G) DEFINITION 25 The notice and request (waiving service) must:(B) name the court where the complaint was filed; (C) be accompanied by a copy of the complaint, 2 copies of the waiver form and prepaid means of returning form; (D) inform the defendant of the consequences of waiving and not waiving service; (E) State date when the request is sent; (F) give the defendant a reasonable time of at least 60 days after the request was sent- or at least 90 days if sent outside the US to return the waiver; and (G) be sent by first class mail or other reliable means TERM 26 RULE 4 (d) (2&3) DEFINITION 26 (2) Failure to Waive. If a defendant located within the US fails(w.o good cause) to sign and return waiver requested by plaintiff, the court must impose on the defendant: (a) the expenses later incurred in making service; and (b) the reasonable expenses, including attorneys fees, of any motion required to collect those service expenses(3)Time to Answer after a waiver. If defendant waives service they don't have to answer the complaint until 60 days after the request was sent (90 days if in foreign country) TERM 27 Rule 4 (d) (4&5) DEFINITION 27 (4) Results in filing a waiver. When plaintiff files a waiver, proof of service is not required and these rules apply as if a summons and complaint had been served at the time of filing a waiver(5)Jurisdiction and venue not waived. Waiving service of a summons does not waive any objection to personal jurisdiction or to venue TERM 28 RULE 4 (e) DEFINITION 28 (e) Serving an individual within a judicial district of the United States.Unless federal law provides otherwise, one may be served by: following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made; or Doing any of the following: (A) delivering a copy of the summons and complaint in person; (B) leaving a copy of each at individual's dwelling or place of abode w someone who resides there of suitable age; or (c) delivering a copy of each to an agent authorized to receive service TERM 29 RULE 4 (f) DEFINITION 29 (f) serving an individual in a foreign country. Unless federal law provides otherwise, one may be served at a place not within any US district: (1) by any internationally agreed means of service that is reasonably calculated to give notice (2) if there is no internationally agreed means, by a method that is reasonably calculated to give notice: (A) as proscribed by the foreign country's law for service in that country in an action in its courts of general jurisdiction; (B) as the foreign authority directs in response to a letter of request; or (c) unless illegal in that country (i) personal service; or (ii)any form of mail requiring a signed receipt sent by the clerk;or (3) however court orders TERM 30 RULE 4 (g) DEFINITION 30 (g) serving a minor or an incompetent person. A minor or incompetent person in a judicial district of the United States mst be served by following state law for serving a summons or like process on such a defendant in an action brought in courts of general jurisdiction of the state where service is made. A minor or incompetent person who is not within any US district must be served in the manner proscribed by rule 4(f) TERM 31 RULE 4 (h) DEFINITION 31 (h)Serving a corp, partnership, or association. Unless federal law provides otherwise, the above must be served: (1) in a judicial district of the United states: (A) in the manner prescribed by Rule 4(e)(1) for serving an individual or; (B) delivering a copy of summons & complaint to an officer authorized to receive service and by mailing a copy of each to defendant; or(2) at a place not within a US district in any manner prescribed by rule 4(f) except personal deliver under f2ci TERM 32 RULE 4 (k)(1)(a) DEFINITION 32 (k)Territorial limits of effective service.(1) In general. Serving a summons or filing a waiver of service establishes personal jurisdiction over a defendant: (A) who is subject to the jurisdiction of a court of general jurisdiction(continuous&systematic) in the state where the district court is located Fed court has to do the same thing state court would do TERM 33 RULE 8(a) DEFINITION 33 General rules of pleading(a) Claim for relief- a pleading stating a claim for relief must contain:(1) a short and plain statement of the grounds for the court's jurisdiction (SMJ), unless a court already has jurisdiction and the claim needs no new additional support;(2) a short and plain statement of the claim showing the pleader is entitled to relief; and(3) a demand for the relief sought, which may include relief in the alternative or different types of relief TERM 34 RULE 8(b)(1)(2)(3) DEFINITION 34 (b) Defenses; Admissions and Denials.(1) In general. In responding to a pleading, a party must: (A) state in short and plain terms its defenses to each claim asserted against it; and (B) admit or deny the allegations asserted against it by an opposing party (2) Denials- A denial must fairly respond to the substance of the allegation(3) General & Specific Denials. Party can deny all allegations by general denial. Can deny specific allegations TERM 35 RULE 8(b)(4)(5) DEFINITION 35 (4) Denying part of an allegation. A party that intends to deny only part of an allegation must admit the part that is true and deny the rest. (5) Lacking knowledge or information . A party that lacks knowledge/info sufficient to form a belief about the truth must so state and that statement has the effect of a denial. (6) Effect of failing to deny. An allegation is admitted if a responsive pleading is required and the allegation is not denied. If responsive pleading is required, allegation is considered denied or avoided. TERM 46 RULE 14(a)(2)(C)(D) DEFINITION 46 (2)Third-party defendant's claims and defenses must assert: (C) May assert against the plaintiff any defense that third-party plaintiff has to the plaintiff's claim; and (D) may also assert against the plaintiff any claim arising out of the transaction or occurrence that is the subject matter of the plaintiff's claim against the the third party plaintiff TERM 47 RULE 14(a)(3),(5) DEFINITION 47 (3)Plaintiff's claim against a third party defendant.Plaintiff may assert against 3pd any claim arising out of the transaction or occurrence that is the subject matter of the plaintiff's claim against the third party plaintiff. 3pd must assert defenses under rule 12, or 13(a)(b)(g)(5) Third-party defendant's claim against a nonparty. A third party defendant may proceed against a nonparty who is or may be liable to the third party defendant for all or party of any claim against it. TERM 48 RULE 14(b) DEFINITION 48 (b) when plaintiff may bring in a third party. When a claim is asserted against a plaintiff, the plaintiff may bring in a third party if this rule would allow the defendant to do so. TERM 49 RULE 15(a) DEFINITION 49 Amended and Supplemental pleadings. (a) Amendments b4 trial(1) Amending as a matter of course. A party may amend its pleading once as a matter of course within:(A) 21 days of serving it, or(B) if the pleading is one to which a responsive pleading is required, 21 days after service of the responsive pleading or 21 days after service of a motion under rule 12b,e,or f, which ever is earlier.(2) Other amendments. In all other cases, a party may amend its pleading only with the opposing party's written consent or the court's leave. Court should give leave when justice requires TERM 50 RULE 15(c)(1) DEFINITION 50 (c) Relation back of amendments(1) When an amendment relates back. an amendment to a pleading relates back to the date of the original pleading when: (A) the law providing statute of limitations allows relation back (B) Amendment asserts a claim or defense that arose out of the conduct/transaction in the original pleading; or (C)the amendment changes the party or the naming of the party, party shall be brought in by amendment if the party: (i)received notice of the action and wont be prejudiced (ii)knew or should've known the action would have been brought against it, but for a mistake concerning partys identity. TERM 51 RULE 15 (c)(2) DEFINITION 51 (c) relation back amendments(2) Notice to the United States. When the US, US officer, or a US agency is added as a defendant by amendment, the notice requirements of 15(c) (1)(C)(i) and (ii) are are satisfied if during the stated period, process was delivered or mailed to the US attorney or the the AG, or the officer or agency TERM 52 RULE 18(a) DEFINITION 52 Joinder of claims(a) In general. A party asserting a claim, counterclaim, crossclaim, or third party claim may join, as an independent or alternative claims, as many claims as it has against an opposing party. TERM 53 RULE 19(a) (1) DEFINITION 53 Required (compulsory) Joinder of parties(a) Persons required to be joined if Feasible (1) Required party. A person who is subject to service of process and whose joinder will not deprive the court of subject-matter jurisdiction must be joined if:(A) in that persons absence, the court cannot accord complete relief;(B) that person claims an interest relating to the subject of action and is so situated that disposing of the action may:(i) impair or impede the persons ability to protect the interest; or(ii) leave an existing party subject to risk of incurring double, multiple, or inconsistent obligations bc of the interest. TERM 54 RULE 19(a)(2)(3) DEFINITION 54 (2) Joinder by court order. If a person has not been joined as required, the court must order that person be made a party. A person who refuses to join as a plaintiff may be made either a defendant or, in a proper case, an involuntary plaintiff.(3) Venue. If a joined party objects to venue and the joinder would make venue improper, the court must dismiss that party. TERM 55 RULE 20 DEFINITION 55 Permissive joinder of parties. (a) Persons who may join/ be joined(1) Plaintiffs. Persons may join in action as plaintiffs if:(A) they assert any right to relief jointly, severally, or in the alternative with respect to or arising out of the same transactions; and(B) any question of law/fact common to all plaintiffs will arise in action(2) Defendants.Persons may be joined as defendants if:(A)any right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transactions; and(B) any question of law or fact common to all defendants will arise in the action. TERM 56 RULE 21 DEFINITION 56 Misjoinder and nonjoinder of parties. Misjoinder of parties is not a ground for dismissing an action. on motion or on its own, a court may at any time, on just terms, add or drop a party. The court may also sever any claim against a party. TERM 57 RULE 23 DEFINITION 57 Class actions. Party plus class joins plaintiff in the lawsuit(a)Prerequisites. One or more members of a class may sue/be sued as a representative of all parties only if: the class is so numerous that joinder of all is impracticable there are questions of law/fact common to the class the claims/defenses of the represented parties are typical of the claims/defenses of the class; and the representative parties will fairly and adequately protect the interests of the class. TERM 58 RULE 24(a) DEFINITION 58 (a) Intervention of right. On timely motion court must permit anyone to intervene who: (1) is given an unconditional right to intervene by fed statute. (2)claims an interest relating to the property or transaction that is subject of the action, and is so situated that disposing of the action may impede movants ability to protect her interest unless adequate parties already represent that interest. TERM 59 RULE 24(b)(1)(2) DEFINITION 59 (b) Permissive intervention.(1) In general. Court may permit anyone to intervene who is(A) given a conditional right to intervene by a federal statute(B) has a claim/defense that shares w/ the main action a common question of law/fact.(2) By a gov't officer or agency. Court may permit fed/state officer or agency to intervene, if a party's claim is based on: (A) a statute or executive order administered by the officer or agency; or (B) any regulations/orders/agreements issued or made under the statute or executive order TERM 60 RULE 24 (b)(3) DEFINITION 60 (b) Permissive intervention.(3) Delay or prejudice in exercising its discretion, the court must consider whether the intervention will unduly delay or prejudice the adjudication of the original parties' rights.