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Civil Procedure Tests Chart

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Civil Procedure Tests Chart
Area/Rule/Statute
Minimum Contacts for
Personal Jurisdiction
Reasonableness
PJ
General Jurisdiction
PJ
Transient Presence
PJ
Rule 4(k)(2) Federal Long-Arm
Statute
PJ
§ 1331 Federal Question
Subject Matter Jurisdiction
§ 1332 Diversity of Citizenship +
Amount in Controversy
SMJ
Diversity of Citizenship
SMJ
Amount in Controversy
SMJ
Aggregation/Non-Aggregation
SMJ
Federal Question
SMJ
“Arises Under”
SMJ
Pendant and Ancillary Claims
SMJ
§ 1367 Supplemental Jurisdiction
Test
Shoe Test: 1) facts crucial; 2) based on the actions of the NRD
Hanson Test: NRD 1) purposely avails himself of the privileges and 2) purposely injects himself
into a forum
Brennan Test: stream of commerce; regular and anticipated flow of products; D knew or should
have known product would reach market state + reasonableness
O’Connor Test: knowledge + targeting; intent/purpose to serve the forum market
Burger King Test (contractual relationship): 1) Prior negotiations; 2) Terms of Contract; 3)
Course of Dealings; and 4) Future Consequences (length of agreement)
Factor Test: 1) burden placed on D; 2) forum state’s interest; 3) P’s interest in obtaining
convenient and effective relief; 4) interstate judicial system’s interest in most efficient place; and
5) state interest in promoting social policy
D 1) carries on “continuous and systematic activity” in the forum; 2) those activities make it fair
and reasonable to assert jurisdiction, as the D is essentially at home19
Scalia Test: physical presence in the forum + service of process
Brennan: minimum contacts + reasonableness
1) covers gap when the Federal Statute has no long-arm AND there is no state long-arm that will
reach; 2) must meet due process; and 3) D must not be subject to any state’s jurisdiction; page 197
of book
DC shall have original jurisdiction of all civil actions arising under the Constitution, law, or
treaties of the US.
(a) DC shall have original jurisdiction of all civil actions where the matter in controversy
EXCEEDS $75,000, and is between: (1) citizens of different states (complete diversity); (2)
citizens of a state and citizens of a foreign state (alienage); (3) citizens of different states and
citizens of foreign states are additional parties; and (4) foreign state is plaintiff and citizens of
state or diff. states
1) diversity is judged when the case is filed; 2) P bears the burden of proof and pleading; 3)
citizen: (a) citizen of the US AND (b) domiciliary of a state (permanent home AND intent to
return)
Individuals have only 1 domicile; established at the time suit is filed
Corporations have 2 – state of incorporation and location of headquarters
Unincorporated associations (MLB, NFL) – citizens of every state in which they have members
1) sum may not include interest and fees; 2) may include damages, punitive damages, and
injunctions (convert to monetary figure)
1) 1 P, 1 D = all claims may be aggregated
2) 1 P, M D = ONLY if Ds are subject to “joint and several liability”
3) M P, 1 D = NO if there are separate and distinct claims; (Sunkist may allow joining of
parent/child)
4) M P, 1 D = YES, ONLY IF there is a “common, undivided interest;” e.g., partnership,
community property, etc.
Well-Pleaded Complaint – the FQ must come through the P directly
Federal Question; page 313 Tests:
1) Statute (a) creates the cause of action; OR (b) cause of action can be inferred from the statute
2) Action asserts a claim requiring the construing of a Federal Statute
3) Gunn: (a) disputed and substantial Federal issue (b) consistent with jurisdiction of the federal
court; substantial is examined from the view of the SYSTEM
Pendant: “hang from” another claim: counterclaims and cross claims
Ancillary: in addition to main claim (3rd party, impleader)
“common nucleus of operative fact” – do the claims tell the same story? Do they rely on the same
key elements/events? Gibbs Test:
1) Power– whether the federal court has the power under Art. III, Sec. 2: When there is a claim
“arising under the Constitution, laws and treaties” and the relationship between that claim and the
state claim(s) made in the complaint “permits the conclusion that the entire action before the court
comprises but one constitutional ‘case’.”
2) Discretion– whether the court in its discretion believes that the pendent claim should be
allowed: There must be a substantial federal question claim and the federal and the appended state
claim(s) must derive from a “common nucleus of operative fact.”
(a) Except as provided in (b) and (c) or as provided by Federal Statute, in any civil action in
SMJ
§ 1367 (b) limitation
Applies to P. Limited because they started
things. If they need an additional claim or party
at the start, then they could have added them at
time of filing.
§ 1441 Removal
SMJ
§ 1391 Venue
Venue
§ 1404 Change of Venue
Venue
Forum Non Conviens
Venue
Eerie Doctrine
Eerie
§ 1652. State laws as rules of
decision
§ 2072 Rules Enabling Act
Eerie
Byrd Test
Substantive
Eerie
Hanna Test
Procedural
Eerie
Joinder of Claims and Parties
Joinder
Arising out of the Same
which district court has original jurisdiction, court shall have supplemental jurisdiction over all
other claims that are so related to claims in the action
(b) if original jurisdiction founded solely on 1332 (diversity), district court shall NOT have supp.
juris. over claims by plaintiffs against persons made parties under Rule 14, 19, 20, or 24 or by
parties seeking to intervene as plaintiffs when exercising supp. juris. would be inconsistent with §
1332.
(c) court may decline to exercise supp. juris. over a claim if: (1) the claim raises a novel or
complex issue of state law; (2) the claim substantially predominates over the claim or claims over
which the court has original juris.; (3) court has dismissed all claims over which it has original
jurisdiction; OR (4) in exceptional circumstances there are other compelling reasons for declining
jurisdiction
(d) SoL for claim dismissed voluntarily or under (a) is tolled for 30 days after dismissal
(a) any civil action brought in a State court of which the district court of US has original
jurisdiction may be removed by the defendant or defendants to the district court of the US for
the district and division where such action is pending. 1) ONLY if there is diversity and amount in
controversy or a federal question; 2) only ORIGINAL defendants; 3) all defendants must agree to
removal; 4) P facing a counterclaim is NOT considered a D; 5) goes to the closest Federal
Courthouse
(a) Except as otherwise provided by law, (1) shall govern for all civil actions brought in district
courts; (2) shall be determined without regard whether action is local or transitory in nature
(b) civil action may be brought in (1) a judicial district in which any D resides if all Ds reside in
the State where district 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 the property is located;
(c) RESIDENCY for venue purposes: (1) a natural person shall be deemed to reside where
domiciled; (2) entity with capacity to sue or be sued shall be deemed to reside, if a D anywhere
court has PJ, and if P only in the judicial district in which it maintains its principal place of
business
(3) a NRD may be sued in any judicial district
(d) Corporate residency in state with multiple districts; corporation deemed to reside in district
where it meets minimum contacts OR district within which it has the most significant contacts
(1) for the convenience of parties and witnesses, (2) in the interest of justice, a district court (3)
may transfer any civil action to any other district or division (4) where it might have been brought
or (5) where all parties have consented.
Deference is given to P; higher to US P
Gilbert Factors: Fact intensive; balances US v. foreign interest
Private Interest – 1) access to proof; 2) access to witnesses; 3) access to premises; 4) enforcement;
and 5) joinder of all parties possible
Public Interest – 1) administrative difficulties; 2) jury duty; 3) local interest and 4) choice of law
On Federal Questions, Federal Law applies. On state issues, state law applies (diversity and
amt. in controversy). Federal courts are to apply the written (statutes) and unwritten (stare
decicis) laws of the states when deciding a state issue. 10th Amendment issue: “powers not
delegated to the US by the Constitution, nor prohibited by it to the states, are reserved to the
States respectively, or to the people.” (A) Substantive: 1) affecting the outcome and 2)
establishing the rights; (B) Procedural: means and methods of enforcing the law
Purposes: 1) Discourage forum shopping; 2) Avoid inequitable administration of the law
The laws of the several states, except where the Constitution or treaties of the United States 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.
(a) SCOTUS shall have power to prescribe general rules of practice and procedure
(b) such rules shall not abridge (shorten), enlarge (broaden), or modify (change) any substantive
right.
Pure Eerie Byrd Test: 1) Is the rule/statute bound up with state-created rights and obligations? If
yes, state law applies, if no 2) Does this rule change the outcome? If yes, state law applies; and 3)
Is there a countervailing federal interest? If yes, federal law applies. Countervailing interest must
be Constitutional.
Rule Enabling Act Hanna Test: 1) Does a federal rule/statute control? 2) Has the rule violated §
2072; 3) Does it violate the Constitution?
Federal Rules of Civil Procedure. Lowest “life form.” Governs the types of parties and claims that
may be added to a suit; some are permissive, others mandatory. Must defer to SMJ (statutes) and
PJ (Constitution).
Does the claim arise out of the same transaction, occurrence, or series of transactions or
Transaction, Occurrence, or
Series of Transactions or
Occurrences
Joinder
Rule 18 Joinder of Claims
Joinder
Rule 13 CC
Joinder
Tests for Compulsory v.
Permissive (Joinder)
Gibbs Test
Joinder
Rule 13 XC
Joinder
Rule 20 Permissive Joinder of
Parties
Joinder
Arising out of the Same
Transaction, Occurrence, or
Series of Transactions or
Occurrences
Joinder
Rule 14 Impleader/3D Party
Joinder
Supp. Juris.?
Satisfies ancillary
§ 1367(a) applies
§ 1367(b) limitation applies to P
occurrences? Is there a “unity of time and place”?
Two prong test:
Prong 1: Transactional: Are D’s acts or omissions pertaining to P’s claims logically related? Is
there but-for causation or a “domino” effect?
Prong 2: Question of law or fact common to all Ps; analysis of the facts to reveal a common
question of law or an operative nucleus of fact.
(a) A party asserting a claim, counterclaim (CC), crossclaim (XC), or third-party claim (3D) may
join, as independent or alternative claims, as may claims as it has against an opposing party.
(b) A party may join two claims even though one of them is contingent on the disposition of the
other; but the court may grant relief only in accordance with the parties’ relative substantive
rights. P may state a claim for money and a claim to set aside a conveyance that is fraudulent as to
that P, without first obtaining a judgement for the money.
(a) Compulsory CC: (1) Pleading must state as a CC any claim that the pleader has against an
opposing party if the claim: (A) arises out of the transaction or occurrence that is the subject
matter of the opposing party’s claim; and (B) does not require adding another party over whom
the court cannot acquire jurisdiction. (2) Pleader need not state the claim if (A) when the action
was commenced, the claim was the subject of another pending action; or (B) the opposing party
sued on its claim by attachment or other process that did not establish PJ over the pleader on that
claim, and the pleader does not assert any CC under this rule.
(b) Permissive CC: any pleading may state as a CC against an opposing party any claim that is not
compulsory.
1) Are the issues of facts and law raised by the claim and CC largely the same?
2) Would res judicata bar a subsequent suit on D’s claim absent the compulsory CC rule?
3) Will substantially the same evidence support or refute P’s claim as well as D’s CC?
4) Is there any logical relation between the claim and the CC?
1) Power– whether the federal court has the power under Art. III, Sec. 2: When there is a claim
“arising under the Constitution, laws and treaties” and the relationship between that claim and the
state claim(s) made in the complaint “permits the conclusion that the entire action before the court
comprises but one constitutional ‘case’.”
2) Discretion– whether the court in its discretion believes that the pendent claim should be
allowed: There must be a substantial federal question claim and the federal and the appended state
claim(s) must derive from a “common nucleus of operative fact.”
(g) XC against a Co-party. A pleading may state as a XC any claim by one party against a coparty if the claim arises out of the transaction or occurrence that is the subject matter of the
original action or of a CC, or if the claim relates to any property that is the subject matter of the
original action. The XC may include a claim that the co-party is or may be liable to the CCant for
all or part of a claim asserted in the action.
(a) Persons Who May Join or Be Joined. (1) Plaintiffs may join in one action if: (A) they assert
any right to relief jointly, severally, or in the alternative, with respect to or arising out of the same
transaction, occurrence, or series of transactions or occurrences; AND (B) any question of law or
fact common to all Ps will arise in the action. (2) Defendants may be joined in one action as Ds
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 transaction, occurrence, or series of transition or occurrences;
AND (B) any question of law or fact common to all Ds will arise in the action.
Does the claim arise out of the same transaction, occurrence, or series of transactions or
occurrences? Is there a “unity of time and place”
Two prong test:
Prong 1: Transactional: Are D’s acts or omissions pertaining to P’s claims logically related? Is
there but-for causation or a “domino” effect?
Prong 2: Question of law or fact common to all Ps; analysis of the facts to reveal a common
question of law or an operative nucleus of fact.
D facing a claim OR P facing a counterclaim/3D claim may:
(a) Bring a claim against a non-party who is or may be liable for all or part of the claim.
Test: (1) non-party; must not be in the original complaint. (2) who is or may be liable; fact
sensitive, based on relationship between person bringing them in and 3D party; (3) for all or part;
contribution or indemnity.
Contribution – 3D owes part (A) Does the 3D party complaint arise from the same aggregate core
of facts which is determinative of the claim? (B) Does the 3D party complaint foster an obviously
unmeritorious claim? (C) Does 3D party complaint unduly prejudice the 3D party OR unduly
delay proceedings?
Indemnity – 3D responsible for ALL: (A) Contract: does the K contain an indemnification clause?
Yes? Proper. (B) CL Blamelessness: Was D at fault/did D violate a duty to P? Yes? Go to
Rule 22 and § 1335 Interpleader
Joinder
Rule 56 Summary Judgement
Summary Judgement
Rule 56 Principal Issues
SJ
SJ Tests
Celotex
Anderson
Matsushita
Rule 11 Signing and Sanctions
Signature
Rule 11
Sanctions
Contribution.
Rule 22: stakeholder P is diverse with the claimants, and the amount in controversy is > $75,000
(1) By P – persons with claims that may expose P stakeholder to double or multiple liability may
be joined as Ds and required to interplead. Joinder is proper even though: (a) the claims lack a
common origin or are adverse and independent; (b) P stakeholder denies liability in whole or in
part to any or all of the claimants.
(2) By D – a D exposed to similar liability may seek interpleader through a XC or CC
§ 1335: if one claimant is diverse from others + amount in controversy is ≥ $500
(a) DC shall have original juris. Of any civil action filed by a person having in his possession
money or property of the value of $500 or more if: (1) two or more adverse claimants of diverse
citizenship are claiming such money or property; AND (2) P has deposited such money and
property under the obligation of the court.
(b) action may be entertained although the titles or claims of the complicating claimants do not
have a common origin
§ 2361 provides long-arm to offer nationwide service; does not reach people outside the US
(a) a party may move for SJ, identifying each claim or defense – or the part of each – on which SJ
is sought. The court shall grant it if the movant shows 1) there is no genuine dispute as to any
material fact and 2) the movant is entitled to judgement as a matter of law.
(b) Time to File: may file at any time until 30 days after the close of discovery.
(c) Procedures: (1) Supporting Factual Positions: party asserting a fact cannot be or is genuinely
disputed must: (A) cite to particular parts of materials in the record; or (B) show that the materials
cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot
produce admissible evidence. (2) Objection that a Fact not Supported: a party may object that the
material cited cannot be presented in an admissible form. (3) Court need only consider cited
material, but may consider other material in the record.
(d) When Facts are Unavailable to the Nonmovant: if nonmovant shows by affidavit or
declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the
court may: (1) defer considering the motion or deny it; (2) allow time to obtain affidavits or
declarations or to take discovery; or (3) issue any other appropriate order.
(e) Failing to Properly Support or Address a Fact: if a party fails to properly support an assertion
or fact or fails to properly address another party’s assertion, the court may: (1) give an opportunity
to properly support or address the fact; (2) consider the fact undisputed for purposes of the
motion; (3) grant SJ if the motion and supporting materials show that the movant is entitled to it;
or (4) issue any other appropriate order.
(h) Judgement Independent of the Motion. After giving notice and a reasonable time to respond, a
court may: (1) grant SJ for a nonmovant; (2) grant the motion on grounds not raised by a party; or
(3) consider SJ on its own after identifying for the parties that may not be genuinely in dispute.
1. Whether a factual dispute exists. (proved by direct evidence)
2. Whether the dispute is material to the outcome of the case. (must be decided to resolve the
substantive claim or defense)
3. Whether the dispute is genuine. (could a reasonable jury reach a different conclusion)
SJ is all about the BURDENS of proof and production.
Celotex: (A) If MOVANT bears the burden of proof on the issue at trial, it must produce credible
evidence that would entitle it to a directed verdict; i.e., it must prove its case. (B) If
NONMOVANT bears the burden of proof at trial, the movant can: (1) submit affirmative
evidence to negate an essential element of the P’s claim; OR (2) demonstrate that the
nonmovant’s evidence is insufficient to establish an essential element of the nonmovant’s claim
(find the gap by affirmatively showing absence of evidence in record).
Anderson: When reviewing SJ, a court MUST view the evidence presented through the prism of
the substantive evidentiary burden. If burden is “preponderance of evidence,” “clear and
convincing,” or “beyond a reasonable doubt,” then that is the standard the court must apply.
Matsushita: deals with inferences. There must be a choice between inferences. Movant must show
that THEIR inference is the only reasonable one for SJ to be appropriate.
(a) Signature. All paperwork must be signed by attorney or by party personally. (b)
Representation to Court: certifies that to the best of the person’s knowledge: (1) it is not being
presented for any improper purpose; (2) the claims, etc. are warranted by existing law; (3) factual
contentions have evidentiary support or are likely to have support; (4) denials of factual
contentions are warranted or are reasonably based on belief or a lack of evidence.
(c) Sanctions. (1) In General: court may impose an appropriate sanction on any attorney, law firm,
or party that violated the rule or is responsible for the violation. A law firm must be held jointly
responsible for a violation committed by its partner, associate, or employee. (2) Motions for
Sanctions. Must be made separately from any other motion and must describe specific conduct
that allegedly violates Rule 11(b). (3) Court may order an attorney, law firm, or party to show
cause why conduct described in the order does not violate 11(b). (4) Nature of Sanction. Must be
limited to what suffices to deter repetition of the conduct or comparable conduct by other
similarly situated. (5) Limitations on Monetary Sanctions. Court must not impose a monetary
sanction: (A) against a represented party for violating 11(b). (B) on its own unless it issues the
show-cause order under 11(c)(3). (6) Requirements. Court must describe sanctioned conduct and
explain the basis of the sanction.
(d) Does not apply to discovery or rules 26 through 37.
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