CIV PRO FINAL REVIEW – all are Rule 12b –Defenses12b1, b2,b3 (improper jurisdiction) know these!!!!! Motions that Δ would use to get out of a suit or sue them! These are basic preliminary defenses
SMJ- can this case be in federal court at all
PJ – can we be in fed court in this particular state
Venue – we are in fed court/we are in this state/ which district is the right fed district to be in?
I. SMJ: deals w/ability of the court to hear a particular type of case- must look at it on a claim by claim basis – so if there are 5 claims in a lawsuit – doesn’t mean that if 1 satisfies SMJ that all have met it – Is there original Jurisdiction or can you amend by §1367 Supp Jurisdiction for the rest.….
A. 3 Types of SMJ:
1. Federal Question:(§1331) claim arises from fed statute, constitution or treaty
2. Diversity: (§1332): action b/w citizens of diff states (or a citizen of a state and a citizen of a foreign country ; amount in controversy exceeds more than $75K
3. Supp: state law claims that arise form the same nexus of operative facts as…
B. Federal Question
1. Does Fed law create the claim asserted by the Π: if yes= fed question jurisdiction exists under 28 U.S.C. § 1331; if no, no fed question jurisdiction (i.e. common law claims- negligence, breach of K, defamation) are state law claims!! No fed question!!) FED Question CANNOT arise form a federal defense!!
C. Diversity Jurisdiction : 2 basic requirements: ( cannot have foreign citizen against foreign citizen b/c it fails on the alignment of parties to get Complete Diversity)
1. Alignment of Parties/Complete Diversity
2. Kkkkk
3. Look at complaint to see if amount in controversy has been met – More than $75K per 28USC § 1332—
4. If Π asks for equitable relief – look at value to Π of injuction or equitable remedy…
5. Amount in Controversy
a. Aggregation of claims to get to 75,000.01
i. Can aggregate when…
1. 1 Π w/2+ unrelated claims against 1 Δ Also…
2. If 1 Π meets amount in controversy, other Π w/same claim can tag along (technically this is supplemental jurisdiction –1367)
ii. Cannot aggregate when… 2+ Π each have a separate and distinct claim against 1 Δ
6. Fact trigger on EXAM for diversity
a. Π who is asserting ONLY a state law claim – diversity is your only choice.<–Πs in essay issue a state claim
b. Common law claims –defamation, negligence, breach of contract, battery, promissory estoppels, etc..
7. Can more than one Type of Original Jurisdiction exist in a case? YES
a. Only use Supplemental Jurisdiction if there is NOT original SMJ over the additional claim..
D. Supplemental Jurisdiction: Either fed question or diversity must exist over some claim in the case… this is called “original jurisdiction” – only need to go to supplemental if original does not exist over particular claim..
a. Even if a court has supplemental jurisdiction it can DECLINE to exercise it if…
i. The claim raises a novel or complex issue of state law
ii. The claim substantially predominates over the federal/diversity claims (Szendry v. Remos )
iii. The district court has dismissed all claims over which it has original jurisdiction or
iv. In exception circumstances, there are other compelling reasons for declining jurisdiction.
t, Π wants to go back to STATE court = REMAND
IV. PERSONAL Jurisdiction
a. Personal Service in Forum State :
i. Requires personal service – actually handing the Summons and Complaint to the Δ in the forum state on the dirt of the forum state – First authorized in Pennoyer
b. Consent : 2 types
i. Post Dispute – Δ gets served and shows up and defends –recognized in Pennoyer
ii. Pre-Dispute – parties enter into a contract before any claim arises- contract states that all disputes b/w the parties will be resolved in a particular stat – Carnival Cruise Lines
c. Minimum Contacts ( start w/ International Shoe v. Washington)
i. Minimum contacts test:
1. Due process requires that the Δ have certain minimum contacts w/the forum state such that the maintenance of the suit there does not offend traditional notions of fair play and substantial justicie
2. TWO types of PH under Minimum Contacts:
a. Specific Jurisdiction: available only if Πs claim arises from one of Δs contacts w/ the forum state
b. General Jurisdiction: if specific is not available, general is the fall back option
c. Requires broad, deep, (generally) long term contacts
d. Means Δ can be sued in forum state for ANYTHING
3. First Question: Does the Πs claim arises from one of Δs contacts w/ the forum state?
