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Civ Pro Midterm
Terms in this set (27)
There must be some act in which D purposefully avails himself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws.
If defendant purposefully avails himself of the forum state's laws by visiting, doing business there, etc. then he should reasonably anticipate being haled into court there.
5 Reasonableness Factors
1. Burden on defendant
2. The interests of the forum state in hearing the dispute
3. Plaintiff's interest in obtaining relief
4. Interstate judicial system's interest in obtaining the most efficient resolution.
5. The shared interests of states in furthering substantive social policies.
O'Connor Purposeful Availment Examples
1. Purposefully designing a product for forum state's market.
2. Advertising in the forum state
3. Establishing channels for providing advice to customers in the forum state.
4. Using a distributor that agrees to act as a sales agent in the forum state.
3 requirements for in rem
1. Property must be seized at the beginning of the suit
2. The property must be located in the forum state
3. The defendant must be given a chance to defend
Mullane's Notice Rule
To comport with DPC, notice must be:
1. Reasonably calculated
2. Based on the practicalities and peculiarities of the case
3. To apprise the interested parties of the pendency of the action
4. And give them an opportunity to present their objections.
When is publication allowed?
Only after a good faith effort is made to ascertain the whereabouts of the defendant. It should normally only be used for in rem.
How long does plaintiff have to serve defendant after complaint is filed?
FRCP 4(3) (4 methods of service)
1. D can be served following state law (certified mail)
2. D can be personally served wherever he is
3. Summons can be left at D's dwelling with someone of suitable age and discretion that resides there.
4. D can be served by delivering papers to someone authorized by appointment (contract) or law (implied consent)
What must you ascertain before leaving summons with someone other than D at his home? (2)
1. That they are responsible enough to know what to do with the papers
2. They actually reside there
When is it appropriate to leave summons with an agent, officer, or anyone else authorized to accept service for a corporation? (2)
1. When the employee is so integrated with the organization that he will know what to do with the papers.
2. Service is proper when if it is reasonable, fair, and just to imply authority on the employee's part to receive services.
How long do you have to answer a complaint before a default judgement is entered?
Definition of Domicile
A person's true, fixed, and permanent home to which he has the intention of returning whenever he is absent therefrom
How is citizenship measured? (2)
1. Objective Presence: D is physically present in the state on a permanent basis
2. Subjective Intent: D has an intent to make the state his home for the foreseeable future.
Principal place of business definition
The place where a corporations officer direct, control, and coordinate the corporation's activities, i.e., its nerve center. In practice, this is usually the corporation's HQ.
Amount in controversy rule
The sum claimed by the plaintiff controls if it is made in good faith.
When does a plaintiff's damages not lie?
12(b)(1) motion to dismiss may be granted when it appears to a legal certainty that the claim is really for less than the jurisdictional amount.
How are damages calculated for an injunction?
The value of the right the plaintiff seeks to protect is measured by the extent of the impairment to be prevented by the injunction. This is up to the judge.
When can a judge decline to extend 1367 jurisdiction? (4)
1. The claim involves a complex state law issue
2. The state claim predominates
3. The court has dismissed the claims it had over OJ.
4. There are other compelling reasons for declining jurisdiction.
Gibbs factors that a judge considers in deciding whether to grant 1367 jurisdiction (4)
1. Judicial economy
2. Convenience and Fairness
3. Jury Confusion due to combined claims
4. The federal claim appears weak.
How long does defendant have to object to venue?
When can a case be transferred? (2)
1. In the interest of justice
2. Convenience of the parties and witnesses
Factors the court weighs in deciding when to transfer (4)
1. The availability and convenience of the witnesses and parties and counsel
2. Location of books and records
3. Cost of obtaining attendance of witnesses and other trial expenses.
4. The plaintiff's choice is venue (receives great deference)
Motion to dismiss for lack of SMJ
Motion to dismiss for lack of PJ
Motion to dismiss for improper venue
Motion to dismiss for insufficient service of process
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