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07/25/2013

FEDERAL JURISDICTION
I.

Summary of Threshold Choice of Court Questions


A.
Does the court have subject matter jurisdiction?
B.
Does the court have personal jurisdiction over the defendant?
C.
Has the defendant been given notice and an opportunity to be heard?
D.
Has there been adequate service of process?
E.
Does the court have venue?
F.
If the case is in state court, are there grounds for removal to federal
court?

II.

Analytical Approach to Subject Matter Jurisdiction


A.
Does the Court have Subject Matter Jurisdiction?
1.
Federal question jurisdiction Ps claim must arise under the
Constitution, treaties, or laws of the US
2.
Diversity jurisdiction the citizenship of the parties to the action
must be completely diverse and the amount in controversy must
exceed $75,000
a)
Complete diversity all the Ps in the suit must be from
different states than all the Ds in the suit
b)
Citizenship determined at the time the suit is brought
(1)
Personscitizenship=domicile (which requires
residence w/ the intent to reside indefinitely)
(a)
Center of gravity test= if the individual
spends time in several states over the course of the
year, pick the state w/ the most significant
connections. This is usually where the most time is
spent, child are raised, or taxes are paid
(2)
Unincorporated Associationsa partnership (both
general and limited) or labor union is a citizen in every
state that its partners or members are citizens
(3)
Corporationscitizenship is determined by place of
incorporation and principle place of business
(a)
Nerve center test corporate headquarters
or home office
(b)
Place of operations or Muscle test where
manufacturing or profit-making activity takes place

(4)

B.

Representative and Class Actions:


(a)
In a class action or derivative suit, use the
citizenship of the representative
(b)
In an action brought on behalf of someone
who is deceased, an infant, or an incompetent,
citizenship is determined by the citizenship of the
true beneficiary of the action
c)
Amount in Controversy
(1)
Test to determine if the amount exceeds the
required $75,000, the court must find, to a legal certainty,
that the amount in controversy will not reach $75,000.01?
(a)
This is exclusive of costs and expenses
(2)
Aggregation a P may aggregate his claims
against a single D. Several Ps may aggregate their claims
only where they seek to enforce a common or undivided
interest
(3)
Injunctions if the action being brought is for an
injunction, 2 tests are used to determine the amount in
controversy:
(a)
Test 1 looks at the cost to the P if the
injunction is not granted
(b)
Test 2 looks at the loss to the D if the
injunction is granted
Supplemental Jurisdiction
1.
General under certain circumstances, a claim may be brought
in federal court even through it does not invoke federal subject matter
jurisdiction
2.
When Does the Issue Arise?
a)
Look for these facts to see if supplemental jurisdiction is
an issue:
(1)
A P asserts at least 1 claim that satisfied diversity
or federal jurisdiction, and
(2)
The P asserts an additional state law claim, which
on its own could not satisfy federal question jurisdiction
3.
Testcan the state law claim be brought alongside the federal
question/diversity case? Heres the test:
a)
Does the state law claim arise from a common nucleus of
operative face as the claim that is already properly in federal
court
4.
Limitation on Use of Supplemental Jurisdiction
a)
In a diversity case, the P can use Supp Jx to bring a claim
that does not meet the amount in controversy requirement as
long as that claim also arises fro the common nucleus of
operative fact
b)
BUT the P cannot use Supp Jx to defeat the complete
diversity rule

III.

VenueDoes the Court have Venue?


A.
General
1.
Federal venue depends on the type of jurisdiction being asserted
2.
1st question determine whether jurisdiction is based solely on
diversity of citizenship or if its a mixture of diversity and federal
question
B.
Solely Diversity of Citizenship if the case is based solely on diversity
of citizenship, the action may be brought in one of the following 3 places:
1.
All Ds reside in the same state
a)
In a judicial district where any D resides, if all the Ds
reside in the same state;
b)
In 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 that is the subject of the action
situated, or
2.
Ds reside in different states
a)
In 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 that is the subject of the action
situated, or
3.
Where NY Ds are subject to personal jurisdiction
a)
In a judicial district where any D is subject to personal
jurisdiction at the time the action is commenced
4.
NOTE: there can be circumstances where there is no venue that
is proper. In such case, a separate action must be brought against
each D or against each group of Ds upon which venue may be obtained
C.
Federal Question Alone or In Combination w/ Diversity if the case is
based on federal question alone or federal question in diversity, the action
may be brought under 1. or 2. above (as in sole diversity action) or
1.
Where any D resides
a)
In a judicial district in which any defendant may be found
(meaning where the D is subject to personal jx or is actually
served to obtain jurisdiction), if there is no district in which the
action may otherwise be brought under 1. or 2. above
D.

Corporation

1.
A corporate D is a resident in any judicial district in which it is
subject to personal jurisdiction
2.
If a state has more that 1 judicial district in which the corporate
D is subject to PJ, then venue is any judicial district where there are
enough contacts to give the federal court PJ over the D as if each
judicial district were a separate state
3.
If there is no such district, the corporation is deemed to reside in
the district within which it has the most significant contacts
E.

Transfer of Venue Between Federal District Courts


1.
2 situations where a case may be transferred:
a)
Where venue was originally improper
b)
Where the venue is proper, but there are factors that
make it inappropriate for this action
2.
Where venue originally improper:
a)
In such case, the case may be transferred to a proper
district but will not be dismissed except in extraordinary
circumstances
3.
Where venue is proper but factors make it inappropriate:
a)
Normally great weight is given to Ps choice of venue b/c
he is the master of his claim. But there are situations where
transfer is appropriate
b)
Transfer will be allow if its in the interest of justice
c)
When request to transfer is made, court considers the
following factors:
(1)
Where are the parties from?
(2)
Where is the evidence?
(3)
What law governs?
(4)
Where are the witnesses?
4.
Forum Non-Conveniens
a)
In federal practice, forum nonconveniens refers to the
transfer of venuethe court must apply the 4 factors discussed
above
b)
Note: in non-federal practice, forum nonconveniens
means the case is dismissed and the P must bring it in the
appropriate court

IV.
RemovalIf the case is in state court, are there grounds for removal to
federal court?
A.
General
1.
A P may bring an action in state court that could have also been
brought in federal court
2.
In such circumstances, the D make make a motion to have the
case removed to federal court
3.
NOTE: removal can ONLY be from state court to federal court,
NOT vice versa. Vice versa, it is a cross-motion to remand to the state
B.
Requirements
1.
Defendants Tool only an original D may use removal. The P,
who originally brought the action in state court, may not remove to
federal court
2.
Therefore, the P may not remove even if he later becomes a D
due to a counterclaim
3.
All Defendants Must Agree where multiple Ds are being sued,
every D must agree to have the case removed
4.
Jurisdiction D may remove only if the case could have been
originally brought in federal court
5.
CitizenshipSolely Diversity Action in a case where the only
reason the fed court would have jurisdiction is diversity, the D may not
remove if the claim was brought in the Ds forum state
6.
CitizenshipSolely Federal Question or Combination w/
Diversity in a fed question or combo fed question/diversity case, a D
may remove a case from state to fed court without regard to the
citizenship of the parties
C.
Geographic Restriction
1.
Removal is from the state court to the district court that
embraces the geographical location of the state court
D.
The entire case is not removable!
1.
If part of a case is removable, and part of it is not, the entire
case can be removed to federal court, although the court may remand
the non-federal issues to the state court
2.
Therefore, if a P brings a claim including civil rights violations
and violations of state law (tort), the D can remove the action to
federal court
a)
The federal court must hear the civil rights claim,
although they may decline to hear the torts claim
V.

Interpleader

A.

General
1.
What is interpleader?
a)
A special multiparty joinder scenario
b)
A person (Stakeholder) who holds property or money
that is at issue forces all potential adverse claimants (those who
want the property/money) into a single lawsuit to avoid multiple
litigants
B.
2 Types of Interpleader 2 ways in which an interpleader case can be
heard in federal court:
1.
Rule 22 (Fed Rules of Civ Pro)
a)
Interpleader case can be brought in fed court if the
standard rules of subject matter jx are satisfiedthere must be
a fed question claim or there must be diversity in citizenship
between the stakeholder and the claimants. The amount in
controversy also must exceed $75,000
2.
Statutory Impleader
a)
There is also a federal interpleader statute, which makes
it easier to bring an interpleader action
b)
Under the statute, there is jurisdiction for interpleader
case if:
(1)
There is diversity between any 2 adverse claimants,
and
(2)
The amount in controversy is $500 or more
NJ civ pro
I.
II.

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III.

How to Organize a Civ Pro Essay


A.
Personal Jurisdiction
1.
Due Process The DP Clause of the 14th Amendment says the
court must have personal jurisdiction over the party in order to
adjudicate the matter

2.
Domicile, acts going into NJ, etc.
3.
Minimum contacts in order for exercise of PJ to be
constitutional, need to have sufficient minimum contacts (international
shoe)
a)
Minimum contacts can be 1 of 2 types- continuous/routine
so court have general juris; or specific juris where it arises out of
cause of action (claim relates to or arises out of context made by
defendant)
b)
NJ court does/does not have personal jx over _____ party
4.
Now stream of commerce argument- while Milan France does
come into US, they have never come into/done anything in NJ;
purposeful available to minimum contacts to stream of commerce
now balance this with traditional notions of fair play and justice (prob
wont be fair in the balance test see Asahi case)
5.
B.
IV.
I.

Structure of NJ Courts/Divisions of Court


A.
NJ Supreme Court
1.
Highest state court; equivalent of the US Supreme Court
2.
Hears appeals as of right in cases where:
a)
A substantial question of federal/NJ constitutional law is at
issue
b)
A case had a dissent at the Appellate Division;
c)
Death penalty cases;
d)
When a law allows (R. 2:2-1(a))
B.
NJ Superior Court, Appellate Division
1.
Intermediate appellate state court; equivalent of the US Court of
Appeals
2.
Hears cases from final judgments of the Superior Court trial
courts
C.
NJ Superior Court, Law and Chancery Divisions
1.
Courts of original jurisdiction; equivalent of the US District
Courts

2.
Each county has its own Superior Court, and are referred to as
Vicinages (i.e., Monmouth Vicinage)
D.
Law Division (Superior Court)
1.
Divided into 2 separate sections:
a)
Civil
b)
Criminal
2.
Hears cases where the principal request for relief is legal, rather
than equitable
3.
Legal relief= money relief (aka claims in tort or breach of K)
4.
Law Division is further divided into the Special Civil Part
a)
Court of limited jurisdiction
b)
Hears cases where the amount in controversy is $15,000
or lower
c)
Also hears cases involving landlord/tenant, small claims
lawsuits (up to $3,000) and actions to recover security deposits
(up to $5,000)
E.
Chancery Division (Superior Court)
1.
Court where equitable relief, as opposed to legal relief, is
obtained
2.
Equitable relief= specific performance, injunctive relief, divorce
and divisions of matrimonial property
3.
Divided into 3 parts:
a)
General Equity
b)
Family Part
c)
Probate Part
F.
A case that combines both principals of law & equity may be brought in
either Division when the ends of justice so require. This ensures that all
matters in controversy between the parties may be completely determined
Does the Court have the authority to decide the dispute?

II.

JurisdictionGenerally
A.
In order for a court to exert jurisdiction in an action, it must have
subject matter jx and EITHER terriotorial jx or PJ over the parties
involved/controversy
1.
Territorial jx authority over a particular property
a)
NJ exercises territorial jx over the real and personal
property located within the state of NJ
2.
Personal jx a courts authority over a particular person (in
personam jx) or piece of property (in rem jx)
3.
The Superior Court is a court of general jurisdiction throughout
the State in all causes.
B.
Even where NJ has jx over real or personal property, to exercise that jx,
the 14th Amendment requires that due process, or proper notice of the action,
must still be provided to:
1.
The parties to the action or who have an interest in that
property; and
2.
Those individuals involved in the action who reside, are
domiciled, conduct business or visit within the state

III.
Personal JurisdictionNJ IssuesDoes the Court have jurisdiction over the
parties?
A.
Personal jx is obtained by serving the D w/ process either within the
state or outside the state in following manner (see below)
B.
Fg
IV.
Subject Matter JurisdictionDoes the Court have jurisdiction over the subject
matter?
A.
Key questions:
1.
Does another court have exclusive jurisdiction over a matter?
(i.e., bankruptcy in federal court)
2.
Is this a matter that arises from activity in the State of NJ?
3.
Does this matter implicate the NJ Constitution?
4.
Do the defendants include a NJ resident?
I.
Service of ProcessGenerally

A.
Service of process= serving the summons and complaint upon an
individual or entity within the state
B.
Service of process is accomplished in the following ways:
1.
Service upon a competent person over the age of 14 at the
individuals dwelling place or by delivering summons & complaint on
person authorized to receive service of process;
2.
Service upon a minor under the age of 14 by personally
serving the parent/guardian
3.
Service upon an owner of real property can be served onto an
owner of real property provided that the action arises out of a
business in which the individual is engaged in the State or out of any
real property or interest in real property in the States owned by the
individual.
a)
Service can also be made upon a managing agent of the
real property
4.
Service upon a partnership or unincorporated associates by
personally serving the entity in the manner consistent w/ R. 4:4-1(a)(1)
5.
Service upon a corporation made by service consistent w/ R.
4:4-1(a)(1) on:
a)
An officer, director, managing agent, or any person
authorized to receive service of process
b)
A person at the registered office of the corporation
c)
A person in charge of the office that is the principal place
of business in this state
6.
Service upon the State of NJ by registered, certified or ordinary
mail of the summons & complaint OR by personal service to the
Attorney General or the Attorney Generals designee
C.
Service of Process upon an individual or entity outside of the state
1.
Served by substituted or constructive service
2.
If, by affidavit indicating that despite diligent effort and inquiry
personal service within the state cant be made, then jurisdiction can
be obtained by serving process in the other State in the same manner
used in NJ
D.
General Appearance
1.
A D waives the right to object to personal jurisdiction if it is not
made by motion 90 days following the service of the answer, even if it
was raised in the answer
II.
VenueIf the state court has jurisdiction, which of the 23 counties do you file
suit in?
A.
Venue (county in which the action is files) is determined as follows:
1.
County of residence where any/either party resides or where
the cause of action took place

2.
Residence of D corporation a corporation is deemed to reside
in any county in which:
a)
It has a registered office;
b)
It is the principal place of business; or
c)
The corporation transacts business
3.
Action Against Public Entity
a)
Ex: municipal corporations, countries, public agencies, or
officials that do not involve real property
b)
Venue is proper in any county where at least 1 party
resides at the commencement of action
c)
Example A resident of Somerset County may file suit
from an accident he had in Seaside Heights (located in Ocean
County) against the mayor of Seaside Heights in Somerset
County
4.
Domicile of Mentally Incapacitated Person
a)
Action has to be brought in the county of the mentally
incapacitated persons domiciled
5.
County where Cause of Action Arose
a)
Where the cause of action arise/where the accident
happened/where the contract was entered into that county is
generally proper for most civil disputes
6.
County Where Service is Effected
a)
The county where service was effected on a nonresident D
is the proper venue
b)
Ex: the president of a Kansas corporation is served w/ a
summons an complaint at Newark Airport (located in Essex
County) on his way to Florida. Venue can be had in Essex County
P must determine where to bring the lawsuit. Venue is governed by R. 4:3-2

Actions affecting real property brought in the county where the property
is situated
Action not involving real property, but involving a public official filed in
the county where the cause of action arose
With limited exceptions all other actions in Superior Court shall be laid
in the county in which the action arose, or which any party to the action
resides at the time of commencement, or in which a summons was served
on a non-resident defendant

B.

C.
D.

E.

III.

Specific Venue Requirements for Chancery Division, Family Part Actions


1.
Child welfare, status, support, or protection actions must be
brought in the county where the child is domiciled, irrespective of
where the parents are located
2.
Adoption action county where the P is domiciled
3.
Juvenile delinquency actions the domicile of the juvenile
4.
Termination of parental rights county where the agency who is
terminating rights has its PPB unless there was a prior action involving
the child. If there was a prior action, the venue of the prior action is
the proper venue
5.
Divorce, separation, or annulments county where the P is
domiciled at the commencement of the action
Special Civil Part
1.
Venue is ALWAYS where the D resides
2.
In the special civil part, the court serves process for you
Quasi In Rem Actions
1.
In actions seeking to attach real or personal property of a party
2.
Venue is proper in the county where that real/personal property
is located
In Rem Actions
1.
Involve title, possessory interests, or other property related
interests
2.
Venue is proper in the county in which the real property is
located

Change of Venuecan you change venue after the lawsuit starts? (yes)
A.
Change of venue is only permitted in the following situations:
1.
P applies prior to the filing of the 1st answer2 ways to
accomplish this:
a)
P can dismiss his own complaint w/o prejudice before an
answer is filed (and then file elsewhere); or
b)
P can file an ex parte motion (w/o the presence of other
parties) to change venue at any time prior to the filing & service
of the first answer by any D. Judge can grant or deny, but
usually its granted unless theres good cause for denial

2.

Any party can move for a change of venue:


a)
Within 10 days after the expiration of time for service of
the last permissible responsive pleading (aka within 10 days of
the filing of the last responsive pleading); or
b)
For summary actionson or before the return date of the
summary action. After this time, any objections to venue are
waived
B.
Standard the court may order a change of venue in the following
situations:
1.
Where venue is not properly laid in accordance w/ the rules;
2.
If theres substantial doubt that fair and impartial trial can be
held in the county where the venue is laid (ex: if person is well known
in the county);
3.
For the convenience of the party witnesses; and
4.
In the interests of justice
IV.
I.

II.

General
A.
Complaint begins a lawsuit
B.
Summons & complaint is required for PJ issues
C.
Complaint shall contain a statement of the facts on which the claim is
based, showing that the pleader is entitled to relief, and a demand for
judgment for the relief. Alternative relief may also be requested
1.
Unliquidated money damagesexcept in Special Civil actions
need not be given a specific value and can be plead generally
D.
Any first pleading (complaint or answer) must contain:
1.
A CIS; and
2.
A designation of trial counselindicating the name of the
attorney who is trial counsel
Answer
A.
Answer shall state in short & plaint terms the defenses to the claims;
and admit or deny the allegations
B.
Allegations that are not denied are deemed admitted

C.
Affirmative defenses must be set forth specifically and as a separate
statement
1.
Accord and satisfaction
2.
Contributory negligence
3.
Fraud
4.
Payment
5.
Res judicata
6.
Statute of frauds
7.
Statute of limitations
8.
Laches
III.

Counter-claims
A.
Counter-claim a claim that a party raises against an opposing party
B.
If counter-claim is related to the case= it is mandatory; if unrelated= it
is permissive

IV.

Cross-claims/Impleader
A.
A cross-claim for contribution and/or indemnification against another
party must be made in the answer and titled in the heading claim for
contribution or claim for indemnity
B.
Cross-claims can be asserted as of right by any D within 90 days of
service of the complain of the D or by leave of court

V.

Removal to Federal Court


A.
B.
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VI.
VII.

VIII.
I.
II.
III.

Amended Pleadings
A.
Joinder of Parties/Interpleader
A.
Permissive joinder
1.
NJ allows for a liberal joinder of partiesPs and Dsinto 1
action, if the right to assert relief asserted by the Ps or against the Ds
arises from the same set of facts/transactions and the same questions
of law or fact
2.
If the Court believes that joinder of parties will cause
unnecessary delay, it can order separate trials
B.
Compulsory joinder
1.
Like Fed Rule, NJ requires certain parties to be joined to an
action in the interest of justice. (this rule tracks the federal process)
2.
Under this Rule, a person who is within the jurisdiction of the
Court shall be joined if complete relief cannot be obtained if the
party is not joined or the person claims an interest in the subject of
the action and the persons absence would impede their ability to
protect their interest
C.
Interpleader
1.
Rule allows a party having claims against the P to be joined as
a D when their claims are such that the P is or may be exposed to
double or multiple liability
2.
Ensures that all claims are part of the lawsuit
3.
All parties must be within the jurisdiction of the NJ Courts
Generally
A.
Interrogatories
A.
Requests for Admissions

A.
IV.

Depositions
A.
Oral Examination
1.
Require 10 days notice
2.
Witnesses may be compelled to appear for a deposition by
subpoena
3.
A party can take the dep of any person or corporation
4.
If a party names a corporation, partnership, association, or
governmental agency, the organization can designate 1 or more
people to testify on its behalf
5.
All depositions must be taken under oath in front of a sworn
officer
6.
Only 4 objections are permitted during the deposition:
a)
Objections to the form of the question;
b)
Objections to assert a privilege;
c)
Objections to assert a right to confidentiality; and
d)
Objections regarding a court-ordered limitation
B.
Video
1.
Parties may take a videotapes deposition for use a trial under
the following conditions
2.
Time
3.
Depositions in Lieu of Trial Testimony
4.
Notice
a)
Parties must give notice of videotaped deposition at least
10 days prior to the date of the deposition and shall state that
the deposition will be videotaped
5.
Stenographic Copy

C.

a)
The videotaping of a deposition does not except it from
the general requirement of stenographic recording and
typewritten transcript
Depositions Upon Written Questions
1.
Rarely used
2.
Consist of 1 party serving written question w/ notice to all other
parties
3.
Receiving parties have 30 days to serve cross-questions upon all
other parties
4.
The serving party then has 10 days after service to redirect
questions

V.

Request for Production of Documents


A.
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B.

VI.

Examinations
A.
Physical
B.
Mental
C.
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VII.

Discovery Failure
A.
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A.
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I.
II.
III.

I.
II.

III.

Judgments
A.
Default judgments
B.
Settlements
C.
Summary judgments
D.
Judgments for possession
E.
Interest
F.
Costs & Counsel Fees
G.
Motion for Judgment at Trial
H.
JNOV
I.
Motion for a New Trial
J.
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