FEDERAL JURISDICTION 7/25/13 7:58 PMI. 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 JurisdictionA. Does the Court have Subject Matter Jurisdiction?

1. Federal question jurisdiction P’s 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) Persons—citizenship=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 Associations—a partnership (both general

and limited) or labor union is a citizen in every state that its partners

or members are citizens

(3) Corporations—citizenship 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

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(4) 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

B. 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. Test—can the state law claim be brought alongside the federal

question/diversity case? Here’s 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. Venue—Does 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 it’s 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 P’s 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 it’s 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

venue—the 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. Removal—If 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. Defendant’s 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. Citizenship—Solely 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 D’s forum state

6. Citizenship—Solely 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. InterpleaderA. 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 satisfied—there 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

NJ CIV PRO: GENERAL INFO 7/25/13 7:58 PMI. Ddff

II. Dsf

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.

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DIVISIONS OF COURT & JURISDICTION 7/25/13 7:58 PMI. 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

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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. Jurisdiction—GenerallyA. 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 court’s 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 Jurisdiction—NJ Issues—Does 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 Jurisdiction—Does 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?

SERVICE OF PROCESS & VENUE 7/25/13 7:58 PMI. Service of Process—Generally

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 individual’s

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 General’s 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 can’t 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

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II. Venue—If 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

person’s 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. 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

C. Special Civil Part

1. Venue is ALWAYS where the D resides

2. In the special civil part, the court serves process for you

D. 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

E. 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

III. Change of Venue—can 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 answer—2 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 it’s granted unless there’s 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 actions—on 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 there’s 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

PLEADINGS & MOTIONS 7/25/13 7:58 PMI. 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 damages—except 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 counsel—indicating the name of the attorney who is

trial counsel

II. AnswerA. 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

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III. Counter-claimsA. 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/ImpleaderA. 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 CourtA.

B. Df

VI. Amended Pleadings

A.

VII. Joinder of Parties/Interpleader

A. Permissive joinder

1. NJ allows for a liberal joinder of parties—Ps and Ds—into 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 person’s 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

DISCOVERY 7/25/13 7:58 PMI. Generally

A.

II. InterrogatoriesA.

III. Requests for AdmissionsA.

IV. DepositionsA. 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

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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

a) The videotaping of a deposition does not except it from the general

requirement of stenographic recording and typewritten transcript

C. 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 DocumentsA. Fdfdf

B.

VI. ExaminationsA. Physical

B. Mental

C. Df

VII. Discovery FailureA.

PRETRIAL CONFERENCES, TRIAL, & JUDGMENTS 7/25/13 7:58 PMI. sdfsdf

II. dsfds

A. dg

III. JudgmentsA. 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

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ARBITRATION & CLASS ACTIONS 7/25/13 7:58 PMI. dfdsf

II. sdfds

III. f

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