How to Write Civil Procedure Law School Exams

"Nailing the Bar" - Tim Tyler

Civil Procedure

Law to Use in your Discussions

Subject Matter Jurisdiction

Under FRCP, federal courts have limited Subject Matter Jurisdiction based on 1. Diversity or 2. a Federal Question while state courts have general jurisdiction.

Federal Question

Federal Question jurisdiction requires a claim based on a federal statute, treaty or the U.S. Constitution. Here there is no basis for federal question jurisdiction because there is no federal statute, treaty or Constitutional Issue which applies

Subject Matter Jurisdiction - Diversity

Federal Subject Matter Jurisdiction based on Diversity requires that all plaintiffs are Domiciled in different state than all defendants and a good faith claim for over $75000

Domicile

Domicile means that the place a person intends to return to and reside indefinitely.

Personal Jurisdiction

Under Pennoyer v. Neff, federal courts had personal jurisdiction over a defendant where there was 1. consent 2. presence or 3. domicile.

Under International Shoe jurisdiction may be exercised based on the forum state "long arm statutes" if there are sufficient Minimum Contanct. Minimum Contacts exists if there is a forum related cause of action (FRCA). Minimim Contacts may also exist if there are Continuous Systematic Activities (CASA) by the defendant in the forum sate such that jurisdiction would not "offend traditional notions of fair play and substantial justice." because the defendant had "availed himself" of the protection of the forum state laws.

Proper Venue

Under FRCP the proper venue for bringing an action is where 1. any defendant resides, if all defendants reside in the same state, or 2. where the cause of action arose. Otherwise, if not district appears proper, in a Diversity action, venue is proper where personal jurisdiction can be found over any defendant, and in a Federal Question action, venue is proper where any defendant can be found. If original venue is improper and venue is transferred to the proper state, the state law of the second state is applied. If original venue is proper but the case is transferred for convenience (Forum non conveniens), the law of the original state is applied.

Issue Preclusion - Collateral Estoppel - http://en.wikipedia.org/wiki/Collateral_estoppel

Under the doctrine of Collateral Estoppel, a party is precluded from arguing an issue that was 1. Actually, fully and fairly litigated in prior litigation 2. essential to the prior judgment, and 3. the party raising the issue the second time was a party or in privity with a party to the prior litigation.

Claim Preclusion - Res Judicata - http://en.wikipedia.org/wiki/Res_judicata

Under the doctrine of Res Judicata a plaintiff is precluded from raising a claim that was previousl litigated 1. between the same parties over 2. the same claim or a claim that could have been raised in prior litigation of if 3. a final judgment was based on the merits.