Civil Procedure Bar Exam - Bar Exam Outlines

Civil Procedure

SUBJECT MATTER JURISDICTION

• State Courts

  • State courts have GENERAL smj and may hear all causes of action UNLESS there is express statutory authority denying them smj

  • District Court is the court of general smj in OK

    • So have authority to hear almost any type of case

  • OK District Courts have CONCURRENT (shared) smj w/ fed courts unless those are committed only to fed

    • BK, Patents, Fed Securities violations

• Federal Courts

  • Federal Courts are courts of LIMITED smj and may ONLY HEAR & DECIDE CASES W/IN SCOPE OF THE COURT'S LIMITED SMJ

  • Diveristy of Citizenship

    • Complete Diversity between Plaintiff & All Defendants

    • No diversity jurisdiction is ANY plaintiff is citizen of same state as ANY defendant

    • Citizenship of Individudal

      • Domicile at Filing

        • Physical presence

        • Intent to make permanent home or home for foreseeable future

    • Citizenship of Businesses

      • Incorporated Businesses

        • Dual Citizenship (so must take account of both in deciding diversity)

          • Citizen of all states where incorporated

          • Citizen of state where have principal place of business

            • OK: Corporate Headquarters

      • Unincorp Entities (Partnership)

        • Citizenship of ALL members "count" for diversity purposes

• Minor, decedent, incompetent citizenship counts not personal rep

• Amount in Controversy

  • Must EXCEED $75K, exclusive of cost & interest

  • Legal Certainty test

    • Whatever P claims in good faith unless clear to legal certainty cant recover

      • Ie. Contract claim for punitive damages where give aic

        • Wont work cause no punitive damages allowed

• Federal Question

  • Arising Under Federal Law

    • Complaint must show Right or Interest CREATED by or FOUNDED substantially on fed law.

      • If fed law just provides the standard of care or conduct, is not enough

  • Most fed questions not exclusive to fed court so can be brought in either court (concurrent smj)

• Supplemental Jurisdiction

  • Allow fed court to exercise jurisdiction over claims that don't have independent fed smj basis so long as a proper jurisdictional anchor

  • Supp jurisdiction controls joinder of claims by parties OTHER THAN Plaintiff in diversity cases

    • Supp claim must arise from same T or O as underlying claim

• Removal

  • Generally

    • ONLY ALLOWED BY DEFENDANTS

  • Proper Removal

    • Can only remove to federal district court where the case could have been filed there originally by plaintiff

      • Where SMJ proper

    • D MUST file Notice of Removal w/in 30 days of being served w/ service of process (summons & petition)

      • If no answer filed in state court suit, answer due 21 days after served w/ summons or 7 days after file notice of removal (longest wins)

  • Limits on Removal

    • Diversity

      • Even if complete diversity, no removal allowed if any defendant is a citizen of the forum state.

        • Unless have independent Fed Question basis

    • Even if diversity issue resolved by dismiss citizen defendant, no removal after 1 year from filing in state court

    • ALL DEFENDANTS MUST AGREE TO REMOVE

PERSONAL JURISDICTION

• Exercise of Territorial Jurisdiction

  • Territorial jurisdiction involves the power of the court over a specific defendant or item of property. SMJ involves courts power over a type of case. In order to issue a proper and binding judgment, a court must have both territorial and subject matter jurisdiction.

• OK expressly authorizes its courts to exercise jurisdiction on any ground consistent w/ Constitution

• In Personam Jurisdiction

  • In personam jurisdiction exists when the forum has power over the person of a particular defendant and can be established in various manners:

  • Easy Cases

    • D is present in state when served w/ process

    • D is domiciled in state

    • D consents to jurisdiction

    • D waives an objection to jurisdiction

  • Activities (minimum contacts)

    • In State Activities & Specific Jurisdiction

      • Court has personal jurisdiction over a defendant whose in-state activities gave rise to the claim asserted by the Plaintiff

        • Driving in state

    • Out of State Activities & Specific Jurisdiction

      • Court has personal jurisdiction over defendant who knows or can anticipate her activities could give rise to a claim in the forum, it was foreseeable

      • Purposefully directing your activities to Ok and those activities then give rise to a claim

    • Unrelated Activites & General Jurisdiction

      • If conduct or business is continuous and systematic w/in the state then the court may exercise general jurisdiction in a case involving suit on claims that do not arise from the contacts.

      • Treat outsider as if an insiders cause of the amount of the activities generally going on in state

• In Rem Jurisdiction

  • Allows a court to adjudicate the rights of all persons WITH RESPECT TO property located in the state.

VENUE

• Federal Venue

  • Federal venue is determined on a district by district basis

  • Case may be filed in any federal district court within a state where:

    • Any defendant resides IF all defendants reside in the SAME state

    • Or

    • Where a substantial part of the transaction or occurrence giving rise to the claim took place

  • OK has 3 Federal Districts

    • Northern in Tulsa

    • Eastern in Muskogee

    • Western in OKC

• Oklahoma Venue

  • Oklahoma provides that its venue statutes are cumulative and are determined on a county by county basis

  • General Rule: START HERE

    • A suit may be brought in any county in OK where

      • Any defendant resides or resided at the time the claim arose

      • Or

      • Where any defendant may be served w/ process

  • Special Venue: Type of Case

    • Automobile Accident:

      • Venue in automobile accident cases may also be brought in any county:

        • Where ANY defendant may be served

        • Or

        • Where the damages were sustained

    • Contract Cases:

      • Venue in cases brought on an open account, a contract for sale of goods or services, or an indebtedness is proper also in:

        • The county where the debt was contracted.

          • Ie where K made

    • Property Cases (exception to cumulative rule)

      • Venue in cases to recover real property, for the partition of real property, for the sale or property under a mortgage or lien, damage to crops or improvements, and to quiet title are proper ONLY

        • In the county where the property is located

          • Doesn’t include actions for breach of K to sell or convey prop

            • Then use K provisions & general rule

  • Special Venue: Type of Defendant

    • Non-resident Defendants

      • If ALL defendants are nonresidents, venue is proper:

        • Where any claim arose;

        • Where any plaintiff resides

        • Where the non-resident has property or debts owed TO him; or

        • Where the non-resident may be served

      • If any defendant is a resident, venue is limited to where it would be proper as that that defendant

    • Foreign Corporations

      • Suits against foreign corporations may be brought in the county:

        • Where the claim arose;

        • Where the plaintiff resides;

        • Where the foreign corp has property or debts owed TO IT; or

        • Where the corporations registered agent may be found

    • Domestic Corporations

      • Suits against domestic corporations may be brought in the county;

        • Where the claim arose;

        • Where the corporation has its principal place of business;

        • Where ANY of its principal officers resides or may be served; or

        • Where a co-defendant may be sued.

    • ALL FOR ONE and ONE FOR ALL

      • If venue is proper as to one defendant, then venue is proper as to whole case

SERVICE OF PROCESS

• Process means being provided a summons & a copy of the petition

• Ok Statutory Provisions

  • Time Limit

    • Must serve process w/in 180 days of filing of petition

    • If not, deemed waived, unless P can show good cause why not done in 180 day limit

  • Service by Personal Delivery

    • Personal Service on Individual

      • Individuals may be served with process by personal delivery of the summons and petition to them.

      • Service must be made by either a deputy sheriff or a licensed process server unless another person specially appointed

      • Service effective even if refused as long as done correctly

    • Substituted Service on Individual

      • Service on individual may be made by leaving the summons & petition at the individual's residence, with a person 15 or older, who also resides there.

    • Corporations & Partnerships

      • Service may be made on the registered agent, or on an officer or a managing or general agent of the corporation

        • First need try this, if still cant find agent, the may make service on Secretary of State

    • Certified Mail

      • Avail for individuals, corps, partnerships, & state & gov organizations

      • May be mails by plaintiff's attorney, court clerk, deputy sheriff, or licensed process server

      • MUST be sent by CERTIFIED MAIL w/ return receipt requested & delivery restricted to the addressee

        • Or can do by commercial carrier, like UPS of FED EX, and have evidenced by written or electronic receipt signed by addressee

        • Cert mail okay to individual residence as long as received by 15 or older who also resides there

        • For corp:

          • Effective if received by officer or employee, such as receptionist or mail room employee, WHO is authorized to & regularly does receive cert mail for corp or gov org.

    • Certified Mail & Default Judgments

      • Where service by mail, default judgment cant be entered UNLESS

        • Record contains return receipt showing acceptance by D

        • Or return receipt envelope showing...