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Unformatted text preview: CIVIL PROCEDURE GENERALLY For a court to have jurisdiction there must be : 1. Subject matter jurisdiction 2. Personal jurisdiction 3. Venue Concurrent jurisdiction the majority of cases can be heard in state court; only those issues reserved exclusively for the federal courts (e.g. maritime law) cannot be heard in state court (procedural issues). Supplemental Jurisdiction state and federal courts share issues substantively. Jurisdictional dismissal dismissal for lack of SMJ or PJ and is w/o prejudice. Merits dismissal is w/prejudice unless it was dismissed w/leave to amend. Preemption If one court system preempts the other substantively. Direct and Collateral Attacks : Direct show up and assert the challenge, which can be appealed (single lawsuit). Collateral if you attack only after someone has come to get you (two lawsuits). Standards of Review : 1. Independent/plenary: a. DeNovo/Plenary 2. Deferential: a. Clearly erroneous b. Abuse of discretion Standards of Proof : 1. Preponderance of the evidence civil 2. Beyond a reasonable doubt criminal 3. Clear and convincing for fraud and misrepresentation FRCP Underlying Concepts : FRCP 1 federal courts and attorneys who appear before them are required to construe and administer the rules in a manner that achieves the just, speedy, and inexpensive determination of each action considered the touchstones of civil procedure. FRCP 82 these rules shall not be construed to extend or limit the jurisdiction of the U.S. district courts or the venue of actions therein, meaning that SMJ and venue are determined by statute and are not affected by the rules (except for joinder of ancillary claims and parties). civil procedure outline Vaughns 1 SUBJECT MATTER JURISDICTION I) Subject matter jurisdiction generally state courts generally have full subject matter jurisdiction, and the way into federal court is through Subject Matter Jurisdiction (SMJ), either via federal question or diversity jurisdiction . A) Kind of controversy subject matter jurisdiction refers to the kind of controversy rather than to the parties. B) Party claiming federal jurisdiction has the burden of proving that the issues falls into federal jurisdiction. C) Subject matter jurisdiction cannot be waived and can be raised at any time either by the parties or the courts. D) If a party loses a motion for federal SMJ, they can refile in state court. II) Diversity Jurisdiction when parties are completely diverse, the case can be brought before federal court. A) Sources of Authority : 1) U.S. Constitution, Article III, 2 the judicial power shall extend to all cases to controversies between two states, between a state and citizens of another state, between citizens of different states 2) U.S.C. 28 U.S.C. 1332 : repeats Art III, 2 and adds an amount in controversy requirement of > $75,000....
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This note was uploaded on 03/03/2010 for the course LAW 28465 taught by Professor Carson during the Fall '09 term at University of Texas at Austin.
- Fall '09
- The Land