40个美国民诉法法律英语概念（上）

今天给小伙伴整理一下美国民事诉讼法下的法律英语概念：

Personal Jurisdiction 对人管辖权

Personal jurisdiction (PJ)- is about the court’s power over the parties not the case, Because Plaintifffiled the case, the court automatically has power over Plaintiff. The big Question is PJ over Defendant: Can Plaintiff sue Defendant in this state?

Specific Jurisdiction 特殊管辖权

Arises from a connection between the state and the underlying claim and permits a state to exercise jurisdiction only with respect to that claim. (a)Defendant has specific contact with the forum state (b)Cause of action arises out of or relates to the Defendant’s contacts with the forum.

General Jurisdiction 一般管辖权

General personal jurisdiction permits the state to exercise personal jurisdiction over Defendant for any claim anywhere in the world. To have a general PJ, Defendant must be at home (is domiciled) in the forum.

Long-Arm Statute长臂管辖法案

A long-arm statute allows for a state court to obtain personal jurisdiction over an out-of-state defendant on the basis of certain acts committed by an out-of-state defendant,provided that the defendant has a sufficient connection with the state. A state’s long-arm statute permits it toassert personal jurisdiction over a defendant to the extent permissible under the Due Process clause. This jurisdiction permits a court enter a binding judgment against the defendant.

In rem – 对物管辖权

Power over Defendant’s property that is the subject of a lawsuit (jurisdiction does not attach to Defendant, judgment enforced only against Defendant’s property). Quasi in remis the power over Defendant’s property that is NOT the subject of a lawsuit.

Subject matter jurisdiction事项管辖权/对事管辖权

Generally, state and federal courts have subject matter jurisdiction concurrently unless the federal court has exclusive jurisdiction as designated by statute or the constitution. The two main bases of subject matter jurisdiction in Federal courts are federal question and diversity cases.Cases under a few federal laws must be brought in federal court–e.g., patent infringement, bankruptcy, some federal securities, and antitrust claims.

Federal Question联邦问题

A claim arises under federal law if federal law creates the cause of action. To determine whether such federal-question jurisdiction exists, a court looks at the allegations necessary for a well-pleaded complaint and asks whether the claims stated by those allegations are created by federal.

Diversity of Citizenship – Individuals个人的异籍

For purposes of the diversity statute, a person is considered a citizen of the state in which he is domiciled.A person’s domicile is his or her permanent home,the place where a person intends to remain indefinitely, and the place to which the person intends to return when temporarily absent.

Diversity of Citizenship – Corporations 公司的异籍

By statute, a corporation is a citizen both where it is incorporated and where it has its principal place of business. Some courts used a nerve-center test that focused on where the corporation’s decision-making authority was located.

Removal 法院的转移

Plaintiff has sued Defendant in state court. Defendant would prefer to litigate in federal court. Defendant might be able to “remove” the case to federal court. Removal transfers the case from a state trial court to a federal trial court. If removal was improper, the federal court can remand the case back to state court.

Supplemental Jurisdiction 附属管辖权

Supplemental jurisdiction is a form of federal Subject Matter Jurisdiction. Diversity and Federal Question get cases into federal court. Supplemental jurisdiction it gets claims into a federal. The claim we want to get into federal court must share a “common nucleus of operative fact” with the claim that invoked federal SMJ. A claim arises from the same transaction or occurrence as the underlying case.

Service of Process 传票的送达

In a regular lawsuit, notice consists of two documents: (1) a summons and (2) a copy of the complaint.Together, these two documents are called Process. Service of Process upon an individual may be accomplished by: (1) Personal Service; (2) Substituted service: leaving a copy at the person's dwelling house or usual place of abode with some person of suitable age and discretion then residing therein; or (3) delivering a copy of the summons and complaint to an agent authorized to receive service of process.

Erie doctrine伊利原则

Under the Erie doctrine, state substantive law applies in federal court suits brought under state causes of action. When a federal court is hearing a case under its diversity jurisdiction, it must apply the same substantive law. Four issues are clearly substantive:(1) elements of a claim or defense, (2) statute of limitations, (3) rules for tolling statutes of limitations, and (4) conflict (or choice) of law rules.

Venue审判地

Venue is a geographical concept that localizes lawsuits in places that are connected either to the parties or to the events giving rise to the action. Subject matter jurisdiction told us we can take a case to federal court. Venue tells us exactly which federal court. The country is divided into federal districts. Plaintiff is suing in federal court and wants to lay venue in a proper district.

Transfer 移送

Transfer goes from one trial court in a judicial system to another trial court in the same judicial system. So, a federal district court may transfer the case to another federal district court. The original court is the transferor and the one to which the case is sent is the transferee.

Forum Selection Clause法院地选择条款

A forum-selection clause is a provision in which the parties agree that a dispute between them will be litigated in a particular place. If one party sues the other in violation of a forum selection clause, the D may seek to enforce the forum selection clause through a motion to transfer.

Forum Non CONVENIENS 法院不方便管辖

There is another court that is the center of gravity, that makes more sense than the present court. The decision is based on the same public and private factors as transfer, including the existence of a valid forum selection clause.

Joinder 追加当事人或诉讼

Joinder rules define the scope of the case—how many parties and claims can be joined in one case.

Necessary and Indispensable Parties必要当事人/不可缺少当事人

An absentee who meets any of these tests a. Without A, the court cannot accord complete relief among existing parties OR b. A’s interest may be harmed if he is not joined OR c. A claims an interest that subjects a party (usually D) to a risk of multiple obligations.

Counterclaim 反诉

A claim against an opposing party. Once somebody asserts a claim against you, you are opposing parties. Your claim back against that person is a counterclaim. Usually, this is a claim by Defendant against Plaintiff. The counterclaim is part of Defendant’s answer. Compulsory Counterclaim and Permissive Counterclaim.

陆续分享美国部门法法律英语概念和词汇。