CIVIL PROCEDURE CLASS 25
Professor Fischer
Columbus School of Law
The Catholic University of America
November 15, 2001
ANNOUNCEMENTS
Academic Dean’s Office Exam Skills
Workshop (Alvare, Schooner, Harmon)
5:30 Friday November 16 in the
Auditorium
IPLSA (Intellectual Property Law
Students Association Meeting to be
rescheduled
WRAP-UP OF LAST CLASS
We finished our study of issue
preclusion by learning about nonmutual collateral estoppel
We commenced the unit on jurisdiction
by studying federal question jurisdiction
preclusion
WHAT WILL WE DO TODAY?
Continue with our study of subject
matter jurisdiction by learning about
diversity jurisdiction, supplemental
jurisdiction, and removal
DIVERSITY JURISDICTION
U.S. Constitution Article III section 2
states: “The judicial Power [of the
United States] shall extend to . . .
Controversies between Citizens of
different States . . . and between a
State, or the Citizens thereof and
foreign States, Citizens, or Subjects.”
RATIONALE FOR DIVERSITY
Why did the framers include the
provision for diversity jurisdiction in the
Constitution?
Do you think diversity jurisdiction is
necessary or desirable, or should it be
abolished?
Congressional Implementation
Congress first implemented the Constitutional
grant of diversity jurisdiction in the 1789
Judiciary Act
Please cite to the current statutory grant of
diversity jurisdiction
Is this grant narrower or broader than the
grant of diversity jurisdiction in Article III
sect. 2 of the U.S. Constitution?
Restrictions on Diversity
Jurisdiction
1. AMOUNT IN CONTROVERSY (St. Paul
Mercury Indemnity Co. v. Red Cab Co.
(1938)
2. COMPLETE DIVERSITY (Strawbridge v.
Curtis (1806)
RULE OF THUMB: If any 2 parties on both
sides of the v. are citizens of the same state,
that defeats diversity jurisdiction
Requirements for Diversity
1. CITIZENSHIP (see 1332(a)
2. AMOUNT IN CONTROVERSY
3. COMPLETE DIVERSITY
Timing For Determining
Diversity
To determine diversity, should the court
consider the citizenship (1) at the time
of filing the complaint ; (2) at the time
of serving the complaint; (3) at the time
of filing the answer; (4) at the time of
serving the answer; or (5) some other
time?
CITIZENSHIP REQUIREMENT
BE FAMILIAR WITH 1332(a)
How is citizenship of a natural person
determined?
How can citizenship be changed?
A particular problem: determining the
citizenship of students attending school
in a different state from their parents’
domicile
CITIZENSHIP OF
CORPORATIONS
How do you determine the citizenship
of a corporation for the purposes of
diversity jurisdiction?
What statutory provision governs a
corporation’s citizenship for this
purpose?
CORPORATE CITIZENSHIP
For the purposes of diversity, a
corporation may have 2 citizenships
unlike a natural person who can only
have 1
1. Place of incorporation
2. Principal place of business How is
the principal place of business
determined?
TESTS USED TO DETERMINE
CORPORATE CITIZENSHIP
2 main tests used to determine “principal
place of business” (corporation can only have
one!)
1. NERVE CENTER TEST - where is corporate
policy made, where are
executive/administrative functions of
corporation?
2. PLACE OF OPERATIONS TEST -where is
corporation’s major production/service
activities?
ALIENAGE JURISDICTION
Can a person domiciled in a state and a
citizen of the U.S. invoke alienage jurisdiction
to sue a resident of that state who is not a
citizen of the U.S. without any other basis for
subject-matter jurisdiction?
See 28 U.S.C. s. 1332 (a) (2)
Note technical difference between “alienage”
jurisdiction and “diversity” jurisdiction
NOTE: Alien corporations are citizens of
foreign nation where incorporated.
ALIENAGE HYPO
Nigel is a British subject living in Michigan.
Can Roseanne, an American citizen domiciled
in Michigan, sue Nigel, a British subject who
has lived in Detroit for the past 6 months, in
federal court for breach of contract?
Does it matter if Nigel has been admitted to
permanent residence in the U.S.?
Americans Domiciled Abroad
Pierre is an American citizen domiciled in
Paris. Can Jonathan, an American citizen
domiciled in New York, invoke alienage or
diversity jurisdiction to sue Pierre in federal
court?
Can Jonathan rely on alienage or diversity
jurisdiction to sue Pierre’s friend
Marie-Louise, a French national domiciled in
Paris in federal court?
Amount In Controversy Requirement
What is the amount in controversy
requirement for diversity?
Amount In Controversy Requirement
Matter in controversy must exceed $75,000
Under St Paul Mercury, it must appear to a
legal certainty that the P’s claim really is for
less than the jurisdictional amount to justify
dismissal. It must be patent on the face of
the complaint that the P can’t recover the
jurisdictional amount.
What happens if a judgment is eventually
entered for $75,000 or less than $75,000? Is
there still diversity? Can the judge penalize
the P in any way?
Traditional Aggregation Rules
CAVEAT: traditional rules may be superceded to
some extent by supplemental jurisdiction statute
1. P with multiple claims against the same D:
e.g. Ringo sues Paul for $70,000 in federal court
for personal injuries suffered in a motorcycle
crash. Assume Ringo and Paul are citizens of
different states.
A. Can Ringo bring a claim in the same action for
damage to the cycle for $15,000?
B. Assume Ringo can join the claim. Is the
amount in controversy requirement met?
C. What if rather than suing for damage to to
bike, Ringo sues Paul for $10,000 for an
unrelated breach of contract?
TRADITIONAL AGGREGATION RULES
CONT’D
Multiple Ps sue the same D for different
claims: e.g. Dorothy – ME (passenger) sues
George- TX (driver) in federal court for
$45,000 for damages suffered in a car crash.
A. Is there subject matter jurisdiction? What
if Laura- TX, also a passenger in George’s car,
wants to join as a plaintiff to sue George for
$35,000 for her injuries arising from the same
accident?
B. Will the supplemental jurisdiction statute
change the result?
TRADITIONAL AGGREGATION RULES
CONT’D
Would it make any difference to your
answers in the previous hypothetical if
Dorothy’s claim was for $90,000?
HYPO
Barbie (CA) and Ken (CA)
are equal partners in a
dressmaking business
called “High Heels”.
Skipper (N.Y.) orders 4
ball gowns from them.
Barbie and Ken make the
gowns and deliver them
to Skipper along with an
invoice for $90,000.
After 18 months, Skipper
has not paid Barbie and
Ken a cent.
HYPO CONTINUED
Barbie and Ken’s lawyer, Dawn, files an
action in federal court, naming High
Heels as plaintiff and claiming the
amount of the $90,000 debt in
damages. Barbie and Ken, as equal
partners, each have an interest of
$45,000 in the claim. Does the court
have subject matter jurisdiction?
TRADITIONAL RULES FOR
AGGREGATION
Single P w/2 or more claims vs. single D
2 Ps with claims against a single D -
“separate and distinct”/”common &
undivided interest” test
Single P w/ claims vs. multiple Ds
Counterclaims
SUPPLEMENTAL
JURISDICTION

Beyond federal question and
diversity/alienage jurisdiction, this doctrine
expands the subject-matter jurisdiction of
federal courts to claims over which there is
no independent basis for subject matter
jurisdiction
Originally a judicially-created doctrine
Codified in 1991. What is the current
supplemental jurisdiction statute?
Originally 3 kinds of
supplemental jurisdiction
Pendant claim jurisdiction e.g. P sues non-
diverse D for copyright infringement and also
wants to sue for state law claim against same
defendant
Pendant party jurisdiction As above, but
second state law claim against different D
Ancillary jurisdiction – Related claims asserted
by D as counterclaim or other additional
parties after initial complaint
United Mine Workers v. Gibbs
(1966)
Leading case on pendant claim jurisdiction
State the plaintiff’s causes of action,
indicating whether each is a federal or state
law claim
What is the procedural history?
What is the issue for the U.S. Supreme Court
to decide?
How did the Supreme Court rule on this
issue?
United Mine Workers v. Gibbs
Rationale in Gibbs
According to Justice Brennan, what is the
Constitutional source for exercising
jurisdiction over pendant state claims
When does a federal court have power to
exercise pendant jurisdiction?
Must that power be exercised in every case
where it exists?
What is the policy justification for pendant
claim jurisdiction?
U.S. Constitution Article III
section 2
The judicial Power shall extend to all
Cases, in Law and Equity, arising under
this Constitution, the Laws of the United
States, and Treaties made, or which
shall be made, under their Authority;-Operative word is “Cases”
2 step test in Gibbs
1. Does the court have jurisdictional POWER
to entertain the pendant claim? Hint: look at
relationship between claims
2. If the court has that power, does the
exercise of sound DISCRETION indicate that
the federal court ought to assert that
discretion? What factors must the court take
into account?
Federal Claim is dismissed
before trial
According to Gibbs, how should
dismissal before trial of the federal
claim affect the issue of whether or not
to refuse jurisdiction over the state law
claim?
OUTCOME of Gibbs
Did Gibbs succeed on the merits on the
state law claim?
Pendant Party Jurisdiction
Supreme Court rejects extending Gibbs doctrine
to pendant party jurisdiction in Aldinger v.
Howard (1976)
Left open one possibility that pendant party
jurisdiction OK where claim with independent
jurisdictional basis was one where statute
provided for independent claim based on
exclusive subject matter jurisdiction
Finley v. United States (1989) rejected pendant
party jurisdiction in that circumstance
Ancillary Jurisdiction
Diversity supplemental jurisdiction
Counterclaims, cross-claims, third party
complaints
Owen Equipment v. Kroger (1978) : Supreme
Court upheld limitation on diversity
supplemental jurisdiction over claim by P
against impleaded third party D where P
could not have sued that person originally in
federal court because diversity was lacking
Owen Equipment v. Kroger
(1978)
28 U.S.C. sect. 1367
Codifies pendant claim, pendant party
(in direct response to Scalia’s invitation
in Finley case that Congress could
change the scope of pendant party
jurisdiction), and ancillary jurisdiction
Now all types of jurisdiction are known
as “supplemental jurisdiction”
28 U.S.C. sect. 1367(a)
In what circumstances does s. 1367(a)
give district courts POWER to exercise
supplemental jurisdiction over pendant
claims or parties?
What are the exceptions to 1367(a)
Where do you find these exceptions?
28 U.S.C. sect. 1367(b)
What is the limitation on subject matter
jurisdiction provided for in 28 U.S.C. s.
1367(b)?
Why was this limitation incorporated
into the supplemental jurisdiction
statute?
28 U.S.C. sect. 1367(c)
Can courts decline to exercise
supplemental jurisdiction, even where
they have to power to exercise such
jurisdiction?
If so, in what circumstances?
28 U.S.C. sect. 1367(d)
This is a tolling provision
What is its effect?
What is the reason for this tolling
provision?
Does sect. 1367 overrule
traditional aggregation rules?
NO: See Zahn v. International Paper
Co., 414 U.S. 291 (1973) - pre-sect.
1367
YES: See Free v. Abbott Laboratories
(5th Cir. 1995, affirmed by an equally
divided Supreme Court (2000) - holds
that the supplemental jurisdiction
statute overrules Zahn
PRACTICE EXERCISE 31
CB p. 839
Plaintiff: Nancy Carpenter (NH)
Ds: Dee (MA), Ultimate (MA)
3d Party Ds: McGills Garage (MA), Dale
McGill (NH)
Motion to dismiss for lack of subjectmatter jurisdiction
Motion to sever impleader
REMOVAL
What is removal?
What is the policy justification for
removal
a. For diversity cases?
b. For federal question cases?
LEGAL SOURCES FOR
REMOVAL PROCEDURE
NOT IN U.S. CONSTITUTION
So, removal is purely statutory.
There have been federal removal
statutes since 1789.
What is the current general removal
statute?
LIMITS ON REMOVAL
Can a plaintiff remove?
Can a plaintiff remove if there is a
counterclaim?
Can a case be removed from state to
federal court?
Any types of actions non-removable?
Please see 28 U.S.C. sect. 1445
WHEN IS A CASE
REMOVABLE?
There must be original subject-matter
jurisdiction in federal court
Basic rules of federal question and
diversity/alienage apply
Well-pleaded complaint rule applies
Artful pleading rule
WHAT IF FEDERAL COURT HAS
EXCLUSIVE JURISDICTION?
P brings action in state court
Can D remove?
See 28 U.S.C. section 1441(e)
REMOVABLE CLAIM JOINED WITH
NON-REMOVABLE CLAIM
What is the effect of 28 U.S.C. 1441 (
c)?
“separate and independent” test
PROCEDURE FOR REMOVAL
How does a defendant remove ? (see
28 U.S.C. section 1446)
Can a defendant waive her right to
remove?
How many defendants must agree to
remove a case?
NOTICE OF REMOVAL
What must be in a notice of removal?
Filing requirements
Notice requirements
WHERE IS CASE REMOVED
TO?
What state court(s) may hear a claim
that is removed from federal court?
What is the applicable statutory
provision determining this?
CHALLENGING REMOVAL
How does a plaintiff challenge removal?
Can a plaintiff waive her right to
challenge removal?
Are there any applicable time limits? If
so what?
PROCEDURE AFTER REMOVAL
What happens after removal?
Burnett v. Birmingham Board of
Education (N.D. Ala. 1994)
What is Ps cause(s) of action? Federal
or state?
What is the procedural issue for the
court to decide on the motion at issue?
What are the grounds for the motion?
How does the court rule on the motion?
What is the court’s reasoning?