Agenda for 15th Class
• Admin
– Handouts
– Name plates
– Lunch Friday, noon-1
• Glassed in side, as far from TV as possible
– Court visit Tuesday, November 19
• Roughly 1:30-4PM, but keep all afternoon clear
– A Civil Action panel
• Probably Th 11/21 at 7 or 7:30 in WCC 2004
– Review class
• December 9, 1:10-3:10, WCC 2004
• Review of joinder & class actions
• Subject matter jurisdiction
– Federal question jurisdiction
– Diversity Jurisdiction
– Complex litigation
• Introduction to Supplemental Jurisdiction
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Assignment for T 11/5
• Supplemental Jurisdiction
– Read 28 USC 1367 very carefully
– Test for Supplemental Jurisdiction (handout)
– Supplemental Jurisdiction Questions (handout)
• Optional
– Glannon. Ch. 16, 17
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Mid-Semester Feedback
• Socratic method
– Changes
• Tell you if question has clear answer
• Move on if student unprepared
– General point of Socratic method
• Learn how to make arguments
• Not necessarily to get “right” answer
– Right answer may not exist
» Only court to have ruled on issue may be D. Oklahoma
» If you are in D. Mass, you need to know how to argue issue afresh
• Decision from D. Oklahoma is only persuasive
• Decision from D. Oklahoma may be against interests of your
client
– Law school is more about learning to make good arguments
• Not so much about learning minutiae of law
• So we may go deep into particular issue
– Not necessarily because issue is important
– But because issue illustrates how to make good arguments
– How to learn from Socratic method
• Focus on understanding opposing arguments
• Worry less about “right” answer
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Review of Joinder
– Tradeoff
• Efficiency of processing claims together versus complexity
– In general
• Easier to add claims against persons already part of law suit
• Harder to add new parties
– Joinder always allowed (and mandatory if same transaction or occurrence)
• Joinder of claims. Rule 18
• Counter claims. Rule 13
– Joinder allowed if same transaction or occurrence
• Joinder of parties. Rule 20
• Cross-claim. Rule 13(g)
• Addition of party to counterclaim or crossclaim. Rule 13(h)
• Claim by 3rd party defendant against original plaintiff. Rule 14(a)(2)(D)
• Claim by original plaintiff against 3rd party defendant. Rule 14(a)(3)
– Impleader. Rule 14(a)
• Impleading of 3rd party defendant allowed if 3rd party defendant would be liable
to 3rd party plaintiff for some or all of judgment, if original plaintiff prevailed
against 3rd party plaintiff (original defendant. Rule 14
• Indemnity or contribution
– Judge always has discretion to sever or consolidate. See FRCP 21, 42
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Review of Class Actions
– Advantages of class actions
• Lower litigation costs, allows small claims to go forward
– Disadvantages
• Agency problem - lawyer may not litigate in best interest of class
• Pressure to settle non-meritorious claims?
• Certification requirements
• FRCP 23(a). Numerosity, commonality, typicality, adequacy
• FRCP 23(b)(2). Injunctions
• FRCP 23(b)(3). Damages, e.g. mass torts, securities
– Predominance: Common issues must predominate
– Superiority: Class action must be superior to individual actions
• Walmart raises bar for commonality
– 4 justices say majority confused commonality and predominance
– Rhone-Poulenc (Posner J)
• AIDS & Blood transfusion case
• Class not certified, because
– Damages high enough that plaintiffs could bring on own
– Law is different depending on where plaintiff resides and/or received
transfusion
– Class certification could pressure defendants to settle irrespective of 5
merits
Subject Matter Jurisdiction I
• 2 meanings
– Federal or state court (focus of class)
– Specialized federal or state court
• Bankruptcy court
• Probate court
• Other specialized courts
• Federal subject matter jurisdiction
– Federal courts are supposed to be of limited jurisdiction (power)
– Can only exercise jurisdiction over cases allowed by Article III and authorized by
federal statute
• E.g. no general federal subject matter jurisdiction until 1875
– 2 basic headings of federal subject matter jurisdiction
• Federal question
• Diversity
• Need subject matter jurisdiction AND personal jurisdiction AND Venue
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Subject Matter Jurisdiction II
• Most federal jurisdiction is “concurrent”
– Most diversity cases and federal question cases could be heard in state court, if
plaintiff sued there and defendant did not remove case to federal court
• Some cases are in the “exclusive” jurisdiction of federal courts
– 28 USC 1338. cases involving “patents, plant variety protection, and copyright”
• But jurisdiction over trademarks is NOT exclusive (it is concurrent)
• Removal
– If case is within federal subject matter jurisdiction and plaintiff chooses to sue
in state court, defendant can usually “remove” the case to federal court. 28
USC 1441(a)
• Exception under 28 USC 1441(b) when case is based on diversity AND
defendant is from forum state
• Objections to subject matter jurisdiction are never waived
• Judge can raise subject matter jurisdiction problem sua sponte
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Federal Question Jurisdiction Questions
• Summarize Louisville.
– Your summary should include the answer to Yeazell. P. 199 Q1
• Under the FRCP as it exists today
– If plaintiff had drafted a “well pleaded complaint,” what would have been the
key allegations of that complaint?
– If plaintiff had drafted a well-pleaded complaint, what paper would defendant
have filed in response? What would have been the key elements of that
paper?
– How would plaintiff have raised the unconstitutionality the Act of Congress
which the defendant alleges prohibited giving the passes that the railroad gave
the Mottleys?
– If defendant’s answer had admitted that it had given passes to the Mottleys,
but argued that they were invalid, what motion would the plaintiff have had to
make in order to get the Court to grant the Mottleys the relief they requested
without discovery or trial?
• Yeazell pp. 199ff Qs 2, 3, 4b,
• Under 28 USC 1441(a) & (b), if plaintiff had brought the two cases at issue in Yeazell
p. 199 Q2 in state court, which of the two cases could defendant remove to federal
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district court?
Diversity Jurisdiction I
• Federal subject matter jurisdiction if
– Citizen of State A sues citizen of state B
– AND “amount in controversy exceeds … $75,000”
• Rationale
– Concern about state court bias against non-citizens
– Concern about anti-corporate bias of state courts
– Federal forum for disputes with inter-state/national implications
• US citizen is citizen of US state in which “domiciled”
– Domicile = residence with intent to remain indefinitely
• “indefinitely” means no plans to leave, even if don’t plan to stay
permanently
– Individuals do not lose domicile in one state until establish domicile
somewhere else
– Student who grew up in MA and went to school in IL and CA may still be citizen
of MA, even if hasn’t lived there for 10 years, as long as never intended to
remain indefinitely in IL or CA
• Corporations are citizens of two places
– State of incorporation
– State of principal place of business (corporate headquarters) (PPB)
– Means LESS likely to get diversity jurisdiction
• If individual citizen of CA sues corporation incorporated in Delaware with
PPB in CA, then no diversity jurisdiction
• Similarly, if individual citizen of Delaware sues….
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Diversity Jurisdiction II
• Removal allowed if case could have been brought initially in federal court AND
defendant is NOT from forum state
– CA sues MA in MA court for $80,000, MA defendant cannot remove to federal
court, even though CA plaintiff could have brought case in federal court
• Complete diversity rule
– No plaintiff can be a citizen of the same state as any defendant
• MA v CA & MA, no diversity jurisdiction
• MA & CA v MA, no diversity jurisdiction
• MA & CA v NV, diversity jurisdiction
• AL & AK & CA & DE v AL & FL & KS & MO & NH & NM & OH
– NO diversity jurisdiction
– Rationale
• In-state party protects out-of-state party
– Doesn’t make sense, because co-defendants may have divergent
interests
• Reduce federal caseload
– Not constitutionally required
• Congress could change by statute
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• Similar to status of well-pleaded complaint rule
Diversity Jurisdiction III
• Also diversity jurisdiction if
– Suit between citizen of US and foreigner (citizen or subject of foreign state). 28
USC 1332(2)
• CA v. France; MA v Germany, etc.
• Called “alienage jurisdiction”
– Alien admitted to US for permanent residence treated like citizen of the state
in which domiciled
• CA v French permanent resident domiciled in MA. Diversity
• CA v French permanent resident domiciled in CA. No diversity
• If no diversity, can, of course, still get federal jurisdiction through federal question
• Even if diversity of citizenship, must still show personal jurisdiction & venue
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Diversity J Questions
• Yeazell Pp. 209 Q1, 3b, 4,
• Suppose P is a citizen of Turkey, and D is a citizen of Egypt
admitted to permanent residence in the US and domiciled in
MA. P sues D in federal district court to collect a $100,000 debt.
Is there federal jurisdiction?
– Be sure to consider 28 USC 1332(a) both as it existed before
2011 (the version in your pamphlet), the current version of
1332(a) (the version in the handout), and the US
Constitution, Article III, Section 2
– Can you see why 28 USC 1332(a) was amended in 2011?
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SMJ in Complex Litigation I
• In general, subject matter jurisdiction determined independently for each claim
– Unless there’s an exception that specifically covers the situation
• Some relaxation of complete diversity rule
– In class actions, complete diversity is determined by considering ONLY
citizenship of named plaintiff(s)
• Suppose named plaintiff is from CA and defendants are from NV and MA,
there is diversity jurisdiction, even if plaintiff class includes plaintiffs from
NV and/or MA
• Manipulable by plaintiff who wants or does not want federal jurisdiction
– SMJ in any non-securities class action where any member of plaintiff class is a
citizen of a state different from any defendant, IF amount in controversy
exceeds $5,000,000. 28 USC 1332(d).
• With discretion to decline jurisdiction for reasons in (d)(3) and (d)(4)
• Removable only if 100 or more plaintiffs. (d)(11)(A)
• This is relatively new statute. Class Actions Fairness Act (2005)
– SMJ in cases involving death of at least 75 people, if minimal diversity and
“substantial part of accident” took place in state other than defendant’s
residence, or any two defendants reside in different states, or substantial parts
of the accident took place in different states. 28 USC 1369
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SMJ in Complex Litigation II
• Aggregation of amount in controversy
– Can meet amount in controversy requirement by adding together amounts in
controversy for several claims?
– Relevant for diversity jurisdiction only
– See Yeazell pp. 219ff
– Single plaintiff may aggregate claims against single defendant
– 2 or more plaintiffs may aggregate claims against 1 or more defendants only if
their claims are part of a common undivided interest
– In class actions, sufficient that one member’s claim meets the amount in
controversy requirement
• But cannot aggregate if no member meets the amount in controversy
requirement
– Except under CAFA (5m total; removal only if 100 or more plaintiffs)
• Removal
– All defendants must consent to removal. 1446(b)(2)(A)
• Some exceptions, e.g. for 1369
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SMJ in Complex Litigation III
• Supplemental Jurisdiction
– Very complicated. See handout
– Basic idea
• If federal court has subject matter jurisdiction over a claim (e.g. diversity
jurisdiction or federal question jurisdiction), then it also has jurisdiction
over related state law claims
– Even though there would be no federal subject matter jurisdiction over
the state law claims if they were brought independently
• Supplemental jurisdiction should not be used to circumvent the complete
diversity rule
Trademark (federal)
CA
Tort (state)
NY
MA
CA
Unfair competition (state)
contribution (state)
Tort (state)
Supp. J. over unfair competition claim
CA
No Supp. J. over CA v CA tort claim
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