Civil Procedure
Statutes, Rules, and Tools Outline
Statute, Rule, or Theory
Interpretation
Application
1. Personal Jurisdiction
Constitutional Requirement
Physical Power/Presence
In Personam
In Rem
1.1 Types of Jurisdicion
(1) Necessary and sufficient
(2) Jurisdiction was difficult to obtain under Pennoyer
Burnham v. Superior Court
Full-faith and credit
Jurisdiction over the defendant
Iif judgment is rendered, that judgment is entitled to full-faith and
himself.
credit in other states.
Judgment is binding against certain assets owned by defendant.
Pennoyer v. Neff
Shaffer v. Heitner
Jurisdiction over a property owned
by a person is really jurisdiction
over a person interest in a thing.
1.
Consent
Carnival Cruise Lines, Inc. v.
Shute
Domicile
Hawkins v. Masters Farms Inc.
Minimum Contacts
International Shoe Co. v.
Washington
Full Faith and Credit
Allows for adjudication of the rights of persons in the property if
the property is attached at the outset of the action. Judgment is
limited to the value of the property and satisfaction cannot be
sought in other states.
True in rem: Main purpose is to adjudicate competing legal
interests in the property in question. ie quiet title action and
mortgage foreclosure
Quasi in rem: Actions brought for purposes other than
determining competing property rights.
Type 1: claim arises out of the property
Type 2: claim is unrelated to the property. Asset is used to
satisfy a judgment.
Consent: Substitution for power
(1) Actual
(a) Contractual/Company may appoint agent on its behalf
(b) Carnival – Forum selection clause means parties have
consented to a forum (28 U.S.C. § 1404)
(2) Implied
(a) Non-Residents imply consent when they use a state’s
resources (roads/laws/economy)
(b) Non-Resident motorists statutes
Citizenship
(1) Individual
(a) State in which individual resides with intent to remain
indefinitely
(i) Residence in fact
(ii) Voter registration, state driver’s license, club
membership, etc.
(2) Corporation § 1331(c)
State of incorporation and principal place of business
(a) Principal Place of Business Tests
(i) Muscle Test
where everyday business activities of the company
conducted
corporate
(ii) Nerve Center Test where executive and administrative
functions controlled
(iii) Total activities combination of two
Two Prong Test
Minimum Contacts – both quality and quantity of contacts must
be substantial.
(1) Contacts are like “presence” for corporations.
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(a) Manifested by contacts/actions carried out in state by
agents.
(b) Privilege of doing business in state gives rise to
obligations, and puts business on notice that they may have to
defend.
(c) Must be continuous and systematic.
(2) Fair play and substantial justice
(a) Must relate to activity carried out in state (specific
jurisdiction).
1.2 General Jurisdiction
Person/business may be sued in any action in state in which there is general jurisdiction, even those unrelated to contacts.
(1) Activities must be continuous, substantial and fairly
Continuous and Systematic
Perkins v. Benguet Consolidated
extensive.
Contacts
Mining Co.
(2) Claim need not arise under the nature of the contacts
Helicopteros Nacionales De
Colombia, S.A. v. Hall
1.3 Specific Jurisdiction
Specific Jurisdiction
Burger King Corp. v. Rudzewicz
3 Part Test
Claim arises under the contacts in
(1) Purposeful availment
the state. Isolated but meaningful
(2) Lawsuit arises out of minimum contacts
contacts.
(3) Comports with fair play and substantial justice .
Minimum Contacts
Hanson v. Denckla
Unilateral activity of one party does
not create jurisdiction over a
defendant.
World-wide Volkswagen Corp. v.
Woodson
McGee v. Int’l Life Ins. Co.
Minimum Contacts Test
(1) Are there any contacts with the forum state?
(a) If so does the claim arise out of those contacts?
(b)If so does the contact constitute purposeful availment of
the benefits and protections of forum law?
(2) Fairness
(a) If the contacts are otherwise sufficient would jurisdiction
offend traditional notions of fair play and substantial justice?
Purposeful Availment
Hanson v. Denckla
World-wide Volkswagen Corp. v.
Woodson
Burger King Corp. v. Rudzewicz
A contract can be purposeful
availment.
Jones v. Calder
National Enquirer Case
Pavlovich v. Superior Court
3 Part Test
[Isolated but Meaningful Contact]
(1) Has the defendant invoked the protection of the laws of
the forum state.
(2) Does the claim arise out of the contact
(3) Does jurisdiction offend notions of fair play and substantial
justice
Internet Availment
Sliding scale for web businesses
Posting not enough
Greater the interaction = greater the chance for jurisdiction.
Interactive sites creating a “consistent and substantial pattern of
business relations” = general jurisdiction
Web contacts can be substantial/continuous/systematic.
If defendant knows his activities will have effect in forum state
this will constitute purposefully availment.
Must expressly aim at forum
Aware that conduct WILL harm (not might) required.
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Stream of Commerce
Availment
Asahi Metal Industry v. Superior
Court
World-wide Volkswagen Corp. v.
Woodson
Asahi
O’Connor
(1) Due Process requires minimum contacts must come about by
action of D purposefully directed toward forum state. Must be
more than just putting product into stream of commerce.
(2) Additional conduct necessary
(a) includes advertising, designing product for forum state’s
market, distributor within forum state.
Brennan
(1) Awareness that product will reach forum through stream of
commerce and economic benefit is enough.
WWV
(1) Placing product into the stream of commerce does NOT
purposefully avail D in any place that product may end up.
(a) Foreseeability not enough.
(b) Contact must be deliberate.
(c) Targeting a state (advertisement, etc) will be a minimum
contact.
(2) Fair play and substantial justice is a separate test from
minimum contacts!!
Fair Play and Substantial
Justice
Notice
Summons
Rule 4
World-wide Volkswagen Corp. v.
Woodson
Asahi Metal Industry v. Superior
Ct
Fair Play and Substantial Justice
(1)Burden on the defendant is a primary concern
(2) Interest in the forum in adjudicating
(3) Plaintiff’s interest in obtaining relief
(4) Interest of the interstate judicial system in efficient
resolution
(5) Shared interest of states in “furthering fundamental
substantive social policies.”
1.4 Notice
Mullane v. Central Hanover Bank
Two Requirements
(1) Statute must authorize service
& Trust Co.
(2) Must comport with Due Process
Mullane Test
(1) Is the form of notice reasonably certain to inform those
affected? Notice must be “reasonably calculated to apprise
interested parties of proceedings.” You must inform those
known beneficiaries that are easy to inform, using a method that
is as effective as any notice available.
(2) Publication is enough for unknown beneficiaries, but not for
those whose address can be obtained without much effort.
(3) NOTICE MUST BE SUFFICIENT TO REACH MOST
INTERESTED PARTIES.
1.5 Service of Process
Rule 4: Service of Process
(1) 4(d) – waiver of service to defray costs
(a) Process
(i) File a complaint
(ii) Send copy of complaint, form 1-A: notice of lawsuit
& request for waiver of service summons. (2 copies
dated). Also send form 1-B: waiver of service of
summons. (Must include pre-paid postage to return
mailing).
(iii) File waiver with court
(2) What happens if D doesn’t send back waiver request within
3
30 days?
(a) Must find “dwelling place or usual place of abode”; must
leave service with person of “suitable age and discretion”
that resides there. Or can give to authorized agent.
(b) Can’t request waiver if suing US: Rule 4(ii)(1). Must
have forum summons to make sure right person is served.
Serving an Individual in the
United States
Rule 4(e)
Serving an Individual in a
Foreign Country
Rule 4(f)
Serving a Minor or
Incompetent Person
Rule 4(g)
Serving a Corporation,
Partnership, or Association
Rule 4(h)
Territorial Limits of
Effective Service
Rule 4(k)
Hague Service Convention
In hand service
(1) at place of abode with someone of suitable age and discretion
who also resides there.
(2) agent authorized by contract or law
(3) according to method authorized by state in which district
court sits or where service is made
Service by internationally agreed means. If none exists, service
by any means reasonably calculated to give notice authorized or
not prohibited by the foreign country.
State law must be followed.
Service by delivering copy of complaint and summons to a
managing or general agent, or any agent authorized or appointed
by law to receive service of process.
Rule 4(k)
(1) Rule 4(k)(1)(A). Federal court, at minimum, has personal
jurisdiction over any D whom the state court of the forum state
would have such jurisdiction.
(2) Rule 4(k)(1)(B). 100 miles bulge for service of third-party or
involuntary plaintiff’s.
(3) Rule 4(k)(1)(C) – A party joined to a statutory interpleader
action may be served anywhere in the U.S.
(4) Rule 4(k)(1)(D) Service is effective to create jurisdiction
whenever authorized by specific federal statute.
(5) Rule 4(k)(2). If no state court has jurisdiction service is
effective provided that the claim arises under fed law and
jurisdiction complies with constitution. (minimum
contacts/fairness test)
Hague Service Convention: international treaty covering service
of process abroad.
(1) Each signatory nation must designate a “Central Authority”
responsible for serving process on its nationals.
(2) Authority assumes responsibility for serving process in
whatever way  directs.
(3) Serve process in three ways:
(a) In any manner specified by the receiving nation for its
own civil litigation (Rule 4 in US)
(b) In a manner specified by P, so long as that manner does
not violate the receiving nation’s laws.
(c) By defendant voluntarily accepting service.
1.6 Self Imposed Jurisdiction Restraints
1.6(a) Long Arm Statutes
Permits court of a state to obtain jurisdiction over a person not physically present within the stat e at time of service.
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Long Arm Statutes
Gibbons v. Brown
Dee-K Enterprises, Inc. v. Heveafil
Sdn. Bhd.
Piper Aircraft v. Reyno
Long-Arm Statute –
(1) Broad – generally goes the lengths of constitutional limits of
due process.
(i) CA – due process is the limit.
(2) Enumerated – Does not confer as much jurisdiction as due
process allows.
(ii) FL long arm require more activities or contacts than
required by constitution.
(2) Two prong test:
(i) Statute – Has plaintiff alleged sufficient jurisdictional
facts to bring defendant within coverage of long-arm statute?
(ii) Constitution – are there sufficient min contacts to comply
with Due Process clause of 14th Amendment.
1.6(b) Venue
Has nothing to do with Jurisdiction – an allocation of authority among courts. It is a statutory, not constitutional issue.
1391 only applies to cases commenced in federal court and not cases removed to federal court.
1391 overrides any other federal statutes with specific venue provisions.
(1) District where any defendant resides if all live in same state
Venue for Diversity
Swanson v. Andreas
§ 1391(a)(1): Intended to limit
(2) District in which substantial part of events occurred or
Jurisdiction
venue to any district in the state in
substantial part of property situated (may authorize venue is
(§ 1391a)
which defendant resides if they both several districts)
reside in that state
(3) District where defendant is subject to personal jurisdiction for
that claim if no other venue is available (if you can’t use #3, you
can’t bring suit against all defendant’s at the same time – no
personal jurisdiction jurisdiction over all defendant’s) (can only
use #3 when #s 1 and 2 don’t work)
Venue for Federal Question
Dee-K Enterprises v. Heveafil Sdn. (1) where any defendant resides if all in same state
(2) District in which substantial part of events occurred or
(§ 1391b)
Bhd.
substantial part of property situated (may authorize venue is
several districts)
(3) District where a defendant is found. [Similar to ‘minimum
contacts’]
Venue for Corporations
Dee-K Enterprises v. Heveafil Sdn. § 1391(c) District with personal jurisdiction
i. Merely defines corporate “residence”; can still use (a)(2)
§ 1391(c)
Bhd.
or (b)(2)
ii. Applies only to corporate defendants!! Corporate
plaintiffs may follow venue rules of (a) and (b)
Aliens
§ 1391(d)
Dee-K Enterprises v. Heveafil Sdn.
Bhd.
Saadeh v. Forouki
Aliens may be sued in any district, including alien corporations.
(a) personal jurisdiction must be proper though!!
Fed Government Agent
§ 1391(e)
US officer or agent
(1) Where a defendant resides or
(2) Where substantial part of claim (event) occurred or property
is situated, or
(3) Where plaintiff resides if no real property involved.
Foreign State
§ 1391 (f)
(1) events or property
(2) vessel or cargo situated
(3) agency licensed
(4) D.C. district ct.
Venue for
Multiparty/Multiforum
Litigation
§ 1391 (g)
Any venue in which a defendant resides or substantial part of the
accident giving rise to the claim occurred.
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Any civil action of a local nature including property in different
districts in same state may be brought in any of such district.
Defendants or Property in
Different Districts in the
Same State
§ 1392
Multidistrict Litigation
§ 1407
Sets up a judicial panel on multi-district litigation and authorizes
it to transfer cases pending in different district to a single district
for coordinated or consolidated pre-trial proceedings.
1.6(b)(1)Transfer
(1) Motion to transfer can be made by plaintiff or defendant
(2) Transfer must be too a court in which action could have been brought in the first place
Original Venue is Proper,
Dee-K Enterprises v. Heveafil Sdn. Venue is proper, but transfer to more convenient district
For private and public interest/convenience, fed dist ct. can
but Another Venue is Better Bhd.
transfer a case to a dist where personal jurisdiction and venue are
§ 1404
proper.
* not waived by appearance.
Transfer
Improper Venue
§ 1406
Dee-K Enterprises v. Heveafil Sdn.
Bhd.
Venue is improper
Fed dist ct. can dismiss or transfer to dist in which it could have
originally been brought.
*Transfer only if in the interest of justice.
Venue is Proper, Personal
Jurisdiction Lacking
§ 1631
Dee-K Enterprises v. Heveafil Sdn.
Bhd.
Venue is proper, personal jurisdiction lacking
Transfer to specialized courts like Federal court of claims that
hear claims against U.S. when personal jurisdiction is lacking.
1.6(c) Forum Non Conveniens
Common law: used if preferable alternative forum is another country; result is dismissal.
Hard to achieve and rarely exercised
(1) Conditional dismissal
Forum Non Conveniens
Piper Aircraft v. Reyno
(a) Defendant must waive statute of limitations arguments,
waive personal jurisdiction, or release all records.
(b) Dismissal in the interest of justice.
(2) Piper Balancing Test
(a) presumption is in favor of defendant so factors must weigh
heavily for defendant in order for dismissal
(i) There must be an adequate alternate forum
(a) Difference in substantive law between two forums
does not preclude adequate forum unless there is no
remedy in other forum.
(ii) Plaintiff’s choice of forum
(a) Based on plaintiff’s convenience.
(b) When plaintiff is foreign, there is no presumption
that venue is convenient to them
(iii) Private interest factors
(a) Access to sources of proof [cost to view evidence]
(b) availability of compulsory process for unwilling
witnesses [transportation costs]
(c) ease of impleading 3rd parties, [transportation
costs]
(iv) Public interest factors
(a)Expenditure of judicial resources on a case w/ no
forum connection
(b) Burden on or confusion of the jury.
1.7 Challenging Personal Jurisdiction
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Rule 12 Defenses and
Objections
12(b)(1) – Lack of SUBJECT
MATTER JURISDICTION:
12(b)(2) – Lack of personal
jurisdiction
12(b)(3) – Improper venue
12(b)(4) – Insufficient
process[some problem with
the documents like summons
and complaint]
12(b)(5) – Insufficient
service of process [notice]
[not served properly]
12(b)(6) – Failure to state a
claim
12(b)(7) – Failure to join an
indispensable party.
a) Time requirements in Rule 12(g) and (h)
b) 12(b)(2), (3), (4), and (5) must be put in the first Rule 12
response [i.e. pre-trial motion (motion to dismiss), answer
or whatever the first response is] or else they will be
waived. These are waiveable defenses.
c) 12(b)(1)(6) and (7) can be raised anytime through trial.
d) 12(b)(1) can be raised anytime; it’s never waived because
SUBJECT MATTER JURISDICTION is an issue of
constitutional allocation of power between federal and state
court system.
Collateral Attack
Defendant can fail to appear, upon which the court will enter a
default judgment against D. D can then makes a collateral attack
against the court saying that judgment is not binding for lack of
personal jurisdiction.
Downfall – if, on collateral attack, the court rules that there was
jurisdiction, then the previous judgment is binding and cannot be
challenged on the merits.
Special Appearance
State equivalent of a 12(b) challenge in which jurisdiction can be
challenged while defendant remains to immune to personal
jurisdiction.
2. Subject Matter Jurisdiction
Scope of Subject Matter
Jurisdiction
2.1 Scope of Subject Matter Jurisdiction
(1) State courts
courts of general jurisdiction and authorized to hear any kind of
case between parties unless specifically prohibited not to. At least
one court of gen jurisdiction in every state.
(2) Federal court
courts of limited jurisdiction and are only authorized to hear
specific cases; assume there is no subject matter jurisdiction
unless statute specifically gives fed court jurisdiction over issue.
(3) Exclusive jurisdiction
only federal courts have authority to hear these cases
(4) Concurrent (shared jurisdiction)
can be tried in a number of different courts, either state or
federal.
(5) Objections to subject matter jurisdiction can be raised at any
time because this jurisdiction is not waivable. Rule 12(b)(1).
2.2 Federal Question Jurisdiction
The case raises a “federal question.” This means that the plaintiff’s right to recover stems from the US Constitution, federal treaty, or an
act of Congress. Federal law must be source of the plaintiff’s claim.
“The judicial power shall extend to all cases, in Law and Equity,
Federal Claim
Louisville Nashvilee Railroad v.
arising under the Constitution, the laws of the U.S. and treaties
Constitutional Limitations
Mottley
made, under their Authority”
Article III § 2
Federal Claim
Federal Question Statute
28 USC § 1331
“Federal Question” jurisdiction - gives district courts jurisdiction
over cases “arising under the Constitution, statutes or treaties –
what does it mean to “arise under”?
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Other Original Federal
Jurisdiction Statutes
Exclusive Federal
Jurisdiction Statutes
Mottley Rule
Louisville Nashvilee Railroad v.
Mottley
Bell v. Hood
(1) Not enough that P is asserting a state-centered claim which
requires interpretation of federal law. Federal question must
appear on the face of the complaint unaided by the answer or
notice of removal.
(2) If Plaintiff’s claim clearly arises under federal law, it
qualifies even if claim is invalid on its merit. (here, fed ct
must dismiss for failure to state claim upon which relief may
be granted, Rule 12(b)(6), not for lack of subject matter
jurisdiction).
28 USC § 1335: Interpleader
28 USC § 1337: Commerce and Antitrust; Amount in
Controversy
28 USC § 1339: Postal Matters
28 USC § 1340: Internal Revenue; Custom Duties
28 USC § 1343: Civil Rights/Elective Franchise
28 USC § 1344: Election Disputes
28 USC § 1345: U.S. as Plaintiff
28 USC § 1346: U.S. as Defendant
28 USC § 1361: Action to Compel an Officer of the U.S. to
Perform his Duty
28 USC § 1362: Indian Tribes
28 USC § 1333: Admiralty, Maritime, and Prize Case
28 USC § 1334: Bankruptcy Cases and Proceedings (Title 11)
28 USC § 1338: Patents, Plant Variety Protections, Copyrights
28 USC § 1355: Fines, Penalty, or Forfeitures (incurred under
any act of Congress)
28 USC § 1364: Direct Actions Against Insureres of Members of
Diplomatic Missions and Their Families
Federal question must appear on the face of the complaint
unaided by the answer or notice of removal.
Rule 8(a)
Diversity of Citizenship
§ 1332
Strawbridge v. Curtis
Redner v. Sander
Saadeh v. Farouki
2.3 Diversity Jurisdiction
Diversity: “complete diversity” required, so no plaintiff can be a
citizen of the same state as any defendant and there must be at
least $75,000 in controversy.
(I) Can be raised at any time – diversity jurisdiction not
waivable!!
(II) Purpose – to prevent bias toward out of state defendant
litigating against local  in local state courts.
(III) Amount in controversy and complete diversity
(Strawbridge) are statutory additions
§ 1332
(IV) Constitutional limitations: Article III § 2 – “The judicial
power shall extend…to controversies…between citizens of
different states; …and between a state, or the citizens thereof,
and foreign states, citizens or subjects”
(V) Statutory limitations - § 1332(a) – “the district court shall
have original jurisdiction over all civil actions where matter of
controversy exceeds sum of $75,000 and if between
(1) Citizens of different states
(2) Citizens of state, & citizens and subject of foreign state
(3) Citizens of different states and in which foreign states or
citizens or subjects thereof additional parties…”
(4) Foreign state and citizens of a state or different states
(VI) Is there diversity jurisdiction?
(A) Are the parties diverse?
(i) Natural person: citizen = domicile
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Amount in Controversy
Legal Certainty
Parties Collusively Joined or
Made
28 USC § 1359
Pendant Jurisdiction
Ancillary Jurisdiction
St. Paul Indemnity Co. v. Red Cab
Co
(1) Must be US citizen AND have
(2) Subjective intent to stay indefinitely
(3) Physical presence
(ii) Resident aliens are citizen of their state of domicile
(iii) Corporations (§ 1332(c))
(B) Is there complete jurisdiction?
(i) Partnerships, labor unions, joint stock partnerships
(1) Must look at citizenship of all partners (even limited
partners)
(2) Limits subject matter jurisdiction in federal courts by
increasing odds of a defendant having same citizenship as
plaintiff, leaving no diversity
(3) only one principal place of business
(ii) Aliens – no diversity between aliens b/c the alienage act
was not intended to create diversity btw two aliens, but
rather to limit jurisdiction btw permanent resident alien and
US citizen (Saadeh v. Farouki: provision intended to reduce
number of cases is federal court, not to expand them.)
(iii) US citizens permanently domiciled abroad – not a
citizen of a state nor citizens of foreign country under
diversity jurisdiction rules. (Redner v. Sander)
(iii) Suits for divorce, alimony, child custody: federal court
won’t adjudicate even with diversity jurisdiction b/c they are
“domestic cases.”
(iii) 28 U.S. § 1332(d) gives citizens of DC, Guam, Puerto
Rico, etc. citizenship of a state for diversity purposes.
(C) Does P meet amount in controversy?
(i) Must assert more than $75,000 at time of filing in good
faith.
(ii) Injunctions – must consider:
(1) Value of injunction to plaintiff
(2) Cost to defendant of complying
(3) Cost or value to party invoking jurisdiction
(4) Allow jurisdiction if any of above tests yields
statutory amount.
(iii) Aggregation of claims – each plaintiff must be able to
sue each defendant alone and satisfy the amount in
question.
(1) Single plaintiff suing a single defendant can
aggregate unrelated claims to satisfy amount
(2) Typically multiple plaintiffs may not aggregate claims
less than amount
(3) A few courts exercise supplemental jurisdiction to
allow multiple plaintiffs to aggregate related claims if
one claim exceeds amount
(4) Plaintiff suing multiple defendants must exceed
amount in each claim
(iv) Contractual interest and attorney’s fees recoverable by
contract or statute included.
The amount in the complaint controls unless it appears to a legal
certainty that the plaintiff will recover less than $75,000.
No federal jurisdiction for sham assignments or bad faith
joinders. This defeats diversity.
2.4 Supplemental Jurisdiction
Broadens Federal Jurisdiction
(1) Found where:
Underlying dispute falls within subject matter jurisdiction of
federal court, and another claim not independently within federal
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Supplemental Jurisdiction
28 USC § 1367
In re Ameriquest Mortgage Co.
Mortgage Lending Practices
Litigation
Szendry-Ramos v. First Bancorp
Supplemental Jurisdiction in
Federal Question Cases
subject matter jurisdiction, but is sufficiently related as to be a
part of a single case or controversy as underlying claim, then
federal court with some limitations may hear the claim.
(2) Historically…
Pendant jurisdiction: addition by plaintiff of a state claim as long
as it is related to the legitimate federal claim.
Ancillary jurisdiction: addition of defendant related to plaintiff’s
claim even if no independent federal subject matter jurisdiction
over related claim
(3) Defendant could assert
(a) Counter claim against plaintiff
(b) Cross claim against plaintiff
(1) Three situations:
(a) A sues B on a federal question claim and a state claim
(pendant jurisdiction)
(b) A sues B on a federal question claim and B counterclaims
A on a state law claim (ancillary jurisdiction)
(c) A sues B under diversity jurisdiction and B impleads 3rd
party (ancillary jurisdiction)
(i) Third party plaintiff can only recover from third party
defendant if original plaintiff recovers from third party
plaintiff.
(ii) Recovery only for compulsory counterclaims
“logically related”, not permissive counterclaims, which
arise from different events
(iii) All upheld as long as the claim arose out of the case as
the main claim.
(2) Statute codification
(a) Does federal court have constitutional power to exercise
subject matter jurisdiction?
State and federal claims must arise from same nucleus of
operative fact.
(b) Does it pass the statutory test? § 1367
Supplemental jurisdiction over claims so related to federal
claim that they form part of the same case or controversy
under Art. III, including claims that involve joinder or
intervention of additional parties. § 1367 (a)
Diversity is destroyed and there is NO supplemental
jurisdiction if: (codified from Owen) § 1367(b) jurisdiction is
based solely on § 1332 (diversity) claim by plaintiff
when D made party under specified rules (14, 19, 20, 24)
(joinder or 3rd party P)
Inconsistent with complete diversity
(c) Does court want to invoke supplemental jurisdiction?
(discretionary) § 1367(c)
May decline if:
(i) claim raises novel or complex issue of state law
(ii) state claim substantially predominates the fed claim
(iii) district court has dismissed the federal claims
(iv) in exceptional circumstances other compelling
reasons.
(d) § 1367(d) – any statute of limitations is tolled for 30
days to allow plaintiff to refile in state court without penalty;
similar if plaintiff voluntarily dismisses to bring both suits to
state court.
(1) Federal question cases – Where original claim comes within
court’s federal question jurisdiction, §1367 allows court to hear
any closely related state-law claims.
(a) Applies when a related state claim involves the same
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parties as the federal question claims.
(b) §1367 also allows additional parties to the state-law claim
to be brought into the case.
(1) Diversity cases – There is supplemental jurisdiction in many
cases where the “core” claim – claim as to which there is
independent federal subject matter jurisdiction – is based solely
on diversity. But there are also exclusions.
(a) Claims not covered – Here are the principle diversity-only
situations in which subject matter jurisdiction does not apply:
Rule 14 impleader of third-party defendant, for claims by and
against third-party plaintiff, and claims by third-party
defendants, but not claims by the original plaintff against third
party defendants.
(b) Claims not covered – Where core claim is based on
diversity, some important types of claims do not get benefit of
supplemental jurisdiction.
Rule 14(a) – Claims against third-party defendants: claims
made by plaintiff’s against third-party defendant are excluded.
Rule 19(a) – Compulsory joinder: when a person is joined
under this rule as a person to be “joined if feasible”, neither a
claim against such person, nor a claim by that person, comes
within subject matter jurisdiction in diversity-only case.
Rule 20 Permissive Joinder – When plaintiff sues multiple
defendant’s in same action on common law and facts (Rule 20
“permissive joinder”), subject matter jurisdiction does not
apply.
Rule 24 Intervention – Claims by prospective plaintiffs who
try to intervene under Rule 24 do not get benefit of subject
matter jurisdiction. This is true whether the intervention is
permissive or of right.
(c) No effect on personal jurisdiction – Application of subject
matter jurisdiction does not eliminate requirement of
jurisdiction over parties or requirement for service of process.
Supplemental Jurisdiction in
Diversity Cases
Common Nucleus of
Operative Fact
Removal Statute
28 USC § 1441
United Mine Workers v. Gibbs
U.S. Constitution Article III Gives Federal Court Power over
Cases or Controversy
The state and federal claim must derive from a common nucleus
of operative fact.
2.5 Removal
Caterpillar Inc. v. Lewis
Removal statute – The right of removal is statutory, and is
Improper removal is not fatal as
not mentioned in Constitution.
long as subject matter jurisdiction is (1) § 1441(a) – Only cases which could have originally been
proper at the time of adjudication.
brought in the federal courts may be removed. When a case is
removed, it passes “to the district court of the US for district and
division embracing the place where [the state] action is pending.”
All defendants must agree to remove.
(2) § 1441(b) – In federal question cases, the case may be
removed by defendants regardless of citizenship or residence of
parties. In diversity cases, the action may be removed only if no
properly joined or served defendant is a citizen of the state in
which the action is pending.
(3) § 1441(c) – Removal of multiple claims: Whenever a
“separate and independent claim” or cause of action, within the
[court’s federal question] jurisdiction…is joined with one or
more otherwise non-removal claims, the entire case may be
removed and the district court may determine all issues
therein…”
(i) Diversity – if claim for which there is a federal jurisdiction
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Nonremovable Actions
28 USC § 1445
Procedure for Removal
28 USC § 1446(b)
Procedure After Removal
(Remand)
28 USC § 1447
is a diversity claim, the presence of the second claim (for
which there is not original federal jurisdiction) defeats
defendant’s right of removal entirely – the whole case must
stay in state court.
(ii) Federal question cases – Where a claim for which there is
original federal jurisdiction is a federal question claim, and
there is another, “separate and independent,” claim for which
there is no original federal jurisdiction, defendant may remove
the whole case.
(a) Remand – If 1441(c) applies, and the entire case is
removed to federal court, the federal judge need not hear the
entire matter. The court may instead remand all matters in
which state law applies. In fact, federal court, after
determining that removal is proper, may remand all claims
– even the properly-removed federal claim – if state law
predominates in the whole controversy.
(4) § 1441(d) – Action brought in state court against foreign
state may be removed by foreign state to federal district court
where action is pending.
(5) § 1441(e) – Original state-court jurisdiction not required:
The fact that the state court did not have jurisdiction does not
prevent the defendant from removing to federal court.
(1) Actions against railroads
(2) Actions against trustees
(3) Workmen’s Comp
(4) Violence Against Women Act
§ 1446
(1) Procedure for Removal
(a) Defendant must file notice of removal in the appropriate
federal district court (containing short and plain statement of
ground for removal), together with all pleadings, process, and
other papers on file in the state action. Must be filed in
federal court of same district where state claim was filed.
(b) Notice must filed within 30 days of receiving plaintiff’s
pleading or from receiving the amendment making diversity
available or it is waived. Cases based on diversity cannot be
removed after 1 year of initial filing.
(c) Once the notice is filed and state court is notified, the state
court loses control of case automatically.
(2) Right of removal is generally decided from the face of the
pleadings. The jurisdictional allegations of plaintiff’s complaint
control.
(a) Jurisdictional allegations are viewed as of the time the
notice of removal was filed.
*Exception for diversity case – Diversity case present
exception to rule that removability is determined as to the time
when notice of removal is filed. In diversity cases, diversity
must exist at time of filing the original action, as well as at
time of notice of removal (unless plaintiff has dropped a party
who had destroyed diversity).
28 USC § 1447(c): Remand must be within 30 days of removal
28 USC § 1447(d): Remand is unreviewable on appeal or
otherwise except in civil rights cases (§ 1443)
28 USC § 1447(e): If joinder destroys diversity court may deny
joinder or permit joinder and remand back to state court.
3. The Eerie Doctrine
Necessary and Proper
Clause
Empowering congress to make all laws which shall be "necessary
and proper" for carrying into execution the enumerated powers of
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Congress.
U.S. Const. Article 1 § 8
Clause 18
Supremacy Clause
U.S. Const. Article 6 Clause
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U.S. Const.
5th Amendment
Trial by Jury
U.S. Const.
7th Amendment
Byrd v. Blue Ridge Rural Electric
Cooperative
U.S. Const.
10th Amendment
U.S. Const.
14th Amendment
Rules and Decision Act
28 USC § 1652
Rules Enabling Act
28 USC § 2072
Pre-Erie
Eerie Doctrine
(Unguided)
Conflict of Laws
(Unguided)
Outcome Determinacy Test
(Unguided)
Erie Railroad v. Tompkins
Swift v. Tyson
Erie Railroad v. Tompkins
* A state’s negligence standard is
substantive.
Klaxon Co. v. Stentor Electric
Manufacturing Co.
Guaranty Trust v. York
* A state’s statute of limitations is
substantive.
This Constitution, and the Laws of the United States which shall
be made in Pursuance thereof; and all Treaties made, or which
shall be made, under the authority of the United States, shall be
the supreme Law of the land; and the Judges in every State shall
be bound thereby, any Thing in the Constitution or Laws of any
State to the Contrary notwithstanding.
No person shall be ... deprived of life, liberty, or property,
without due process of law
In Suits at common law, where the value in controversy shall
exceed twenty dollars, the right of trial by jury shall be preserved,
and no fact tried by a jury, shall be otherwise re-examined in any
Court of the United States, than according to the rules of the
common law.
The powers not delegated to the United States by the
Constitution, nor prohibited by it to the States, are reserved to the
States respectively, or to the people.
Equal Protection
no state shall ... deny to any person within its jurisdiction the
equal protection of the laws
Due Process
nor shall any State deprive any person of life, liberty, or property,
without due process of law
The laws of the several states, except where the Constitution or
Acts of Congress otherwise require or provide, shall be regarded
as rules of decisions in civil action in the courts of the United
Statess, in cases where they apply.
A Federal Rule of Civil Procedure must not “abridge, enlarge or
modify the substantive rights of any litigant.”
Federal courts sitting in diversity or not required to apply
unwritten state laws.
In federal diversity cases the substantive law of the state must be
applied.
Choice of law rules are substantive law and a federal court should
apply the choice of law rules of the state in which it sits.
Would disregard for state law practice significantly affect the
result of litigation as compared with the outcome had it been
tried in state court?
If yes then it is a substantive state law that should be applied in
federal court.
Byrd Balancing Test
(Unguided)
Byrd v. Blue Ridge Rural Electric
Cooperative
* A judge v. jury determination is
procedural.
If the state law is “bound up with the definition of the rights
and obligations of the parties” then it is substantive and state
law governs.
State Law vs. Federal Practice
If the state law is not clearly substantive, then the federal
court should apply the state law unless the federal court
system has “affirmative countervailing” considerations in
applying a federal practice.
Hanna Test 1
State Law v. Fed Practice
(Unguided)
Hanna v. Plumer
Hanna Test 2 [Is the law outcome determinative
prospectively? (Unguided/Fed Practice)]
(1) Is the likelihood of a different outcome in state court
substantial enough to lead to forum shopping.
(2) If yes then will the forum shopping be outcome determinative
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Hanna Test 2
State Law v. Fed Rule or
Statute
(Guided)
Hanna v. Plumer
* Service of process rules are
procedural.
Coexistence
Gasperini v. Center for Humanities
No Fed Practice On Point
Semtek Int’l Inc. v. Lockheed
Martin Corp.
in the sense that it leads to inequitable administration of the
laws?
(a) If it is an issue that is an essential part of fed court system
apply the Byrd balancing test.
First make sure that there is an actual conflict and both laws
apply.
Hanna Test 1 (Guided)
*Fed Rule forum shopping irrelevant
(1) Does it pass the Rules Enabling Act?
(a) Does it really regulate procedure?
(b) Does it abridge, enlarge, or modify any substantive right?
(2)Is it constitutional? (Start here for statutes.)
(a) Is it arguably procedural?
By allowing requiring the district court to review the jury verdict
as required by state law the supreme court found a way to make
state law coexist with federal practice.
In the absence of a federal procedural rule federal common law
can be developed to resolve the issue.
*The claim-preclusive effect of a judgment on the merits in a
federal diversity action is governed by the law of the state in
which the federal court sits.
4. Process of Litigation
Substitutionary Remedies
Specific Remedies
*Accounting, constructive
trust, mandamus, recission of
contract, restitution
4.1 Remedies
Honda v. Oberg
(1) Attempts to replace what the plaintiff lost typically with
* A state must ensure that
money paid/repaid: Assets may be seized to enforce judgment
meaningful judicial review is
(2) Not an order to pay and failure to do so does not result in
available for a jury award of
contempt of court.
punitive damages.
(3) Rule 62(a) Prohibits any attempt to enforce a judgment until
10 days after entry.
State Farm Mut. Automobile Co. v. (4) Damages
(a) Compensatory
Campbell
(i) value assigned to an injury
(b) Liquidated, statutory, and multiple damages
(i) Liquidated: damages specified by parties (ie
contractually)
(ii) Statutory: Damages specified by statute
(iii) Multiple: Statute provides for double or treble
damages
(c) Punitive damages
(i) Can be limited or denied by state
(ii) Excessive damages violation of Due Process
(iii) Guideposts
(1) Degree of reprehensibility
(2) Ratio (single digit)
(3) Disparity between damages and civil penalties
(1) Typically a court order violation of which will result in
contempt of court.
(2) Replevy/Replevin
(a) Getting goods back that were in another’s possession
(3) Ejectment
(a) Removing someone
(4) Injunctions (Permanent Injunction – after a hearing)
(a) Mandatory or Prohibitory
(d) Generally have to prove irreparable harm, and
inadequacy of legal remedy.
(5) Courts in Law – legal remedies
(a) Ejectment, mandamus, prohibition, replevin, habeas
corpus.
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(6) Courts in Equity (Rule 8): ie injunctions
(a) Defenses: laches, estoppels, and unclean hands.
(b) Plaintiff must show that legal relief is inadequate.
(7) Declaratory Judgments (Federal Declaratory Judgment Act of
1934: 28 USC § 2201/2002)
(a) Declaration of one’s rights
(b) 28 USC § 2201 requires that the courts would otherwise
have power to hear the case
Injunctions and Restraining
Orders
Rule 65
Affirmative Defenses
Rule 8c
Sanctions
Rule 11
Counter Claim and Cross
Claim
Rule 13
Interpleader
Rule 22
Res Judicata
Rule 52(a)
Judgment
Rule 54
Offer of Judgment
Rule 68
4.2 Provisional Remedies
(A) Preliminary injunction – issued with notice, bond required
Sigma Chemical Co. v. Harris
(1) Likely to prevail
(2) Irreparable Injury
(3) Balance of Hardships
(4) Public Interest
(B) TRO – Temporary Restraining Order
(1)Issued immediately, no notice, 10 day limit
(C) Pre-Trial Attachment
(1) Defendants interest
(2) Plaintiff’s interest
(3)Risk of wrongful deprivation (timing, strength of plaintiff’s
showing, decision by judge vs clerk, bond required)
4.3 Other Rules
Res Judicata (claim preclusion)
Semtek Int’l Inc. v. Lockheed
Statute of Frauds
Martin Corp.
Accord and Satisfaction
(a) Signature
(b) Representations to the Court
(c) Sanction
(d) Inapplicability
Rule 13(a) compulsory counterclaims
Rule 13(h) joinder of additional parties to compulsory claims.
Rule 13(g) cross claims – claims by one defendant against
another.
Rule 22
(a)(1) Plaintiff: Person with claims that may expose plaintiff to
multiple liability may be joined as defendants and required to
interplead.
(a)(2) Defendant: A defendant exposed to similar liability may
seek interpleader through a crossclaim or counterclaim.
Semtek Int’l Inc. v. Lockheed
Res Judicata: Two types
(1) Claim preclusion
Martin Corp.
(a) Bars claims that were or should have been asserted in prior
litigation between the same parties.
(2) Issue preclusion
(a) Bars individual issues of fact that have actually been
litigated if it is possible to tell what the court actually decided.
Some jurisdictions allow non-parties in the first action to use
issue preclusion against actual party
Sigma Chemical Co. v. Harris
In a bench trial the judge must find facts and determine the
conclusions of law separately.
Rule 54 Judgment; costs
Rule 54(d) procedure for invoking statutory payment of
attorneys fees
Rule 68
(a) More than 10 days before trial defendant may offer to settle
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and if accepted it becomes a judgment.
(b) Offer to settle is not evidence on the merits.
(d) If the judgment is not more favorable than the unaccepted
offer costs are attributed to the plaintiff. Incentive to settle.
Costs Include
(1) Fees of clerk and marshal
(2) Fees of court reporter
(3) Fees for printing and witnesses
(4) Fees for copies of papers
(5) Docket fees
(6) Compensation of court appointed experts, interpreters…
Taxation of Costs
28 USC § 1920
5. Financing Litigation
The Rules
(1) American Rule
Each party pays own counsel
(2) English Rule
Losing party pays both
Fee Collection
(1) Flat Rate
In simple cases, charge flat rate
(2) Retainer
Fee up front
(3) Contingent Fee
Contingent Fee
(1) Attorney paid percentage of award
(2) Low volume/highs screen approach
(3) High Screen/Low volume approach
(4) Rule 54 – Judgment Rule
(a) Prevailing party can recover fees
(5) §1920 – taxation of costs
(6) Rule 68 – Offer of judgment
(a) More than 10 days before trial, offer rejected and final
award is less than what was offered, winning party must pay
post-offer costs.
Contingent Fee
(1) Legal Aid
(2) Pro Bono
Public
Subsidies/Professional
Charity
Common Fund
Trustees v. Greenough
Alyeska v. Wilderness
(1) Allows the court to award attorney’s fees to any prevailing
party except the US govt. (been around since right after the civil
war)
(2) Any person who subjects of causes to be subjected any person
within jurisdiction of US to be deprived of US right will be liable
in a suit.
Civil Action for Deprivation
of Rights
42 U.S.C. § 1983
Attorney’s Fee Award Act
42 U.S.C. § 1988
Class Action Suits
Evans v. Jeff D.
* Supreme court finds that
settlement agreement waiving
attorneys fees is acceptable.
Buckhannon v. West Virginia
*Holds that catalyst is not good
enough. Court order must impose
judgment for attorney’s fees to be
sought.
Allows the court to award attorney’s fees to any prevailing party
except the US govt.
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