CIVIL PROCEDURE -- READING ASSIGNMENTS
Professor Achtenberg -- Federal Jurisdiction
This is the reading list for the federal jurisdiction portion of the class. (The reading
list for the remainder of the semester will hinge on our progress through federal
jurisdiction.) We will cover the materials in the order indicated
I am sure you will notice that there are fewer pages of reading for this section. Do
not be misled. This is exceptionally difficult material and you will need to study this
material intensely. There are also a set of problems which you will be asked to answer.
Your learning (and, experience tells me, your performance on the exam) will be closely
correlated to the amount of time you spend on the problems.
Class
Description and Comments
Assignment
Diversity Jurisdiction
Read all text pages and 28 U.S.C.  1332 carefully. Mas v.
Perry is probably the best imaginable case for learning the
diversity jurisdiction rules. (One caveat: The amount in
controversy is now $75,000 instead of $10,000.) Read 28
U.S.C.  1359 and Article III 2 for background
846-857
28 USC 1332
Art III  2
28 USC 1359
Federal Question Jurisdiction & The Well Pleaded
Complaint Rule
Concentrate on Mottley and 28 U.S.C.  1331.
857-862
28 USC 1331
Ancillary & Pendant Jurisdiction -The Pre-Finley Framework
878-891
Supplemental Jurisdiction -- Finley & 28 U.S. C. 1367
Read 28 USC  1367. Using that statute and Gibbs be
sure you can fill in the blanks in the attached outline.
The text pages consist of notes on the Patterson case
which I have not required you to read. Ignore the
references to Patterson in those notes and try to answer
the questions raised by refering to the statute itself and to
the information provided in the notes. You do not need to
read Patterson.
Handout (Finley)
Handout (Outline to Fill In)
28 USC 1367
895-898
20
Removal
The Removal Handout consists of a series of problems
relating to removal. Please outline your answers in writing.
Some of the problems will require a small amount of
outside research.
905-920
Handout
28 USC 1441
28 USC 1446
28 USC 1447
21
Review
Please outline in writing your answers to the Spring 1993
Exam Question.
Handout
15-17
18-19
Attachments:
1) Finley & 28 U.S.C 1367
3) Removal Problem
2) Fill in Outline
4) Spring 1993 Exam Question
D:\106758681.DOC
Fill In Outline
1.
Federal courts will have supplemental jurisdiction over a claim (the
supplemental claim) if the original claim and the supplemental claim
_____________________________________________________ which is
often referred to as passing the ________________________ Test. To pass
that test,
1.
The court must have a ___________________________________ of
federal jurisdiction over the original claim, and
2.
The original claim and the supplemental claim must share
_________________________________________, and
3.
The original claim and the supplemental cause of action must be be
sufficiently related that one would expect them
__________________________________________________________
if we had a _________________________________________________.
2.
However, there are certain exceptions:
1.
If jurisdiction over the original claim is based on either a federal question
or diversity, the court will not have supplemental jurisdicition over the
supplemental claim if _________________________________________
__________________________________________________________.
2.
If jurisdiction over the orginal claim is based on diversity only, the court will
not have supplemental jurisdiction if adding the supplemental claim would
require the addition of a party whose presence in the action would
________________________________________ diversity and
1.
The supplemental claim is a claim by the
______________________ against a party joined under
1.
Rule _____. (A party joined under that rule is called a
_______________________________________________.)
2.
Rule _____. (A party joined under that rule is called a
_______________________________________________.)
3.
Rule _____. (A party joined under that rule is called a
_______________________________________________.)
4.
Rule _____. (A party joined under that rule is called a
_______________________________________________.)
2.
3.
The supplemental claim is a claim being asserted by someone who
1.
Is being added as an additional plaintiff under Rule ______.
2.
Is seeking to intervene as a plaintiff under Rule _______.
Even if all these requirements are satisfied, the court has _____________
to decline to exercise jurisdicition over the supplemental claim if
1.
_____________________________________________________.
(Be prepared in class to give a hypothetical example.)
2.
_____________________________________________________.
(Be prepared in class to give a hypothetical example.)
3.
_____________________________________________________.
4.
_____________________________________________________.
(Be prepared in class to give a hypothetical example.)
FINLEY AND 28 U.S.C.  1367
Introduction
The validity of the jurisdictional framework established by the previous cases was cast
into grave doubt by the Supreme Court's 1989 decision in Finley v. United States, 490 U.S.
545 (1989). Finley provoked a quick Congressional response -- 28 U.S.C. S 1367. To a
great extent, that response restored the pre-Finley framework. To some extent it actually
expanded the scope of ancillary and pendent jurisdiction. The following materials discuss
Finley and the Congressional response.
Finley
Mrs. Finley's husband and two children died when their plane crashed into electrical
transmission lines as it approached an airport.
After some preliminary procedural
maneuvers, Mrs. Finley sued the Federal Aviation Administration in federal court under the
Federal Tort Claims Act (FTCA) for negligence. (Under the FTCA, federal courts have
exclusive jurisdiction over such a suit.) She then sought to amend her complaint to add
claims against two other defendants: the electrical company that owned the transmission
lines and the city that maintained the airport's runway lights. There was no independent
jurisdictional basis for suing these defendants in federal court. They were not diverse from
the plaintiff and she raised no federal question regarding them. However, Mrs. Finley
argued that the Court had jurisdiction over her claims against the additional defendants
under the Gibbs framework.
In a 5 to 4 decision written by Justice Scalia, the supreme court rejected Mrs. Finley's
arguments. The Court held that the trial court did not have pendent jurisdiction over Mrs.
Finley's claims against the additional defendants because there was no statute explicitly
conferring such jurisdiction. The Court adopted a new clear statement rule: a statute
granting jurisdiction over claims against particular parties would not be interpreted as
conferring pendent party jurisdiction -- even if the pendent party claims fully satisfied the
Gibbs test -- unless the statute conferred that jurisdiction expressly.1
1I
describe the rule as "new" because it seems inconsistent with the reasoning of
Aldinger (p. 885 of your casebook) and Owen Equipment (p. 877 of your casebook). In Aldinger,
the Court relied on what it believed to be an implicit Congressional determination that the
pendent-party defendant should not be subject to suit in federal court. If, as Finley suggests it
takes explicit statutory language to grant pendent party jurisdiction, the Court would not have
needed to look for an implicit statutory rejection of that jurisdiction. Similarly, in Owen
Equipment, the Court looked for -- and found -evidence that the diversity jurisdiction statute had
intended to "negate" pendent party jurisdiction. This search would not have been necessary if
the Court had applied Finley's clear statement rule.
Finley cast doubt on long-recognized forms of pendent party jurisdiction, e.g.,
jurisdiction over a 3rd party complaint if the 3rd party defendant was not diverse from the
3rd party plaintiff. In addition, although Finley disclaimed any "intent to limit or impair"
Gibbs itself, Finley's reasoning seemed logically to require rejection of all ancillary and
pendent jurisdiction unless explicitly authorized by Congress.
The Congressional Reaction
Congress reacted quickly -- at least for Congress. Within 18 months, it enacted 28
U.S.C.  1367 which (in the words of the House Judiciary Committee Report) was intended
to "authorize jurisdiction [and thus reverse the outcome] in a case like.Finlev, as well as
essentially restore the preFinley understanding of the authorization for and limits on
[pendent and ancillary] jurisdiction."
Thus, the Court will undoubtedly treat pre-Finley case law as a crucial clue to the
statute's meaning. Nonetheless, you should read the text of  1367 with great care. After
doing so, be prepared to answer the following questions:
1)
What has Congress done to Justice Scalia's clear statement rule? In federal
question cases, what is the new clear statement rule?
2)
What has happened to Aldinger v. Howard? If the Court believes that a
particlar Federal statute implicitly -- but not "expressly" -- rejects pendent party jurisdiction,
how should the Court rule?
3)
What has Congress done to Zahn? In a diversity class action in which the
named class representatives have claims above the jurisdictional amount, would the
federal courts now have supplemental jurisdiction over claims of class members whose
claims are below that amount? Does  1367(a) confer such jurisdiction? Does S 1367(b)
withdraw it? If not, what do you make of the fact that the House Report states that  1367
was not intended to change the pre-Finley rules for diversity-only class actions and cites
Zahn?
REMOVAL JURISDICTION
In 1990, certain changes were made in the removal statutes. I'm not terribly pleased
with the material in your casebook on removal and you need not read it.
Instead, read the indicated statutes and -- in writing -- outline or write brief answers
to the following questions. The residence and citizenship of each party will be indicated in
parentheses after his/her name. The amount you learn will be directly related to the work
you put into these questions. I will not collect or grade your answers, but they will be
discussed in class -- and some will be projected on the elmo.
1.
Paul (Overland Park, Kansas) sues Denise (Kansas City, Missouri) and
Dennis (Denver, Colorado) in the Circuit Court of Jackson County Missouri.
a.
Suppose the suit arises out of an automobile accident in Jackson
County, Missouri and the amount of damages claimed is $500,000.
Can the defendants remove? Why or why not? To what court?
(Read  1441(b) with care.)
b.
Suppose the suit is an employment discrimination case brought solely
under Title VII of the Civil Rights Act (a federal statute). Can the
defendants remove? Why or why not? (Read  1441 with care.)
Could Denise remove if Dennis objected to the removal?
(You
probably will not be able to answer this question from the statute
alone. See if you can find the answer in the library. Try looking in
Wright & Miller or Moore's Federal Practice.)
c.
Suppose the suit is an action of which the federal courts have
exclusive jurisdiction. (Thus, the state court did not have jurisdiction
of the case and should dismiss it if given a chance.)
Can the
defendants remove the case to federal court? Why or why not?
(Read  1441(e) with care.)
2.
Penelope (Chicago, Illinois) sues Danny (Evanston, Illinois) and Doris
(Pittsburgh, Pennsylvania) in state court in Las Vegas, Nevada. (Doris and
Danny were personally served on February 1, 1992 while gambling at the
Sands Casino.)
a.
Suppose the suit alleges that Danny negligently smashed into
Penelope's car severely injuring her knee, and that, when Penelope
went to Dr. Doris for treatment of the knee, Dr. Doris operated on the
wrong knee. (Both the collision and the surgery occurred in Kansas
City, Missouri.) Penelope claims $1,000,000 of damages from each
defendant. Can the defendants jointly remove the case to federal
court? Why or why not? Can Danny remove to federal court? Why
or why not? Can Doris remove to federal court? Why or why not?
(Read  1441(c) with care.)
b.
Suppose the suit alleges (i) that Danny and Doris fired Penelope in
violation of Title VII, and (ii) that Danny and Doris have failed to pay
$300,000 due Penelope under a promissory note. (The discharge
took place in Nevada and the note was negotiated and signed in
Nevada.)
1)
Can the defendants remove to federal court? Why or why not?
(Read  1441(c) with care.)
2)
If they wish to remove the case to federal court, what
document(s) do they file?
(Read  1446 with care.
Pay
particular attention to subsections (a), (b) and (d).)
3)
If they wish to remove the case, in what court(s) should they
file those document(s)?
4)
If they wish to remove the case, what is the last date on which
they can file the document(s)?
5)
Assume that the proper document(s) have been filed in the
proper court(s) within the proper time(s). What is the District
Court likely to do? (Reread  1441(c) with care.)
c.
Suppose Penelope's complaint alleges a battery by Danny and Doris
committed in Nevada and claims damages of $300,000 against each.
1)
Can the defendants remove the case? Why or why not?
(Read 1441(b).)
2)
Suppose that, on October 1, 1992, (eight months after the
complaint was served), Penelope voluntarily dismisses her
claim against Danny (the non-diverse defendant). Could Doris
then remove the case to federal court? Why or why not?
(Read  1446(b) carefully.)
3)
Suppose instead that Penelope voluntarily dismisses her claim
against Danny on March 1, 1993 -- thirteen months after the
complaint was serve. Could Doris then remove the case?
Why or why not? (Reread  1446(b) carefully.)
4)
Suppose instead that, on June 1, 1992 (four months after the
complaint was filed), the state court grants Danny's motion for
summary judgment and dismisses all claims against him on
substantive grounds. Could Doris then remove the case?
Why or why not? (This is another one you will not be able to
answer from the statute alone. See whether you can find the
answer in the library.)
3.
Priscilla (Lawrence, Kansas) sues DelCorp (a Delaware corporation with its
principal place of business in Wilmington, Delaware) in Kansas state court.
Priscilla alleges a state law products liability cause of action against DelCorp,
the manufacturer of the product. She prays for $80,000. DelCorp properly
removes the case to federal court.
a.
Suppose that, during discovery, Priscilla learns that the product was
designed by Doug (Topeka, Kansas). She then moves to amend her
complaint to add Doug as an additional defendant under Rule 20.
What can the federal court do and why? (Read  1447(a) and (e)
carefully.)
b.
Suppose instead that, after removal, Priscilla voluntarily reduces her
prayer to $74,000, i.e., less than the jurisdictional amount for diversity
cases. What should the federal court do and why? (This is another
"library" question.)
4. Finally, read  1443 and  1447(d) carefully.
a.
Why does  1443 exist?
b.
If a case is properly removed under  1441 and the United States
District Court erroneously remands it to state court, can the defendant
appeal the erroneous remand? What if the case had been properly
removed under  1443 and then erroneously remanded to the state
court?
c.
Why did Congress enact  1447(d)?
QUESTION III -- SUBJECT MATTER JURISDICTION
In 1950, Paul Paulson was born in Jefferson City, Missouri. His parents were
both Missouri citizens. Paul resided in Missouri until 1968 when he went to a private
college in Oregon. While in college, he lived in the dorms. He was never particularly
happy in Oregon (too rainy) and did not intend to stay there. Instead, he wanted to
move to Hawaii, a place he had visited once as a child. He was sure that Hawaii was the
place he wanted to live for the rest of his life. However, when he graduated in 1973, he
could not afford to move to Hawaii. Instead, he returned to Missouri on what he hoped
would be a temporary basis. He went to work for Dan Danson. (Dan is a lifelong citizen of
Kansas and is the sole proprietor of Dans Shoes, an unincorporated shoe store with its
principal place of business in Kansas.) Paul continued working for Dan until July 1, 1991.
On that data, Dan fired Paul.
On January 1, 1992, Paul was offered and accepted a job as the manager of
a shoe store in Hawaii. As soon as the job was offered, he recognized it as the chance to
carry out his long time goal of living in Hawaii for the rest of his life. However, Paul did not
move to Hawaii until April 30, 1992. He began work on May 1.
On February 1, 1992, Paul sued Dan claiming that Dan had violated a state
anti-discrimination statute by firing him because of his age. (He could not assert a federal
age discrimination claim because Dans Shoes had too few employees to be covered by
the federal statute.) Paul sued in the United States District Court, praying for $80,000
compensatory damages (for emotional distress and lost wages). He claimed federal
jurisdiction only on the basis of diversity of citizenship.
Dan answered the complaint asserting that Paul was not discharged because
of his age but rather because he had embezzled $20,000 from the store.
Dan
counterclaimed for conversion praying for that amount. (Paul denied the allegations of the
counterclaim.)
In addition, Dan filed a third party complaint for malpractice against the law
firm of Mule, Kent & Howell (the Firm). The Firm is a partnership with three partners:
Mule (a citizen of Missouri), Kent (a citizen of Kansas) and Howell (a citizen of Hawaii). In
his third-party complaint, Dan alleged that, if Dan was liable to Paul for $80,000, the Firm
was derivatively liable to Dan for the same amount, since the Firm had advised Dan that he
could not be sued for age discrimination under the state statute. Under Rule 18, Dan also
joined a claim against the firm for its failure to pay the agreed $600 price for shoes Dan
had provided to the Firms basketball team.
The Firms answer denied the allegations of the third party complaint. In
addition to its answer, the Firm counterclaimed against Dan for $4,000 for unpaid fees for
the Firms advice regarding Paul. Finally, the Firm also asserted a $60,000 claim against
Paul for slander alleging that, when Dan fired Paul, Paul loudly shouted Youre probably
doing this on the advice of that bunch of crooks -- Mule, Kent & Howell.
After reviewing these pleadings, Paul added a state law claim against the
Firm for $80,000 compensatory damages alleging that it had conspired with Dan to fire him
because of his age and was therefore equally liable.
Thus, after the pleadings were closed, the following claims -- all based on
state law -- had been asserted in the case:
(1)
Pauls claim against Dan for age discrimination.
(2)
Dans counterclaim against Paul for conversion.
(3)
Dans claim against the Firm for malpractice.
(4)
Dans claim against the Firm for the price of the shoes.
(5)
The Firms claim against Dan for unpaid fees.
(6)
The Firms claim against Paul for slander.
(7)
Pauls claim against the firm for conspiracy.
As to each claim, does the United States District Court have jurisdiction over
the claim? Why or why not? As part of your answer, be sure to identify and explain the
citizenship of Paul, Dan, and the Firm.