Civil Procedure Outline

By Rose Sims,2014-04-16 08:18
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Look at corporation's nerve center ? where decisions are made (headquarters). Shamrock Oil & Gas Corp v. Sheets (SCOTUS, 1941), Court held that for stream of commerce cases - variation on purposeful availment (Part II-A).

    Civil Procedure Outline

    I. Subject Matter Jurisdiction

    A. Introduction

    ? Rule 8 a) Claims for relief pleading shall contain: short and plain statement of the grounds upon which the court’s

    subject matter depends, unless the court already has jurisdiction and the claim needs no new grounds of jurisdiction to

    support it.

    ? Rule 12h3 whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction over the subject

    matter, the court shall dismiss the action. . .

    ? Capron v. Van Norden (prior to Rules of Civ Pro) Capron fails to establish SJM initially and then goes to the court requesting

    that the case be dismissed on the grounds that 1) No mention of SJM and 2) No SJM. Case is dismissed. Represents the courts

    Represents the courts breaking of procedure to maintain the purity of the system.

    ? Rule 15a does not apply at this state because there is no pleading this is an appeal.

    ? 28 USCS ? 1653 Defective jurisdiction may be amended , upon terms, in the trial or appellate courts. (rule of forgiveness which encourages sloppiness. Safety valve)

    ? Exceptions-Lack of SJM cannot be challenged later

    o Res Judicata

    o Collateral Estoppel

B. Diversity Jurisdiction

    i) Introduction:

    ? Grant of Jurisdiction from Article III, ?2 of Constitution.

    o 1332 does not allow the full statutory grant in two ways.

    ? Amount in Controversy 75K

    ? Doctrine of Aggregation may add up amts. from different claims as b/t same parties to meet

    the amt. in controversy requirement.

    ? Complete Diversity Requirement. (Strawbridge v. Curtis)

    ii) Domicile determines citizenship- An alien is a citizen of the state in which he is domiciled.

    a Domicile has a unique federal meaning:

    (1st) Where you are found

    (2nd) Where you intend to remain

    (3rd) (or it can be the last place you were domiciled as in Mas) thb Mas v. Perry (5 Cir., 1974) Defendant appeals on ground of lack of diversity jurisdiction. Plaintiff was a citizen

    of France, and under common law, his wife would also be considered a citizen of France and thus a citizen of no

    state (outside of the reach of ? 1332). Court suspends common law rule: When husband is an alien, the common

    rule no longer applies.

    (1st) Courts decision to suspend the rule of unity of domicile, was motivated by desire to preserve the ultimate

    goal of the rule, to preserve the ability of Husband and Wife to Sue together.

    c Coporations are citizens of wherever they are incorporated and where they have their principal place of


    (1st) ? 1332 (c) 1 a corp is a citizen of all states where it is incorporated. Most states only incorporate in 1 state.

    You are also the citizen of the 1 state where the corporation has its principle place of business.

    (2nd) EXAM CHEAT:

    (i) Look at corporation‟s nerve center ? where decisions are made (headquarters).

    (ii) Look to corporation‟s muscle center ? where corporation does more “stuff” than anywhere else.


    (iii) Most court‟s look to the total activities of the corporation ? we will use the nerve center as the principle

    place of business, unless all the activities are in a single state. If the there are 5 plants in different states,

    then we will look to nerve center, but if all plants are in one state, that is where we will look.

    (iv) You must analyze on exam, talk about nerve, muscle, total activities.

    (v) EXAM HYPO- D is incorporated in Delaware, factory in PA, headquarters in NY, other plants in 6 other

    states. We know its Delaware citizenship and also analyze 3 factors to figure out principal place of business.

    (3rd) Diversity is determined at the time complaint is filed and is not affected by subsequent changes in domicile

    of parties.

    (4th) St. Paul Mercury Rule: Gives the benefit of the doubt to the ? that the claim will meet the amount

    in controversy unless it is quite clear it will be less. This rule is heavily weighted toward the ? Where

    there is a legitimate debate, the congressional mandate is satisfied. Hard time in keeping intangible damages

    out of federal court.

    C. Federal Question Jurisdiction/Implied Remedy Doctrine

    i) Introduction

    a Federal Courts did not have arising under Jurisdiction until 1875

    (1st) To encourage uniformity of interpretation of Federal Law

    (2nd) Federal Judges are smarter, and have greater expertise

    (3rd) Provide for a vindication of federal rights against states.

    b Like Diversity Jurisdiction, Statutory Grant of “Arising Under Jurisdiction”, 28 U.S.C. ?1331 is not the full

    Constitutional amount.

    c What does arising under mean? Is the primary question

    (1st) First, when looking at arising under jurisdiction, ask what th the proper contours of the claim are, . . .

    whether the claim is as lean as it could be or whether it is anticipating defense

    ii) Well pleaded complaint rule

    a A federal question that arises under an anticipated defense cannot be the grounds upon which the case reaches

    federal court.

    b Louisville & Nashville R. Co. v. Motley, Scotus (1908)

    (1st) Court took notice of lack of jurisdiction sua sponte doesn’t arise under.

    (2nd) Cause of action here was breach of contract - state law.

    (3rd) Plaintiff‟s attempt to anticipate defense that federal law would preempt their claim - Court says cannot do


    (4th) The federal claim must arise on the face of a well-pleaded complaint.

    (5th) The π doesn‟t create a federal question by anticipating, in the complaint, a federal defense.

    iii) 3 theories- The Scope of Federal Arising Under.

    a Creation\Cause of Action Theory (Justice Holmes-American Welworth)

    (1st) Narrow under Constitution and 28 USC ? 1331

    (2nd) Only if the federal law creates the cause of action

    b Ingredient or “But for Test” – (Justice Marshall, Osborn v. Bank of the United States,)

    (1st) Osborn v. Bank of the United States,

    (i) Constitutionally this case can go to Federal Court the bank was created by federal law. Fed Law is an

    indispensable ingredient to the creation of the Bank. (There is a causal chain that is rooted in federal law)

    (ii) Within the charter, the Congress has conferred Jurisdiction in Federal Court. This was sufficient, but we

    don‟t know until the 90‟s that this was necessary condition. The charter must expressly say “sue in federal


    c Meaning and Applicaton- (Smith, Moore, Merrell)

    (1st) An federal question arises, by requiring decision maker to engaged some decision of Federal Law. The

    courts have decided that there is a Constitutional Power to send some cases to Court even when the claim does

    not arise under federal law

    (i) Harms v. Eliscu ?, Harms Co and ? Eliscu are fighting about the copyrights to a song. No diversity this

    must come to court as a federal question. Lower court decides that there is no Arising Under Jurisdiction

    because court need not open up the copyright statute and interpret it. Judge Friendly distinguishes from an

    action for infringement, which would require interpretation.

    1. Congress could have granted jurisdiction in this case, but Congress did not use it because they didn‟t

    include the language in the grant.

    2. This doesen‟t get in via ? 1331 – Constitution has immaent power but does not have the steam to

    structure the system. The congress must parse and allocate federal Jurisdiction.

    3. This case would go to federal court under Osborne, the distinction made is that Federal law here

    creates the entity at issue and not the parties at issue. 28 U.S.C. ? 1338 ? are specialized grants to the

    federal courts not arising from 1332.

    (ii) Smith v. Kansas City Title and Trust Co., State law creates the cause of action. Claim is that ? is investing,

    contrary to MO corporate law, securities unlawfully created. To resolve this question court must resolve an

    issue of whether the Act authorinzing the issuance was Consstitutional- This case goes to federal Court.

    (iii) Moore v. Chesapeake & Ohio- ? claimed under state liability act that they could not be held contributorily

    negligent because ? employer violated a federal statute. You can‟t avoid looking at the federal law. The

    court does not allow this to go federal Court. Court says federal law issue is not substantial without

    adequately distinguishing from Smith.

    (iv) Merrell Dow v. Thompson (SCOTUTS 1986)

    1. ? sues Merrell Dow in Ohio State Court. Merrell Dow Removes to Federal Court, ? object asserting

    that there is no SJM

    2. The majority of the claims are state law claims with one claim under the FCDA which if the ? have thviolated will be negligent per se. The 6 circuit finds that there is no federal SJM here because

    liability could have been found without looking at the federal statute- The outcome doesen‟t depend

    on the Meaning and application of the Federal Statute.

    3. SCOTUS creates a new theory of meaning and application test:

    ? Federal jurisdiction applies if there is a federal law claim under which there could be a separate cause of action filed in

    federal court

    ? Without an independent Cause of Action there can be no Federal Jurisdiction

    ? Does not require that the ? sue on this question, only that the cause of action exists.

    4. Because the Court finds that there is no independent cause of action that comes from the Food Drug

    and Cosmetic Act, there is no SJM “arising under”

    5. If federal question wasn‟t necessarily decided as part of case, then it doesn‟t meet the

    meaning/application theory criteria. Necessarily decided test.

    6. “A complaint alleging a violation of a federal statute as an element of a state cause of action, when

    Congress has determined that there should be no private, federal cause of action for the violation, does

    not state a claim „arising under…‟” d Implied Remedy Doctrine:

    (1st) Dissent in Merrel - Does lack of mechanic for bringing a cause of action, make a statue any less

    substantial in deciding a state law issue?

    (2nd) Decision does nothing to forward goals of federal jurisdiction 1) nothing to forward uniformity or expertise,

    2) neutral at best on the protection of federal rights.

    (3rd) Under the Common Law rights and Causes or Action were unified

    (4th) Statutory commands which often makes prescriptions but does not supply what to do if prescriptions are

    not followed.

    1. Is there a cause of action?

    2. What is the Remedy ?

    3. What is the Jurisdiction?

    (ii) Cort v Ash, (Scotus, 1975) ? sues Behlehem violation of 18 USC 610, which prohibits contributions of

    corporate funds to political parties. First remedy is dismissed- change in law. The court then deals with the

    question of damages

    (iii) Sets up a four part test to determine implied remedy:

    1. Is the ? of the class entitled to protection?

    2. Any indication of the legislative intent to create or deny a remedy?

    3. Is it consistent with the legislative intent to apply a remedy ( What is the law? Does Suing advance

    purpose?)((will the suing by stockholders reverse or change corporate influence))?

    4. Is the cause of Action traditionally relegated to state law, making it inappropriate to infer federal cause

    of action?

    (iv) In this case, Court found no private cause of action implied. Intervening legislation by fed. election

    commission created an enforcement mechanism for complaints relating to violations of election law.

    (v) Schooner Peggy Doctrine (side note):

    1. If between judgment and decision of appellate court, a law intervenes and positively changes the rule

    which governs, the intervening law should be applied. Doctrine of retroactivity.

    2. The court must make decision in light of law as it stands when the court makes its decision.

    (vi) Bivens v. Six Unknown Agents of FBI (SCOTUS, 1971)

    1. Court creates an implied right of action from the Fourth Amendment of the Constitution to be free

    from unreasonable search and seizures.

    (vii) Bell v. Hood don’t need an express remedy Bivens - don‟t need an express cause of action either.

    1. Black dissents: Congress should create these causes of action; the Courts should not pull them out of

    nowhere. Congress specifically granted a statute for federal cause of action against state officials

    acting under color of state law - ?1983 why didn‟t they create one for federal officials?

    2. Today, courts tend to look to plain meaning of statute to see if a right of action is created, hesitate to

    imply a right of action.

    D. Supplemental Jurisdiction

    i) Introduction

    a Multiple Claims and Multiple Parties some of which, if looked at alone, would not have federal Jurisdiction(Riding

    the Coattails)

    b Prior to 28 USC ? 1367, the terminology spoke of pendant or ancillary claims. Terminology obsolete and we now

    talk about supplemental claims and supplemental parties.

    c First, Primary Claim determine and distinguish primary claims from supplementary claims

    d Second, Identify claims that are asserted against same party and separate parties. 1367 gives very different

    treatment to claims that involve same and different parties.

    ii) Joinder of Claims

    a Rules:

    (1st) Rule 13(a) Compulsory Counterclaims

    (i) Must arise from same T&O (same scope as Res Judicata)

    (ii) Failure to assert leads to waiver leads to waiver of the counterclaim

    (2nd) Rule 13 (b) Permissive Counterclaims

    (i) Does not have to come from same T&O

    (ii) Failure to assert does not arise in Waiver

    (iii) Permissive only to the extent that they are not barred by Res Judicata

    (3rd) Rule 13 (f) Omitted Counterclaims:

    (i) Court may allow amendment to fix omitted counterclaims

    (4th) Rule 13 (g) Cross Claims:

    (i) Permissive, No Waiver

    (ii) Must arise out of same T&O

    (5th) Rule 18 (a) Joinder of Claims

    (i) Party May join as many claims as they have whether or not same T&O, Supplemented by the rules of Res


    (ii) Allows aggregation of claims for amount in controversy requirement.

    b Joinder of Parties:

    (1st) Rule 14 Third Party Practice Not as Strong as rule rd party onto a claim. ? can object (i) Not as strong as 19 in Forcing 3(2nd) Rule 14 (a) When ? may Bring in Third Party. (Impleader) – Joint Tortfeasors rd(i) ? may implead a third party that is responsible for all or some of the ? claim against the 3 party ? rd(ii) 3 party ? may assert counterclaims or cross claims; raise defenses agains plaintiff‟s original claim; assert

    claims arising out of the same T&O against ? (RULE 13) (3rd) Rule 14 (b) When a ? may bring in a 3rd Party

    (i) When a counterclaim is asserted against a plaintiff he may implead a third party ? under the rules above.

    (4th) Rule 19 Compulsory Joinder of Parties (Forcing Parties onto a case)

    (i) Parties needed for a “just adjudication”-necessary parties for case to progress

    (ii) 2 Categories: necessary and indespensible

    (5th) Rule 19(a)- Requires “necessary” parties to be joined if it will not deprive the court of SMJ (6th) Rule 19(b)- When joinder of a “necessary” party is not possible, provides for dismissal of the case or if the

    party is not necessary, the continuation of the lawsuit without the party.

    (7th) Temple v. Synthes: (SCOTUS, 1990, Court does not allow dismissal as doctor is not a necessary

    party, joint tortfeasors are always permissive parties ? Injured by a plate in his spine; sues manufacturer ?

    in federal court and sues the doctor in state court. ? moves to dismiss for failure to join necessary parties

    (Doctor) under Rule 19(b).

    (i) No inquiry under Rule 19 (b), because requirements under Rule 19 (a) not satisfied.

    (ii) Reasons barring Res Judicata for this case include no final judgment and the parties are different.

    (8th) Rule 20 Permissive Joinder of Parties:

    (i) Grants permission for federal lawsuits with multiple parties on either side of the “v” (multiple ? or ?) –

    parties can come together and sue

    (ii) Two requirements for

    1. Claim must arise out of same T&O

    2. Claim must have a common question of law or fact

    (9th) A and B do not have to include C-?Subject to rule of intervention (10th) Rule 22 Interpleader

    (i) See also 28 U.S.C. ? 1335

    (ii) Nationwide service of Process authorized (11th) Rule 23 Class Actions (See Supplement) (12th) Rule 24 Intervention used by outsiders

    (i) Rule 24 (a)- Intervention of Right

    1. Mandatory party has right to be in suit

    2. Permissive must get permission from Court

    3. Strict test for Mandatory intervention: statute must confer a right to intervene, or have an interest in

    the prop. And the interest of the intervening party is not protected by existing parties

    (ii) Rule 24 (b) Permissive Intervention

    1. Must have a common question of law or fact

    2. Difficult to get judge will consult the existing partie.

    iii) Pre ? 1367:

    ? UMWA v. GIBBS, (SCOTUS, 1966), The question is whether the primary claim can carry secondary claims into federal court. Gibbs bringing suit under ? 303 of Labor Management and Relations Act and 2 additional

    Contract Claims.

    a Claims for which there is no independent basis for jurisdiction must arise common

    Nucleous of operative Fact” Doctrine of Res Judicata is hovering above Gibbs. Failure b Claims arising from same “nucleus” satisfy the Constitutional requirement of same case to join these cases will prevent the adjudication of the contract claims if they are not joined together in federal court.

    Or controversy?Evolves into same transaction and occurrence

    c Reasons to dismiss a pendant claim:

    (1st) Primary federal claim is dismissed early in the case.

    (2nd) Questions of State law predominate

    (3rd) Combining two claims will confuse the jury.

    d Pendent claims in diversity jurisdiction cases

    (1st) A&B are of diverse citizenship and primary claim meets the amount in controversy requisite

    (2nd) Additional claims that do not meet the Amount are allowed only between the same parties (whether the

    claims are related or not)

    ? Trend toward the narrowing of Pendant Party Jurisdiction

    ? Pendant Party: Fed Claim against ? X and a Transactionally-related state claim against ? Y. but there is no

    independent grounds of SMJ to support the claim agains ? Y.

     Jurisdictional Statute Substantive Law Rule Aldinger 1343 1983 Presumption of PP Jurisdiction Kroger 1332 State law No jurisdiction unless complete diversity Finley 1346 (b) 1346 (b) Presumption PP Jurisdiction

    ? Aldinger v. Howard (SCOTUS 1976) , ? brings suit agains offericers under 42 USC ? 1983 tries to sue the county. Did not

    succeed. SCOTUS said 1983 did not allow the county to be sued.

    (1st) Court would not assume a Congressional grant of jurisdiction in this case. Pendant party jurisdiction

    denied under Civil Rights Act, 42 USC ?1983

    (i) The decision in Aldinger is very specific to the language of ? 1983. The proposition unless congress

    excludes the exercise of pendant party jusridition it will be allowed. Negative affect but positive


    (ii) Court says this is not a constitutional problem. The claims do arise from the same case and controversy,

    however, ? 1983 refers to “officers and persons” an implied negative pregnant. Which bars suit against the


    (iii) Presumption in favor of pendent party jurisdiction? if claims related unless Congress stated otherwise.

    No jurisdiction is the result but jurisdiction presumed is the rule.

    ? Divergent regimes for Pendent Party Jurisdiction involving federal question and PP jurisdiction involving diversity

    o If it‟s a question of whether the Pendent party can attach the primary claim in a Federal Question, the

    presumption is that the whole case can go to Federal Court Avoid Piecemeal Litigation

    o There is the opposite presumption if the case rests in Diversity, many cases are sent to state court becaue

    the Pendant Claims are not diverse.

    ? Owen Equipment & Erection v. Kroger (Scotus, 1978) , Does a federal court retain jurisdiction over an action, based on diversity of citizenship, when the plaintiff adds a pendent party ? who destroys complete diversity? NO. A Federal

    Court does not retain jurisdiction over an action, based on diversity of citizenship, when the ? adds a pendent party ?

    who destroys complete diversity.

    (1st) Parallels Gibbs in pendent party context

    (2nd) Court does not allow jurisdiction over a pendent party that is impleaded later, this would be a run around ? rd1332. ? claim against 3 party can‟t be allowed to ride the coattails

    (3rd) Two corrallary Principles from this case

    (i) Timing nor Sequence of when ? brings claim does not matter

    (ii) Only the Final Snapshot matters when deciding SMJ.

    ? Finley v. United States (SCOTUS, 1989), Must Congress specifically authorize PPJ within the releveant statue conferring

    federal Jurisdiction? Mrs. Finley, whose Husband and two Children were killed when their airplane struck electric power lines,

    sued the U.S. for negligent airport maintenance under FTCA and attempted to join the city and the utility company. In order to

    obtain PPJ, the statue conferring federal jurisdiction must expressly authorize pendant party jurisdiction.

    ? Pendent Party Claims not based on neither diversity nor, Federal Question.

    ? Scalia‟s Court refuses to allow pendant party jurisdiction in the absence of an express grant of authority by

    Congress (Reversal of Aldinger v. Howard)

    ? Piecemeal Litigation will result from this (Worst Case Scenario) FTCA forces the primary claim into federal

    court, while the subsidiary, related claims must be had in state court.

    ? Supplemental Jurisdiction Under 28 U.S.C. ? 1367

    ? In Response to Finley, Congress passes ? 1367 to provide an express grant of authority to grant supplemental


    ? ? 1367 was meant to codify pre- Finley case law and preserve Kroger (to preserve the complete diversity


    ? 3 part structure

    ? ? 1367 (a) Broad, permissive grant of authority for supplemental jurisdiction

    ? Essentially allows jurisdiction to the limits of Article III

    ? Echoes of Gibbs In a case with original jurisdiction over a primary claim, federal courts will have

    supplemental jurisdiction over all claims wthat are part of the “same case or controversy” (transaction or


    ? Involves claims between two parties or additional parties (intervening or joined parties).

    ? 1367 (b)

    ? Takes a bite out of a‟s grant only over ? 1332 diversity claims.

    ? In suits under ? 1332, no supplemental jurisdiction over

    ? Claims against ? Rules 14, 19, 20, 24;

    ? claims by persons proposed to be joined as ? under Rule 19, or intervene as ? under Rule 24;

    ? When exercising Jurisdiction would destroy diversity rdrd party ? and 3 party ? ? Does not include claims by 3? 1367 (c) Grants courts discretionary power to sever supplemental claims:

    ? If novel question of state law

    ? If supp claim substantially predominates

    ? All claims with jurisdiction have been dismissed

    ? Exceptional circumstances with compelling reasons.

    ? Codifies discretionary factors from Gibbs. Once courts decide that case could come-have the option to

    deny PPJ to state claims?

    ? 1367(d) Tolls (stops the clock) on the statute od limitations while supplemental cases pending in the

    Federal Court. ndo If A ?B and if 2 claimPat has no independent basis ct. can send the whole case back.

    Party could move for severance-keep part w/independent jurisdiction in ct. If whole

    thing can come in ?Court can only send the part back without SMJ.

    ? Problems with 1367.

    ? Does ?1367(c) only authorize dismissal over supplemental claims, or can courts dismiss the entire case?

    Colorado River abstention doctrine (cited in Abbott Labs) - Court here says courts retain the discretion to

    dismiss entire case

    ? What affect does 1367 have on Aggregation Rules?

    ? Courts have held that ? 1367 does not change aggregation rules

    ? The supplemental case claims comprise “one civil action” of which the civil courts have original


    ? This is one exception for Multiple claims between same parties in amount in controversy cases

    ? Separate state law claims b/t new parties that don’t meet amount in controversy can’t be brought in,

    1367 B NY v. NJ for 85 K and NY v. OK for 25K

    ? Zahn Problem/ABBOT LABS, Does the court have subject matter jurisdiction over members of a class in a

    suit when members of that class fail to meet the amount in controversy requirement? Says the court in Zahn

    that the claim of each class member must meet the amount in controversy requirement must meet the amount in

    controversy requirement. Here Class action case filed in state court of LA , removed to federal court by ? on

    diversity jurisdiction. The plaintiffs then sought to remand for lack of SMJ.

    ? The court applying 1367:

    o 1367(a) gives class members coattail jurisdiction on the claim of the class rep.

    o ?1367(b) does not invalidate jurisdiction- Rule 23 (class actions ) is omitted

    o Ergo there is jurisdiction over supplemental parties‟ claims under ? 1367 effectively overrule Zahn. thth? Leonhardt (1998)- Tenth Circuit did not agree with 5 Circuit: Same question did 1367 overrule Zahn? The 10 court held that Congress did not intend to change the Zahn rule when a ? can bring an initial suit under rule 23.

    o Rather, reads 1367 as applying to parties added (later) to a case

    o Literal reading of ? 1367 preserves Zahn.

    o Remains an open question.

    ? Patterson Enterprises v. Bridgestone/Firestone (Kansas, 1993), When 3 parties bring suit in diversity and 2 of

    the parties fail to meet the amount in controversy, Can they ride the coattails of the third party into federal Court? Three ? sue and OH ? (Firestone) and two of the ? fail to meet the amount in controversy requirement. The court then reasons incorrectly, that the suit could be brought in federal court because 1367 only applies to parties added

    later and not those present in the beginning of an action.

    ? Courts, result if not reasoning is correct under 1367. It‟s reasoning presents a Kroger problem-It doesent matter that the parties were present at the beginning of the action, Kroger tells us that it is the “final picture across the v” that matters for SMJ.

    o A literal reading of 1367 would allow this claim to go forward because they are plaintiffs joined under rule

    20. And 1367 B only applies to ? brought in under 20.

? Removal Jurisdiction

    ? Exception to the idea that the ? is the mater of the claim. ? Purpose is to protect ? rights parallel to the ? to be protected by federal courts ? Also protects against bias

    o The vindication of these interest is only partial.

    ? General: Any case that could be brought in federal court originally, can be removed ? 1441a unless, the suit

    rests in diversity and any ? that is a member of the same state. ? 1441(b)

    ? ? 1441( a) Cases are removed to the federal district court for the district and division embracing the place

    where the state cause of action is pending

    ? This rule is subject to the well pleaded defense rule, a federal defense to the claim will not allow removal

    ? This is motivated by a strategic desire for the ? to get to federal court by restyling the case in his own image.

    ? Shamrock Oil & Gas Corp v. Sheets (SCOTUS, 1941), Court held that ? could not remove based on fedral


    ? In federal question cases, action is removable without regard to the residence or citizenship of the parties 1441


    ? ? 1446 governs the Procedure for Removal and it is very strictly imposed.

    ? There are implicit waiver rules, the fact that one of the time deadlines has not been met can make a basis for

    failure to remand.

    ? Failure of procedural requirement

    ? Lack of SMJ is never waived.

    ? ? 1441 (C) Removal of Multiple Claims

    ? Dead Letter

    ? 1367 (c) does the work of supp J.

    ? When removing a case, must look to ? 1367 (C) to determine if there is jurisdiction over the entire case/all


    ? ? 1441 d Foreign States as ? may remove ( tried without Jury)

    ? ? 1441 (e)-An action removed from state court that had no jurisdiction to hear the case is not precluded from

    being heard in federal court.

    ? Defeating Removal

    ? Adding a fugazi/insubstantial/unnamed party

    ? Real Party and Interest Doctrine Rose v. Giamatti (S.D.Ohio, 1989) - Citizenship of nominal parties may be

    disregarded for purposes of diversity of citizenship.

    ? Claim amount in controversy less than 75 K.

    ? Distinction between pre removal and post removal by amendment.

    ? Pre-removal ? is master of his complaint

    ? Post removal is looked at carefully by courts not allowed to do this

    ? Additional Parties:

    ? Under Primary Federal question claim, ? 1367 (a) gives jurisdiction to pendant State law claims

    ? Under diversity claim, joining a party who is a citizen of the state in which the action is brought can defeat

    removal. ? 1441b

    ? Additional claims-

    ? Adding a claim that does not have supp J under ? 1367 can defeat removal

    ? Dropping Federal Claim

    ? Carnegie Mellon University v. Cohill (Scotus 1988) Crossing of 1441 and 1367. Does court have the authority to

    remand for this reason (which is not one of the two listed in the statue, but is part of the discretionary factors of ?

    1367c?) Can the court only dismiss or does the judge have the option of remanding the case? ? brought suit in state

    court, ? remvoved to federal court based on federal question jurisdiction. ? later dropped federal question claim and sough

    an order to remand. Remand allowed for reasons of efficiency, fairness and comity and that 1367 C, which gives

    discretion to dismiss in pendant party/claim cases is present in ? 1441-1446.

    ? 28 U.S.C. ? 1446 Procedures for Removal

    ? ? must file notice of removal in federal district court

    ? All ? must agree on removal

    ? Must be filed within 30 days of receipt of claim

    ? 28 U.S.C. ? 1447 Procedures after Removal

    ? Upon filing notice, the case is deemed removed

    ? Motion for remand must be filed within 30 days.

    ? An improperly removed case must be remanded to state court

    ? Two Grounds for Remand

    ? Defect in Removal Procedures

    ? Lack of SMJ

    ? ? 1447 (d), orders to remand are not reviewable on appeal

    ? Thermtron v. Hermansdorfer (Scotus, 1976), District Court remanded a properly removed case (diversity jurisdiction) for

    a reason not authorized by removal statue ( judge said docket overcrowede) Court noted that remand was only authorized

    under the two circumstances mentioned in 1447 Court Held that under ? 1447 (C) and (d) must be read together?

    ? ? 1447 (e) gives the court authority to deny joinder of additional parties by ? if they would destroy

    jurisdiction (or allow joinder and remand)

    Personal Jurisdiction & Motions Practice: ? ? Introduction:

    ? Two requirements for assertion of Personal Jurisdiction:

    ? Power over the person Abstract power of the sovereign to bring parties it and bind them.

    ? Perfection of Power Court must take steps to effect the power over the parties

    ? Service of Process

    ? Procedures are geared to provide notice and opportunity to be heard.

    ? Three Forms of Personal Jurisdiction:

    o In personam Over the person full extent of liability for the matter.

    o In rem Jurisdiction over a thing to determine the statuts of the proper case actually involves something about

    that property (RULE 4N)

    o Quasi in Rem: Jurisdiction over property the cause of action is not related to the property and the damages are

    limited to usually when the court has with in it‟s authority property owned by the person.

    ? Personal Jurisdiction is derives initially from a set of common law standards. nd? Personal Jurisdiction is the 2 of three hoops that must be cleared by the poodle in order to bring a cause of action.

    ? There has been a gradual constitutionalization over the course of 200 years of Personal Jurisdictgion

    o Mobility and Mass transit lead

? Traditional Basis for Personal Jurisdiction

    ? Formal, geographical, territorial, physical presence, authority of the sovereign

    o Idea that the power of the courts extended to the boundaries of the State

    o Required

    ? Domicile within the state

    ? Physical presence

    ? Or the waiver/consent of the out of state party. ? Tickle V. Barton (Supreme Court of WVA, 1956 Sike! There’s no banquet but here’s a summons) Is a service of

    process that is achieved of that is achieved through trickery, deceit and subterfuge null and void? What is the

    appropriate measure to take upon discovery of a defective service of process? ? was injured in an accident in WVA, by

    a Virginia resident. Court holds that this fraud nullifies the PJ. The case is dismissed.

    o Traditionally, power of the court extends to the border of that courts geographical area the court can’t reach

    over and summon you

    ? Pennoyer v. Neff (Scotus 1877) Personal Jurisdiction is acquired by personal service inside the territorial limits of the

    foum state or by voluntary appearcnace of the ? there to contest the suit on its merits. (And not a special appearance

    to contest PJ)

    o Initial movement int the Constitutionalization of due process of law. ? First case: Mitchell sues Neff in (CA) in Oregon

    o Notice of suit is published in paper

    o Oregaon rule allows PJ based on seizure of property in the state together with notice published in paper. Mitchel

    wanted to commence Quasi in rem action,

    o The problem is that the court did not seize the property prior to asserting jurisdiction rather the property was seized

    after the court entered the judgment.

    ? Secondly: Neff sues Pennoyer in federal court to quiet title

    o Neff collaterally attacks first case on the basis that the court lacked PJ

    o Service defective there was no seizure of the property prior to the judgement

    o Court does not enter the judement on the first case

    o Court argued notice is given to by the seizure, property owners are thought to become aware of actions

    o Barring seizure, Neff was deprived of notice and opportunity to be heard, which Court says is a Constitutional due

    process right.

    ? Quasi in Rem and in rem jurisdiction are acquired by the presence of nonresident ? property in the forum state and the

    attachment of property at the start of the action

    ? Due process must protect the rights of the individual who owns property.

    ? Courts retain jurisdiction over persons domiciled in the state despite their physical absence from the state.

    ? Blackmer v. United States. Court did allow to serve process on an absent citizen of the state.

    ? Miliken v. Meyer the Court allowed jurisdiction over a resident who has established another residence. Domicile was

    enough to bring to bring an absent ? within the reach of the state’s courts. This was stretching to the breaking point

    ? Modern Personal Jurisdiction and long-arm statutes

    ? After Pennoyer there is a gradual movment to a more functional standard for the courts to exercise power and


    o Principle of where a person was gave way to the principle of whether there was a relationship between the

    person and the jurisdiction

    o Innovations in Travel, Technology

    o and the formation of corporation as an entity

    ? More focus shifted to ? rights th Amendment Due Process Clause ? These considerations were Constitutionalized under the 14

    ? Expanding PJ

    o States resort to legal fictions to establish PJ over non-residents, while maintaining the tradiational notions of

    jurisdiction (presence and consent)

    ? Constructive Consent parties deemed to consent to pJ by driving through state

    ? Consent to appoint state registrar as your agent for receiving process (Your agent is thus present in


    ? Hess v. Pawloski (Scotus 1927 Drive By PJ) Court upholds Constitutionality of MA statute that says PJ can be

    acquired by implied consent of party driving through the state. MVA registrar is appointed as your agent for

    receiving notice

? International Shoe v. Washington (Scotus 1945) Int’l Shoe (DE Corp) with HQ in St. Louis, had a salesman operating in

    Washington State, but no offices, etc. State Sues to collect taxes from Corporation. Apperas “specially” to constest PJ,

    argues its activities in the state do not amount to presence.

    ? Court here breaks from Hess and decies standard for establishing PJ (for corporations) “Minimum Contacts”

    between the corporations and the forum state.

    ? Mini Cons must be make sure that “ traditional notions of fair play and substantial justice “ are met ? Two concepts to fulfill meaning of minimum contacts:

    o ? burden and expectation must be considered

    o Reciprocity (Purposful Availment) - ? took advantage or invoked protection of the laws of the state, he must

    therefore submit to Jurisdiction

    ? Minimum Contacts Taxonomy:

    o Continuous and systematic contacts and cause of action arises from these contact (Specific Jurisdiction)

    o General jurisdiction if activities are sufficiently continuous, and systematic and Cause unrelated

    o Sporadic, casual single act and cause arises from the act might give rise to PJ

    o Sporadic single act and cause arises not from contacts not enough to establish PJ

    ? Post international Shoe.

    ? Long Arm Statutes expanded the reach of state courts to assert jurisdiction

    ? Single Action Statutes: point to single act (torts) and provide a rule for service of process

    ? Activity Statutes “doing business” in a given forum

    ? Laundry list Statutes: point to a single act ( committing a tortuous act in the state) and provide a rule for

    service of process

    ? Outer Limit Statutes as in California they allow jurisdiction to the limits of Constitutional PJ.

    ? Two part analysis for asserting PJ

    o Does the statutory grant or authority allow the exercise of PJ

    o If Yes, then is that exercise consistent with Constitutional PJ

    ? Key Minimum Contacts Concepts:

    o Reciprocity (International Shoe)

    o Undue Burden on ? (International Shoe)

    o Purposeful Availment (Gray)

    o Forum Specififc Factors (Gray and World Wide Volkswagon)

    ? Appropriate place to litigate?

    ? Evidence/witnesses available

    ? State interst in providing a forum for vindication of it‟s citizens rights ? Trajectory of Minimum Contacts

    ? Gray v. American Radiator (SCt. ILL), Sailing along the stream of commerce! Introduces the concept of purposeful

    availment into SOC case. Because ? injected radiator valve into the stream of commerce. Minimum contacts exist where

    the maker of a product injects that product into the stream of commerce for ultimate sale in another state; not

    unreasonable to hold manufacturer liable in forum state.

    ? Forseeability of ? products entering Illinos forum was central to the analysis. ? Minimum Contacts Doctrine is stretched to the limit by the stream of commerce cases. O’connor in Asahi will later

    step back from such a low bar however only partly, hers was not a majority decision.

    ? ? challenges PJ on two grounds:

    o Statute does not apply (Tort happened out of Forum because the part was negligently produced elsewhere)

    o Even if the statute does apply, it is unconstitutional because exertion of power takes minimum contacts too far (this

    is a single act)

    ? Mcgee v. International Life Insurance Co. (Scotus, 1957)

    ? Specific Jurisdiction

    ? Single or isolated contact (contract) personal jurisdiction case (CA citizen has an insurance policy with a TX corporation).

    ? Court holds that the continuous activity on this one policy is sufficient contact to ground personal jurisdiction. Purposely

    avail itself of forum thru deliberate maintenance of contract on a regular basis.

    o Systematic and continuous, though narrow.

    o Volitional - Insurance company could have quit at any time.

    o Court also weighs systemic factors:

    ? CA has an interest in seeing rights of its citizens protected (CA law).

    ? Witnesses most likely in CA.

    o Plaintiff would be at a considerable disadvantage if he was forced to sue outside of forum. ? Hanson v. Deckla (Scotus, 1958) Beginning of Purposeful Availment! Granny leaves money to Granddaughters in

    Delaware and Daughters in Florida!

    o Simultaneous Lawsuits

    o Similar to McGEE in that there is a single contract here But it is not enough to establish PJ over Delaware

    Trustee by FL Court.

    o ? did no business, advertise, or have an office in Delaware

    o Contact is unilateral by one party moving to florida, DE trustee did not purposely avail of Fl laws.

? Collateral attack FL judgment against Trustee rendered void.

    ? Fills in elements of substance of a ? connection with a potential forum state. (Hanson and Mcgee) ? World Wide Volkswaagen v. Woodson (Scotus, 1980), ? purchase care in NY, drive it through OK where they have an

    accident and car‟s gas tank blows up. Product Liability Suit in Ok naming WWVW, the distributor and an NY corp with no thbusiness contacts to OK as ?. ? constest PJ on Minimum Contacts grounds-violation of Due process under the 14

    amendment. OK Supreme Court held that OK long arm reached ?. Scotus reverses. DEFENDANTS DID NOT


    ? Forseeability but not mere foreseeability.

    o ? say that I was foreseeable for car to travel and end up in OK

    o As in Gray, this is an unilateral action but it is on the part of the ?; there is no purposeful availment of OK law by

    the ?

    o Stream of Commerce analysis in defective product cases. Landmark foreseeability of where ? can anticipate or

    forsee being brought into court.

    o The Court distinguishes Gray. In WWW, the purchase in NY was the last stop in the Stream of Commerce-?

    then moved the car unilaterally to OK

    ? Forum Factors Also Evolve from here

    o ? Burden of defending

    o ? interest and convenience

    o Interests of Fourm State

    o Interest of the States together- most efficient administration of justice in furthering fundamental social policies

    ? Effect of Forum Factors

    o “plus factor” – boost minimum contacts over threshold of fairness

    o Minus factor there may be sufficient contacts but it would not be fair to exert PJ here.

    ? Keeton v. Hustler Magazine, Inc. (SCOTUS, 1984)

    o Π’s lack of contracts w/the forum state won‟t defeat otherwise proper PJ.

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