Fall Civil Procedure Outline Final

7/31/2019 Fall Civil Procedure Outline Final

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PERSONAL JURISDICTION

Personal Jurisdiction: a courts ability to exercise power over a particular defendant.

A court cant exercise power over D unless:

(1) it has some connection with D; OR

(2) with the accident that gave rise to Ds claim.

What statute does the state have that gives it jurisdiction? The Constitutional authority to exercise personal jurisdiction is not self-executing

o Two types: Nonresident motorist statute (Hess) Long-arm statute

Must look at the text of the statute itself.A federal court has the same jurisdictional reach as a court of the state in which it sits. Rule 4(k)(1)(A)

Be sure that if the state does have a statute that would reach the defendant to exercise jurisdiction that it still

omplies with the DPC.

Two types of Personal Jurisdiction

1. General jurisdiction for all purposes

2. Specific jurisdiction for these claims

Basis for Personal Jurisdiction:

. Consent:

A. Express:

a. Forum Selection Clause a specific agreement to submit to jurisdiction

Validty of FS clause - (Carnival Cruise Lines, Inc. v. Shute)

(1) must give sufficient notice of the forum provision

a. P must know that they are consenting to jurisdiction

(2) must be fundamentally fair

a. the forum may not be in a place that would generally discourage litigation

b. Bad-Faith intent of the chosen forum depends upon:

1. where the companys principal place of business is located

2. where the possible litigants are OR where the events occur that may give rise to claim

(3) fraud or overreaching may not be used to obtain consent to FS clause

B. Implied:a. if D appears in court and doesnt challenge jurisdiction (Pennoyer v. Neff)

b. Agent within State that accepts service of process.

2. Physical Presence within the State:

a. if D is found within the state when served (Burnham v. Superior Ct.)

b. TAG jurisdiction: mere presence and service with process establishes jurisdiction

c. Exceptions:

i. service of process obtained by force or fraud is insufficient.

Example: P cant kidnap D force him into a state then serve him with process.

ii. Witnesses in court proceedings have immunity from service of process


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3. Residency:

a. if D is a resident of the state (Pennoyer v. Neff)

b. a resident may be served out of state, according to the rules of his state of residency (Milliken v. Meyer)

3(A) State of Incorporation:

a. a state has power over any business incorporated there.

4. Acts bringing D within the states Long-Arm Statute

5. Minimum Contacts: (Contacts between the State, the defendant, and the claim)

Ds minimum contacts with a state must make it reasonable to require him to defend a suit there, such that it

does not offend notions offair play and substantial justice. (International Shoe v. Washington)

Note: Any assertion of state court jurisdiction must satisfy the minimum contacts standard. (Shaffer v. Heitn

Test for sufficiency of minimum contacts for a non-resident individual or corporation

(I.) Amount of Contacts

1. Continuous and Systematic acts within the state

A. Did it give rise to the claim?

If Yes, jurisdiction exists

If No, jurisdiction may or may not exist:

a. will exist if general jurisdiction can be established.

b. if not then there is no jurisdiction.

2. Single or Isolated act within the state

A. Did it give rise to the claim?

If Yes, jurisdiction exists only if D purposely availed OR its reasonable from Ds conduct

If No, the ct. does nothave jurisdiction

(II.) Quality and Nature of Contacts

1. Purposeful Availment -

A. jurisdiction exists if D purposely avails himself of the privilege of conducting activities in a sta

i. D must make a deliberate choice to relate to the state in some meaningful way (McGe

ii. jurisdiction exists if D initiates contact with a forum state

B. If Ds conduct and connection with the state are such that he should reasonably anticipate be

haled into court there.

C. Examples:

1. if D contracts with a resident and the forum state is (McGee & Burger King)

(the place of negotiation, execution, and performance of the contract)

2. If D solicits, advertises, conducts, or markets business toward a state.

2. Not Purposeful Availment when -

A. Ds relation to the state is merely a result of Ps unilateral acts

B. a mere likelihoodthat an event might occur in the forum state from Ds actions is insufficien

(if merelyforeseeable and nothing else)


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Examples:

1. P buys an automobile from D in NYC, drives to OK and has an accident. (World-Wide)

2. P buys a trust in PA, from a trustee in DL, then moves to FL and dies. (Denckla)

3. Purpose Availment in the Stream of Commerce -

A. Occurs when a manufacturer or component seller sells their product to a party who then

distributes the product into several states. Asahiv. Superior Ct.

OConnor Approach:1. Mere awareness that a product will enter a state through the stream of

commerce is insufficient.

2. Ds actions must bepurposely directedtoward the forum state

a. advertising, marketing, designing the product for the market in that state

Brennan Approach:

1. sending goods into the stream of commerce (in substantial quantities) constitutes

purposeful availment

Note: Binding authority If D seeks to serve the market in a forum state by designing the produ

for the market in that state or advertising there, D has purposely availed himself of the market.

4. Purposeful Availment based on Wrongful Conduct

A. if D engages in intentionalwrongful conductthat has effects within a state, the state has jurisdict

i. Mere knowledgethat ones tortuous conduct may harm a resident of a foreign state is

insufficient to establish express aiming at a forum state. (Pavlovich v. Spr. Ct.)

ii. wrongful conduct must bepurposely directedtoward a particular resident of a state

Example: a reporter in FL wrote an article defaming an actress in CA. CA had jurisdiction

because D knew P lived in CA and that the harmful effects would occur there.

(Jones v. Calder)

Example: Ds internet site caused damage to plaintiffs in CA. CA did not have jurisdictio

because Ds conduct was not purposely directed toward P or the residents of CA. Ds

knowledge that his conduct may harm entities in CA was insufficient for jurisdiction.

(Pavlovich v. Spr. Ct.)

5. Purposeful Availment over the Internet (Pavlovich v. Spr. Ct.)

Is personal jurisdiction based solely on Internet Use ever proper?

A. Yes, when D knowingly and continuously contracts with residents of a state over the Internet

B. No, when D simply posts information on the internet that is available for anyone to use.

C. Maybe, depending on the level of interactivity and commercial nature of the exchange of

information that occurs on the Web site.

6. Jurisdiction by Necessity:

a. The court granted jurisdiction because P had nowhere else to bring her claim. (Perkins v. Bengu


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(III.) Five Factor Reasonableness Test

1. The burden on the defendant

2. The forum states interest in adjudicating the dispute

3. Ps interest in obtaining convenient and effective relief

4. the interstate judicial systems interest in obtaining the most efficient resolution of controversies

5. the shared interest of the several states in furthering fundamental substantive social policies

Note: If minimum contacts and PA are not satisfied first, the 5 factor test CANNOT be applied.a. The 5 factors are only applied when MC and PA exist but the analysis can still go either way

for each.

i. discussed in dissent of Worldwide, Asahi, and Burger King

General jurisdiction: substantial and continuous contacts with a state, such that D is subject to jurisdiction for all

laims even if unrelated to its activities within the state.

Example: Microsoft can be sued for anything anywhere because it does business all over.

(e.g., companies with extensive activities, personnel, and facilities in a state)

Perkins v. Benguet: personal jurisdiction was proper even though the claim(failure to issue stock benef

was unrelated to Ds contacts with the state. Ct. held that the state was like their PPB because of all th

business conducted there.

Helicopteros Nacionales v. Hall: the cause of action was completely unrelated to purchases made with

the forum state. No evidence indicated that D tried to relate to the state in anyway. General jurisdictio

was denied.

pecific Jurisdiction: when Ds contact with the state is what specifically gave rise to the claim.

Example: car accident when driving through a state.

nternational Shoe- Forum can assert personal jurisdiction over a defendant who is not present in the forum if the defendant has

certain minimum contacts with the forum such that the maintenance of the suit *against the defendant+ do

not offend traditional notions of fair play and substantial justice.

o Must ask how much activity is in the forum Nature and quality of contacts

Continuous and systematic general jurisdiction Cause of action related to or raise from contacts specific jurisdiction

o Is the claim asserted related to the defendants activities in the forumHanson v. Denckla- Added to International Shoe test.- Must have purposefully availed itself of the privileges of conducting activities within the forum State, thus

invoking the benefits and protections of its laws.

Calder Effects Test

- A defendant outside a state who intentionally directs tortious activity into a state has purposefully availed itseof the privileges of conducting activities within the forum State.


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3 Categories of Personal Jurisdiction

n Personam Jurisdiction (Power over Person)

a. court may order D to do or refrain from doing something.

b. if a court has jurisdiction over D and renders a judgment to P, P can go to Ds state and enforce the money

judgment.

n Rem Jurisdiction (Power over Property)

a. a state has power over any non-residents property that is located within its limits if D owes money or dama

to one of its residents. (Pennoyer v. Neff)i. a subsequent proceeding against the non-residents property can be brought (In Rem proceeding)

b. In rem proceeding: a direct proceeding against the property of the defendant for the purpose of seizing the

property. A dispute over an interest in property. A claim against the property itself.

c. Pennoyer v. Neff: a court may have jurisdiction over a non-residents property but not his person. Meaning

owes money the court can seize the property to get the money back. But the court may not have jurisdiction o

the owner for actions that have nothing to do with the property itself. The action must be against Ds property

not against D himself. The court held that unless Neff was personally served in state or appeared in court,

constructive service in this case was inappropriate.

d. Minimum Contacts analysis must be done to establish jurisdiction in an In Rem proceeding. (Shaffer v. Heitn

Quasi In Rem Jurisdiction (something)

a. When jurisdiction is established because Ds property is attached, but the property is completely unrelated

the plaintiffs cause of action.

b. Ownership of property is a contact, but mere ownership does not conclusively establish jurisdiction.

i. presence of property in state may be sufficient when no other forum is available to P.

c. Minimum Contacts analysis must be done to establish jurisdiction (Shaffer v. Heitner)

Raising a Jurisdiction Defense

1. Do Nothing: Decline to appear. And attack the judgment when P seeks to enforce it later.

2. Special Appearance: D can appear in court and object to jurisdiction without his appearance being consider

consent to jurisdiction.

3. Rule 12 (b) (h) (g): includes waiver of the jurisdictional defense (only in federal cases) pgs. 37-40


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NoticeI.) Notice in State Court (the constitutional requirement)

Notice is adequate when reasonably calculated, under the circumstances, to reach all interested parties.

Reasonableness

1. Adequate information: notice must convey sufficient information for how and when to respond

2. Timeliness: notice must allow a reasonable time to appear in court

3. Method (Mullane)Sufficient when:

a. Personally Served on D within the state

b. Given according to the state statute

c. by constructive service, if D is missing or unknown; AND

d. if an alternative method would be too expensive, time consuming, or burdensome. (Mullane

Insufficient when:

a. by constructive service, and Ds whereabouts are known or can be ascertained

b. if there was a better means available and reasonably practical

Note: Ask Was the most reasonable means available to give notice employed?

If no, notice was insufficient

If yes, notice was achieved

Common Law Requirement of Notice

Constructive Service: service by publication

Pennoyer v. Neff- constructive service is proper when:

(1) D is a non-resident, who cant be found, but owns property within the state

(A) if the action is a direct proceeding against property of the non-resident

(B) Insufficient if D does not own property within the state.

II.) Notice in Federal Court - Rule 4

(e) Serving an Individual

If D is not a minor, incompetentperson, and has not waivedservice then he may be served by:

(1) following the states law for service of process where the district court is located; OR

(2) delivering a copy of the summons and complaint to:

(A) the individualpersonally

(B) the individuals dwelling or usualplace of abode with someone of suitable age and discretion who

resides there(C) an agentauthorized by appointment or by law to receive service of process


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II.) Notice in Federal Court - Rule 4 continued

(h) Serving a Corporation

If D is has not waived then he may be served by:

(1) (A) following the states law for service of process where the district court is located; OR

(B) delivering a copy of the summons and complaint to:

-an officer-managing or general agent; or

-any other agent authorized by appointment or by law to receive service of process

AND

If authorized and required by statute also by:

-mailing a copy of each to the defendant

(2) at a place not within the U.S. according to Rule 4(f), except personal delivery under f-2-C-i

Note: Even if you have been properly served, you may still challenge the existence of personal jurisdiction


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ONG-ARM STATUTE

n order to assert personal jurisdiction over a non-resident defendant:

(1) The facts must bring D within the long-arm statute; then

(2) D must have sufficient minimum contacts to comply with Due Process

9-10-91 Personal Jurisdiction Over Non-Residents of State

A court may have jurisdiction over any nonresident, for a cause of action arising from the following acts:

(1) Transacts any business within this state

(2) Commits a tortuous act or omission within the state, except for defamation

(3) -Commits a tortuous injury within this state (or to a resident of this state)

-caused by an act outside the state

-if the tort-feasor:

- regularly does or solicits business; or

-engages in any other persistent course of conduct; or

-derives substantial revenue from goods used or consumed

-or services rendered in the state

(4) owns, uses, or possesses any real property situated within this state; or

(5) With respect to proceedings for divorce, separate maintenance, annulment, or other domestic relations ac

or with respect to an independent action for support of dependents, maintains a matrimonial domicile in this

state at the time of the commencement of this action

OR

If the defendant resided in this state preceding the commencement of the action, whether cohabiting during t

time or not, notwithstanding the subsequent departure of one of the original parties from this state and as to a

obligations arising from alimony, child support, apportionment of debt, or real or personal property orders or

agreements, if one party to the marital relationship continues to reside in the state.This paragraph shall not change the residency requirement for filing an action for divorce.

(6) Has been subject to the exercise of jurisdiction of a court of this state which has resulted in an order of

alimony, child custody, child support, equitable apportionment of debt, or equitable division of property,

Notwithstanding the subsequent departure of one of the original parties from this state, if the action

involves modification of such order and the moving party resides in this state, or if the action involves

enforcement of such order notwithstanding the domicile of the moving party.


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VENUEVenue is supported by state and federal statute.

ts purpose is to restrict where P can bring his claim to a place that has some relation either to the defendant or th

events that gave rise to the claim.

ederal Venue Statute: 28 U.S.C. 1391 determines the judicial district in which an action within the jurisdiction

he federal courts may be brought.

28 U.S.C 1391

VENUE GENERALLY (In Federal Court)

A) A civil action where jurisdiction is based only on diversity may be brought only in:

(1) a district where any defendant resides, if all defendants reside in the same state

(2) a district where a substantial partof the events or omissions giving rise to the claim occurred,

OR a substantial part of property that is the subject of the action is situated, or

(3) a district where any defendant is subject to personal jurisdiction at the time the action is commenced,

IF there is no district in which the action may otherwise be brought.

(arising under federal law)

B) A civil action where jurisdiction is not founded solely on diversityof citizenship may be brought in:

(1) a district where any defendant resides, if all defendants reside in the same state

(2) a district where a substantial part of the events or omissions giving rise to the claim occurred, OR

a substantial part of property that is the subject of the action is situated, or

(3) a district where any defendant may be found, if there is no district in which the action may otherwise be

brought.

C) A defendant corporation resides in any district where it is subject to personal jurisdiction at the time the actio

commenced. (look in book for district within state)

D) An alien may be sued in any district. (foreign Ds)

Notes on Venue:

1. Residence: a person may reside wherever they maintain residences, thus you may be a resident of several plac

2. Products Liability - substantial part of the events would probably be:(1) where the product was manufactured; AND

(2) where the injury occurred

3. 1391(b)(3)found: you are found in any district where service of process was given (or probably were Per Ju

4. If Ds are both foreign and domestic: venue is proper for the foreign Ds wherever it is proper for the domestic

5. 1391 only applies to cases originally brought in Federal Court. If a case was REMOVED federal venue statutes

NOT apply!!! (state venue stuff pg. 163)


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TRANSFER and FORUM NON CONVENIENS

ven if a court has power to hear a case (i.e., personal jurisdiction and venue exist) the court may decline to do so

easons of justice and efficiency.

1404 Transfer of Venue:

1) applies only to federal courts

2) allows federal courts to move cases around the country to other federal courts

3) Plaintiff or Defendant can seek a transfer of venue

Procedural Requirements in order to Transfer under 1404

1. Personal Jurisdiction and Venue must be proper in the current district AND where the case is being transfer

2. The suit must be in Federal Court first by either:

a. the P bringing it in federal court under 1331 or 1332 (subject matter jurisdiction); OR

b. D removing it to federal court under 1441.

28 U.S.C. 1404 Transfer of Venue:

A) -for the convenience of parties and witnesses,

-in the interest ofjustice,- a district court may transfer any civil action to any other district or division

-where it might have been brought ***personal jurisdiction and venue required***

B) Upon motion, consent, or stipulation of all parties

any action, suit, or civil proceeding, or any motion or hearing thereof,

may be transferred, in the discretion of the court,

from the division in which pending to any other division in the same district.

Transfer of proceedings in rem brought by or on behalf of the U.S. may be transferred under this section witho

the consent of the U.S. where all other parties request transfer.

C) a district court may order any civil action to be tried at any place within the division in which it is pending

D) District courtincludes Guam, the N. Mariana Islands, and the Virgin Islands

Note the forum is usually inconvenient for the parties when:

1. many of the witnesses are in another place

2. when much of the physical evidence are in another place

3. if the suit has several defendants or other similar lawsuits that are taking place elsewhere

4. if the defendant could be subject to prejudice in that forum


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Common Law: forum non conveniens

1. used in both state and federal courts.

2. allows courts to dismiss a case so it can be retried somewhere else.

3. Forum Non Conveniens is only available to the defendant

a. D can use to dismiss a state claim, so it may be tried in a different state

b. D can also use in federal or state court to dismiss a claim, so it may be tried in a different country

4. State courts have statutes to transfer between courts within the state, BUT may NOT transfer to another State

orum Non Conveniens Elements

A defendant can seek to dismiss a case on the grounds of forum non conveniens when:

(1) an alternative forum has jurisdiction [and venue] to hear a case; AND

(2) when the chosen forum would:

a. establish oppressiveness and vexation to D out of all proportion to Ps convenience; OR

b. when the chosen forum is inappropriate because of the courts own administrative and legal problem

Private Interest Factors affecting the convenience of litigants

1. access to sources of proof

2. availability of compulsory process for attendance of the unwilling

3. the cost of obtaining attendance of witnesses

4. ability to view the physical evidence at premises

5. anything else that would make trial easier

Public Interest Factors affecting the convenience of the forum

1. court congestion (if there are several litigants)

2. local interest of having the controversy decided somewhere else

3. having a diversity case in a forum that is at home with the law that must govern the action4. avoiding conflicts of laws issues

5. the difficulty in applying foreign laws

6. unfairness of burdening citizens in an unrelated forum with jury duty

Piper Aircraft v. Reyno:

1. The possibility of an unfavorable change in law is NEVER relevant in a forum non conveniens inquiry.

2. A foreign defendants choice of forum is given less deference for convenience.


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SUBJECT MATTER JURISDICTION

ederal Courts have the power to hear cases that either:

(1) arise under federal law; OR

2) are disputes exceeding $75,000 between citizens of different states

Note: both federal question and diversity cases may be brought in State court

xclusively Federal Cases:Patents, Admiralty, Bankruptcy, and Anti-Trust

xclusively State Cases:

Auto Negligence between citizens of the same State

amily Law

28 U.S.C. 1331 FEDERAL QUESTION JURISDICTION

District courts have original jurisdiction of all civil actions arising underthe Constitution, laws, or treaties of the

United States.

Arising Under Federal Law of Not?

1. 1331 only applies if Ps claim requires proof of federal law.

a. Well Pleaded Complaint Rule: P needs to raise the federal issue in her complaint as one of the elements

that must be proven in order to establish her claim. Louisville v. Mottley

2. The federal issue cannotarise out of the Ds anticipated defense or during the course of litigation in some way.

3. If it is a state law claim the Ps right to relief must depend on the interpretation or application of a federal law.

4. Bottom Line: The federal issue must give rise to the plaintiffs claim.

Note: Article III of the Constitution has a broader arising under rule. It gave federal cts power to hear state case


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DIVERSITY JURISDICTION

1. The purpose of diversity jurisdiction in federal courts is to provide a neutral forum.

2. Complete Diversity: all of the plaintiffs must be from different states than all of the defendants at the time the

it brought. Stawbridge v. Curtiss

a. If one defendant and one plaintiff are from the same state, diversity does NOT exist.

b. Complete diversity is NOT needed in class actions, if most members of the class came from one state

28 U.S.C. 1332

DIVERSITY JURISDICTIONA) The district court has original jurisdiction of all civil actions where the matter in controversy exceeds the sum o

value of$75,000, exclusive of interests and costs,

and is between,

(1) citizens of different States;

(2) citizens of a State and citizens or subjects of aforeign State;

(3) citizens of different States and in which citizens or subjects of aforeign state are additional parties; AN

(4) a foreign state, defined in section 1603(a) of this title, as Pand citizens of a State or of different States

*An alien admitted to the U.S. for permanent residence shall be deemed a citizen of the State in which such ali

is domiciled.

B) If the plaintiff is only entitled to recover an amount less than $75,000 when the case is decided, the court may

deny costs to the plaintiff, and may impose costs on the plaintiff.

C) For the purposes of this section and section 1441 of this title

(1) a corporation shall be deemed to be a citizen of any State by which it has been incorporatedand of the Sta

where it has itsprincipal place of business

-an insurer is a citizen of the State in which it is incorporated, where it has itsprincipal place of business, athe State of which the insured is a citizen (when the insured is not joined)

(2) the legal representative of the estate of a decedentis a citizen of the same State as the decedent, AND

-the legal representative of an infantor incompetentshall be deemed to be a citizen only of the same Stat

the infant or incompetent

D)Class Actions.must exceed $5,000,000

Amount in Controversy Requirement

1. If from the face of the pleadings, it appears to a legal certaintythat the claim is for less than the jurisdictionamount the suit will be dismissed.

A. Intangible Damages: pain and suffering, emotional distress, punitive damages, loss of goodwill

i. It must be quite clear that Ps recovery amount will not be over 75K in order to dismiss

a. if P mightget more or less the requirement is satisfied.

B. Injunctions: amount in controversy is determined by

1. the value of the injunction to P

2. the cost to D of complying

3. the cost or value to the party invoking federal jurisdiction


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C. Aggregation:

1. When a single P has two or more claims against a single D the amounts can be added to mee

the $75K requirement.

2. A single P cannot aggregate amounts sought from different defendants.

3. Ps may not add their amounts together, to meet the 75K, if neither meets the requirement.

4. If one P satisfies and another doesnt, the other P can joint using Supp. Juris. If it is a single D

a. however, any D that doesnt satisfy cannot be added to the suit

CitizenshipA. Individuals: an individual is a citizen of his state of domicile.

(1) Domicile is a state where:

(a) a person has taken up residence

(b) with the intent to remain indefinitely

a. means that there are no definite plans to leave and make a home elsewhere

b. if someone resides somewhere for a short time he is NOT a citizen

Example: college student or job relocation

c. subjective intent is not enough: citizenship is not established until one physically arri

to stay indefinitely.

d. acts establishing citizenship:

1. paying taxes and bills

2. registering your car and obtaining a drivers license

3. where your family and job is located

4. registering to vote

B. Corporations:

A corporation is a citizen of:

(1) its place of incorporation; AND

(2) its principal place of business

(a) PPB is a corporations nerve center Hertz v. Friend

a. place where a corporation maintains its headquartersi.e., where its high level officers direct, control, and coordinate, the corporations activi

b. Cant be: place where only meetings are held OR a mail drop box

c. the court no longer looks to the total amount of business activities conducted in a sta

Note: Citizenship is determined when the complaint is filed. If dismissed and refilled citizenship may change.

Permanent resident aliens are citizens of their state of domicile:

a. this provision eliminates diversity in cases between a citizen and an alien living in the same state. Farouk

b. it does NOT abolish the rule that: citizens of different countries cannot claim diversity.

i. if P and D are resident aliens, but of different states, diversity does NOT exist.


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Supplemental Jurisdictionupplemental Jurisdiction: allows state law claims to be heard in federal court that independently would not qual

or federal jurisdiction.

28 U.S.C. 1367 Supplemental Jurisdiction

A) Except as provided in (b) and (c) or as expressly provided by Federal statute, in any civil action of which the co

have original jurisdiction.

The district courts shall have supplemental jurisdiction over:

-all other claims that are relatedto claims in the action with original jurisdiction that

-they formpart of the same case or controversyunder Article III of the US Constitution.

-Such claims include claims involving joinder or intervention of additional parties

B) In civil actions where the district court has original jurisdictionfounded solely on 1332 (diversity)

The district courts shall NOT have supplemental jurisdictionunder subsection (a) over claims by Ps against

persons made parties under:

Rule 14 Impleader, pg. 42Rule 19 Compulsory Joinder, pg. 52

Rule 20 Permissive Joinder, pg. 55

Rule 24 Intervention, pg. 67

OR, over claims by persons proposed to be joined as Ps under Rule 19,

OR, seeking to intervene as Ps under Rule 24,

when exercising supplemental jurisdiction over such claims would be inconsistent with the jurisdictional

requirements of section 1332

Note: 1367(b) applies ONLY if diversity is the sole basis for being in federal court.

C) District courts may decline to exercise supplemental jurisdiction over a claim if:

(1) the claim raises a novel(new) or complex issue of State law

(2) the claim substantially predominates over the claim or claims over which the court has original jurisdiction

(3) the district court has dismissed all claims over which it has original jurisdiction, OR

(4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction.

D) The period of limitation for any claim under (A) and any other claim that is dismissed voluntarily or otherwise

tolled while the claim is pending and for 30 days after it is dismissed. (the claim can still be brought in state co


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Analyzing Supplemental Jurisdiction

1.) The federal court must have original jurisdiction.

a.) P must assert a federal arising underor diversityclaim.

2.) The federal court has the statutory power according to 1367(a) to extend supplemental jurisdiction over the

plaintiffs non-federal claims if it is so related to the claims in the action that they form part of the same case

controversy

a.) Did the State claim arise out of the same set of facts as the federal claim? Or vice versa.

b.) Are the facts needed to satisfy the elements of the federal claim connected to facts needed to

prove the state claim?

c.) Will resolution of the state claim affect the outcome of the federal claim? Or vice versa.

***If federal jurisdiction is based solely on diversity, check 1367(b).

3.) The court still may not exercise supplemental jurisdiction if any of the Discretionary Factors in 1367(c) exist?

(1) the claim raises a novel (new) or complex issue of State law

(2) the claim substantially predominates over the claim or claims over which the court has original

jurisdiction

(a) if the other claims outnumber and are unrelated to the federal claim

(b) if each has its own elements of proof that are not necessary to establish the federal claim

(3) the district court has dismissed all claims over which it has original jurisdiction, OR

(4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction.


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REMOVAL

Removal: allows the defendantto remove a claim to federal court, afterP has brought a claim in state court.

28 U.S.C. 1441 Actions Removable Generally

A) except as expressly provided by Act of Congress, any civil action brought in State court of which the district cou

of the U.S. has original jurisdiction,

-may be removed by the defendant or defendants to the district court of the U.S.-for the district and division embracing the place where such action is pending. (the dist. Ct. of the current stat

-The citizenship of defendants sued under fictitious names shall be disregarded

B) Any civil action of which the district courts have original jurisdiction founded on:

- a claim arising underthe Constitution, treaties, or laws of the U.S. are removablewithout regard to t

citizenship or residence of the parties. (federal question)

-Any other such action shall be removable only ifone of the parties in interest properly joined and serv

as defendants is a citizen of the State in which such action is brought. (diversity)

C) Whenever a separate and independent claim or cause of action within the jurisdiction conferred by 1331 is

oined with one or more otherwise non-removable claims or causes of action,

-the entire case is removable and the district court may determine all issues therein, or

-in its discretion, may remand all matters in which State law predominates (supplemental jurisdiction)

D) Any civil action brought in a State court against aforeign statemay be removed by the foreign state,

-to the district court of the U.S. for the district and division embracing the place where such action is pending.

-upon removal the action shall be tried by the court without jury.

-where removal is based upon this subsection, the time limitations of 1446(b) may be enlarged at any time for

cause shown

E) exceptions to (b)

F) A federal court can hear a case that was erroneously brought in a state court that did not have jurisdiction

(paraphrased)


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Analyzing 1441

1.) Could the plaintiff have brought the action in federal court initially? 1441(a)

a.) federal question OR diversity

i.) if yes, then the case must satisfy #2

ii.) if no, then Removal is not available to D

2.) The claim still may not be removableWas subject matter jurisdiction founded on federal question or diversity

1441

a.) if federal question,i.) the claim is removable: any claim arising under the constitution may be removed

b.) if diversity,

i.) the defendant(s) may not remove the claim if it was brought in his state of citizenship.

3. Things to Remember:

a.) you can only remove to the district court in the division of the same state the original claim was brought.

b.) The entire case is removed: the federal claim and all supplemental claims are removed to federal ct. 1441(

c.) THE PROCEDURE FOR REMOVAL IS COVERED BY 1446 AND 1447


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ERIE

Once a case is in federal court, an Erie Analysis may be needed to determine which law to apply, State or Federal?

Federal courts sitting in diversity should observe state substantive law, whether made by legislatures or by judges

-Erie v. Tompk

I.) Is this a Federal Question case or a Diversity Case?

If its afederal question case: Federal Law applies to all of the legal issues.

If its a diversity case: then either the Erie or Hanna Analysis must be applied go to (II.)

II.) Is there a Fed. R. Civ. Proc. or federal statute?

If no: (i.e., a federal practice )

1.) The Federal court may or may not apply the state law, it is only required to apply state Sub law. (Erie)

2.) An Erie analysis should be done to determine if the state law must be applied (i.e., is Sub or Proc) go to

If yes: go to (III.)

III.) Does the Fed. R. Civ. Pro. or federal statute APPLY to the issue in this case? (On Point)

Applies if: the federal rule governs the facts at issue in the case.

Example: Bairdthe issue was whether or not Ps complaint was pleaded correctly. FRCP 8

applied because it governs the sufficiency of Ps pleading requirements in federal court.

If it does NOT apply:

1.) The Federal court may or may not apply the state law. The court may still apply some other fed. proced

2.) The Federal court is only required to apply state Substantive law. (Erie)

3.) An Erie analysis should be done to determine if the state law mustbe applied (i.e., is Sub or Proc) go to

If it does apply: go to (IV.) to determine if it is in conflict with the state law.

IV.) Is the Fed. R. Civ. Pro or federal statute in direct CONFLICT with the State law?

In Conflict if:

1.) The requirements of the federal rule are different from the requirements of the state law.

Example State: Dr.s affidavit must be filed Federal: Dr.s affidavit is not required

2.) The state law directly contradicts the federal law.

Example State: unanimous verdicts required Federal: majority verdicts allowed

3.) Application of the federal law impairs the purpose/operation of the state law. OR vice versa.

Example - State: a particular outcome is required Federal: the ct. may use its discreti

If there is NO conflict:

1.) The Federal court may or may not apply the state law.

2.) A federal rule that does not conflict with State law would clearly apply. Hanna v. Plummer

3.) The federal court is only required to apply state Substantive Law. (Erie)

4.) An Erie analysis should be done to determine if the state law mustbe applied (i.e., is Sub or Proc) go to


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If there is a conflict:

1.) The two procedures cannot coexist, the federal court will use the Federal Rule as long as its valid. Go to

Note: the Fed. Rule will almost always be valid. Thus, if arguing for the state rule one must argue that

there is no conflict to avoid the valid analysis.

V.) Is the Fed. R. Civ. Pro or federal statute valid? (Hanna Analysis)

Is valid if:

(A) It does not transgress Constitutional bounds; AND(B) it does not exceed the scope of the Rules Enabling Act

(A) Constitutional Bounds Test:

(1) the Federal Rule is constitutional if it is rationally capable of being classified asprocedural

a. procedural: regulates the judicial process for enforcing rights and duties recognized by

substantive law, AND forjustly administering remedyand redress for disregard or infraction

them

(B) Exceeding the Rules Enabling Act Test: (2 Part Test)

(1) does not exceed the REA if it is a general rule of practice and procedure; AND

Example: forms of process, writs, pleadings, and motions, and practice and procedure of the

(2) if it does not abridge, enlarge, or modify any substantive rightand shall preserve the right of t

by jury

Does not violate if:

a. it only has an incidental affect on Ps substantive rights given by the state law

b. it only affects the litigation process not the right itself

Violates if:

a. it has a negative effect on the public policy behind the state ruleb. applying the federal rule will eliminate a right, granted by the state rule

c. the rule is not about the litigation process but seems to be for some other purpose

f the rule is valid: the Federal rule must be applied.

f the rule is NOT valid: then the state law should be applied. The analysis may end here OR you may do Erie anyw


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VI.) Erie Analysis Should the federal practice or the state law be applied?

(1) Is the State law Substantive or Procedural?

a.) Substantive if:

1.) if the rule is a state created right or obligation of torts, contracts, property, or criminal law. (Erie)

Examples:

i. the duty of care owed to a trespasser or patient

ii. if it clearly affects an element: the difference between manslaughter and murder

2.) if the rule was intended to be bound upwith the definition of the rights and obligations of the

parties. (Byrd)

a.) is the procedure an integral part of the special relationship created by the underlying statut

b.) Proceduralif:

1.) the rule is merely a method of enforcing the right in court (form and mode)

2.) if it only regulates the judicial or litigation process in court.

If Substantive: then, according to Erie, the state law must be applied.

If Procedural OR Maybe Both: apply the Outcome Determinative Test go to (2)

(2) By NOT applying the state law will the Outcome of the litigation be significantly affected?

Example: a statute of limitations (if applied the case will be dismissed, if not applied it can continue)

If NOT outcome determinative: the state law does not have to be applied in federal court. Fed law may apply

If outcome determinative:

1. the federal court may choose to apply the state law. (according to Guaranty Trust)

2. But, the court should look to Hannas modified outcome-determinative test first. Go to (3)

(3) Will NOT applying the state law undermine the Twin Aims of Erie?Erie sought to:

i. Discourage Forum Shopping AND ii. Avoid an Inequitable Administration of the Laws

i. Forum Shopping will occur if:

1. at the outset of litigation it would make Ps choose the federal court instead of the state court

2. if the difference is significant enough to make lawyers avoid the state requirement

ii. Inequitable if:

1. If there would be a substantial variation in the outcome between state and federal litigation for t

same substantive claim

2. If at the outset of litigation, applying the federal approach instead of the state rule, would create a

significant difference in Ps opportunity to recover.

Example: The standard of care is completely different. (Inequitable)

Example: The case will be dismissed, but it can still be re-filed later. (Not Inequitable)

3. If it does not promote uniform outcomes in both state and federal court.

f Both Aims will NOT Occur: the federal law must be applied.

f Both Aims will Occur: the state law may be applied. The court must apply the Byrd Balancing Test first. Go to (4


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(4) Does the federal rule promote an important federal policy that outweighs the policy underlying the state r

Byrd Balancing Test

1.) If there are important substantive policy interests in applying the federal rule that outweigh the policies

underlying the state rule AND the Erie rule for uniform outcomes.

Example: The constitutional right to trial by jury was an important right in the administration of the

federal courts system. Byrd

If the Federal outweighs State: the federal law should be applied

If the State outweighs Federal: the state law should be applied

Documents

Fall Civil Procedure Outline Final