Civil Procedure

An Overview of Civil Procedure

- Civil procedure – rules that govern the conduct/behavior of parties concerning legal disputes (civil cases; mainly cases that turn into litigation)

- Federal courts are courts of limited jurisdiction (can only hear certain types of cases)

The US gov’t (separation of powers)

- Executive (enforces law)

o Administrative agencies also have lawmaking functions (quasi-legislative) and judicial functions (quasi-judicial); cases can begin there

- Legislative (creates law)

- Judiciary (interprets law)

o Judiciary also makes laws

o Judicial review – judiciary can claim that a legislative act or executive action is unconstitutional

o Huge difference between the SC interpreting a statute and declaring a statute unconstitutional

§ SC interprets a word in a statute that Congress does not agree w/:

· Congress can amend the statute

§ SC declares a statute unconstitutional:

· Congress can amend the Constitution (very difficult process)

The US Constitution (the basis of civil procedure)

- Executive powers (Article II)

o Executive orders, veto power, judicial nominations, convenes & adjourns Congress, etc.

- Legislative powers (Article I, Section 8)

o Power to declare war, coin money, impeach, collect taxes, regulate commerce, establish post offices, make treaties, nationalization & bankruptcy laws, copyright laws, etc.

o Congress gets its power to create rules for practice and procedure from (1) the power to create tribunals inferior to the SC coupled w/ (2) the N&P Clause

§ Power to create lower courts (an enumerated power)

§ N&P Clause (end of Article I, Section 8) – power “to make all laws which shall be necessary and proper for carrying into execution the foregoing powers”

o If Article I, Section 8 does not list the power, then the power is reserved to the states and the people (10th Amendment)

- Judicial powers (Article III, Sections 1 & 2)

o “The judicial power of the US shall be vested in one Supreme Ct, and in such inferior cts that Congress may from time to time ordain and establish”

o 28 USC 132 & 133 – create federal district cts; divided by states

o 28 USC 41 & 43 – creates (13) intermediate Circuit Cts of Appeals

o Article III, Section 2:

§ The judicial power shall extend:

· To all cases, arising under the Constitution, laws of the US, and treaties made under their authority (federal question cases)

· To all cases affecting ambassadors, other public ministers and consuls

· To all cases of admiralty and maritime jurisdiction

· To controversies to which the US shall be a party

· To controversies between 2 or more states

· To controversies between citizens of different states (diversity of citizenship cases)

· Etc.

- Federal cts are cts of limited jurisdiction (cannot hear cases for which they have no power to decide)

- Most state cts are cts of general jurisdiction- have power to hear any kind of case, except for those that are specifically excluded

- Concurrent jurisdiction- both a federal and a state ct can hear the case

o A state ct can hear federal cases unless a statute prohibits it, and a federal ct can hear state cases unless a statute prohibits it

- Exclusive jurisdiction- certain cases that can only be heard by federal cts (admiralty, bankruptcy, antitrust, copyright, etc.)

- Original jurisdiction- the case can originally be brought in federal ct because it was included as such in the Constitution

- Congress cannot create a law giving federal cts more power than they have under the Constitution (Constitution is the ceiling of federal ct jurisdiction)

o But Congress can take away power of the federal courts (Congress can taketh away)

- 28 USC 1331 & 1332 – created by Congress to define the powers of the federal cts

Federal Rules of Civil Procedure (Title 28 USC)

- Congress creates the FRCP, but in 28 USC 2072(a) Congress delegates some of its power to create FRCP to the US Supreme Ct

o US Supreme Ct creates a committee of experts to write specialized rules of civil procedure. Then it is sent back to Congress, who approves the rules and writes them into Title 28.

4 legal requirements that determine whether one can get into a federal court:

(1) Subject matter jurisdiction (power over the subject matter)

(2) Personal jurisdiction (power over individuals; power over the D)

(3) Service of process (D must be given notice)

(4) Venue (“locale”; location of the lawsuit)

Subject Matter Jurisdiction

Subject matter jurisdiction

- Derived from Article III, Section 2 (written to apply only to US Supreme Ct)

- USC 1331 & 1332 – create subject matter jurisdiction for the lower federal cts

- Rule 12(b)(6) – failure to state a claim upon which relief can be granted

o If D’s motion is granted (case dismissed), P cannot bring the case anywhere else (P has no claim upon which relief can be granted)

- Rule 12(b)(1) – lack of subject matter jurisdiction

o If D’s motion is granted, P may bring the case in state ct

- Rule 12(h)(3) – If the court determines at any time that it lacks subject matter jurisdiction, the court must dismiss the action (rule from Mottley)

- If the D thinks that the ct has no subject matter jurisdiction, D should show up to ct and raise the issue of subject matter jurisdiction.

o D may not be able to raise the issue of subject matter jurisdiction later.

28 USC 1331 – Federal Question Jurisdiction

- “Arising under” (judiciary is responsible for defining these words)

- Original jurisdiction: You can originate a case in federal ct for all civil actions arising under the Constitution, laws, or treaties of the US

- (virtually identical to Article III, Section 2: original jurisdiction of US Supreme Ct)

- Well-pleaded complaint rule – For a case to “arise under” federal law, the P’s complaint must be “well-pleaded” (argues that there is a federal question, i.e., case is based upon federal law or federal Constitution)

o It is not enough that the D’s defense arises under federal law

§ Cannot have a federal cause of action in anticipation of a D’s defense

o “Arising under” – part of the P’s original cause of action

o Exception – In some cases where a case raises issues of huge national interest [e.g., securities regulation in Smith v. Kansas City Title & Trust Co (1921); tax laws in Grable], the case may still “arise under” federal law even though the well-pleaded complaint rule is not satisfied

28 USC 1332 – Diversity Jurisdiction

- Controversy between citizens of different states

Section 1332(a)

- (1) citizens of different states

o Citizen v. citizen

- (2) citizens of a state and citizens or subjects of a foreign state

o citizen v. foreigner

- (3) citizens of different states and in which citizens or subjects of a foreign state are additional parties

o citizen v. citizen & foreigner

o citizen & foreigner v. citizen & foreigner

- (4) a foreign state…as P and citizens of a state or of different states

o (other possibilities)

“Citizenship” (judiciary is responsible for defining it)

- A person is a citizen of a state of the US w/in the meaning of 1332 if he is a citizen of the US and is domiciled w/in the state in question (Redner v. Sanders)

o Domicile:

§ (1) Must have a residence in the state

§ (2) Must have an intent to remain in the state indefinitely

· Question of fact for cts to decide

· Must show by your conduct that you intend to remain indefinitely (driver’s license, looking for work there, bills, taxes, etc.)

§ (place of domicile is determined at the time P files his complaint in federal ct)

- 1332(d) – Citizens of DC, Guam, Puerto Rico, etc. are deemed citizens of a state of the US for 1332 purposes

- 1332(a) (last sentence) – For 1332 purposes, an alien admitted into the US for permanent residence (green card) is deemed a citizen of the state in which the alien is domiciled

o Added by Congress to prevent allowing a permanent resident to take advantage of federal diversity jurisdiction against a citizen of the same state by simply not becoming a US citizen

o Saadeh v. Farouki (1997; DC Circuit) – foreigner v. foreigner, 1 of which is a permanent US resident

§ If language is read literally – unconstitutional “foreigner v. foreigner” suit under Art. III, Sect. 2

§ Circuits are split on this issue – Some will not go beyond literal interpretation of statute; some will

Corporations

- For a business to be a legal entity that may be sued – must be a corporation

- Where a state is a citizen for 1332 purposes:

o 1332(c)(1) – state of primary place of business AND state of incorporation

§ To find ‘primary place of business’ – “nerve center” test now controls (on final she’ll just tell us where it is)

Partnerships

- Partnership as a business is not considered a corporation

- Citizenship of partnership for 1332 purposes – place of citizenship for every partner

- LLC (limited liability company) – treated as a partnership

Complete diversity

- Complete diversity is required – Everyone on each side of the lawsuit must be from different states from the other side.

- Not constitutionally required

o Derived from Strawbridge v. Curtiss (1806)

- Even if there is complete diversity, federal courts will not hear family law cases or probate cases

Amount in controversy

- Amount in controversy must be more than $75,000

- Aggregation of claims:

o A single P w/ 2 or more unrelated claims against a single D may aggregate claims to satisfy the statutory amount

28 USC 1367 – Supplemental Jurisdiction

- Supplemental jurisdiction – expands the jurisdiction of federal courts

o Still, nothing can give more power than Constitution gives

- A claim that has no independent basis for federal subject matter jurisdiction may be heard in federal cts because:

o It is considered ‘1 constitutional case’

o Art. III – “The judicial power of the US shall extend to all cases arising under…and controversies between citizens of different states

2 different judicially created doctrine (don’t have to know for final)

- Pendant jurisdiction (adding an additional claim)

o In addition to having a federal claim, you have a state claim filed in the same case

§ 2nd claim is so closely related to 1st claim that it forms one constitutional “case”

· Same “nucleus of operative fact” – facts that would decide case on federal claim are same facts that would decide case on state claim

- Ancillary jurisdiction (adding an additional claim that requires adding an additional party)

o Same facts, but on 2nd claim there is an additional party

§ Same “nucleus of operative fact”

1367(a)

- In any civil action of which the district cts have original jurisdiction (where claim can be brought in federal ct), the district cts shall have supplemental jurisdiction over all other claims that are so related to claims in the action w/in such original jurisdiction that they form part of the same case or controversy under Article III.

o Codifies pendant jurisdiction

- Such supplemental jurisdiction shall include claims that involve the joinder or intervention of additional parties.

o Codifies ancillary jurisdiction

Whether there is a sufficient connection between 2 claims to form 1 constitutional case

- One test – If the ct were to dismiss the state claims, it would be dismissing the federal claims as well (Ameriquest)

1367(b) [You do not go to 1367(b) unless you first satisfy 1367(a)]

- Where the claim for federal jurisdiction is based solely on diversity jurisdiction, the district cts shall not have supplemental jurisdiction

- (mandatory exception)

1367(c)

- The district cts may decline to exercise supplemental jurisdiction over a claim under 1367(a) if (discretionary exceptions):

o (1) The claim raises a novel or complex issue of state law;

§ First Bancorp – Puerto Rico had a very unique rule on ethics

· Court finds the claim raises a novel or complex issue of state law

o (2) The claim substantially predominates over the claim or claims over which the district ct has original jurisdiction;

§ Several state law claims and 1 federal claim – state claims may predominate

o (3) The district ct has dismissed all claims over which it has original jurisdiction; or

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

- [To overrule a discretionary decision, the decision must be shown to be an “abuse of discretion” (very high standard)]

28 USC 1441 – Removal

- Removal – Where an action has been filed in state ct but could have been brought in federal ct (concurrent jurisdiction), the D may remove the case to federal ct.

o D has option to file a notice of removal.

- Because removal was created by statute, Congress could in another statute not require the rule if it wanted to.

1441(a)

- Except as otherwise expressly provided by Act of Congress (where to look for the exceptions),

- If – (1) Civil action; (2) Brought in state ct; (3) But which could have been brought in federal ct (federal ct has original jurisdiction):

o Then D can remove to the district ct of the US for the district and division embracing the place where such action is pending.

1441(b)

- If the basis for removal is federal question, the case shall be removable w/o regard to the citizenship of the parties.

o Any other such action shall be removable only if none of the parties in interest properly joined and served as D’s is a citizen of the state in which such action is brought.

1446 – procedure for removal

- (b) – D has 30 days after receiving a copy of the initial pleading (or 30 days after the service of summons upon the D) to file a notice of removal.

o D has 30 days from the date upon which it first becomes identifiable to D that he has a basis to remove.

§ E.g., case stated by initial pleading is not removable, but an amended pleading makes the case removable

· 6 months after filing complaint, P amends it to include a diversity claim:

o D has 30 days from that date.

Personal Jurisdiction

Personal jurisdiction

- Never an issue for P (P has voluntarily brought the suit in ct)

- D’s often argue that the ct has no power over them because the D does not have an adequate connection/relationship w/ the state.

- PJ relies on concepts of “fairness”

o Constitutional underpinnings – 14th Amendment and Full Faith & Credit Clause

§ Rules for PJ are the same whether case is brought in state or federal ct

· Due Process Clause is present in both 5th Amendment (federal) and 14th Amendment (states)

o Must be fair constitutionally to require D to come to forum state and defend himself

2 functions of due process:

- (1) Protecting D against burdens of litigating in a distant or inconvenient forum