Civ Pro II – Brief Outline
Jurisdiction 3
I. 7-Issue Checklist. Ask, in this order: 3
II. Subject-Matter Jurisdiction 3
a. Federal Question Jurisdiction (FQJ) 3
b. Diversity Jurisdiction (DJ) 4
c. Amount in Controversy 5
d. Supplemental Jurisdiction (SuppJ) 5
III. Jurisdiction over the person 6
a. Personal Jurisdiction (PJ) 6
b. Jurisdiction Based on Property 9
c. Territoriality 9
d. Federal Court J 10
IV. Notice & Opportunity to be Heard 10
a. Acceptable S/P 10
b. Notice by Publication 10
V. Service of Process 10
VI. Venue 11
b. The Rules of Venue 11
c. Transfer of Venue 11
d. Forum Non Conveniens (FNC) 12
VII. Removal 12
b. The Rules—§ 1441 12
VIII. Waiver 13
a. Subject-Matter Jurisdiction—can be RAISED AT ANY TIME 13
b. PJ, Notice, Process, and Venue—WAIVABLE 13
What Law Governs in Federal Courts? → The Erie Doctrine 14
I. Erie v. Tompkins 14
II. Guaranty Trust Co. v. York: Outcome-determinative 14
III. Byrd v. Blue Ridge 14
IV. Hannah v. Plumer 15
V. Armco Steel, Klaxon, & Day 15
a. Walker v. Armco Steel—Ragan Lives! 15
b. Klaxon v. Stentor 15
VI. Inverse Erie Doctrine 15
VII. Gasperini 16
Joinder 16
I. Joining stuff 16
a. Claim Joinder—what claims may a P join in 1 action? 16
b. Permissive Party Joinder— T&O + CQ 16
c. Compulsory Joinder of Parties 17
II. The Claims of Joinder 17
a. Counter-claim 17
b. Cross-Claim 18
c. 3rd Party Claim (Impleader) 18
III. Class Action 18
Former Adjudication (Finality, whut) 21
I. Intro 21
a. 3 issues: 21
II. Res Judicata (Claim Preclusion): the meat-axe 21
a. The Rule: Play the chip, don’t split it. 21
b. 4 Requirements 22
III. Collateral Estoppel (Issue Preclusion): The Scalpel 22
b. Prerequisites: 22
c. Nonparties 22
d. Mutuality of Estoppel: 22
Jurisdiction
I. 7-Issue Checklist. Ask, in this order:
i. Does the court have SMJ?
1. All SMJ of federal courts laid out in the Constitution, Article III.
a. Federal Question J
b. Diversity of Citizenship J
ii. Does the court have PJ?
iii. Has the D been given notice and an opportunity to be heard?
iv. Has the D been served w/ process properly?
v. Does the court have venue?
vi. The action is in a state court. Can it be removed to a federal court?
1. Presupposes that a case has been commenced in a state court. Thus, you can’t get this Q unless your prof has put you in a state court.
vii. Have any of the preceding 6 issues been waived?
II. Subject-Matter Jurisdiction
a. Federal Question Jurisdiction (FQJ)
i. Federal Courts are courts of limited J—and as such, P’s CoA must “arise under” the Constitution, treaties, or laws of the U.S. (Art. III)
1. Ex: P holds Federal copyright to Mission Impossible. D agrees to pay P $ to show the film at his theater. D doesn’t pay. P alleges breach of K.
a. → No SMJ.
i. Not arising under copyright law, but instead CL of K law. No Federal Q at all. Remember—the CAUSE OF ACTION must arise under a federal question.
2. Ex: Same as above, but only reason D provides for breach is that they claim P’s copyright is invalid.
a. → No SMJ.
i. What is and is not a federal copyright IS a federal Q.
ii. BUT P’s CoA is still breach of K. All D says is there may be a federal defense—there may be a defense of invalidity of the copyright. But it is the PLAINTIFF’s CoA that must “arise under.”
iii. What P has done is simply anticipate a federal defense—that’s not a CoA; it’s up to the D to assert. We don’t take SMJ on speculation—on the prospect of a federal defense. It may never come, and the federal courts have limited J.
iv. Violates the well-pleaded complaint rule.
ii. Well-Pleaded Complaint Rule: Determine what “arises under” solely on the basis of what would be in a well-pleaded complaint. ∅ include defensive material.
1. Anticipated defenses→ Goes to state court; they will adjudicate the validity of the defense (e.g., copyright, as in Ex 2). Subject to review by SCOTUS. No FQJ in U.S. DCt by anticipating a defense.
iii. No jurisdictional AiC requirement for a federal question case.
iv. 2 Forms of Federal Q J:
1. Exclusive FQJ: MUST take those cases to the federal court. (e.g., those arising under Copyright Act or Patent Act). Congress wants national uniformity through the federal courts.
2. Concurrent FQJ: EITHER to federal court OR state court. (e.g., federal employers’ liability cases, certain civil rights cases)
b. Diversity Jurisdiction (DJ)
i. Justification: Way of providing neutral federal/national forum to avoid local biases/prejudices. Reinforced by federal judges who have lifetime tenure, and security that enables them to escape from local parochialisms.
ii. Rules:
1. There must be complete diversity of citizenship. (Strawbridge v. Curtis)
a. Complete Diversity—everybody from left of the v must come from a diff. state than everybody to the right of the v.
2. Diversity of citizenship[i] is determined on the day of the institution of the action.
3. Determination of Citizenship: How do we determine citizenship of parties?
a. Individuals: An individual’s citizenship/domicile is the domicile of birth, continued through life, unless 2 things occur:
i. Individual physically changes his/her state.
ii. The individual does that w/ intention of remaining in the new state for the indefinite future.
iii. Ask: Where is the person’s center of gravity?
b. Corporations: 2 citizenships:
i. State of incorporation
ii. Where the corporation has its principal place of business
1. Nerve-Center Test: where it makes its executive decisions.
2. Muscle Test: where it does a plurality of its thing (manufacturing, service providing).
iii. Example: Incorporated in DE, headquarters in NY, manufacturing plant in NJ.
1. Nerve center→ DE, NY.
2. Muscle→ DE, NJ.
3. If other party from NY, must say “diversity if muscle test, and no diversity if nerve center test.”
c. Unincorporated Associations (e.g., labor unions, partnerships)→ cumulate the states of all of its’ members.
i. Not usually a problem for labor management, b/c usually falls in FQJ.
d. Parties in Representative Actions (e.g., rep of deceased estate, child, incompetent):
i. Most common types: shareholder, class actions.
ii. CL rule: When action brought by, or against, a representative, citizenship is based on the citizenship of the representative, NOT the represented.
iii. For children, incompetents, and estates: diversity tested in terms of citizenship of represented, NOT representative. (§ 1332(c)(2)).
1. n/a to shareholder derivative suits or class actions.
c. Amount in Controversy
i. The matter in controversy must be more than $75k, exclusive of interests and costs.
1. Punitive damages, statutory atty fees are part of the AiC.
ii. Suit on Multiple Claims
1. Can aggregate the claims of a single P or a single D.
2. Cannot aggregate in multi-party situation, UNLESS the claims are really joint-claims (undivided interests).
iii. The court should accept P’s allegation of jurisdictional amount UNLESS court is convinced to a legal certainty that P cannot recover the jurisdictional amount. (SCOTUS)
1. For injunction, quantify value of injunction to P.
iv. Aggregation also must exceed the $75 AiC requirement
d. Supplemental Jurisdiction (SuppJ)
i. Pendent Jurisdiction
1. United Mine Workers of America v. Gibbs:
a. Claim 1: P sues a labor union for violation of federal labor-management relations act.
i. → FQJ (and SMJ)
b. Claim 2: Also adds a count claiming tortuous conduct under TN CL (illegal conspiracy).
i. → no SMJ b/c both sides had citizenship from TN
c. Q: Could you append this jurisdictionally insufficient CL claim to the jurisdictionally sufficient Federal Labor Relations Act claim?
i. → YES. Both come from a common nucleus of operative fact. It’s efficient/economical to try them together, even there would be no SMJ over the 2nd claim standing alone.
d. Redefined what a “case or controversy” is (in Art III).
ii. Ancillary Jurisdiction
1. Allowed Ps to bring case, and allowed Ds to assert jurisdictionally insufficient compulsory c-claims, x-claims, and 3rd party claims (b/c they all emanate from the same trans/occ as the original claim).
iii. Curtailment and Congressional Expansion:
1. Owen Equipment & Erection Co. and Finley v. U.S.
a. Curtailed pendent and ancillary J
b. Justification: In diversity J, ancillary J can only be asserted by Ds, not original Ps. D’s need it b/c they don’t get forum choice, and they should have the procedural advantage of being able to c-claim, x-claim, and bring 3rdp claims.
c. Although allow pendent claim J, won’t allow pendent party J.
i. Violates complete diversity.
2. Congress legislated about pendent/ancillary J.
a. § 1367—instead of pendent/ancillary, it said “supplementary.”
i. § 1367(a)—SuppJ now recognized over everything w/i a case/controversy.
1. Codifies Gibbs.
ii. 1367(b)—prohibits SuppJ when the case is based solely on diversity J, and the jurisdictionally insufficient claim is one by a P under FRCP 14 (3rd party practice), 19/20 (permissive and compulsory joinder), and 24 (intervention). In those cases, no SuppJ in favor of a P.
1. Codifies Kroeger and rejects Finley
iii. 1367(c)—it’s discretionary. Court ∅ have to take SuppJ. 1367 lists situations in which a court should decline SuppJ:
1. Over a state-based claim that’s novel/complex.
- Over a state-based claim that’s the guts of the action.
- When federal Q claim has been dismissed/settled.
iv. Glannon’s Steps
1. Determine whether there is constitutional power under Article III, § 2, to hear the supplemental claim.
a. Analysis must stem from Gibbs—constitutional power to hear the related claim exists if there is:
- A proper claim w/i the J of the federal court, AND
- The related claim arises from the same nucleus of operative facts.
2. Determine whether there is a statutory grant of J over the related claim.
a. Look to § 1367(a)-(b)
3. (Once above factors are met) Determine whether court should hear the related claims (whether the court should do so)
a. Look to § 1367(c)
v. Ben claims:
1. 1. "claim" carveout d/n/a to counterclaim
2. 2. carveout is only rule 20 Ds not Rule 20 Ps
3. 3. Discretionary decline to exercise must be supported by reason from 1367(c) - Executive Software
III. Jurisdiction over the person
a. Personal Jurisdiction (PJ)
i. 3 levels:
1. Is there a traditional base of PJ?
a. Yes→ all you have to do is spot it, tell the reader, and move on.
b. No→ say no traditional base, identify them, move on.
2. If no traditional base, does the long arm statute apply?
3. If no traditional base, but long arm applies, is that application of the long arm Constitutional?
ii. Traditional Bases of PJ
1. Territoriality (Pennoyer v. Neff)
a. Proposition 1: A state is all-powerful within its’ borders; has complete, total territorial power w/i its boundaries.
i. Transitory J—state can assert territorial J, even when D is simply in the state on a transitory basis.
b. Proposition 2: A state is completely helpless outside its’ borders.
2. Domicile – You can’t leave home w/o your domicile.
3. Agency – Our agents, when acting for us, are our jurisdictional carriers.
4. Consent –
a. Express consent (e.g., contractual)
b. Implied consent (Hess v. Pawloski [US 1927])
i. State statutes said if you travel on their roads, you’re consenting to the appointment of the DMV as your agent. If you get into an accident, any suit arising out of your use of the highway enables s/p to be made by serving the DMV.
1. A legal fiction of implied consent used to recognize that a state has the right to exercise its police powers, adjudicate what happens on the highway, make the nonresident motorist liable.
ii. Implied consent recognized in Hess extended to apply to cars, aircraft, motorbikes, stock fraud, etc.
c. Waiver – Failure to assert a jurisdiction defense
d. Producing consent
5. Corporate Presence/Doing Business (territoriality applied to entities) – when you do business in a state, you’re present in the state.
iii. Long Arm Statutes (specific J)
1. If specific event listed in long arm statute (specific jurisdiction), forum state can assert specific J based on commission of that act in the state.
a. Issue of statutory construction → look at the statute, apply one or two or three of the provisions to the facts of the problem. Try to make the long arm statute to the D.
2. 3 critical cases:
a. International Shoe Corp. v. Washington – “a state can assert J over a nonresident if the nonresident has minimum contacts w/ the forum so that it is fair play and substantial justice to say to the nonresident: you must stand and defend in this court.”
i. Minimum contacts & Due Process (Fair Play, Substantial Justice)
ii. Hess + Shoe → long-arm statutes
iii. CoA, the minimum contact, must be related to the forum.
b. Hanson v. Denkla – Minimum contacts must be volitional, cognitive, beneficial.
i. Facts: Wealthy woman establishes a DE trust; maintains relation w/ DE trust, but then moves to FL and dies there. Heirs fought over the estate. Some wanted to bust the trust, b/c they’d get more $. One wanted to keep the trust, b/c she’d get more $. FL said it had J over the estate of the deceased—was the state of probation, many heirs from FL… FL had all sorts fo contacts w/ the deceased, the heirs, the estate.
ii. In a 5-4, SCOTUS said NO PJ in FL! No minimum contacts w/ FL. Wouldn’t be fair play and substantial justice. The DE trust did not voluntarily do business w/ FL—simply trying to maintain their responsibility as a trustee. DE trust ∅ vulnerable to FL PJ.
c. World-Wide Volkswagen v. Woodson
i. Facts: Robinson family lived in NY. Bought an Audi from Seaway Motors. Moved to AZ. On their way to AZ, went through OK—they were hit, the gas tank explodes. They sue Volkswagen AG (German manufacturer), Volkswagen of America (importers), WWVW (distributor), and Seaway Motors (retailer). Sue in OK state court, invoking OK long arm statute, b/c OK is where the tort occurred. Seaway and WWVW moved to dismiss for lack of J. OK says: we got J!