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Civil Procedure I
Rutgers University, Newark School of Law
Askin, Frank

Topics
1. Jurisdiction and related matters
2. What law is applied in a federal court action?
3. Pleadings
4. Joinder
5. Discovery
6. Summary Judgment
7. Trial
8. Post-trial motions
9. Appeal
10. Former Adjudication
Jurisdiction and related matters
Framework
1. Does the court have Subject Matter Jurisdiction?
2. Does the court have jurisdiction over the person or the property of D?
3. Has D been given notice of the institution of the lawsuit and an opportunity to be heard?
4. Has service of process been carried out in the manner prescribed by procedural rules of the particular court?
5. Does the court have venue in the action?
6. If the action has been instituted in a state court, can it be removed to a federal court?
7. Has anything been waived?

Does the court have Subject Matter Jurisdiction?
I. Federal judicial power
1. Article III, § 2
a. cases arising under the Constitution, laws, and treaties of the United States
b. cases between citizens of different states
c. cases involving the United States
d. cases involving admiralty and maritime jurisdiction
e. cases between a state and citizens of another state
2. Federal courts are courts of limited jurisdiction – to respect the balance of power between the states and the federal govt
3. P must plead and prove federal jurisdiction. Parties may not consent or agree to confer SMJ on the court.
4. SMJ defect is never waived and can be raised at any time. Court may raise the question sua sponte.
5. Concurrent v. exclusive jurisdiction – some claims can be heard either in state or federal court. Some can only be heard in federal court.

II. Federal question jurisdiction
1. 28 USC § 1331: Plaintiff’s cause of action must “arise under the Constitution, laws or treaties of the United States”
a. A right or immunity created or protected by federal law must be an essential element of Ps cause of action
2. Well-pleaded complaint rule – the federal question must appear on the face of a well pleaded complaint.
a. Louisville & Nashville RR v. Mottley
3. the federal question must be substantial
4. the federal law must allow for a private right of action
a. Merrell Dow v. Thompson – a claim that alleges a violation of a federal statute as an element of a state cause of action does not create federal question jurisdiction if Congress withheld a private right of action when enacting the statute. Because the statute in this case did not provide for a private right of action, federal question jurisdiction does not exist over Ps calim and removal to federal court was improper.
b. Grable & Sons v. Darue Engineering – the national interest in providing federal tax litigation is sufficiently substantial to support the exercise of federal question jurisdiction. The only fact in dispute is the meaning of the federal provision. The govt has a strong interest in the prompt and certain collection of taxes. Govt has a

oth a citizen of US and a citizen of a state. An American domiciled abroad cannot sue or be sued in federal court based on diversity of citizenship
3. Alienage jurisdiction: A citizen of the US vs. a natural citizen or natural subject of another country
a. A permanent resident of the US is deemed a citizen of the state in which he is domiciled
b. Corporation: citizen of the state of incorporation AND the state of its principle place of business.
1. Nerve center – where executive decisions are made
2. Muscle – where majority of assets are
c. Unincorporated associations: every state in which each member of the association is domiciled
d. Representative actions: shareholder derivative, class action, child, incompetent
1. Traditional rule: based on citizenship of representative. Still the rule for shareholder derivative and class action
2. In actions for children, incompetents and estates – traditional rule changed to be based on state of citizenship of represented
e. 28 USC 1359 provides that no jurisdiction when a party is improperly or collusively made or joined for the purpose of creating federal subject matter jurisdiction
6. Amount in controversy: