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

Civil Procedure

General Overview

Selecting the Forum

Court must have personal jurisdiction over defendants
Service of process (giving notice to those who have been sued)
Subject matter jurisdiction determines whether suit goes to state or federal court
Assessment of what law the different fora would apply

Learning About the Opponent’s Case

Pleadings: each side alleges facts underlying their claims and defenses
Answer: response of defendant to allegations
Reply: response to answer by plaintiff
Discovery phase: parties require each other to produce info

Adjudication With or Without a Jury
Preclusion, Joinder, and Supplemental Jurisdiction

Preclusion doctrines: prohibit parties from relitigating issues already decided
Joinder devices: define scope of litigation in terms of parties and claims


Forum Selection:
Subject Matter Jurisdiction (SMJ)

Subject matter jurisdiction determines whether suit goes to state or federal court

Fed. courts have limited SMJ—specified by Art. III
State courts collectively have general SMJ
Concurrent SMJ also occurs—P gets to decide

The burden is on the P to establish federal SMJ!
SMJ cannot be conferred on a fed. court by consent and challenge to SMJ is never waived; SMJ may be invoked at any time!
Presumption against federal jurisdiction

Two Options for Federal Jurisdiction:

Federal Question(Section 1331)
Diversity and Amount in Controversy (Section 1332)

The Domestic Relations and Probate Exceptions

Federal Courts do not hear “domestic relations” cases—no divorce, alimony, or child custody cases allowed in fed. ct.
Just because P and D are family members does not exclude them from filing in fed. ct., though!
No probate cases in fed. ct. (those are left entirely to the states)

Federal Question Jurisdiction:

Main Question: Does the well-pleaded complaint involve a federal question?

i. Yes—federal courts have jurisdiction (but state courts may too—this is called concurrent jurisdiction)
ii. No—have to look for diversity/amount in controversy to get federal SMJ

Element: The well-pleaded complaint

i. Louisville & Nashville RR v. Mottley (1908): The Mottleys were gypped out of their RR passes by the passage of a Federal statute. They asserted fed. question juris. because they assumed the RR would rely on the statute in their defense. The court held that speculation as to the possible defenses of a D, and whether or not those defenses might raise a fed. question, cannot be properly entertained. Complainants are confined only to their immediate cause of action, which must itself raise a fed. question for fed. courts to have jurisdiction.
ii. Rule: Look at the P’s complaint and not the D’s defense, the federal question must be in the former, it’s irrelevant if it’s in the latter
1. Also the federal issue must be substantial and central to the P’s claim
2. Well-pleaded complaint issue is only applicable in fed. question cases, NOT in diversity of citizenship cases
3. “well-pleaded complaint”: a complaint that sets forth ONLY a claim, unadorned by anticipated defenses or other extraneous material
4. Courts will disregard anything that is not within the scope of a well-pleaded complaint and look only at the essential elements of the claim itself

§ 1331: Federal Question:

i. Claims arising under fed. law may be brought in fed. court (Cases brought under 1331 can be filed in either state or fed. court (except in cases where the fed. grant is exclusive)
1. “The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States”

Diversity Jurisdiction:

Main Question: Is there complete diversity of citizenship between all Ps and all Ds AND does the amount in controversy exceed $75,000?
§ 1332: Diversity of Citizenship:

i. The plaintiff’s citizenship is diverse from that of defendant and amount in controversy exceeds $75,000
1. “The district court shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between—(1) Citizens of different States…”

Diversity jurisdiction applies when the citizens are diverse at the time the complaint is filed

Element: Complete diversity

i. Rule: all Ps must be diverse from all Ds
ii. The rule of complete diversity is statutory
iii. Strawbridge v. Curtiss (1806): Diversity jurisdiction only exists if all Ps are of diverse citizenship from all Ds.

Element: Determining Citizenship of Individuals

i. Rule: There are two requirements for domicile—the physical and the mental—and both must be established. Citizenship is accorded to someone who is a citizen of the US and has domicile in a state (defined as intent to remain there).
1. For diversity purposes, citizenship means domicile; mere residence in the State is not sufficient
ii. Mas v. Perry (1974): Peeping landlord…Mrs. Mas was domiciled in Mississippi, Mr. Mas in France, and the landlord in Louisiana, Mases were in Illinois at the time of the litigation
1. Holding: Diversity jurisdiction is granted when the citizens are diverse at the time the complaint is filed.
a. The burden of pleading diverse citizenship is upon the party invoking federal jurisdiction.
b. Citizenship means domicile, residence is insufficient.
iii. Change in domicile can only be effected by 1) taking up residence somewhere else, and 2) intending to stay there (physical and mental requirements…)

Element: Determining Citizenship of Corporations

i. Rule: P must assert that both state of incorporation and PPOB are diverse in the pleading to establish diversity jurisdiction over a corporation
1. Section 1332: “(c) For the purposes of this section and section 1441 [Removal] of this title–(1) a corporation shall be deemed to be a citizen of any State by which it has been incorporated and of the State where it has its principal place of business ***”

ii. Element: Diverse PPOB and State of Incorporation:
iii. Randazzo v. Eagle-Picher Industries, Inc. (1987): P had sufficient time to amend the errors of the complaint to show complete diversity, but failed to do so despite the judge’s instructions and the clear directions of statutory law. Therefore, the complaint was found to be jurisdictionally deficient.
1. “Rules of the Game” (a la Judge Lord):
a. P bears the burden of establishing jurisdiction
b. If P wants to sue in fed. court, P must show that the fed. court has jurisdiction, otherwise, his case will be dismissed.
c. Both the state of incorporation and the principal place of business must be diverse to have diversity
d. “A corporation shall be deemed a citizen of any state by which it has been incorporated and of the State where it has its principal place of business”
iv. “registered offices” are not the same as “principal place of business”
v. Corporations have dual citizenship and P may not

moval statutes!


More often than not, venue is appropriate:

i. Where the Ds are domiciled and/or
ii. Where the claim arose

Venue is simply an administrative mechanism for dividing up the court system’s business, contrast with PJ, which is about the court’s power to make decisions that will bind the particular parties.

Forum Selection:
Personal Jurisdiction

Personal Jurisdiction:

Personal Jurisdiction: the circumstances under which a court has authority to make decisions binding on the particular parties

i. Jurisdiction to render a judgment against that particular D—power over the person (consent is assumed for the P)

Full Faith and Credit Clause (Art. IV): “Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state.” (states must enforce each other’s decisions)

i. Where court lacks PJ is one of the few exceptions to this rule!

Constitutional Limits on PJ:

i. Pennoyer v. Neff (1878):
1. Facts: D was living in Calif. and could not be found when Mitchell submitted affidavit asserting that D owed him money for legal services. Mitchell published notice of the suit in a newspaper, but D did not respond. Six mos. later, Mitchell secured a writ of execution against Neff’s land in Oregon. The land was sold at auction and Mitchell bought it. He transferred it to Pennoyer three days later.
2. Holding: Oregon didn’t have in personam jurisdiction because there was no personal service in-state, D was not a domicile, and inadequate notice was given. There was no in rem jurisdiction either, because the court didn’t attach the property until AFTER the case had been decided.
3. Rule:
a. PJ may be obtained over individual Ds if summons are served in the state where the suit is brought.
b. States have exclusive juris. over persons and property within their territories (converse is also true—can’t exercise direct juris. over people/things outside)
c. If a nonresident has no property in the state, no jurisdiction
4. Themes of Pennoyer: Power, Notice, Consent
a. Power or notice alone is insufficient—must have both to comply with the Constitution!
ii. Privileges and Immunities Clause of Art. IV of Const.: one state cannot exclude the citizens of another

Use of a Long-Arm Statute:

i. Hess v. Pawloski (1927):
1. Facts: (Original) P wanted to recover for personal injuries caused by car crash. (Original) D was a resident of Pennsylvania, crash occurred in Massachusetts. No personal service was made and no property of D’s was attached. This was in compliance with a Mass. statute that equated driving on Mass. highways with appointment of the Sec’y of State as the driver’s agent, should the driver be a non-citizen of Mass. Appeal is on whether the statute is in conflict with due process.