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Civil Procedure I
St. Johns University School of Law
Cavanagh, Edward D.

FALL 2011
a)    in order to be heard by the court, the case must be justiciable and capable of resolution.
b)   The courts will not hear:
i)     Political questions
ii)    Wagers (Cudahy v. Quirk – Flouridation Advertisement Wager)
iii)   Moot Issues (DeFunnis v. Odegard – π, suing for reverse discrimination, would graduate law school before case decided)
iv)  “Friendly” litigation where one party is financing both sides to try to set a precedent
v)    Cases where there is no legal issue (Georgia HS Football v. Waddell – parents sued because a ref did not award a first down)
c)    Two Requirements for Standing to sue:
i)     A stake in the litigation. You must be the victim. Person B cannot sue Company X because Person A was injured by their product.
ii)    Must be the best person to sue – Microsoft being a monopoly causes Company X to go bankrupt. Who should sue (the shareholders, employees who lost jobs, creditors, bond owners, banks)? A: Company X itself.
a)    A court must have both of these to proceed in a lawsuit:
b)   Subject Matter Jurisdiction – Can the court hear this type of a case? i.e. a child custody lawsuit brought in criminal court would not have subject matter jurisdiction.
i)     Comes from Art. III of the Constitution, Congressional Statutes and common law
ii)    Federal courts are of limited subject matter jurisdiction – must either raise a federal question or have diversity.
iii)   State courts are of general jurisdiction.
iv)  Cannot be conferred by consent – even if both parties agree to be in federal court their case does not have subject matter jurisdiction there if there is no federal issue or diversity.
v)    Objections can be raised at any time, even on appeal if it wasn’t brought up in the answer/complaint. If it is determined the jurisdiction is void, then any previous decision has no effect.
vi)  The π has the burden to show subject matter jurisdiction
vii) The court can raise the issue of subject matter jurisdiction even if neither the π or ∆ do.
c)    Personal Jurisdiction – Jurisdiction over persons or things – if both the π and the ∆ are domiciled in the same state, that state court has personal jurisdiction over them.
i)     Comes from statutes and common law
ii)    Can be conferred by consent, possibly in advance in a contract.
iii)   If the issue of personal jurisdiction is not raised immediately, it is waived. i.e. if you show up for the lawsuit and don’t immediately contest personal jurisdiction, it is deemed that you consent.
a)    Diversity Jurisdiction – defined in 28 U.S.C. §1332. Parties can sue in federal court without a federal issue if there is diversity jurisdiction
i)     Amount in controversy requirement of $75,000 (not a meaningful barrier)
ii)    There must be complete diversity between the plaintiff(s) and defendant(s) (Strawbridge v. Curtiss – π from MA sued several ∆s from VT and MA. If even one ∆ is from the same state as one π there is not complete diversity)
iii)   Diversity is determined by a party’s domicile at the time of the filing of the lawsuit.
(1)  Domicile does not equal residence – you can have multiple residences but only one domicile. Domicile is a permanent place of abode – intend to return there and you do not give up your old domicile until you have a new one. Domicile can be proven by voter registration, car registration, IRS filing address, etc.
(2)  Corporations are domiciles of both the state in which they are incorporated and the state in which their “nerve center” is located (Hertz Corp. v. Melinda Friend et. al. – Friend (CA domicile) sued Hertz (DE Corp.) in CA state court arguing that they do most of their business (plurality of business) in CA and are therefore subject to CA jurisdiction. Court held that plurality of business does not matter because the amount of business is proportionate to the population of the state and that they must use several factors to determine where a company’s “nerve center” is located. Hertz’s “nerve center” is in NJ as its company headquarters is there)
(3)  Unincorporated organizations (such as unions) are domiciled in any state where an individual member is domiciled. It is rare that they get diversity jurisdiction.
(4)  Representatives of minors, incompetents or decedents follow the domicile of who they represent.
(5)  In class actions it is the representative.
(6)  Cannot create diversity by artifice or fraud. i.e. π of NY wants to sue ∆ NY in federal court on a state claim. π then assigns his interest to the claim to his sister of NJ for $1. Sister sues ∆ claiming diversity jurisdiction. The courts are smarter than this.
iv)  THERE ARE EXCEPTIONS TO DIVERSITY. (Ankenbrandt v. Richards – There is a domestic relations exception to diversity jurisdiction that encompasses cases involving divorce, alimony or a child custody decree. In this particular case the exception was not met because it was a to

iii)   Pendent Party Jurisdiction – (Finley v. United States – husband and kids died in plane crash due to lack of lighting – Finley tried to add other defendants and claims to her federal case that would otherwise be non-federal. The court did not allow this. Even though there is the same nucleus of operative fact, the defendant has to be the same in all claims.)
e)    Removal – if the ∆ has a right to federal court in a lawsuit, he has 30 days from the time of service to file for removal to federal court. If the right to federal court is of diversity basis, it must exist at the time it is filed AND the time the case is removed.
i)     Actions can only be removed if they could have originally been brought in federal court (there is diversity or a federal question and the amount in controversy requirement is met).
ii)    Cases may only be removed from state to federal, not vice versa.
iii)   Removal is limited to civil actions
iv)  Only defendants can remove. i.e. plaintiff cannot change its mind later. Also, counterclaims by the defendant do not give plaintiff the right to remove.
v)    28 U.S.C. §1441
vi)  Cannot remove if a ∆ is a citizen in the state in which the action is brought
a)    In personam  – Against the person
i)     Good against all of a person’s assets
ii)    Entitled to “full faith and credit”
iii)   “One bite of the apple” – only get to sue once
iv)  Decisions can only be challenged on appeal – cannot simply file in a different court
b)   In Rem – Against the thing – involved the value of a property, not any other assets.
i)     Property – If you default on your mortgage, the bank can foreclose on your property
ii)    Partition Actions – When there are multiple owners and the land is unevenly distributable and one side wants to sell, the court will sell the land and evenly distribute the proceeds
iii)   Forfeiture – Something is seized because it is “instrumental to crime,” i.e. a car being seized from a drug dealer