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

Edward Cavanagh

Civil Procedure

Fall 2012


Alternative Dispute Resolution (ADR)

1) Arbitration – One person who is expert in the area makes binding decision

2) Mediation – Expert brings parties together to come to a solution, not binding- Only Recommendation.

3) Rent-a-Judge – E.g. People’s Court

4) Mini-trial – appoint experts and each side presents arguments. Experts bring parties together for a recommendation

5) Summary Jury Trial – Lawyers give summary to jury of case, jury gives their opinion of what they’d decide, not binding


A) Definition – Issue before the court must present a judicial controversy

– Must be capable of being solved by the courts and be best solved in courts, not another venue

Georgia High School Association v. Waddell – Referee’s errors in games do not present judicial controversies

B) Examples

1) Political Questions – are to be decided by the electorate or the legislature and are not justiciable

Cudahy v. Quirk – the court is not capable of deciding whether or not water fluoridation is good, voters should decide that through the legislative process

2) Mootness – when the decision will not affect the outcome the case is moot and not justiciable

a) Article 3, Section 2 United States Constitution – Must be a case of controversy

Defunis v. Odegaard – since Defunis had already been registered in his last semester at law school, making a decision about the admissions policy would not affect him graduating (outcome)

b) Decision of the court must definitively affect the parties

c) EXCEPTION – Courts have provided an escape from Mootness doctrine by permitting judicial resolution of issues “capable of repetition” yet evading review, even though the circumstances giving rise to the issue have come to an end.

Roe v.Wade- natural termination of a pregnancy did not moot an action, the life span of a lawsuit is longer than a pregnancy. Plaintiff could become pregnant again and face same restrictions

3) Collusive or Friendly Suits – Where there is no controversy; E.g., if one party is funding the other’s lawsuit, there are no adverse interests, and not justiciable

a) Article 3 Section 2 US Const. Must be a case of controversy

b) Undermines adversarial system

4) Ripeness – Issues not yet ready for adjudication

a) Article 3 Section 2 US Const. Must be a case of controversy

b) Issue must be concrete

c) Advisory opinions not allowed

5) Standing – Depends on 2 issues

a) Do you have a stake in the litigation? Are you hurt as opposed to somebody else?

b) Is π in the best position to sue? Judicial Prudence

c) Not easily defined, turns on the facts of each case

POWER v. Thompson – POWER had no standing to bring the suit because it has no STAKE in the litigation. No member of its group was denied right to register. The injury must be more immediate and must be their injury, not another’s

III. JURISDICTION (Subject Matter Jurisdiction)

A. Jurisdiction – The power to speak the law

1. Two types of Jurisdiction – Must have both in order to bring a lawsuit in federal court

a) Subject Matter Jurisdiction – Does the court have the power to hear this kind of case – CANNOT BE WAIVED, RAISED ANY TIME EVEN BY THE COURT – Judgment is invalid without this

i. Burden of proof is on the π to prove Subject Matter Jurisdiction – first thing in a federal complaint is a statement of the Subject Matter Jurisdiction

b) Personal Jurisdiction – Does the court have power over the parties involved in the dispute – WAIVABLE – MUST BE RAISED IN BEGINNING

2. Federal courts are courts of limited jurisdiction (Article 2, Constitution)

3. State courts are (usually) courts of general jurisdiction

Ways Subject Matter Jurisdiction can be established

1) Diversity of Citizenship

2) Federal Questions

3) Interpleader

4) Supplemental Jurisdiction

– Pendent Jurisdiction

– Ancillary Jurisdiction


2 Elements of Diversity (required) – 28 U.S.C. § 1332(a)(1)

1) Controversy must exceed $75,000

2) Suit must be between citizens of different states – Citizen of U.S. and DOMICILED in the state

a) Domiciled – Dwelling, Place you call home, permanent residence

Ø You can have only 1 Domicile, many residences

Ø Rooted in English Common law – birth, parents, law (Custodial) – You are given citizenship domicile of your birthplace, until you change it.

Ø By objective criteria the court determines your domicile (Presence in a state)

– License?

– Vote?

– Where do you write as your home on tax forms?

*General rule is you don’t lose your present domicile until you acquire a new one; saying you will never return is not enough

1. Complete Diversity Rule (Strawbridge v. Curtis) § 1332 (a)(1)

a) If any π is a citizen of the same state as any Δ, there is no diversity – diversity must be shown to each defendant

b) Diversity is tested at the date the case is filed (If π or Δ changes citizenship a week after suit, it doesn’t matter)

c) Must be citizen of U.S. and Domiciled – Can’t be domiciled in a place like England and be a citizen – Stateless (Newman Green v. Alejandro- Alfonso)

Types of Diversity

a) Citizens of Different State

1) π(NY) v. Δ(NJ)

2) π(NY) & π(NJ) v. Δ(OH)

3) π(NY) & π(NY) v. Δ(NJ) & Δ(Fla)

4) π(NY) & π(France) v. Δ(NJ)

5) π(NY) & π(France) v. Δ(NJ) & Δ(France)

6) Not allowed: π(NY) & π(NJ) v. Δ(NY)

b) Citizens of a state and citizens or subjects of a foreign state

1) π(NY) v. Δ(France)

2) π(NY) & π(NJ) v. Δ(France)

c) Citizens of different states where citizens or subjects of a foreign state are additional parties

1) π(NY) & π(France) v. Δ (NJ)

2) Not allowed: π(NY) & π(France) v. Δ(France)

2. Determination of Citizenship for purposes of Diversity

a) Court will determine the sole domicile of the Δ

i. Where the Δ regards as their permanent home

ii. When the Δ has more than one residence, the court will look at objective factors as mentioned above

iii. Hypo – Guy is a NY resident since he was born (18). Goes to college in Cali, law school dental, etc. Next 20 years he never formed objective intent to make Cali his home. He is STILL a NY resident.

b) Corporations can be considered domiciliaries of more than one state – Citizens for diversity purposes

i. State of Incorporation(s) AND

ii. State where their Principle place of business is (PPB)(Only one PPB)

a) Place where majority of business is conducted

b) Corporate Headquarters

c) Where officers are based and decisions are made

d) Place where board meetings take place

– All these features are the “Nerve Center” Test

Hertz v. Friend – Corporations’ PPB is where it’s “nerve center” is – Predictable and Clear

c) If an opposing party is a citizen of any of the corporate party’s states of citizenship, there is no diversity

3. Amount in Controversy

a. Must exceed 75,000 and one cent

b. Not including interest or fees

How do we determine the Amount?

(1) The amount stated on the complaint governs

(2) UNLESS it is clear to a legal certainty that π could not recover that much

Hypo: For breach of K, 20K for breach and 100K for punitive damages. NO GO – cause cannot get punitive damages for a K. Thus, a legal certainty that π cannot get 75,000.01

Aggregation – When two or more claims have to be added together to break the 75K hump.

Only a problem if:

(1) More than one π – if there is more than one π, you cannot add up their claims to total 75K – this does not satisfy the amount

(2) If it is a class action suit, and diversity is satisfied, and while all the π’s claims are not 75K by themselves, but 75K when combined, this does not satisfy the 75K requirement (Snyder v. Harris)

Not a problem if:

(1) One π with more than one claim against same Δ – brings one claim of contract breach, tort, and property – while separately not 75K, when together it is 75K – This is allowed

(2) If class action suit, if at least one π meets the minimum 75K requirement, than all π’s can bring it under her satisfied requirement – §1367 – Exxon Mobil Case

(3) Hypo – 10 π’s and 100 Δ’s on ONE CLAIM for 75K and a penny – this is ok since no lumping of claims and no need to add – doesn’t matter the number of parties under one claim


1. “All civil actions arising under the Constitution, laws, or treaties, of the United States.”

2. Well Pleaded Complaint Rule – Basis of recovery must be a federal claim; it is not enough that at some point a federal question will arise

Louisiana & Nashville R.R. Co. v. Motleys – Filed claim for breach of contract by R.R. company for not renewing their lifelong free transportation passes (agreed to on prior injury so as not to sue). New act of Congress forbade free transportation. Cannot say it is a Federal Question when you are bringing up the federal issue as rebutting a defense. It is not enough that there is a federal issue in the case somewhere. Well pleaded complaint rule – complaint must raise the issue of the Federal Question.

a) Crack in Well Pleaded Complaint Rule – If R.R. company would have brought the suit for a declaratory judgment stating the parties rights, it would have had jurisdiction. This is wrong. Courts have said that if the parties seeking declaratory judgment, would not be suing for relief, but solely for a defense against a suit, no jurisdiction exists

Grable v. Darue – π brought a quiet title action because clai

vable if there is federal SMJ; Only if case could have been heard by federal court in the 1st place

3) Can remove only up to one year after filing in a diversity action

4) Can’t remove if any Δ is a citizen of the state forum they are trying to remove from

5) In diversity cases, only the Δ’s can remove, π’s can never remove

6) If multiple Δ’s, must all agree to remove

7) Remove a case by simply filing a petition in the federal court you want to remove to, and is served to all the π’s involved

8) Once the removal is filed, even if BOGUS AND NO BASIS FOR SMJ – state court can’t do anything about it because it loses SMJ in federal court – if π wants to argue there is no case for removal and wants to argue in state court, has to do it through federal court


a) π(Ca) sues Δ(NY) in state court of NY – where diversity is basis of subject matter for the main claim, case is not removable if Δ is sued in his home state – if sued in California, then Δ would be able to remove

b) π(Ca) sues Δ(NY) in state court of NY – where the basis is other than diversity, the Δ can remove – if you are sued in state court on a federal claim you can remove to federal court in the same district the state court is situated

IV. PERSONAL JURISDICTION (Second Requirement for Federal Jurisdiction)


1) Jurisdiction against the person (In Personam)

2) Jurisdiction against the thing (In Rem)

3) Quasi In-Rem Jurisdiction

A. IN PERSONAM JURISDICTION – The power of the court to speak the law with respect to the individual before the court

1. Limitations on Personal Jurisdiction – Limitations on a court’s personal jurisdiction arise from two sources: State Statutes and the Constitution. An exercise of Personal Jurisdiction may not exceed either

a) Statutory Limitations – States have the power to decide over whom their courts may exercise jurisdiction. Therefore, the first place to look to determine whether the court has properly exercised personal jurisdiction is state law. If no state statute grants the court the power over the parties before it, the court lacks personal jurisdiction. On the other hand, an exercise of jurisdiction will not be proper merely because it comports with a state statute: Must be within limits of the Constitution.

b) Constitutional Limitations – The Due Process Clause of the Constitution places two restrictions on the exercise of personal jurisdiction – 1) Δ must have such contacts with the forum state that the exercise of jurisdiction would be fair and reasonable, 2) Δ must be given appropriate notice of the action and an opportunity to be heard

A state statute cannot exceed these constitutional boundaries, but is not required to exercise the full limit of constitutional power. Thus, both limitations are considered

c) Personal Jurisdiction in Federal Courts – Main jurisdictional problem in state courts arises when the Δ over whom power is sought lives in another state.

2. Statutory Limitations on In Personam Jurisdiction – Each state is free to prescribe its own statutory basis for Personal Jurisdiction. The exercise of jurisdiction in a given case must also satisfy constitutional requirements. Most states have statutes granting their courts in personam jurisdiction in the following 4 situations:

1) Presence – Any Δ is present in the forum state and is personally served with the process is within the power of the state(Pennoyer v. Neff) – even if Δ is just passing through

Two Exceptions: Discretion with Court to Void even though jurisdiction Exists:

a) Service By fraud

b) Immunity of parties and witnesses

2) Consent – Δ consents to the jurisdiction

a) Implied – Appearance, participating in an action

b) Expressed – By contract or agent

c) Coerced – Businesses or Corporations can coerce as a condition of business

3) Domicile – Personal Jurisdiction exists over domiciliaries even when the Δ is not physically within the state (Miliken v. Meyer)