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

Civil Procedure
Edward Cavanagh
Fall 2010
            A) What parties can bring what suits
                        1. Federal Courts – Limited jurisdiction
                        2. Federal Courts may not consider:
                                    a) political disputes
                                    b) advisory opinions
                                    c) wagers
                                    d) moot points
                                    e) cases that have no judicial controversy
            B) Standing: Threshold question that determines the right of a party to sue.
                        1.The controversy must directly affect this D and this P
                                    a) Injury must be “direct and immediate” to this P
                                    b) Both parties must have a stake in the suit
                                    c) Must be genuine, cannot be fictitious
                                    d) Only parties directly affected can sue
            1. Personal stake in litigation
            2. Best position to sue…”prudential concern” ex. Microsoft drives comp out of business by violating anti trust laws. Rival company is now defunct. Shares of stock are worthless. Creditors cannot collect on their debt. Employees are unemployed. Banks that lent employees money to buy homes now out of money from those loans. Ripple effect. Can show stake in litigation, but do they have standing? Just the corporation has standing to sue. Clayton act-only company that has been driven out of business can sue.
Jurisdiction (Overview)
            A) The power to speak the law
            B) A court must have both subject matter jurisdiction and personal jurisdiction
                        1. SMJ cannot be waived
                                    a) Raised anytime
                                    b) Can be raised by the court
                                    c) Without SMJ judgment is invalid
                        2. PJ can be waived
                                    a) Raised only at the beginning
                                    b) Without it judgment is valid
Subject Matter Jurisdiction (SMJ)
            A) Does the court have the power to hear this kind of case
            B) SMJ is only a problem in Federal courts because state courts have general jurisdiction
                        1. SMJ may not be conferred by consent of the parties
                        2. Burden of proof of SMJ is on the P
            C) Federal Courts will only hear five types of cases:
                        1. Diversity of Citizenship
                        2. Federal Question
                        3. Interpleader
                        4. Removal
                        5. Supplemental Jurisdiction
                                    a) Pendant Jurisdiction
                                    b) Ancillary Jurisdiction
I. Diversity of Citizenship (DOC)
            -28 USC §1332(a)(1) – Two Requirements for DOC
                        1. Suit must be between citizens of different states (DIVERSITY)
                        2. Amount in controversy must be greater than $75,000 (AMOUNT IN                                          CONTROVERSY)
            -Complete Diversity Rule: §1332 (a)(1) [Strawbridge v. Curtis]             -Complete diversity is destroyed, where defendant is considered “stateless”, but is a         United States citizen [Newman-Green, Inc. v. Alejandro Aldonzo-Larrain]                         1. If any P is a citizen of the same state as any D, then there is no diversity
                        2. Diversity is tested the date the case is filed (P or D can change                                                    citizenship a week later and it wont matter)
                                    Ex. 100 CA P and 1 NEV P v. 100 NY and 1 NEV – No Diversity
                                    * Can have same states on one side of the v., but cannot be the                                                        same on opposite sides
            Five Types of Citizenships – Citizenship is NOT Residence
                        1. For Natural Persons – A US citizen or one admitted as a permanent resident, is                          a citizen in the state in which he is DOMICILED
                                    Two Requirements of DOMICILE
                                                a) presence in a state – physical, driver’s license, vote, taxes
                                                b) subjective intent – intend to make the state your home for the                                                     foreseeable future or no intent to change.
                                                -One cannot have more than one domicile at a time
                                                   Hypo Guy is a Cali resident since he was born (18 yrs). Goes                                                           to NY for college, law school, dental school etc… For next 20                                                        years he never formed objective intent to make NY his home.                                                            He is STILL a Cali citizen. Even if he gets in state tuition, votes                                                         there, etc…) Didn’t meet (b).
                                                   Hypo VW case: Intent to make AZ his home, left NY, accident                                                      in OK, but still a NY citizen cause never actually set foot in AZ.                                                     So didn’t meet (a).
                        2. For a Corporation – don’t have domiciles, but do have citizenships
                                    Citizens of two states
                                                a) States where they are incorporated
                                                b) State where they have their principle place of business
                                                Hypo: Incorporated in NY and PPB in C

laimants must be diverse
                        b) No complete diversity is necessary
            2. Claim must be for $500 or more
IV. Removal
            -28 USC §1441 (a) – In a diversity action, ONLY D can remove a case from state court    to federal court
            -If basis of claim is FQ, then anyone can remove, and the diversity of the parties does not             matter
A) Requirements for Removal:
            1. Can only remove from state trial court to federal trial court
            2. Removable only if there is federal SMJ
            3. Can remove only to a federal district court encompassing the state court geographically
4. Can remove only up to one year after filing in a diversity action if the original action did not have diversity
5. Can remove up to 30 days after receiving complaint
            5. Can’t remove if any D is a citizen of the state forum they are trying to remove from
            6. In DOC, only the D can remove
            7. If multiple D’s, all must agree to remove
Hypo: P sues D in state trial court. D counterclaims on a F.Q. issue. P still CANNOT remove, never ever.
Hypo: P (Bill of AK) sues D’s (George of TX, and Bob of KS) in a Kansas State court.
Can D’s remove? NO, one D is a resident of Kansas
Hypo: Bill waits a year, dismissed claim against Bob, can D (George) now remove? NO, it does not matter that it just “became removable”, only that it was filed more than one year ago. [This is not so good because it allows P’s to mess around and forum shop.] Hypo: P (OR) sues D (OR) in OR state court for a F.Q.
Is the case removable? The exceptions are ONLY for Diversity Cases, NOT F.Q.’s So it can be removed.
B) Murphy Brothers v. Mitchetti Pipe Stringing, Inc
            1. If the summons and complaint are served together, the 30-day period for removal          runs at once.
            2. If the defendant is served with the summons but the complaint is furnished to the         defendant sometime after, the period of removal runs from the defendant’s receipt     of the complaint.
            3. If the defendant is served with the summons and the complaint is filed in court, but      under local rules, service of the complaint is not required, the removal period runs from         the date the complaint is made available through filing.
            4. If the complaint is filed in court prior to any service, the removal period run from the     service of summons.
V. Supplemental Jurisdiction