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Civil Procedure I
Temple University School of Law
Sonenshein, David A.

Civil Procedure I – David Sonenshein Spring 2011

Recurring Themes:
1. federalism: limited authority to national govt, remaining power to the states
2. law & equity
a) law: jury, rigid pleading limited joinder
b) equity: redress for those who could not attain relief from law cts.  open ended                                        procedure: expansive joinder of claims and parties, empowered to award non monetary                             or equitable relief
3. Judicial discretion
4. Fairness vs. Efficiency

I.          Should State or Federal Law Apply?

A.        Federal Question Jurisdiction
III U.S. CONST. 2
1. cases arising under the Const., Statutes, and treaties
2. cases affecting ambassadors, other public ministers and consuls
3. cases of admiralty and maritime jurisdiction
4. in which the U.S. is a party
5. btw. 2 or more states
6. btw. a state and citizens of another state
7. btw. citizens of different states
8. btw. citizens of same state claiming lands under grants of different states
9. btw. a state, or citizens, and foreign states, or citizens or subjects

i)          “The district courts shall have original jurisdiction of all civil actions arising                                                under the Constitution, laws, or treaties of the United States”
28 U.S.C. 1331

1. Ingredient Test: whenever a fed. question forms an ingredient of the claim
Fed. law fed. jurisdiction
– Osborn v. Bank of the United States

2. Well Pleaded Complaint Rule: to qualify for fed. juris. the presence of a                                                 federal question must appear in the plaintiff's presentation in the context of a well                                     pleaded complaint (on the face of the complaint), cannot confer based on                                                   anticipated defenses (artful pleading).
– Louisville & Nashville Co. v. Motley

3. Creation Test (Holmes): which sovereign created the law you are suing under
the law that created the action determines the court

4. substantial federal question which affects the outcome of the case
the law that created the action determines the court, but only if it involves                                         a substantial federal question which affects the outcome of the case
– Smith vs. Natural Gas Case/Moore

5. the law that created the action determines the court, but only if it involves a                                              substantial federal question which affects the outcome of the case and Congress                                           does not forbid/allows it (concerned w/ the opening up of floodgates for too                                               much fed. litigation)                                       – Merril Dow

6. ”    .  (concerned with disruption of Congress approved                                                                                                                balance btw. fed. and state courts)
– Grable

B.        Pendent and Supplemental Jurisdiction
28 U.S.C. 1367(a):
a) except as provided in subsections b) and c) or as expressly provided otherwise                           by Federal Statute, in any civil action of which the district courts have original                                           jurisdiction, the district courts shall have supplemental jurisdiction over all other                                        claims that are so related to claims in the action within such original jurisdiction                                         that they form part of the same case or controversy under Art. III of the United                                                States Constitution.  Such supplemental jurisdiction shall include claims that                                             involve the joinder or intervention of additional parties.


1. 1) federal claim must have “substance sufficient to confer subject matter                                                 jurisdiction of the court, 2) “must derive from “common nucleus of operative                                         fact,” 3) federal and nonfederal claims must be such that P “would ordinarily be                                        e

s of corp. decision making authority and overall control
2. corp. activities test: location of corp.'s production or service activities
3. total activity test: hybrid of the two

5.         unincorp. associations:  citizenship of such entities are citizenships of all                                                     members of the labor union

6.         Legal Representatives:  legal representative of estate of a decedent shall be                                                deemed a citizen only of the same state as decedent, and legal representative of                                         an infant or incompetent shall be deemed to be a citizen only of the same state as                           infant or incompetent.

7.         ordinarily, if anyone in the action shares citizenship w/ the                                                               other party, no divers. jurisdiction

8.         class actions:  minimal diversity: jurisdiction is determined by the name party

9.         1359 rejects ability to manufacture diversity.  All that matters is where P                                                      is a citizen @ the time the lawsuit is filed. – Kramer.  In this case she can get                                                diversity jurisdiction if she can show an intent to remain in the state permanently.                                      – Jansen v. Goos

10.       Congress couldn't have meant for us to allow alien v. alien suits in fed. ct.,                                                 therefore alien v. permanent resident alien is not conferred to Fed. Ct.  – Saadeh

11.       When you are collusively or otherwise assigned a claim for purposes of creating                                         diversity, then federal juris. cannot be conferred – U.S.C. 1359 
– Kramer v. Carribean Mills