Civil Procedure I Outline

Professor Rierson/ Civil Procedure I / Fall 2011

Subject matter jurisdiction

Diversity of citizenship-

1. Amount in controversy must exceed 75,000

2. Must have diversity across the V

AIC must be made in good faith. The only way that a diversity case can be removed based on a the AIC is if it appears to a legal certainty that the claim is for less than 75,000

Domicile-

AN individual is domiciled in the state where

1. His permanent and fixed home

2. In which he intends to remain

To change your domicile one must

1. Move to a different state

2. And intent to remain there

Corporations can be domiciled in two different states. They can be domiciled in the state in

1. That they are incorporated in

2. And where there principle place of business is (you find this by looking at the nerve center test)

Federal question jurisdiction

Holmes creation test gives two ways in which a claim can have federal jurisdiction

1. The federal law creates the cause of action and provided a remedy

If no then

2. Does the state law claim interpret or apply federal laws

If it does it has to be an extremely important federal issue at stake

If the answer to this is yes the courts also consider

1. Congressional intent

2. Is the issue dispositive of the case

3. If the type of cases could be filed in federal court would the federal case load significantly increase

4. Is the issue purely legal or fact specific

Aggregating claims

1. 1 p can aggregate against 1d

2. 1 P cannot aggregate against multiple D’s

3. Multiple P’s cannot aggregate against multiple or single D unless it is a class action suit

4. If one P satisfies the other p’s can piggy back

Supplemental jurisdiction

Jurisdiction over a claim that is part of the same case or controversy as another claim over which the court has original jurisdiction

Must be under a common nucleus of operative facts

1367 (b) Limitation on diversity cases

The district shall not have supplemental jurisdiction when exercising it would be inconsistent with the judicial requirements of 1332

Pendent claim- Additional claim asserted by the plaintiff

Ancillary claim- Additional claim asset by the defendant (claims can be non-diverse)

Question: D brings case against someone from the same state as himself? This is ok?

D brings case against someone diverse from himself. That person brings a case against original P not diverse from himself.

Go back and read Glannon on supplemental jurisdiction

Removal jurisdiction

Any civil action brought in state court which the district has original jurisdiction may be removed by the defendants to the district court of the US for the district embracing the place where such action is pending

1441 (B) limitation on diversity cases

Any such action (diversity cases) shall be removable only if none of the defendants are a citizen of the state in which the action is brought

All defendants must join together

Must file for removal within 30 days of being served

Can only remove to the district and division that such action in pending the notice of removal

Personal jurisdiction

In rem- The property provides the basis for jurisdiction and the underlying dispute is about the property itself

Quasi in rem- Property provides the basis for jurisdiction but the underlying dispute is not about the property

Tagging

Scalia- tagging alone is sufficient to gain personal jurisdiction over a defendant

Brennan- Courts apply a minimum contacts “light” analysis when D is tagged in the forum state. The longer D was in the forum state and the more benefits s/he obtained (or could have obtained) while in the state (at the time of tagging), the more likely it is that D will be subject to personal jurisdiction there.

Minimum contacts-

When deciding between specific and general jurisdiction ask “does the cause of action arises from the defendants contact with the forum state?”

If yes then look at specific jurisdiction

If no then look at General jurisdiction

Specific jurisdiction- D must deliberately engage in activities to create a substantial connection with the forum state

· D purposefully availed himself to the benefits and protections of the forum state

General jurisdiction- The defendant must have continuous and systematic contacts with the forum state

· Must be substantial contact with the forum state. Very hard to prove if the defendant is not domiciled there

Fairness factors

· Burden on the defendant

· Forum states interest in the dispute

· Plaintiffs interest in obtaining relief in the forum state

· Efficiency- (location of evidence and witnesses)

5. States interest in furthering fundamental substantial social policies (interest in having there residents subjected to their laws, rather than the ones of the forum state)

Examples of “additional conduct” necessary to establish D’s purposeful availment in stream of commerce cases

1. Designing product for market in the forum State;

2. Advertising in the forum State;

3. Establishing channels for providing advice to customers in the forum State;

4. Marketing product through a distributor who has agreed to serve as a sales agent in the forum State.

Purposeful availment- Conduct directed at the forum state

Internet personal jurisdiction

Passive (no exchange of information “electronic yellow pages”) No PJ

Interactive (interaction with the website but you do not purchase anything) Maybe PJ but probably not

Active (you can purchase items on the website “amazon”) Yes PJ

Consent

1. Expressed- (written into the contract) Express contractual provisions by which the parties consent to PJ in a given forum are typically enforced, unless they are “fundamentally unfair.”

2. Implied

· Waived- BY choice or failing to raise an objection

· Sanctions- for misconduct, typically related to providing discovery on personal jurisdiction.

You can waive PJ-

A party waives any defense listed by

· failing to either:

· (i) make it by motion under this rule; OR

· (ii) Include it in a responsive pleading or in an amendment allowed by Rule 15(a)(1) as a matter of course.

Challenging PJ

· 1) In a motion to dismiss filed at the beginning of the lawsuit [Rule 12b2];

· (2) As an affirmative defense, included in an answer to plaintiff’s complaint;

· (3) On appeal, but only if you preserved your objection by raising it either in your answer or in a motion to dismiss; OR

· (4) Collaterally – you don’t show up

· Court enters into a default judgment and object when attempted enforce

· Can no longer appeal on the merits of the case just Cts lack of PJ

· Not a very attractive option

Types of appearance a defendant can make

Special appeara