Civ Pro 2
I. Subject Matter Jurisdiction
1. Homerun motions to get out of the lawsuit
a. MTD for lack of SMJ
b. MTD for lack of PJ
c. MTD for failure to state a claim upon which relief can be granted under Twombly & Iqbal; 12(b)(6)
d. Motion to compel arbitration – pursuant to contract
e. Erie motion
f. Motion for remand
g. Motion for summary judgment
h. Change of venue
i. Motion to strike jury: if jury not demanded in timely manner, case can be lost
j. Motion to abstain: court can abstain from jxn
2. Jurisdictional vs. Elemental
i. If jurisdictional defect, whole case can be dismissed even after verdict
ii. Court of Claims statute of limitations
iii. False Claims Act status as “original source”
i. If elemental defect, related claims would still stand if challenged post-verdict
ii. Number of employees under a Title VII
iii. Minimum age requirement for ADEA
iv. Time to file administrative appeal challenging Medicare reimbursement decision
v. Time limit to appeal VA ruling
vi. Lack of copyright registration
vii. No pattern of racketeering under RICO
i. Exhaustion of remedies
1. Having to go through the channels of agency, i.e. EEOC, IRS, FTCA, Arbitration
2. Mader says jxnal for FTCA
ii. Plan participation for ERISA?
1. Leeson says elemental for ERISA
d. 12(b)(1) v. 12(b)(6)
i. 12(b)(1) MTD for lack of SMJ
1. For jxnal defects.
2. Whole case can be dismissed even after verdict
3. No waiver
4. Speaking motion, can hold hearings and conduct minor discovery to determine whether the stuff in the complaint is true
5. No supplemental claims, because can't attach if no original jxn
ii. 12(b)(6) MTD for failure to state a claim upon which relief can be granted
1. For elemental defects
2. Can be waived (waived if not brought up in first responsive pleading)
3. Non-speaking, facts in complaint must be accepted as true
4. Supplemental claims discretionary
e. Deciding whether something is a jxnal or elemental defect
i. Read the statute! Unless the defect is specifically in the jurisdictional subsection, many courts hold it is an ELEMENTAL defect.
ii. Read the statute's jurisdictional label, and related case law.
iii. Distinguish 12(b)(1) and 12(b)(6)
3. Judges as gatekeepers of federal courts
a. Four doorways into federal court
i. Front Door: Federal Question Jxn
ii. Visitor's Door: Diversity Jxn
iii. Back Door: Removal Jxn
iv. Side Door: Supplemental Jxn
b. Judges must analyze absence of SMJ first
c. No hypothetical jxn. Court cannot assume there is SMJ and dismiss it on other grounds. They must have jxn to render any judgment
d. Sua sponte. Judges can raise lack of SMN if lawyers don't. if not, huge waste of court's and parties' resources.
i. Jxn dismissal is NOT on the merits. Matter could be brought again in roper court.
B. Front Door: Federal Question Jxn
1. “You need both constitutional and statutory authorization”
a. Constitutional: Article III. “Anything that arises under the U.S. Constitution, U.S. laws or treaties.
i. Very loose standard.
b. Statutory: USC 1331. “Anything that arises under the U.S. Constitution or laws.
iii. Policy points to bring up
1. What kind of federal interests are involved? (taxes, healthcare, quiet title actions, etc.)
2. Is there a need for uniformity? (tax stuff probably yes because we all pay taxes. Quiet title actions maybe not)
3. Will it open up the floodgates for similar suits in the future? (the rarer the issue the better for FQJ)
a. Empire Healthchoice
1. Private insurer for millions of federal employees. Federal health plan administrator asserts state law contract claim for reimbursement of benefits paid beneficiary who had recovered tort settlement from 3rd party. Since reimbursement would be credited to federal fund, P asserts jxn proper as “substantial federal question”
1. It takes more than a federal element to open the “arising under” door. Federal-state balance would be disrupted (if overflowed with cases). It is a fact-bound, specific inquiry
b. Gunn v. Minton
i. Former client brings legal malpractice claim in federal court arising out of representation in prior federal patent infringement action. D moves to dismiss for lack of federal SMJ. Plaintiff asserts it raises “substantial federal question”
ii. Court dismisses for lack of SMJ. Malpractice claim does not “arise under” federal law. Does not satisfy Grable test.
iii. BUT!! Achtman, FQJ upheld in malpractice case against class counsel following class action judgment.
1. Probably because it was a class action.
c. American Red Cross
i. Cases against federally-chartered organizations can be brought in federal court if “dispute resolution in federal court” mentioned in charter or contract