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Civil Procedure II
University of California, Hastings School of Law
Levine, David I.

Diversity:
· Complete (by statute) – on opposite sides
· Prevent prejudice to out-of-staters
· plaintiff’s get first choice- state or federal?
· Mas v. Perry = complete diversity
· Fed. Floor = $75k in question
Federal Question
· Potential for cases about constitution would be overwhelming
· SCOTUS interprets it as narrower than congress meant
· CONSTITUTION – Two meanings:
o Ingredient test – federal ingredients
§ Fed. Question in Seattle tort case b/c state lands were gotten with treaties, (If case took place on property = allows staggering number of cases)
LOUISVILLE & NASHVILLE R.R. v. MOTTLEY p. 871
· Mottley’s get free passes as settlement of previous suit. Passes last 36 years until RR stops sending them.
o 1906 congress passes act against “free” passes
o Prevent side deals, kickbacks
· Court raises question of subject matter jurisdiction – can be raised at any time
o Says there is no diversity question
o Could be federal ingredient case, but
o Passes = consideration for K
· Breach of K was enough for state action, as part of well-pleaded complaint (enough to pass demurrer)
o Congressional act was possible defense
o No federal ingredient
Federal Question Jurisdiction
· §1331 – “arising under”
o Constitutional words = ingredient test, if any federal issue
§ Slip/fall takes place on land gained by federal treaty
o General grant – well-pleaded complaint rule, gives congress wiggle room (can push into fed court if desired) “Mottley Test”
o Examples of ingredient test:
§ Bank of United States (1828) – chartered as fed. Corp., so
· Power to sue and be sued
§ American Red Cross – same power
Merrell Dow Pharmaceuticals v. Thompson p. 877
· Facts:
o Residents of Canada and Scotland bring a case against Merrell Dow for birth defects from their drug.
o File in state court in Ohio
§ Not worried about diversity jurisdiction
· If one defendant is being sued in home state, the case is not removable by virtue of diversity
o Main Count IV – misbranding under FDCA
§ Also strict liability, negligence, products liability
· Section II – “Arising Under”
o p. 879- American well works – if suit is created under a federal law, then there can be a federal case (government created coat)
o Smith/Lincoln Mills – fed. presence or construction of fed. Law (fed. Lining in state-created coat)
§ Substantial element= “substantial” = weasel word

1.16.2008
· SCOTUS jurisdiction-
o Must persuade court that your case is important and turns on interpretation of fed. Law
§ If it turns on state law, SCOTUS has no right to review
· Count IV = neg. per se with baseline set by FDCA
o If count IV goes over (removal) so will counts I-III (like relation back)
· Private right of action
o Whether individual litigant can invoke peeve of law as source of legally protected rights
o Two Types:
§ Express – literally says “private citizens can sue”
§ Implied – did congress mean to crate a private right of action
o Ruling: Congress has not created one with FDCA, so it is not substantial fed. Question
§ Must take it to gov. official, US is responsible for enforcement (FDA)
o Defendant’s as a class want to deny private cause of action
· Implications:
o No private right of action = not substantial
· Dissent – Brennan says
o Congress wanted federal expertise in answering questions of federal law
§ Better uniformity
· Mottley sets out well-pleaded complaint rule
· Merrel-Dow is substantial federal question
o If no private right of action, no fed. Question

Personal Jurisdiction
· Jurisdiction in a state
· Right to force person to come defend themselves in court w/jurisdiction over territory
· Fed court pretends to be state court, looks to state court law for personal jurisdiction (state v. state, state v. foreign country more than state v. fed.)
· Waivable – must be raised on first motion or you lose it
Pennoyer v. Neff p. 691
· Mitchell (Oregon resident) had dispute with Neff (CA resident? w/ possible property in OR)
o Mitchell claims Neff owes him for past legal work
o Cannot find Neff
o OR law allows notice via newspaper (serve by publication) if own property
o If money damages against property, attachment (taking property)
· To acquire personal jurisdiction in OR,
o Each defendant must:
§ Be OR resident
§ Appear in court (don’t challenge jurisdiction)
§ Be “found” within state
§ Have property (must be attached) must be limited to value in question
§ Be nonresident property owner (serve by publication)
· Publish in Portland
· Neff does not qualify for any but last
o Does not appear, Mitchell gets default judgment
o Knows about property, Mitchell bu

as nothing to do with the basis of the lawsuit (Mitchell v. Neff, breach of K) judgment is capped at value of property
p. 696
· “don’t sweat status”
· Consent – to sue Southwest, you find their agent for service of process

Harris v. Balk
· Harris, NC, is on a business trip to Maryland. Epstein serves H. H owed Balk. B owed E
· Intangible debt travels with debtor
Recap:
· International theory: absolute power inside state, no power outside
· Two Keywords: notice and power
· Harris v. Balk – your bank is your debtor
o Intangible property travels w/debtor
· Hess v. Polofsky
o Pennoyer + cars
o Guy gets in car accident in foreign state.
o Problems under Pennoyer scheme:
§ Not “found” in MA, not served
§ Cause damage and leave
o Appoint secState as agent for service of process (legal fiction)
§ Constructive notice, it’s in the statute
· Harris and Hess are stretching of Pennoyer
International Shoe Co. v. Washington p. 710
· Corp.s are considered persons, but how high up the chain do you have to go?
· Intl Shoe, incorporated in Delaware manufacturing in St. Louis had sales agents in Washington state
o Agents solicited offers, and transmitted them to St. Louis where they were accepted
· Int’l Shoes problematic under Pennoyer:
o Does not consent/appear
o Not found/present – sales reps are too low on the totem pole to count for service
o Only property is sample shoes, which are virtually worthless
· P. 712 –
o Historically there had to be physical presence of in personam
o “Capias ad respondendum” = arrest for civil suit, no onger in force
§ If not physically present: minimum contact such that it seems fair
· Is the corp. present?
o Not actual person, so present if:
§ Activities of duly authorized agent w/in the state
· Systematic and continuous – yes if suit is about actions
· casual, single, or isolated –