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Civil Procedure I
University of Mississippi School of Law
Cooper, Benjamin P.

Civ Pro I&II

Cooper Spring 2015


Constitutional Grants

i. Article III of Constitution empowered Congress to establish separate system of federal courts which coexist with the state courts

ii. Article I, Section 8, clause 18 authorizes Congress to make laws “necessary and proper” to implement the federal judicial power

iii. Article V and XIV guarantee parties due process

iv. 6th Amendment guarantees a jury trial, right to counsel, and other rights in federal criminal cases

v. 7th Amendment guarantees the right to jury trial

b. Current Federal Court System:

i. 94 Districts, 13 Circuits, U.S. Supreme Court

c. Court Selection Considerations

i. Federal or State: Subject Matter Jurisdiction

ii. Jurisdiction over parties: Personal Jurisdiction

iii. Appropriate Court w/in Jurisdiction: Venue

d. Timeline of Typical suit:

i. Pleading

1. Complaintà Pre-Answer Motion (optional) à Answer

ii. Discovery

iii. Pretrial/Summary Judgment

iv. Trial

v. Post-trial

vi. Appeal

e. Pleading: (rule 8)

i. Complaint starts a lawsuit

1. Contains assertions (not evidence)

ii. D’s response to complaint- Answer

1. Motion to dismiss for failure to state a claim (12(b)(6))

f. Discovery

i. Broad in civil suit

ii. Lawyers handle this

iii. Tools: document request, Interrogatories, Depositions

g. Motion to Dismiss under FRCP 12(b)(6)- Failure to state a claim

2. DIVERSITY JURISDICTION IN FEDERAL COURTS: Other than SMJ, a federal court will hear a case because of the diverse citizenship of the parties

a. Need constitutional grant AND statutory grant

i. Constitution confers the federal court with subject matter jurisdiction (Article III, Section 2)

ii. Congress confers subject matter jurisdiction by statute (28 U.S.C. §1332(a)). Need not confer full extent constitution allows

1. Amount-in-controversy

2. Between citizens of different states

a. “complete diversity” is an interpretation of the statute from Strawbridge.

b. Purpose is to prevent bias – “home court advantage”

c. Diversity Citizenship

i. Individuals:

1. The General Rule: Party: 1) can only have one state of domicile; 2) must take up residence with the intention of remaining there; 3) if domicile is changed, the previous one counts until a new one arises [Mas.] 4) domicile unaffected if it changes after claim filed.

a. General Rule for Aliens: foreigner may be domiciled in US, for issues of diversity, national origin. Marriage to foreigner does not change domicile.

b. Animo Manendi- the intention of remaining. To acquire domicile, the party must have his abode in one place, with the intention of remaining there; for without such intention no new domicile can be gained.

2. Gordon v. Steele (W.D. PA 1974):

a. Gordon Test: “intent to remain indefinitely”

b. Rule: For purposes of diversity citizenship, a college student’s new state of residence will be considered his or her domicile upon a factual determination that the student has sufficient connection with the state and intent to remain indefinitely.

c. Takeaways:

i. Citizenship is measured at time case is filed.

ii. P has burden of demonstrating subject matter jurisdiction.

iii. New citizenship established by moving to a new jurisdiction and intending to remain indefinitely.


v. Numerous factors may be relevant.

3. Mas v. Perry (5th Cir 1974):

a. Rule: A party is domiciled in the state where her true, fixed, and permanent home is located.

b. Mas Test: “intent to remain permanently”

c. A change of domicile may be effected only by a combination of two elements:

i. Taking up residence in a different domicile with

ii. The intention to remain there

4. Third test for Domicile: Where someone intends to make a home “for the time at least”- less common

ii. Corporations: intangible legal entities created under state law

1. Source of Power

a. Supreme Court says a corporation is citizen of:

i. It’s place of incorporation

b. Congress said it is both

i. It’s place of incorporation; and

ii. §1332(c)(1) It’s principal place of business.

2. Hertz Corp. v. Friend (2010):

a. Rule (Breyer): A corporation’s principal place of business, for federal diversity jurisdiction purposes, refers to the place where the corporation’s

stitution must confer the federal court with subject matter jurisdiction (Article III, section 2); and

ii. Congress must provide subject matter jurisdiction by statue. Congress need not confer to full extent Constitution allows. 28 USC 1331.

b. Both Constitution and Statute (28 U.S.C. 1331) use phrase “arising under the Constitution.”

i. Between states, between citizens of different states, between citizens and aliens, cases involving foreign ministers and consuls, admiralty and maritime cases, cases arising under the federal constitutional law, patent, a few others

c. Louisville & Nashville Railroad Co. v. Mottley (1908)

i. Rule (Moody): For a suit to arise under the Constitution and laws of the United States, giving a federal court jurisdiction to hear the case, a plaintiff must allege a cause of action based upon those laws or that Constitution.

ii. 28 U.S.C. §1331: a claim ”arises under” federal law only “when the P’s statement of his own cause of action shows that it is based upon” federal law

iii. It is not enough that the P alleges some anticipated defense to his cause of action, and asserts that the defense is invalidated by some provision of the Constitution of the United States

iv. Well-pleaded complaint rule: The case arises under federal law if the federal issue appears on the face of the well-pleaded complaint. Anticipating a federal defense is not sufficient.

1. i.e. A proper claimant, limited to the allegations necessary to state a proper claim for relief, relies on federal law.

d. Holmes’ Creation Test: Focuses more narrowly on the claim

i. A suit “arises under the law that creates the cause of action”

1. 28 USC § 1331: Actions with a federal question.

2. 28 USC § 1337: Actions arising under a federal law that concerns commerce.

3. 28 USC § 1442: Actions involving federal officers.