CIV PRO I – Fall 2011 – Lenich
1. Getting Started
A. Hierarchy: Federal
Ø SCRT, (2) Circuit Court of Appeals – 12 circuits in the U.S. Nebraska is in the 8th Circuit, which hears appeals from the District Courts. (3) District courts – Courts of original jurisdiction (NE has one federal district)
B. Hierarchy: NE State
Ø NE SCRT, (2) Court of Appeals, (3) District Court, (4) County Courts – sometimes you can appeal from the courts directly to the Court of Appeals
C. In choosing where to file a claim, you must condsider: SMJ, PJ and Venue
D. Forum Shopping
Ø Choice of Law: If there is a major difference in the local law that makes a big difference that could benefit your claim and client, it might be best to file in that location
Ø Considerations in selecting a forum:
o Potential for a favorable outcome – Substantive law; jury pool; availability of right to jury trial ; quality of judges; ability to subpoena witnesses; home court advantage
o Expense of litigation – Travel costs for witnesses, lawyers, and client’s need for local counsel; differences in practice
2. Subject Matter Jurisdiction (SMJ)
Ø SMJ is the power, or authority, of the court to hear a particular type of case
A. Diversity Jurisdiction (DJ) (28 U.S.C. §1332)
a. Rule of Complete Diversity
Ø All P’s must be citizens of states different than all D’s, otherwise there is no DJ
b. Citizenship
Ø Citizenship for both individuals and entities is determined at the time of filing, not the time of the events
i. Individuals
o A person is a citizen where he is “Domiciled.” A person’s domicile is where his residence is, with the intent to make the residence his home, i.e., remain there indefinitely. A person can only have one domicile at any given time, even if he owns multiple properties/houses.
o Factors to help identify one’s domicile (NOT a checklist): Current residence; voting or car registration; location of personal or real property or other economic interests, such as businesses; location of bank accounts; place of employment; church and club membership, and other associations; participation in civic affairs
ii. Entities
o Corporations: A business entity is treated like an artificial person (citizen). A corporation is a citizen where (1) it has its principle place of business (nerve center – corporate offices, headquarters – the place where the corporate officers direct business) and (2) where it is incorporated (§1332(c)(1)). A principle place of business can only be in one state, although a corporation could be incorporated in more than one state. A corporation can be incorporated in any state.
o LLC’s, LLP’s, Unions: Citizens of the state in which its members are citizens. A LLC et al resides in any district in which it would be subject to PJ were the district a separate state.
c. Amount in Controversy
Ø The amount in controversy must exceed $75,000 (§1332(a)). Like citizenship, the amount of controversy in a case is determined at the time of filing.
i. Legal Certainty Standard
Ø The amount in controversy claimed by the P controls, unless it appears to a legal certainty that the P cannot recover the jurisdictional minimum. In order to establish a legal certainty, a court must apply the facts, and if the court cannot, with a legal certainty, conclude that the P cannot recover an amount beyond the amount in controversy requirement, federal jurisdiction should be considered (as long as the diversity of citizenship requirements are met.)
Ø How do we determine that the P, with a legal certainty, cannot recover the amount in controversy? Given the facts (extent of the injuries, whether the injuries could continue into the future, including surgeries, etc.), a reasonable jury could award $75,000.01 or more
Ø “Cover”: After a breach of K, a buyer may “cover” by making a good faith purchase, without unreasonable delay, in substitution for those due from the seller. The buyer can recover the difference between cost to cover the K price, plus some other possible consequential damages (Ex. A contracts with B to sell B an item the next day for $75,000. The next day, A breaches the K and does not sell it to B. B needs it for his business, so he goes out and purchases one himself for $85,000. B can “cover” by suing A for the difference of $10,000 (not enough for DJ AinC, even though the total price is over $75,000), plus maybe some damages of time and effort to establish the purchase.
ii. Rules of Aggregation
Ø A single P can aggregate all of his claims against a single D. (Ex. A v. B for breach of K ($40,000) and negligence ($40,000). Total AinC = $80,000). As a general rule, a P cannot aggregate claims against multiple D’s to exceed the AinC, and multiple P’s cannot aggregate claims against a single D to exceed the AinC requirement.
B. Federal Question Jurisdiction (FQJ) (28 U.S.C. §1331)
Ø FQJ is established when a case arises under federal law. A case arises out of federal law when: (1) Federal law creates the cause of action, or (2) Resolution of a state cause of action necessarily depends on the resolution of a substantial question of federal law. All U.S. District Courts have SMJ over matters of FQJ.
a. The “Well-Pleaded Complaint” Rule
Ø (1)The federal law in question in a case must “give rise” to the complaint, i.e., be relevant to the P’s cause of action being brought against the D. (2)That federal question giving rise to the complaint must appear on the face of the complaint.
o The P’s anticipation of a defense based on federal law is not enough to make the case arise under federal law (Federal SMJ must be determined at the outset, rather than being contingent on what may occur at later stages of litigation).
b. Concurrent Jurisdiction
Ø The majority of the time, Federal Court SMJ is concurrent with state court SMJ, meaning that most cases over which the federal courts have jurisdiction also can be heard in state courts. I.e., there is no reason why state courts can’t decide a federal issue. In the absence of a specific designation of exclusive authority in an area, the presumption remains that federal SMJ is concurrent
c. Exclusive Jurisdiction
Ø Certain kinds of cases over which Congress has given the federal courts exclusive jurisdiction so that suit may be f
eptember 10th. C called B and persuaded him that they would be better off removing the case to federal court, and on September 13, C filed notice for removal and B filed a consent to the removal.
o Some courts have adopted the “First Served Rule,” which states that the 30-day time limit to file for removal begins to run when the first D is served. If the first D fails to remove the case within the 30 days, then all subsequently served D’s are bound by the first D’s decision not to remove, even if the first D later changes his mind. Under the “First Served Rule,” the removal in A v. B and C would be untimely because C’s notice of removal was filed more than 30 days after the first D (B) was served.
o Other courts have adopted the “Last Served Rule.” The 30-day period for removal restarts every time a new D is served. Therefore the removal in A v. B and C would be timely because C’s notice of removal was filed within 30 days of when C was served, and the rule of unanimity was satisfied because B consented to the removal.
E. Nebraska State Court
Ø District Courts: Courts of general jurisdiction except where otherwise provided
Ø County Courts – Exclusive Jurisdiction over all matters relating to a decedent’s estate, probate of wills and construction thereof. County Courts can only acquire jurisdiction which the legislature has given them.
3. Personal Jurisdiction (PJ)
Ø PJ is the power of the court over the parties to a lawsuit, i.e., the power to make decisions that are binding on the parties.
o PJ is only concerned with the D, as the P submits to PJ wherever he brings the suit.
Ø Requirements to establish PJ: (1) Must satisfy the DPC of the Constitution, and (2) States can only assert PJ over a person if that person has sufficient minimum contacts with the state
o The amount of contacts necessary to establish PJ over a D vary as to whether one establishes Specific or General Jurisdiction. Contacts in general can be defined as connections that the D purposefully and voluntarily establishes with the forum. It can be activity in the forum (ex. company advertises in the forum, sends sales reps into the forum, ships products in the forum, etc.), or it can be activity aimed at the forum (ex. a freelance writer does a story about a NE football coach and sells it to a newspaper with a large circulation in NE)
A. Specific Personal Jurisdiction (SPJ)
Ø Requirements: (1) The D has minimum contacts with the forum state, (2) the claim arises out of/is related to those contacts, and (3) the assertion of jurisdiction is reasonable (i.e., complies with the traditional notions of fair play and substantial justice)
