Civil Procedure II Outline

SUBJECT MATTER JURISDICTION
Nebraska:
24-302
24-517
o
in Nebr. if you start in county court and it gets bigger you have to certify it to district court/ certification allows you to keep your original filing date 24-517(5)(a) (Hunt v Trackwell)
Nebraska – county court gets all will and probate cases;
In jurisdictions with more than 1 court this can go to it must go to court that FIRST acquired it (Kentopp v. Kentopp-son filed to partition land/will was being probated in county court already)
II. DIVERSITY JURISDICTION
A. Constitutional Provision (Art 3, Sec. 2) (§1332)
1. Citizens of different states
2. Between a state or the citizens thereof and foreign states, citizens, or subjects
3. Amount in controversy must exceed $75,000
a. Does not include interest or court costs
b. Must appear to legal certainty, does not have to prove
c. If P eventually recovers far less than 75K, not enough to reverse for lack of jurisdiction if good faith and legal certainty met
d. Single P can add his smaller claims against the same D to meet the amount requirement
e. Multiple Ps—courts are split if one P meets the amount and others do not—Zahn v. International Paper Co. said in a class action each P must meet the amount See. Supplemental Jurisdiction
f. Central fiber Corp: plaintiff wasn’t seeking enough damages to go to fed ct
B. Complete diversity—both sides of v. have to be completely diverse (Strawbridge)
1. Assign all states to P and all states to D and see if same state is listed on both sides, if so, no diversity
2. If don’t like the results, see how you can adjust i.e. reform the partnership by buying out a limited partner, get rid of some of the plaintiffs, etc.
3. Controlled by substantive law and partners
4. Domestic relations are exception to diversity—not for federal court—except divorce, alimony, and custody??????????
C. Court may refuse to exercise jurisdiction under certain circumstances
1. diversity is result of improper or collusive joinder of parties §1359
2. domestic relations are main subject matter
3. probate matters
4. abstention doctrine—permits fed court to decline b/c docket is full, questions of state law, etc.
 
D. What counts when determining
1. Crucial date is commencement of action—diversity had to exist at that time—CIRCUMSTANCES ON DATE OF FILING
2. Domicile, not residence-
a. true, fixed and permanent home
b. intention of returning when absent
c. don’t lose it until you acquire a new one
d. P has burden of persuasion to show intent of citizenship
e. O’Brien: π had burden to show diversity and didn’t ever get where ∆ domiciled; found for ∆ and said no fed court as no diversity
E. Considerations/ Foreigners
1. Residents of D.C. are their own state §1332(d)
2. Puerto Rico is considered a state for purposes of §1332(d)
3. Have to be a citizen of a state, as well as an American citizen
4. Alienage jurisdiction—Art 3, Sec.2 and §1332(a)(2) –can be a citizen of a foreign state or country on one side, but has to be an American citizen of an American state on the other side
5. Foreigner living in the US is deemed to be a citizen of whatever state in which the alien is domiciled §1332(a)
6. If foreigners are additional parties on both sides and from same foreign residency, it does not destroy diversity
7. Two foreigners must file in state court because don’t care about citizenship
8. Saadeh v Farouki: citizen of Greece sued citizen of Jordan; 1332a says ∆ is citizen of MD as per last sentence.
1.Last sentence read literally says Iraz citizen is citizen of Nebr so there is jurisdiction under 1332(a)(2). This expands jurisdiction rather than contract as Congress intended.
2. If that last sentence is not applied then can’t sue under 1332(a).
F. Corporations
1. Corporation deemed a citizen of any State where it has been inc. and has its’ principle place of business §1332c
2. Still have to maintain diversity on both sides of the v.—using place of Inc. and PPB
3. Principle place of business
a. Nerve Center Test–May be where corporate headquarters or home office is located OR
b. Muscle Test—where main production or service activities take place
4. Partnerships and labor unions (unincorporated) do not fall under corporation guidelines, instead consider citizenship of each member (See United Mine Workers v. Gibbs)
5.Carden: π from Louisiana and ∆ is limited partnership so look at bunch and some are from Louisiana – no diversity and can’t be heard in fed court.
6. Montrose Chem: found for π/was diversity as ∆ main income was in Nevada
G. Creating or Destroying Diversity
III. Federal Question Jurisdiction §1331
A. All civil actions arising under the Constitution, laws, or treaties of the U.S. Art 2, Sec.3 and §1331
B. Determine arising under by facts and similar cases
1. Explicit—Tafflin – RICO-state court can here there as they can have concurrent jurisdiction to consider civil claims; Congress didn’t say ONLY federal can hear federal question cases, just that they CAN
2. Governed by other substantive law
C. For a federal question to exist:
1. Federal law creates the cause of action OR
2. Plaintiff’s right to relief necessarily depends on resolution of a substation question of federal law—must be integral to COA in P’s complaint
 
State-created claim—claim is created by state law, but adjudication of that claim requires interpretation of a federal law. NOT SUFFICIENT TO BRING IT TO FED. CT UNDER FED QUES.—Merrel Dow Pharmaceuticals, Inc. v. Thompson. States have right to ajudicate concurrent claims based on federal law as long as it isn’t exclusive. Tafflin
 
Haas – corp changed date of shareholder’s meeting/SEC fed rule;held for plaintiff
Morris – won in fed court for civil rights dispute – sued them again for breach of K in fed court and it was denied for lack of sub matter jurisdiction-
IV. Supplemental Jurisdiction §1367
A. General Requirements
1. Any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article 3 of the Constitution
2. Includes joinder or intervention of additional parties
3. Must derive from a common nucleus of operative fact
a. operative fact focuses on what the parties were doing
b. does not focus on substantive law
c. facts and witnesses are essentially the same
4. Can be based on subject matter or diversity jurisdiction— P with A claim against A D can be added to.
5. If start with a federal question, can ignore (b) (United Mine Workers – had a fed claim and court heard state claim too-both claims deal w/coal mine interference)
6. If it is diversity, have to invoke (b)
7. Exceptions §1367(b)&(c) (non-applicability)
a. original action based solely on diversity (b)
1.) claims against third party Ds, Rule 14
2.) compulsory joinder 19
Rule 20 joinder of parties
Permissively Counterclaims 13(b)
Permissive Intervention under Rule 24
Joinder of Claims 18
b. Courts decline to exercise §1367(c)
1.) The claim raises a novel or complex issue of state law
2.) The claim substantially predominates over the claim or claims over which the district court has original jurisdiction
3.) The district court has dismissed all claims over which it has original jurisdiction
4.) In other exceptional circumstances
8. Application
a. Compulsory counter claims 13(a)
b. Additional parties to compulsory counterclaims 13(h)
c. Cross-claims 13(g)
d. Impleader 14-if D is envoking
e. Interpleader 22
Intervention as right 24(a)
P w/a valid federal question may also bring a state based claim on a 2d D
6. McLaurin-prison guard hit inmate; sued under §1983 and brought assault & battery charges which are state claims – came from same nucleus – yes to both in Fed Ct.
7. Serrano: kid beaten, died sued police §1983 and hospital §1367 – no. Hospital couldn’t be causally connected to damages of police. 2 separate claims. No go
V. Removal §1441 –One-way street: State to Fed
(if you can’t get into fed court via 1331, or 1332, or 1367 then try 1441)
A. Circumstances
1. Any action brought in state court of which the federal courts would have had original jurisdiction may be removed by the defendant to federal district court EXCEPT in diversity cases—action is removable only if no D is a citizen of the state in which the action was brought §1441(b)
§1441(b): if it’s based on diversity if you can’t remove if defendants is citizen of state where action is brought (Merrill Dow – denied their removal)
2. Look @ complaint—is there diversity or federal question?
3. In federal question cases, may be removed by D regardless of residence or citizenship of the parties
4. When a separate and independent claim within fed. question jurisdiction is joined with non-removable claims the entire case may be removed and the district court may determine all the issues §1441(b) (not in diversity)
5. Only a D may remove/Can’t move to another state court/local ∆ can’t remove
6. Have to convince federal court whether should be removed—if D is wrong, fed judge has to send it back to state court
7. Claims under Federal Employers’ Liability Act and workers’ compensation laws are not removable
8. Removal decided from face of pleading and at time notice of removal is filed except in diversity—diversity is determined at time of original filing
Nicodemus v UP – Wyoming land case; UP can’t remove to fed
Ankenbrandt: kids claim against dad/exception case Fed ct takes it – tort and §1332.
B. Mechanics
1. D must file for removal within 30 days of receipt of initial pleading through service or otherwise—fax is NOT otherwise. Calendar days, §1446(b)
2. Must be formal service of complaint and summons to start clock running
3. File with district court
4. All Ds must join the notice of removal—only exceptions are those Ds not served
5. All Ds have to get in on time
6. LOCAL D cannot remove!
Murphy: tried to remove and was too late, missed the 30 days
Morton v. Interamerican: both ∆’s have to remove together; too bad if they are served apart and can’t both do it within 30 days
§1367 can get non-diverse parties into a lawsuit; CANNOT use it to bring in non-diverse ∆’s
Ex: π NE v ∆ KS add ∆ NE π TN v ∆ TN = fed question §1331
+ state claim: §136