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Civil Procedure I
University of Toledo School of Law
Richman, William M.

Ø      Basic structure of procedural system
Ø      Anatomy of a lawsuit
Ø      History of procedure
Ø      Types of available remedies
vSelecting the Proper Courts
Ø   Introduction
§         The available court
§         Tools for selecting proper courts
·         Subject matter jurisdiction
¨      Has the sovereign got permission to hear the case?
·         Jurisdiction of person and property
¨       Territorial Jurisdiction- Can a court in one place compel someone in another place to appear in that court
¨      there is some overlap between territorial and venue, part redundant and part independent of each other
·         Venue
¨      Which is the proper county or district in which to bring the suit
¨       Considerations with regard to choosing venue
Ø       convenience of using a particular court the judges- some are pro-plaintiff, some are pro-defendant, some judges are known as fast judges
Ø       the reputation of that jurisdiction- some courts have a reputation for leaning in one direction or another; some known for bigger verdicts
Ø      clients’ interest must dictate which court we choose
Ø      What law governs?
Ø   Subject matter jurisdiction
§       Court’s sensitivity to the issue
·         Courts are extremely reluctant to exceed their subject matter jurisdiction
·         All federal courts are courts of limited jurisdiction.
·         States gave the federal government its authority through the Constitution
·         The state courts are courts of general jurisdiction
·         States are the primary source of power, federal courts essentially have their power derived from the federal government, which was established from state authority
·         So, if the federal government exceeds its jurisdiction, the states are having their power taken away. That reflects the court’s sensitivity to the issue.
·         Rule 12(h)(3) from Federal Rules of Civil Procedure- Says that whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.
·         12(b)(1) motion is a plea asserted for ‘lack of jurisdiction over the subject matter.
·          court only has the jurisdiction that the Constitution gives it
§       The Subject Matter Jurisdiction of the Federal Courts
·        Generally
¨      Original jurisdiction from the U.S. District courts is divided into 2.
Ø      Original when it arises under the Constitution
Ø      Original when parties are from diversity of jurisdiction
Ø      Either of the previous 2 will get you to federal court
¨      Article III, Section 2 of the Constitution
Ø      Gives judicial power to the federal courts over certain issues
§         The Arising Under clause
·         As long as there is a federal law this is the original ingredient of the claim, there is arising under jurisdiction
·         If a federal question might turn up in the case, no matter how remote this possibility, there is arising under jurisdiction conferred on the federal courts
·        Federal Question Jurisdiction
Ø      What gives original jurisdiction arising under to the federal courts
§         Congress gave it through federal statute
§         28 U.S.C. §1331, which states:
·         Federal District courts shall have original jurisdiction of all civil actions arising under the constitution, laws, or treaties of the United States
·         State courts have concurrent jurisdiction over almost all federal questions, so there is a choice of where to bring a particular case
·         Some federal questions are exclusively to the federal government
¨      Patent, Trademark, Antitrust, etc.
§         Case related to 28 USC 1331
·         Osborn v. Bank of the United States
¨      Bank was formed by a federal statute, so this was an original ingredient in the claim
Ø      The Holmes Test
§         The lawsuit arises under the jurisdiction where the law was made, state or federal.
Ø      The Smith Test
§         If state law creates the cause of action, but federal law is the deciding point(pivotal issue) of the case falls under the arising under federal law.
Ø      Cases related to 28 USC 1331
§         Merrell Dow Pharmaceuticals Inc. v. Thompson
·         Case seems to pass the Smith test(pivotal issue is federal) because the food, drug, and cosmetic act did not create a private cause of action; the f,d,c act created the FDA, created a regulatory scheme and so forth, but did not say that anybody injured by a misbranded drug can recover money from the drug company: Some federal legislation creates a right for private action, some do not allow for private action; no implied or explicitly given for private right of action given by this food, drug, and cosmetic act.
·         We have a state created cause of action, but the pivotal issue involves an interpretation of federal act. The Supreme Court said that there was no jurisdiction, seemingly going against the Smith Test. (page 283 explains why);
·         Premise 1- it would violate congressional intent to create a private federal remedy for the violation of the federal statute
·         Premise 2- would also flout congressional intent to exercise Arising Under Jurisdiction over a state-created claim with a pivotal federal issue
·         Merrell Dow decision effectively modified the Smith TEST
§         Revised Smith Test- State law creates the action

w home indefinitely
¨      can’t be sued under diversity jurisdiction when one party is stateless
¨      Corps. can have dual citizenship (citizenship in 2 states for Diver. Purposes)
Ø      Where incorporated
Ø      Principal Place of Business, determined by looking @ 3 areas
§         Nerve center test (world headquarters)
§         Center of corporate activity
§         Hybrid of both of the above 2 considerations can be applied
·         Amount in Controversy (CO 104)
¨      Amount in controversy comes not from Constitution, but statute 28 USC1332 (currently $75,000)
¨      Good Faith Test- The amount in controversy is determined by as the amount the plaintiff can claim in Good Faith
¨      Legal Certainty Test- If the court can determine that the plaintiff cannot, with legal certainty, recover the minimum amount necessary, then the case will be dismissed for failure to satisfy the minimum $ for amount in controversy diversity jurisdiction amount
¨      Case on Point- Zahn v. International Paper Company
Ø      Class action suit where some plaintiffs met the minimum $ amount in controversy for diversity jurisdiction and some plaintiffs did not meet the $ minimum
Ø      Rule- Only plaintiffs whose claims met the minimum $ amount in controversy individually could invoke diversity jurisdiction of district court
¨      Rules of Aggregation & Tag Along
Ø      One plaintiff & One defendant- tag along and aggregation permitted
Ø      Otherwise no aggregation or tag along with ONE EXCEPTION
§         Exception- If 2 plaintiffs and one defendant have a common and undivided interest in a piece of property and the property is damaged more than $75,000, then there IS Amount in Controversy diversity jurisdiction by the district court
·        Supplemental Jurisdiction (CO 105,106,107)
¨      28 U.S.C. §1367
Ø      If 2 cases arise from a common nucleus of operative fact, and one case has a basis for federal jurisdiction and the other does not, then there can be supplemental jurisdiction by the federal court (with exceptions)
Ø      §1367 (a) is purely permissive, doesn’t disallow anything
Ø      1367(b) restricted Supplemental Jurisdiction