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Civil Procedure II
University of Toledo School of Law
McCuskey, Elizabeth

Civ Pro II

Saturday, September 22, 2012

12:14 PM

I. Introduction: Jurisdiction Matters

A. What Is Jurisdiction?: court’s power to hear and decide a case or issue a decree

1. 1st questions to ask in a case (where?) (when?)

B. Deciding Where to File

1. Look at strategy, efficiency, law

2. Procedurally: Plaintiff gets to choose, D can challenge

3. Might want: convenience, geographic location, making it stick, time = $, political considerations, FRCP?, stable rulings, bias?

4. Frivolous = sanctions

II. Subject Matter Jurisdiction

A. Federal Jurisdiction & Federalism

1. Two Requirements: SMJ (law/case) & personal jurisdiction (parties comply with orders)

2. Federalism: the legal relationship and distribution of power between national and regional governments within a federal system of government

3. Comity(comedy): a practice among political entities involving specially mutual recognition of legislative, executive and judicial acts.

4. Art III, sec 1: How courts should be established

1. The judicial power shall be vested in one Supreme Court and in such inferior courts as the congress…establish. The judges shall hold their offices during good behavior and shall receive compensation, which shall not be diminished during their continuance in office

2. Original = where you file, Appellate = review

5. Art III, sec 2: what kind of cases can be heard (pg. 222 supplement)

1. Federal = limited jurisdiction

2. Burden = plaintiff to prove federal court, defendant for removal

3. Don’t have jurisdiction: remand it, dismiss it: FRCP 12(h)(3)

a. Cannot waive or stipulate to it

B. Federal Question Jurisdiction: Art 3, Sec 2

1. Art III, sec 2: The judicial power shall extend to all cases…arising under this constitution, the laws of the United States, treaties…and ambassadors, admiralty/maritime, United States as party, state vs. state, state v. citizens of another state, diversity-citizens of different states, state or state citizens v. foreign states citizens or subjects

1. Reasons: expertise, uniformity, no bias

2. 28 USC 1331: sets out arising under jurisdiction

1. The district courts shall have original jurisdiction of all civil actions arising under the constitution, laws or treaties of the United States

3. Osborn v. Bank of US: (pg. 297)-Art 3 before 1331 was enacted

1. Filed case in federal court, Ohio tax collecting from bank for injunction. Dist. Ct. did enjoin the tax

2. Auditor forcibly got $ from bank and was ordered to return, appealed on SMJ lacking

3. S. Ct.: was SMJ, congress have given case to federal courts, chartered bank by congress to sue and be sued in circuit court, qualifies under ‘arising under’

4. Very Broad!- an ‘ingredient’

4. Mottley: (pg. 299): 28 USC 1331

1. H & W were injured by train, get free tickets for life, railroad took them back based on congress law

2. Filed in federal court, asserted arising under federal question

3. Trial Court held: there was SMJ (mottley wins)

d. Issues: Hepburn act-unlawful to honor pass, if true is it a 5th amendment takings?

e. The mere allegation of an anticipated defense that arises by some provision of the constitution does not create a federal question giving a federal court jurisdiction

f. Fed Q jurisdiction is determined by the plaintiff’s complaint, in the form it would be well pleaded-“Well Pleaded Complaint Rule”

a. When the cause of action in the complaint shows that it is based upon federal law or the constitution

5. Corollaries: Declaratory judgment

a. Look at the statue of declaratory judgment: 28 USC 2201-02, elements for remedy = declaration of rights and other legal relations

b. For interested party in ‘actual controversy within jurisdiction’

c. If can’t bring original in federal court, can’t turn around and file for a declaratory judgment to get decision

d. Skelly Oil: note 5, page 302

6. Ways to get into federal court:

a. Change parties

b. WPC = either use

c. Artful Pleading = usually used by defendant to stay in federal court

a. Plaintiff tries to get out of federal jurisdiction by leaving out federal claim

7. TB Harms Co. v. Eliscu: Ct finds federal claim in copyright case over music rights, however the claim was mostly about a party’s contract rights, not copyright rights

a. Rule: the federal issue must be a substantial portion of the claim for federal courts to have jurisdiction

8. Holmes Rule: suit ‘arises under’ the law/federal statutes that creates the plaintiff’s remedy (part of WPC) the cause of action

9. Private ROA: power to sue another party

a. Why care: standing, congressional intent-exclusive jurisdiction

b. How do you know federal ROA:

a. Express-statute

b. Implied-courts/statutory construction, intent-did they want these cases in federal court?

10. State Law Claims:

a. Smith: the general rule is where it appears from the bill or statement of the plaintiff that the right to relief depends upon the construction or application of the constitution or laws of the united states, and that such federal claim is not merely colorable and rests upon a reasonable foundation, the district court has jurisdiction

b. Rule: state law COA depends/needs interpretation of federal law = FQJ

11. Merrell Dow: state law incorporates federal law by reference. Thompson (Canadian) sues Merell dow in state court (oh). Negligence based on birth defects with drug

a. Only takes 1 claim to get FQJ

b. Rule: a state law private COA, which alleges a violation of a federal statute, ‘arises under’ the laws of the US only if congress intended to provide a federal remedy for the statutory violation

c. Substantial, disputed question of law is a necessary element of one of the well-pleaded state claims-importance of federal forum for the issue

a. No federal remedy is tantamount to insufficiently substantial

b. Looks At: uniformity, expertise, bias, for importance of federal forum for the issues

d. Exam: ask if there is a private ROA

12. Grable: unanimous decision in 2005

a. Grable had land seized for failure to pay taxes. Land seized and sold to Darue (defendant). Grable claims he received notice but it was invalid under US law

b. Grable filed in state


e. Aggregation:

1. Single plaintiff can aggregate claims against single defendant even if unrelated

2. Single plaintiff CANNOT aggregate claims against multiple defendants

3. Typically multiple plaintiffs CANNOT aggregate claims against the same defendant or multiple defendants

a. CAFA exception: allows some plaintiff classes to aggregate claims

4. CAFA Modifications:

a. Class Actions:

1. Plaintiff party sues on behalf of themselves and all others similarly situated (injured)

a. The named party is the class representative

b. Those ‘similarly situated’ make up the class they represent. The number and location class members is often unknown at filing.

2. Court decides whether to certify the putative class based on prerequisites in Rule 23(a)

a. If certified, the class form offers an efficient and consistent way to adjudicate numerous claims in one suit. Plus, it offers a way to litigate issues that may be too small for any one individual to press. (e.g. a $100 overcharge on a phone bill)

3. Judgment is binding on all class members

4. Citizenship: of class determined by the named representatives

5. Amount: determined by the named representative’s claim amount

a. No aggregation among class members’ claims

b. BUT when at least one named rep satisfies AOC, then court may decide to hear the other claims under supplemental jurisdiction

1. Exxon case

b. CAFA: (1332(d))

1. (2): the district courts shall have original jurisdiction of any civil action in which the matter in controversy exceeds $5 million, exclusive of interest and costs and is a class action which

2. (A): any member of a class of plaintiffs is a citizen of a state different from any defendant (minimal diversity)

c. 1332(d)(4): MUST remand if:

1. > 2/3 of P = filing state

2. >= 1 significant D = filing state

3. Principle injuries = filing state + first filed within 3 years

4. > 2/3 P and primary D’s = filing state

d. 1332(d)(3): May Remand if “any one”

1. Between 1/3 & 2/3 plaintiff’s + primary defendants = filing state, based on interests of justice, totality of circumstances

5. Interpleader: (28 USC 1335, FRCP 22)

a. Section 1335: The district courts shall have original jurisdiction of any civil action of interpleader filed by any person (or entity) having issued a policy of insurance of value of $500 or more IF

1. Two or more adverse claimants, of diverse citizenship AND

2. Plaintiff gives bond for value amount