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

Civil Procedure II


Spring 2013


Picking the Right Court

1. There are a group of factors that control where an attorney would like to litigate:

Substantive law

Procedural Law

Jury Composition

A vast array of prejudices

Quality of the bench

History of Verdicts

Docket length

2. In making the choice the attorney is ethically required to place the client’s interests above her own.

3. The three tools to determine whether the law suit can be brought in a particular forum are:

a. Subject Matter Jurisdiction: SMJ: Has the sovereign (state or federal) given

this particular ct the competence to hear this type of case?

b. Territorial jurisdiction: Can the sovereign (through any of its courts act on the person or property involved; i.e., compel the defendant to appear or suffer a valid default judgment (personal jurisdiction) or the loss of the attached property (some form of in rem) jurisdiction?

c. Venue: Which is the proper county or district in which to bring the suit?

Subject Matter Jurisdiction of the Federal Courts

1. We study it for two reasons:

a. It is more well developed than the SMJ law of any state.

b. It is pervasive; it applies across the country.

2. The most basic principle of federal SMJ is that the federal courts are courts of limited jurisdiction. Jurisdiction must be pled and proved. By contrast, state courts are courts of general jurisdiction. Jurisdiction is assumed to exist until challenged.

3. Proposition 2 follows from the basic constitutional structure of the US

a. The states stole their power from the King and thus got plenary power.

b. The federal government got its power from the states through the constitution. If the Constitution does not give the federal government a power, it does not exist.

4. Anyone may assert lack of SMJ at any time, and if no one does, the court is obliged to notice lack of SMJ on its own motion. Thus the defendant cannot waive the objection to SMJ. This is not true of territorial jurisdiction and venue.

5, Article III gives the federal government judicial power over all cases “arising under” the constitution and laws of the US. In Osborn, the Supreme Court announced the constitutional test for “arising under.” A case arises under federal law if a question of federal law could come up during the action, no matter how remote the likelihood: The “Original Ingredient Test.”

6. Congress gave the US district courts jurisdiction over cases “arising under” tyhe constitution and laws of the US in 28 USC § 1331.

7. The purpose of § 1331 is to secure uniform, sympathetic and expert interpretation of federal law.

8. Arising under jurisdiction is concurrent not exclusive, i.e., state courts have it also.

9. The Meaning of “Arising Under.”

a. The statutory term does not have the same meaning as the identical constitutional term.

b. The Holmes Test: A suit arises under the law that creates the cause of action.

c. The Smith Test: A suit arises under federal law if a question of federal law is the pivotal issue in the case.

d. Merrel Dow: If in a federal statute Congress did not intend to create a private right of action under the statute, then a lawsuit in which an interpretation or application of that law supplies the pivotal issue (see Smith) is not one “arising under” the statute.

e. In Grabel, the Court retreated from Merrel Dow: If a case passes the Smith test and does not create a massive shift in litigation from state to federal court, there is arisng under jurisdiction.

10. The federal question must appear on the face of the P’s well pleaded complaint; P cannot manufacture federal question jurisdiction by assuming the defendant will raise a federal defense.

11. A jurisdictional dismissal does not preclude a second lawsuit in a state court.

Citizenship diversity

1.The constitutional source for diversity jurisdiction is Article III, Section 2. The basic diversity statute is 28 USC 1332

2. The purpose of diversity jurisdiction is to protect the out-of-state litigant from prejudice in the state courts.

3. Diversity jurisdiction is still the subject of controversy.

4. There is diversity even when the plaintiff is from the forum state, which doesn’t make sense in light of the statute’s purpose. The in-state plaintiff has the choice of a home state court in which there would be no chance for prejudice against her.

5. There is diversity when an American citizen sues an alien and vice versa.

6. D.C. is a state for diversity purposes.

7. Complete diversity is required; every plaintiff must be diverse from every defendant.

8. A person is a citizen of a state if she is a U.S. citizen and a domiciliary of that state.

9. A person’s domicile is his permanent home. He need not intend to live there forever, just indefinitely.

10. A person can change her domicile by (1) going to the new place (2) with the intention of making it his more or less permanent home.

11. A corporation is a citizen of its state of incorporation and the state of its principal place of business.

12. A corporation’s principal place of business is its center of corporate activities. If that is unclear, look to the corporation’s nerve center.

13. An unincorporated association is a citizen of the state of each of its members.

14. Diversity jurisdiction can be created by the plaintiff’s bona fide change of domicile.

15. It cannot be created by selling the plaintiff’s claim to a citizen of another state.

16. It cannot be created by naming an out-of-state administrator for a l

4. The types of basis determine the type of jurisdiction the court can exercise: personal jurisdiction or property based jurisdiction.

5. In addition to a jurisdictional basis, the exercise of jurisdiction requires constitutionally adequate notice to the D.

6. Two constitutional clauses are relevant to territorial jurisdiction:

The Due Process Clause requires an adequate jurisdictional basis and adequate notice.

A judgment rendered without jurisdiction is not entitled to full faith and credit in other states. This is very important for enforcing a judgment if the defendant has no property within the forum state.

7. Like SMJ, TJ can furnish a basis for collateral attack, i.e., an attack on the judgment is a separate proceeding, often in another state.

8. Historically TJ was based on the court’s de facto pwer over the defendant’s person.

9. The accepted bases for jurisdiction over natural persons were:

Service of process in the forum

Domicile in the forum


The bases for jurisdiction over corporations were:

incorporation in the forum

“doing business” in the forum. The practical test for “doing business” was carrying on activity of a systematic and continuous nature?

10. International Shoe expanded the permissible scope of jurisdiction:

The defendant must have certain minimum contacts with the state so

that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.

11. The Shoe test contained a crucial ambiguity:

Does it require actual pre-litigation connections between the defendant and the state; or is it enough that the exercise of jurisdiction will not be unfair?

12. In two subsequent cases, Int’l Life Ins. v. McGee and Hanson v. Denckla, the Court decided two cases within four months: one favoring the fairness interpretation; the other, the contacts interpretation.

13 In the second, Hanson the court announced a formula that has proved nearly as crucial as the Shoe test: The Purposeful Availment Test

There must be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws.within the