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Civil Procedure II
University of Tulsa School of Law
Blair, Marianne

Civ Pro II
Spring 2010
Choosing the Proper Court
Subject Matter Jurisdiction
Power of court to hear particular type of controversy
Personal Jurisdiction
Power of court over parties; power to issue binding decision
Statutory rules to achieve convenient forum
What district/county is proper
Due Process
Service of Process (Notice)
Subject Matter Jurisdiction
Basic Principles
Must have constitutional (Art. III, sec. 2) & statutory authority
SMJ cannot be waived
Rule 12(h)(3) provides that either party or the court may raise objection as to the court’s lack of SMJ at any time (even on appeal or after judgment) if lack of SMJ is found case must be dismissed/judgment voided. 
Concurrent & Exclusive Jurisdiction
1.      Concurrent – more than 1 jurisdiction has power to hear case
a.       There is a presumption of concurrent jurisdiction
2.      Exclusive – only 1 jurisdiction has power to hear case
a.       State courts can’t reserve exclusive jurisdiction over a claim that is properly w/in jurisdiction of a federal court
b.      Congress can take jurisdiction away from state court (i.e. bankruptcies, patent/copyright) (source of authority is Supremacy Clause)
General & Limited Jurisdiction
1.      General jurisdiction – court can hear everything, unless specifically excluded
a.       Each state court has at least one court of general jurisdiction
2.      Limited – Only allowed to hear specific, enumerated claims
a.       In federal court, presumption is against SMJ – meaning burden on party invoking smj to plead and, if challenged, prove basis for smj
SMJ of Federal Courts
Principle Bases of SMJ
1.      Diversity (18 U.S.C. §1332)
a.       Amount in controversy $75,000.01
2.      Federal Question (18 U.S.C. §1331)
a.       Does the claim arise under the Constitution, treaties or laws of the US?
b.      Is the complaint well plead?
i.        i.e. does NOT plead possible defenses as basis for Federal Question?
c.       No $ amount minimum – can have a SMJ over a $1 dispute
d.      Federal jx may be exclusive to federal court, OR
i.        i.e. patent, copyright, etc.
e.       federal jx may be concurrent with state court jurisdiction
i.        i.e. civil rights, FELA claims, etc.
3.      Alienage (18 U.S.C. §1333)
4.      U.S. as a Party
5.      Admiralty & Maritime (18 USC §1333)
6.      Disputes between states, counsels and ambassadors
7.      Refusal to exercise jurisdiction
a.       Domestic relations—a relationships that aren’t terminable @ will (divorce, child custody)
b.      probate
c.       if diversity is created by improper/collusive joinder
Diversity (§1332, 1369) (know 1332 (a), (b), (c), (e))
1.      Diverse Citizenship
a.       Basic Rules
i.        Complete Diversity – no Π can be citizen of the same state as any Δ
1)      Constitution only requires minimal diversity, complete diversity is a judge made interpretation of §1332.
2)      If incomplete, court can either dismiss case or can dismiss the non-diverse party
ii.      Look at citizenship status on the day the suit is filed
b.      Determining Citizenship
i.        Natural Born Persons – citizens of the state must be
1)      US (American) Citizen
2)      Domiciled in the state
a)      Reside in the state (resident in fact); and
b)      Intent to remain indefinitely
c)      Keep old domicile until new one is established
d)     Only one domicile at a time
i)        If person has multiple homes in different states, look at that person’s center of gravity by looking at:
a.      Where does the person live?
b.      Where is the family?
c.      Where does the person pay taxes?
d.      Where does that person work?
e.      Where are the cars licensed?
f.      Where does the person vote?
3)      Special Rules
a)      Traditionally wife takes domicile of husband (almost gone)
i)        Except: American wives of alien husbands, wife separated b/c of marital breakdown; lower cts have found separation for any reason
b)      U.S. Citizens domiciled abroad are not citizens of a state for diversity purposes (doesn’t mean they can’t bring a suit, they just can’t bring it on basis of diversity. Can still bring in state court)
ii.      Aliens & Foreign states
1)      To determine if citizen/subject of foreign state – look to law of the foreign country. Do they consider alien to be a citizen?
2)      Aliens admitted for permanent residence in the U.S. shall be deemed a citizen of the state in which the alien is domiciled
iii.    Corporations
1)      Every corporation has two domiciles
a)      Deemed a citizen of any state in which it is incorporate and
b)      State where it has its principle place of business (usually where corporate HQ is located.)
2)      Tests to determine PPB
a)      Nerve Center Test: the nerve center, or “brain” is the ppb.  Where corporate decisions are made & overall control.
i)        Executive offices, where corporate policy is made
iv.    Insurance Companies
1)      Citizen of place of incorporation, and principle place of business, and deemed to be a citizen of state in which the insured is a citizen
2)      Only when insured is not named as a party
v.      Unincorporated Assn’s & Partnerships (i.e. labor unions, partnerships, etc)
1)      Associations: doesn’t have own citizenship.  Takes on citizenship of every member (could be citizen of all 50 states)
a)      So, a national labor union like the teamsters could never pass the federal diversity test because it has members in all 50 states.
2)      Partnerships: takes on citizenship of every partner

            1)      Except joint tortfeasors
iv.    If co-parties have a common, undivided interest and a single title/right is involved, the interest of the co-parties may be added together
1)      Joint title to property
2)      Partners suing on behalf of a partnership
3)      Ds w/joint liability, i.e. joint tortfeasors
4)      Suit by minority shareholders based on injury to the assets of a corporation
Federal Question §1331
1.      Well-pleaded complaint rule
a.       Π’s claim, as set forth in the complaint, must arise under federal law
i.        Federal defense can’t be used as basis for federal question jurisdiction
ii.      Π’s counter-argument to defense can’t be used as basis
iii.    Δ’s counter-claim can’t be used as basis
b.      Exception – Complete Pre-emption Doctrine (**Know “complete preemption can create exception to well-pleaded claim rule.” don’t have to be able to apply)
i.        Some issues are of such a national character, that federal law preempts
1)      Frequently comes in as a defense to a state claim
ii.      Most of the time preemption does not create FQ jurisdiction
1)      But “Complete Preemption” can create federal jurisdiction if a federal statute completely preempts the state-law cause of action b/c the claim, even if pled in terms of state law, is in reality based on federal law
a)      Don’t need to worry about.
c.       Exception – Declaratory Judgments
i.        Asking court to declare rights/duties of parties in particular context
ii.      If, but for, the availability of declaratory judgment, federal law would arise in an action only as a defense, FQ jurisdiction is lacking.
1)      Concerned Π would incorporate federal defense into claim
iii.    FQ jurisdiction is extended in situations when Π seeks declaratory judgment that Δ doesn’t have right to damages/relief in certain manner
1)      The Δ could be a potential Π, so there is jurisdiction
2)      Cardtoons: MLBP could have brought federal claim against Cardtoons, so Cardtoons did have FQ jurisdiction to file for declaratory judgment.  Fact that their defense would be 1st Amendment was irrelevant for determining jurisdiction
iv.    If seeking judgment the Π is immune from state claim the other party could bring b/c Π asserts federal defense, there is no FQ jurisdiction
v.      If seeking judgment the Δ’s anticipated federal defense is invalid, or that the counter-argument to defense is based on federal law, there is no FQ jurisdiction