MY NOTES

CIVIL PROCEDURE OUTLINE

Professor Jimenez

Does the Court have Subject Matter Jurisdiction

Involves Court’s authority to rule on a particular type of case.

Federal Question

Federal Question statute(§1331)- Fed Courts have jurisidiction over all civil actions arising under the Constitution, laws, treaties of the U.S.
Standards for determining whether a Fed. Question is raised.

Federal law creates claim
Non-Federal claim that turns on construction of Fed. Law.

Where the vindication of a right under state law necessarily turned on some construction of Federal law.
No Jurisdiction if it is an implied Fed claim.(Merrell Dow v. Thompson)
Where Federal Law is an element of state law claim, jurisdiction supported as long as Fed. Law is substantial to the case.
Jurisdiction supported where there is a substantial Fed. Interest

Well- Pleaded Complaint rule(Rule 8)- Plaintiff’s federal question must appear in the properly pleaded allegations of his complaint.

Proper pleading

Where plaintiff is not relying on a claim created by Fed. Law, the reference to Fed law will be required.

Anticipation of Fed. Law defense Insufficient

A possible defense to based on Fed. Law is not sufficient to grant Fed. Question.

Election to not assert Federal Claim(Master of own claim)

Plaintiff may elect not to assert a Fed. Claim and avoid available fed question jurisdiction.
Note: If claim is Federal in Nature courts can disregard such a choice. (Federated Department Stores v. Moite)

Diversity of Citizenship(§1332)

How to determine citizenship

Natural persons

Citizenship means the same as domicile
New citizenship may be established by physical presence and intention to stay in new state.

Corporations

Deemed to be citizens of every state in which it is incorporated.
Deemed to be citizen of state of principal place of business

Permanent resident aliens(§1332(a))

Aliens admitted to the U.S. shall be deemed citizens of the states which they are domiciled.

Executors, guardians, and trustees(§1332(c))

Deemed to be citizens of states of those whom they represent

Time in determination

Change before filing/Change after filing

Immaterial- Diversity only need to exist at the commencement of the action

Removal to Fed. Court (§ 1441)

Diversity must exist at the time of filing and on the date of filing the notice of removal

Efforts to create diversity

Assignment of Claim

Assignment will not create diversity if diversity would not exist had action been brought by party who assigned.(Kramer v. Caribbean Mills)
Note: Where substantial consideration given for the assignment, jurisdiction can exist between non diverse assignor and defendant.

Change of Citizenship

A genuine change of citizenship can create diversity

Amount in Controversy(again §1332)

Must be 75,000 exclusive of interest and costs.

Does the Court have Personal Jurisdiction

Are There traditional basis for jurisdiction

Physical presence
Consent to Jurisdiction via contract
Alienage jurisdiction(§1332c)
Implied Consent

Is there a long arm statute and does it apply

Are there Minimum Contacts

International Shoe Test

Minimum contacts that are reasonable and comport w/ traditional notions of fair play and substantial justice

Hanson vs. Denkla Test

Actions of Defendant that are volitional and beneficial to lead to "purposeful availment".

World-Wide Volkswagen Test

Jurisdiction can be obtained when a company delivers products with the expectation that they will be purchased by customers in the forum state and that the company would "reasonably anticipate being hauled into court there"

Asahi Metal Test

Company must have substantial connection w/ the forum state because the mere placing of products in the "stream of commerce" is not enough without more.

Helicopteros Test

Business in forum state must be systematic and continuous, mere purchases not sufficient to meet min. contacts standard. Greater contact is required where claim does not relate to D’s instate activities.

Defenses to Improper Jurisdiction(Rule 12b2)

"read the statue"

Proper Notice, Opportunity to be Heard, and Proper Service(Rule 4)

Notice

Use means that are reasonably calculated under the circumstances to give actual notice.(Publication is usually fatal) Mullane v. Central Hanover Trust.

Opportunity to be Heard

Service(Rule 4e2)

1. Personal Delivery

Substituted service- Other means of service of process

a. Federal Rules

Leave summons with at home w/person of suitable age and discretion or;
Service made pursuant to state law of the state in which district court is located. OR the state within which the service is effected

Waiver of Service- Waiver of formal service by U.S. mail.

State Law

Law varies on a state by state basis.

Is There proper Venue under § 1391

Statutory limitation on the geographic location of litigation to prevent a plaintiff from suing where it would be burdensome for the defendant to appear and defend.

Federal Venue Limitations

"read the statute"

Federal Venue Transfer Provisions

Venue improper in original court

If venue is improper, court may transfer case to proper court

Transfer for convenience

Court will respect plaintiff’s choice of forum, but may, for convenience in the interests of justice, transfer the case to another district where it might have been brought.

Cure or Waiver of Incorrect Venue(§ 1406)

"read the statute"

Can the Case be Removed to Federal Court Under § 1441

Only a defendant can remove from a state to a federal court and in diversity cases only as long as the defendant is not a citizen of the state in which the lawsuit was brought.
Can only remove a case that could have been brought in the court originally
Removal is strictly vertical within the jurisdiction

Have any Claims been Waived under Rule 12h

No Waiver

Subject matter jurisdiction
Joinder
Failure to state a claim

Waivable defenses

Personal Jurisdiction
Improper Venue
Insufficiency of process and service

Procedure for Removal

Only defendants can Remove
All defendants must join in

Remand

Federal Court should remand an improperly removed case to state court.

Does Claim Involve Supplemental Jurisdiction § 1367

Standard: Determination whether Supp. Juris is proper

Substantial Federal Claim

Claim must be sufficiently substantial to support federal question jurisdiction

Common Nucleus of Operative Fact;

The Federal and nonfederal claims must derive from a common nucleus of operative fact

One Judicial Proceeding

Claims must be one which plaintiff "would ordinarily be expected to try them in one judicial proceeding"

Limitation of Diversity Cases

When Federal subject matter jurisdiction is founded solely on diversity there is no supplemental jurisdiction over claims by plaintiffs against persons made parties under Rule 14 (Impleader), 19 (Nec. Party Joinder), 20 (Permissive party joinder) or 24 (Intervention)

Discretionary decline of Jurisdiction

A Federal Court can decline to exercise supplemental jurisdiction where;

A novel or complex issue of state law is involved
The nonfederal claim predominates
All original jurisdiction claims are dismissed
In all other extraordinary circumstances

Timing of Supplemental Jurisdiction

Exercise of Supp. Jurisdiction remains open throughout the case, although the effort invested by the court may become a reason to retain jurisdiction

Is there and Erie Doctrine Question Presented

Conflict determination Stage

Determine whether there is any direct conflict between the federal and state rules

Conflict Resolution Stage

It is essential to first determine the SOURCE of the potentially applicable federal rule of law. That leads to choose the correct approach below.

Federal Constitution

Rules that derive from the constitution always govern state law actions in Federal courts

Acts of Congress

Statues governing federal courts prevail over state law if the federal statute is "arguably procedural"

Federal Rules(Holding in Hanna v. Plummer)

Are judged according to the standards of the R.E.A.(usually Federal rule is to be applied instead of contrary state law. Incidental effects on state substantive law are disregarded

Judge made Federal Procedural Rule

Decisional rules are judged according to whether they meet Erie’s twin aims of discouraging forum shopping and avoiding inequitable administration of the laws.

Are there any Joinder and Multi-Party Litigation Problems

Joinder of Claims

Plaintiff can join any claim that arose in the same transaction/occurrence, under Fed. Rules, Plaintiff can bring any claim.

Permissive Joinder of Parties

Either party may join parties whose rights or liabilities that arise in the same t/o and raise at least 1 common question of law and fact

Compulsory Joinder of Parties

Except for joint tortfeasors- is there anyone that should be joined because it would help the present litigants gain complete relief or that the outsiders interests would be better protected? If so, then you can join them only if the additional parties meet jurisdictional requirements. If they can’t be joined because of the jurisdiction requirements the court has two options:

If the parties are indispensable then the claim will be dismissed.

Or, the court will just move on without the parties. And give relief to those who are presently joined.

Necessary Parties are:

Without absentee party, court can not give complete relief
The absent party interest will be harmed if they aren’t joined
Absent party claims an interest which subjects a party to multiple obligations

Preclusion Doctrines

Res Judicata(Claim Preclusion)

Requirements

Final judgment on the merits
The same parties plus other in privity(legal relationship)
Same entire claim, including matters that were or should have been litigated

Watch out for

Compulsory counterclaims which are barred if not presented in previous litigation
Privity cases where each person is barred if the parties were in privity with each other(employer-employee; husband/wife)

Collateral Estoppel(Issue Preclusion)

Requirements

Final valid judgment
Same parties and privities(mutuality)(Id parties)
Same issue arising out of different claim(Id Issue)
Issue fully litigated(party had day in court)
Essential to the outcome of previous case

Different Types

Offensive Collateral Estoppel(Parklane v. Shore)

Used by 1^st lawsuit stranger who is a plaintiff against one of the parties in a 2^nd suit

Defensive Collateral Estoppel

Used by one who is a defendant in the 2^nd lawsuit

Determination of Use, Weigh:

Fairness
Judicial efficiency-could person see this coming
Unfairness because of multiple plaintiff’s that would create unfairness or any issues regarding giving the party the full and fair opportunity to present case- i.e. Foreseeability of 2^nd lawsuit
Look for inconsistent judgments which will allow issue to be brought forth again
Has precluded party already had their day in court

Policy reasons

Stability of judgements
Judicial economy
Preventing inconsistent judgments
Protection from harassment

All Rules Herein

Be able to know they pertain to without looking

SECTIONS:

1331
1332
1332(a)
1332(c )
1367
1391
1406
1441

RULES:

4
4(e)(2)
8
12
12(b)(2)
12(h)
14
19
20
24