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J.#Talicska#–#D.#Webber#–#Civil#Procedure#Fall#2010# Jurisdiction Flowchart (Two branches of jurisdiction: subject matter jurisdiction and personal jurisdiction)

I. Personal Jurisdiction

II. Subject-Matter Jurisdiction

(Ability of court having subject matter jurisdiction to exercise power over a particular defendant or property)

(Ability of court to exercise power over a particular type of case)

I(a). In Personam

Federal “Subject-Matter” Jurisdiction

State “Subject-Matter” Jurisdiction (exclusive jurisdiction over certain issues; e.g., criminal, civil, family, probate)

US Constitution: Article III; Section 2

In Rem

Quasi In Rem

II(a). Federal Question

II(b). Diversity

28 U.S.C. § 1331

28 U.S.C. § 1332

II(c). Supplemental Jurisdiction

III. Removal Jurisdiction

II(b)(i). Erie Doctrine

28 U.S.C. § 1441

And the law applied in Diversity Jurisdiction

(Right of a defendant to move a lawsuit filed in state court to the federal district court for the federal judicial district in which the state court sits)

IV. Venue 28 U.S.C. § 1391 (Right of a defendant to move a lawsuit filed in state court to the federal district court for the federal judicial district in which the state court sit)

V. Waiver VI. Getting Rid of a Complaint: Rule 12(b); Summary Judgment; JMOL & JNOV

VII. Counterclaims, Cross-claims, and 3rd Party Claims VIII. Res Judicata & Collateral Estoppel See Issacharoff p. 148

IX. Joinder of Parties & Joinder of Claims

28 U.S.C. § 1367

I. Personal Jurisdiction (Ability of a court having subject matter jurisdiction to exercise power over a particular defendant or item of property)

I(a). In Personam Jurisdiction TRADITIONAL BASES OF IN PERSONAM JURISDICTION: 1. DOMICILE

2. CONSENT

§฀ Determined by 1) true fixed home 2) with intention of returning when away. Mas. v. Perry (5th) p. 851 §฀ If person lacks capacity, determined by law (e.g., minor is domiciliary of parent’s home state).

§฀ EXPRESSED – Carnival Cruise Lines (US) p.825 §฀ IMPLIED – Hess v. Pawloski (US) p. 696 §฀ VOLUNTARY APPEARANCE/WAIVER – Insurance Corp of Ireland (US) p. 819

3. IN-STATE SERVICE

4. “LONG-ARM STATUTES”

§฀ In Personam jurisdiction for persons served with process within state, even if merely transient. Burnham v. Superior Court (US) p. 799

Power over any person or property over which state can constitutionally exercise jurisdiction. California LAS

§฀  Exceptions -  In-state service induced by fraud. -  Persons involved in judicial proceeding.

§฀  UNLIMITED –

§฀  LIMITED (SPECIFIC) – Specify in detail the situation in which a court can exercise jurisdiction over foreign defendant. Hess v. Pawloski p. 696

MODERN BASIS OF PERSONAL JURISDICTION: Jurisdictional power expanded to those who have consented to forum’s power. For a defendant to “consent” to a forum’s power: “Defendant must have sufficient minimum contacts with the forum state such that maintenance of the suit does not offend traditional notions of fair play and substantial justice. ~ INTERNATIONAL SHOE CO., V. WASHINGTON (US) P. 700 1. 

SUFFICIENT MINIMUM CONTACTS* *ALWAYS REQUIRED

§฀  In determining if minimum contacts exist, a court will look to two factors: 1.  Purposeful Availment – D must reach out to the forum in some way; not accidentally. 2.  Foreseeability – D must know or anticipate that her activities in the forum render it foreseeable that she may be “haled into court” there; not that item may end up in forum ~ World Wide Volkswagen (US) p.720. −  Mere foreseeability alone is not sufficient for minimum contacts; need a “plus-factor” ~ Pavlovich, (CA) p.766. − 

− 

Courts divided whether injecting into “Stream of Commerce” w/o purposefully directing it at forum is minimum contacts. ~ Asahi, (US) p.756 Tension between “Purposeful Availment” and SOC

§฀  “Minimum Contacts Test” ~ Calder v. Jones (US) p.736. 1.  Intentional actions 2.  Aimed at the forum state 3.  Resulting in harm, the brunt of which is suffered – and which D knows is likely to be suffered – in the forum state.

2.  TRADITIONAL NOTIONS OF FAIR PLAY AND JUSTICE* *MIN. CONTACTS USE TO TRUMP FAIR PLAY; IN ASAHI FAIR PLAY TRUMPED MIN CONTACTS.

§฀  In determining if exercise of jurisdiction would offend traditional notions of fair play and substantial justice, several factors are considered: 1.  P’s interest in proceeding in the forum. 2.  Burden on D having to defend in the forum. 3.  Forum state’s interest in providing redress for its residents. 4.  Judicial system’s interest in efficient resolution of the dispute in the chosen forum ~ Asahi, (US) p.756 §฀  Notice – “Reasonably calculated, under all circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections” ~ Mullane v. Hannover (US) sup. 39. §฀  Also consider “Relatedness of Claim to Contact” with the forum (part of both MC and FP analysis): §฀  Systematic & Continuous = General Jurisdiction; in personam jurisdiction proper for any cause of action whether for in-state or out-of-state activities. §฀  Casual, Occasional, or Indirect = Specific Jurisdiction; in personam jurisdiction proper only for actions arising from that in-state activity

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II. Subject-Matter Jurisdiction (Ability of court to exercise power over a particular type of case)

II(a). Federal “Subject-Matter” Jurisdiction US Constitution: Article III; Section 2

II(a). Federal Question 28 U.S.C. § 1331

FEDERAL QUESTION BASICS §฀  “District courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” ~ US Constitution, Article III, Section 2 1)  FEDERAL QUESTION MUST APPEAR ON FACE OF THE COMPLAINT ~ MOTTLEY, (US) P.865 §฀ 

Defendant’s answer or defense is irrelevant; the existence of a defense based on federal law will not give federal question jurisdiction. §฀  Plaintiff ’s anticipation of a defense is irrelevant and will not raise a federal question.

2)  NO AMOUNT IN CONTROVERSY REQUIREMENT 3)  EXCLUSIVE JURISDICTION §฀  Congress has expressly provided that the jurisdiction of the federal courts shall be exclusive in: a) Bankruptcy Proceedings; b) Patent and Copyright Cases; c) Antitrust Cases; d) Admiralty Cases; e) postal matters; f) Internal Revenues; g) Securities (etc.) 4)  CONCURRENT JURISDICTION §฀  Federal courts may also have concurrent jurisdiction with state courts over certain claims (e.g., civil rights or Federal Employment Liability Act (FELA) claims; subject to removal.

Federal Question Flowchart

Does P’s well-pleaded complaint allege an express of implied federal cause of action?

YES

NO

Does P’s well-pleaded complaint allege a state law cause of action of which federal law is an substantial element? (“Federal Ingredient Test”) Grabel, (US) p.873

Federal Question Jurisdiction is Proper

YES

NO

No Federal Question Jurisdiction

II. Subject-Matter Jurisdiction (Ability of court to exercise power over a particular type of case)

Federal “Subject-Matter” Jurisdiction US Constitution: Article III; Section 2

II(b). Diversity Jurisdiction 28 U.S.C. § 1332

DIVERSITY

OF

CITIZENSHIP BASICS

1)  COMPLETE DIVERSITY WHEN ACTION IS COMMENCED §฀ 

Diversity must be complete –this requires that no plaintiff be a co-citizen with any defendant – when the action is commenced. §฀  Exception: Federal interpleader statute [28 U.S.C. § 1335] requires only minimal diversity – diversity needed only between two claimants; amount in controversy at least $500.

2)  CITIZENSHIP/DOMICILE A) 

PERSONS – The location where you were born and continues through your life unless: §฀  You physically change your state; and §฀  You have the intention to remain in the new state for the indefinite future.

B) 

CORPORATIONS – Every corporation has two domiciles §฀  State of incorporation (or every state in which it is incorporated); and §฀  Its principle place of business. Two tests for principle place of business: 1.  “Nerve Center” Test – Location of corporation’s headquarters. 2.  “Muscle” Test – Location where most of manufacturing or servicing occurs.

C) 

UNINCORPORATED ASSOCIATIONS §฀  Citizenship is that of each and every member; national labor union with members in all 50 states will never pass the “diversity of citizenship” test.

D) 

ALIENS §฀  Deemed to be a citizen of state in which the alien is domiciled; it is generally accepted, however, that at least one party to the suit must be a natural-born or naturalized United States citizen.

3)  AMOUNT IN CONTROVERSY §฀ 

Must be in excess of $75,000, exclusive of interest and costs, but inclusive of punitive damages (evaluated ex ante) §฀  Allegation that damages in controversy exceed $75,000 must be made in good faith. §฀  Aggregation of Claims – single party can aggregate all claims against single D, even if unrelated, to reach jurisdictional amount requirement; single party cannot aggregate claims against multiple Ds to reach jurisdictional amount requirement unless asserting a joint claim.

4)  ERIE DOCTRINE §฀  §฀ 

When a federal court is in diversity, the court will apply the state’s substantive law and federal procedural law. If the state’s law is procedural and if there is no federal law “on point,” an “unguided Erie choice” is presented and the federal court will engage in various analyses to determine whether state or federal procedural law should apply. See II(b)(i) – “Erie Doctrine Flowchart”

II(b)(i). Erie Doctrine Flowchart (An Erie Problem arises when a court is sitting in diversity and a party alleges that a State’s law should apply) Some State Laws are clearly substantive: 1) Statute of Limitations (York); 2) “Conflict of law” rules (Klaxon (US)); 3) Elements of a claim or defense Harlan, J – To determine if a rule is “substantive or “procedural,” ask would the choice of rule “substantially affect those primary decisions respecting human conduct which our constitutional system leaves to state regulation?” ~ Hanna, (US) p.960 Scalia, J – State substantive law controls what injuries are compensable and in what amount; federal standards determine whether the award exceeds what is lawful.” ~ Gasperini, (US) p.986

Is there a conflict between State’s rule and:

Federal Rule Is the Federal Rule valid under R.E.A. (28 U.S.C. § 2072 )? To check:

Does the Rule regulate Procedure?

Constitution

YES

Does the Rule “abridge,” “enlarge,” or “modify” a substantive right?

NO

Federal Statute

YES

YES

Apply Constitutional Provision

Is State’s law substantive?

YES

Is Federal Statute Constitutional?

NO

Apply State

Law “Unguided Erie Choice"

NO YES

Valid. Apply Federal Rule pursuant to 28 U.S.C. § 2072 (R.E.A.).

YES

YES

Not Valid.

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Apply State Rule under R.D.A. (28 U.S.C. § 1652).

Test: “Does the rule really regulate procedure?” ~ Sibbach, (US) p.955 Harlan, J. Could a reasonable man characterize the rule as procedural? ~ Hanna, (US) p.953 - Dissent

NO

YES

Consider whether Outcome Determinative: York, (US) p. 935

To determine, consider the “Twin Aims” of Erie ~ Hanna, (US) p. 953 Do the two rules encourage 1) Forum Shopping (ex ante) and 2) Inequitable Administration of Law (for in-state v. out-of-state litigants) ----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

Apply Federal Statute under R.D.A. (28 U.S.C. § 1652). Byrd Balancing Test: Even if state and federal laws encourage forum shopping and inequitable administration of law for in-state v. out-of-state residents, consider Federal Interest: May outweigh implementation of state rule for federal rule (affirmed in Gasperini, (US) p. 977)

YES, but also consider…

NO

Apply Federal Rule

II. Subject-Matter Jurisdiction (Ability of court to exercise power over a particular type of case)

Federal “Subject-Matter” Jurisdiction US Constitution: Article III; Section 2 Same Case and Controversy

II(c). Supplemental Jurisdiction 28 U.S.C. § 1367

SUPPLEMENTAL JURISDICTION BASICS 1)  28 U.S.C. § 1367(A) – PENDANT JURISDICTION OVER STATE CLAIMS §฀  §฀ 

Applies when a party sues under federal question and subsequently adds a closely related state claim. Federal courts that have (1) original jurisdiction over a case because of a federal question (28 U.S.C. § 1331) can exercise supplemental (pendant) jurisdiction over a closely related state law claim if (2) the two claims “derive from a common nucleus of operative fact” and are such that a plaintiff “would ordinarily be expected to try them all in one judicial proceeding.” ~ United Mine Workers v. Gibbs, (US) p.888 §฀  The state law claim in this case is considered to be part of the “same case or controversy” for Article III, Section 2 purposes.

2)  28 U.S.C. § 1367(B) – ANCILLARY JURISDICTION §฀ 

Applies when parties in a diversity action want to include a claim against a non-diverse party which would defeat diversity jurisdiction, but without whom complete adjudication would be impossible §฀  Federal courts that have (1) original jurisdiction over a case because of diversity (28 U.S.C. § 1332) can exercise supplemental (ancillary) jurisdiction over a non-diverse party if (2) the claim against non-diverse party arises from a “common nucleus of operative fact.” §฀  For cases based solely on diversity, ancillary jurisdiction may not be used to support claims by plaintiffs against non-diverse persons made parties under: (1) Rule 14 – Impleader; (2) Rule 19 – Compulsory joinder; (3) Rule 20 – Permissive joinder; and (4) Rule 24 – Intervention.

§฀ 

Remember: 1367(b) restrictions apply if diversity is the SOLE basis for being in federal court.

Supplemental Jurisdiction Flowchart 28 U.S.C. § 1367 NO

3d party added under what Rule 14, 19, 20, 24? Same “Case or Controversy”/ “Common nucleus of operative fact”

Claim against 3d party by P or D?

Basic requirement of § 1367(a#

YES

Ancillary Claim Or Pendant Claim

Ancillary Claim Pendant Claim

This is the § 1367(b) limitation#

NO Supplemental Jurisdiction

Limitations of § 1367(b) do not apply to claims brought by D.#

Supplemental Jurisdiction Limitations of § 1367(b) do not apply to pendant jurisdiction.#

III. Removal Jurisdiction 28 U.S.C. § 1441 (Right of a defendant to move a lawsuit filed in state court to the federal district court for the federal judicial district in which the state court sits)

REMOVAL JURISDICTION BASICS 1)  STATE TO FEDERAL ONLY 2)  ORIGINAL JURISDICTION NECESSARY §฀ 

Under 28 U.S.C. § 1441, a defendant can only remove an action that could have originally been brought by a plaintiff in the federal courts. §฀  Defendant cannot remove on the ground that she has a defense grounded in federal law, since a federal defense is insufficient to confer original federal question jurisdiction under § 1331.

3)  ONLY DEFENDANT MAY REMOVE; ALL MUST SEEK REMOVAL §฀  §฀ 

Only defendants can exercise the right of removal. If there is more than one defendant, all defendants must join in the removal. If some defendants refuse to join in the removal, removal is denied.

4)  VENUE §฀ 

Venue for an action removed under § 1441 lies in the federal court “embracing the place where such [state] action is pending.” §฀  In a properly removed case, venue is proper in the federal court of the state where the case was pending, even if it would have been improper had the plaintiff originally filed the action there.

Ø฀  EXCEPTIONS §฀ 

When one of the defendants is a citizen of the state in which the original state action was brought, and when federal jurisdiction would be based on diversity, the action is not removable § 1441 (b) §฀  A case may not be removed on the basis of diversity of citizenship jurisdiction more than one year after it was commenced in state court.

Does the Court have SubjectMatter Jurisdiction?

Removal Jurisdiction Flowchart 28 U.S.C. § 1441 Does the Court have Diversity Jurisdiction?

Does the Court have FQJ? Federal Question Claims Pass Through the Federal Question Filter.

Limitation § 1441(b)

Non-Federal Question Claims Pass Through Supplemental Jurisdiction Filter. 28 U.S.C. § 1367

Federal Question Flowchart Does P’s well-pleaded complaint allege an express of implied federal cause of action? Does P’s well-pleaded complaint allege a state law cause of action of which federal law is an substantial element? (“Federal Ingredient Test”) Grabel, p.873

Same “Case or Controversy”/ “Common nucleus of operative fact?” Meets Supplemental Jurisdiction Requirements under § 1367? (see above, p.6) Yes

Federal Question Jurisdiction is Proper § 1441(a) Court must hear case

Does the Court have Personal Jurisdiction?

No Federal Question Jurisdiction Removal is improper if based on FQJ

Courts may exercise or decline authority per § 1367(c)

No Court may exercise jurisdiction or remand all matters not within original jurisdiction. § 1441(c)

IV. Venue 28 U.S.C. § 1391 (Venue deals with locality of a lawsuit. It involves a decision of which district or county is appropriate, based typically on where a matter occurred or where the defendant resides)

VENUE BASICS 1)  GENERAL RULES §฀ 

An action may be brought in (1) a judicial district where any defendant resides, IF all defendants reside in the same State; (2) a judicial district in which a substantial part of the events giving rise to the claim occurred, or a substantial part of the property that is subject to the action is situated; or if there is no district which satisfies (1) or (2),

§฀ 

for (3) actions based solely on diversity, a judicial district in which any defendant is subject to personal jurisdiction, it there is no district in which the action may otherwise be brought . ~ 28 U.S.C. § 1391(a)

§฀ 

for (3) actions not based solely on diversity, a judicial district where any defendant may be found. ~ 28 U.S.C. § 1391(b)

2)  IMPROPER VENUE MAY BE WAIVED §฀  §฀ 

Unlike Subject-Matter jurisdiction, venue may be waived by parties. Venue is considered to be waived unless timely objection is made to the improper venue.

3)  TRANSFER §฀ 

§฀  §฀  §฀  §฀  §฀ 

Section 1404(a) allows transfer to another district where the action “might have been brought” even ...