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Federal Question: 1331

Federal Subject Matter Jurisdiction

Diversity: 1332 Supplemental- 1367
Constitutional Basis
Article III of the Constitution - must be same case or controversy Look to Gibb test: Common nucleus of Operative Fact (CNOF)- same case or controversy

Removal - 1441
1441: Any matter fed. Cts have orig. jx can be removed Only D, only to Fed Fed decides NO appeal of remand Complete Unanimity among Ds required well-pleaded complnt applies (Caterpillar) Remove only to fed ct. embracing state ct. where action pending

Source: Art III, but Sec. 1332 narrower b/c Federal creates cause of include amt. in controversy req. and action: express or Impliedif unsure can bring & complete diversity requirement dismissal on merits Complete Diversity

Federal law is central but claim not arise from it

Federal Question: 1367(a) Orig. claim has Fed. JX and supp. claims are part of same case/controversy (b): If removal based on (Gibbs) diversity - can NOT remove if any D is citizen of forum Basically full reach of constitutional Federal defense or state authority anticipated federal Removal OK even If st. ct. Diversity Cases: 1367(b) supp. Jx defense (Mottley): did not have jx remove to NOT extend to: fed ct and dismiss (12 b 2) Claims by Ps vs. parties joined Well pleaded under 14, 19, 20, 24 1446: Procedure complaint rule Claims by persons included as Ps (b) W/N 30 days of service P Master of the complaint Amount in Controversy under 19 or 24 of 1st of summons or unlessComplete complaint Min. amt. In controversy = $75K- met unless legal Otherwise inconsistent w/1332 preemption (Caterpillar) certainty will not recover Court Discretion 1367(c): may Multiple Ds - cts. split if get decide NOT to exercise Jx if addl 30 days; later D can Value of injunctions- to either P or D (Glenwood) Note: Rule 8(a)(1): Complaint remand if w/in 30 days Novel issue of state law; Aggregation: Single P can aggregate against single must have short statement of Must still file w/n a year if D. But cant aggregate claims of different Ps (Zahn). supp. claim >original claim grounds for subject matter JX removal based on diversity Counterclaims generally NOT offset; also issue w/ dismiss all claims w/ orig. jx; 1367 (b) and Zahn. exceptional circumstances Removal means 1447 Post-Removal venue rules DONT Watch out for: patent infringement v. breach of K related to patent (c) Motion to remand w/in 30 days after file notice apply. Can only (d) Remands NOT appealable remove to area where Must have direct reliance on federal law for substantive right action is pending. (e) post-removal joinder which can destroy subj.mat jx. Artful Pleading to stay in ST crt when really can be removed b/c fed Courts discretion remand (allow) or continue (NOT) issue


Real persons: Citizenship = Domicile (last place intended to stay indefinitely/mind/behind) (Mas v. Perry) Artificial Persons: Corporations : Citizenship = State of Incorporation + Principle place of business Place of Operations Nerve Center Total Activity/Primary Activity Test Associations: citizens of ALL states where members are citizens Improper/collusive assignment or joinder NOT permitted to defeat or create diversity If non-diverse Ds joined after removal, may be remanded or joinder denied 1441 (c)

Statutory Basis

Personal Jurisdiction
Federal Court
Rule 4(K)(1)
(A) Subject to JX in state where Dist. Ct. located (B) Joined under Rule 14 or 19 and w/n 100 mls of ct. (bulge Jx) (C) Joined under interpleader (D)Auth. By fed. statute

Rule 4(K)(2)


Claim under federal law No state has general Jx (good for foreign Ds Exercise of Jx constitutionally/statutorily sound

Minimum Contacts with the US as a whole- 5th Ammend

State Court

Long Arm statute Persons: Consent, in -state service, presence, domicile Corporations: Incorporation, nerve center, consent - in state agent Civil Status cases


Full extent of Constitution: CA Particular Circumstances: NY Specify exactly when can take JX Particulars but construed broadly: at full extent of constitution

Long Arm Statute

Constitutional Analysis
General: Persons- domic, pres; Corp--Incorp, doing biz - continuous and systematic (Shoe) Specific: 1) Claim arise/relate to contacts 2) Purposeful availment (McGee/Kulko/Keeton NOT Hanson)

Minimum Contacts



Mullane letters; Mennonite address: Lehr father; posters on door

State interest in hearing the case Burden on Defendant Plaintiff interest in relief Judicial system intrst in efficient resolutn Shared interest of several states in Directed at forum (Calder,, driving) forwarding public policy Stream of commerce: Gray (prob. Asahiads required, OConnors) Balancing test (Burger King) Applies to in rem Shaffer

Objections: Either direct attack (special appearance) or collateral attack (allow default, challenge
domestication) - Note Rule 12 - must object at first opportunity or waive

VENUE and forum non conveniens

Venue1391/ 1404/1406
Diversity: 1391(a) - Venue proper if 1) Any D reside in the district provided all Ds reside in the state (Reside for maj of states = domicile) 2) Judicial district where transitory rule eventsclaim took place or local rule property subject of action located 3) District where any D subject to under personal jx - if no district where action could be brought otherwise Subject matter/Other:1391(b): (1) and (2) same as 1391(a) (3) District where any D may be found, if no other district where action can be brought - (served w/ process, but also poss to use personal jx) Corporate Defendants (not Ps) 1391 (c) : Defines corporate residence as particular District where D has contracts - even if subject to personal jx in state - may not be proper venue Resides in every district where the corp. is subject to personal jx - even if only specific jx for this claim- treat district like a separate state for min. contacts analysis Aliens 1391(d): Any district 1406 - If venue wrong or at discretion of the court - can dismiss or transfer to 1404-any other district where could have been brought originally

Forum Non Conveniens

Discretionary power to Ct. to decline jurisdiction when convenience of parties and ends of justice would be better served if action were brought and tried in another forum. (Piper)

In Fed. Ct. under Diversity JX - Where fed. Law is not controlling, fed. Cts must apply state law


Arguably Procedural (Sibbach v. Wilsonnot substantive just

b/c has to do w/ right; if procedural, really procedural)


Clearly SubstantiveApply State law (Eriewillful v. negl.stdrd; Klaxtonchoice of law <if PA choice of law sends to NY law, use NY NOT PA>)

Procedures in conflict?


Apply Both - (Cohen v. Beneficial Lifestockholderspost

security <state>; <fed> silent on issue)

Federal rule, valid and on point



Apply federal rule if 1) w/n rules enabling act 2) Constitutional (Hanna svc of process on point Rule 4
express requirements [broad interp] and L. Walker Steel Rule 3 NOT on point b/c not intended to relate to stat of lim. [construe narrowly] <Ragan-stare decisis.)

Outcome Determinative: (Hanna twin aims of

Erie - 1) Forum shopping 2) inequitable admin of laws// modifies Guaranty Trust v. Yorklaches v. stat of limprocedural BUT outcome determinative)

No No

Apply Federal Law

Apply State Law Apply Federal Law - Byrd Balancing Test


Overriding Federal Interest (7th A rt to jury; div

btw judge/jury, due process, div btw TC & AP, liberal pleading, res judicata? Yes


ByrdJdge/Jry decides if person was EEJURY 7th Am rt.

Able to accommodate both


Reverse Erie: Must have overriding fed. Interest

Dice-FELA judge (ST)/jury (FD)fed FELA overriding intrst in jury Is the rule integral to the remedy? Is the rule part and parcel to the remedy Congress intended? Would state practice unduly interfere w/ P's opprtny to recover remedy? <FED> Felderuniformity goal w/ liberal Federal pleading procedure <STATE> Johnsoninterlocutory appeal is burden

Make accommodation: Gasperini-2 separate

Erie analyses: New Trstate b/c no rule on point; AppealFed interest in review and separate Trial/Appeal

Joinder of Claims
Possible Claims to be joined P D Original Claim May add additional unrelated claims - Rule 18 D P Must assert compulsory counterclaims - Rule 13(a) that arise out of same transaction or occurrence May assert unrelated, permissive counterclaims Rule 13(b) Jx question

D1 D2

May assert cross-claim - Rule 13(g) - must be same case/controversy

Once assert valid crossclaim, may then add unrelated claims - Rule 18

D2 D1

May assert cross-claim - Rule 13(g) - must be same case/controversy Must assert compulsory counterclaim 13(a) against D1s crossclaim Once valid crossclaim/counterclaim, may add unrelated claims - Rule 18 or assert permissive counterclaims 13(b) against D1

Joinder of parties/Intervention
Permissive Joinder Rule 20 Intervener - Rule 24 As of right - 24(a)
Single Transaction

Compulsory Joinder - Rule 19

Should they be joined?
19(a)(1) - If no complete relief in persons absence 19(a)(2) - If judgment in absence of party (i) As practical matter impair protection of parties interest (ii) impose multiple or inconsitent obligations

Common question of law/fact Not need claims against all parties- decide each according to respective rights

(1) Statute gives right

(2) 3 -prong test

Interest in subj matter based on property or transaction Ability to protect interest would be impaired Inadequate representation

Can they be joined?

Terr. JX - Must be subj. to service of process - can be waived - Bulge Jx- 4(K)(1)(B) - must be w/n 100 miles Subj. Matter Jx: Joinder can not deprive of jx - note for purposes of diversity - no supp. Jx if join as Ps but yes if join as Ds Venue: No join if make venue improper Refusal: Can still be made involuntary P or

Permissive - 24(b)
Common question of law/fact + Discretion of court

Join other Ps or make co-Ds

Terr JX: Must have Jx over each D - may be out of range even if jx could be constitutional 4(k)(1)(B) must be w/n 100 miles ?? Subj. Matter: Fed. Q - always permitted; Diversity - No supp. Jx over statelaw claims v. non-divers Ds - 1367; circuit split over Ps

If they cant be, but should be?

Subj. Matter: Indep. Grounds req. Fed. Q - permitted Diversity - 1367(b) - Can not intervene as a Plaintiff and have subj. matter jx. If break diversity
Prejudice: Extent prejudice absent party Framing judgment: poss. frame judge. To mitigate prejudice Adequacy of remedy: Can adequate remedy w/ absense Result of dismissal: Will adequate remedy if P dismissed


Rule 14 and 13(h) Joinder of Parties

Rule/Mechanics - Power D v. D: Cross claim 13(g)
D v. P + Other party 13(h) D v. 3PD 14(a) D

JX - Permission
ALWAYS exists under 13(g) b/c same transaction req. meets CNOF test and not excluded by 1367(b)

Must be related to Ps orig. complaint or previous counterclaim - same transaction/relate to property test from 13(a) Comp. Counterclaim Never mandatory Must claim actual relief On counterclaim/cross-claim - D can join additional parties to the counter or crossclaim as long as joinder meets reqs. In Rule 20(a) - Same transaction + Common question law/fact. When: Anytime after commencement - if after 10 days of answer, need leave of court (liberal) Derivative action: must be asserting 3rd partys liability depends on Ds liability to orig. P. Same Case/Controversy Additional Claims: Once properly impleaded 3PD can assert other unrelated claims - 18(a) Denial: Can deny 1) Undue delay 2) Complication issues 3) Prejudice to P - can separate suits NOT mandatory 14(a) allows 3PD to assert: Counterclaim against 3PP/Def. - not need to be related Cross-claims against any other 3PD- must be related Claims against orig. P that arise out of same transaction as orig. P/D suit Defenses against orig. P and 3PP/Def Original P can assert claims against 3PD Must be related to orig. claim b/t P and orig. D Independent juridisdictional requirement - prevent collusion b/t D and P to maintain diversity


3PD v. D/P/new 3PD P Claims /

Original claim: Impleading 3PD by D, NOT affect jx over orig. claim even if not diverse Impleader claim - must still have supp. Jx Usually will under 1367(b) since excludes parties joined by Ps under 14 Venue: 3PD not taken into consideration

Cross claim

Counter claim

1367(b) If claims by Ps against parties joined under 14 - not have supp. Juris. If orig. jx is based on diversity

P v. 3PD

Summary Judgement - Rule 56

Moving Party has Burden at trial - P Burden of Production Can not rely on the
pleadings Must present Affirmative Evidence

Moving Party not have Burden at trial - D

Must point to specific places lacking in the record showing no GIMF Celotrex Not require affirmative evidence

Standard: No genuine issue of material fact an that moving party entitled to judgment based on undisputed facts. Partial SJ: Rule 56(d): SJ can be granted w/ respect to certain claims -

Who bears the risk of non-persuasion?

Burden of Persuasion

All reasonable inferences viewed in light most favorable to non-moving party Take account of burden at trial - Anderson v. Liberty Lobby

Quasi-Interlocutory Appeal: Rule 54(b) but appeal can be had only if express determination by judge that final judgment

Opposing Motion for SJ Must present affirmative evidence in substance but

not form admissible at trial If affidavits not available - court can issue continuance for more discovery - 56(f)

Can not rest on the pleadings if opposing motion for SJ - Rule 56(e)

Judgment as Matter of Law

Failure to 12(b)(6) State a claim:

Pre-answer motion - not need to make at first opp.

Evidence Required
Solely on the pleadings Judge will ascertain whether viewing the pleadings in light most favorable to P whether states a legally sufficient claim P given at least one opp. To ammend

Trial Std

Ap Std

Plaintiff can prove no set of facts based on the allegations in the complaint that would entitle him to relief

Summary Judgement

Rule 56

Moving party has burden at trial: Typically after Must show affirmative evidence discovery since if not suff. evidence, parties MP NOT have burden at trial - no affirmative evidence, BUT, must point can continue discovery to specific places in evidentiary record (56(f)) Burden of persuasion taken into acct.

No genuine issue of material fact an that moving party entitled to judgment based on undisputed facts.

JMOL/ Directed Verdict

Rule 50(a)

After non-moving parties case in chief or at any time before sub. to the jury. Poss. allow motion after issue presented After jury verdict: w/n 10 days of entry of judgment - BUT make JMAL motion before submission to jury

Based on evidence presented at trial Must specify places in evidentiary record- allow ammendment Viewed in light most favorable to non-moving party

No legally sufficient basis for a reas. jury to find for the non-moving party. but one reasonable conclusion: 2 stds:
1) Consider only evidence favorable to NMP and all infer. in light most favorable to NMP. OR 2) Include evidence by MP that is not impeached /contradicted by opposing party evidence

De Novo: Verdict insuff. As matter of Law


Rule 50(b)
Rule 59

New Trial

After jury verdict: w/n 10 Based on evidence presented at trial days of entry of judgment Includes procedural factors
Viewed in light most favorable to nonmoving party

Great weight evidence.



Abuse of Discretion (Gasperini)

Post -Verdict Options

1) Renew JMOL - 50(b)
Must have motioned before submitted to jury

Renew JMOL
JMOL granted and New trial conditionally granted Can appeal Appellate court can 1) Uphold JMOL or 2) New Trial - Std. review
abuse of discretion will stand

Both JMOL denied and New Trial GrantedNo appeal until 2nd trial is over
Diff result in Trail 2: Loser can claim new trial was abuse of discretion Same result: Loser can appeal both new trial and JMOL

2) Move for New Trial - 59

Tl. Ct has discretion in granting new trial - less likely to cause 7th A probs as JNOV Grounds for new trial - 59(a)(1): Any reason granted in past include...judicial
error, prejudicial error, juror misconduct, verdict against great weight of evidence; newly discovered evid

Move for New Trial


If grant JNOV, must also conditionally rule on new trial

JMOL granted and New trial conditionally deniedCan appeal

Both JMOL and New Trial Motion deniedAbility to appeal Appellate court can 1) Order JMOL 2) New Trial 3) Let Verdict stand


Appellate court can 1) Uphold JMOL or 2) Reinstate verdict or 3) Order new trial (Abuse discretion)

3) Appeal

Need Final Judgement + Substantial Stake+ Trial court Error (Procedural, misapply substantive law, or gross misapprehension of facts) - note harmless error - Rule 61

Interlocutory Appeals: Collateral Order Doctrine: 1) Conclusive 2) Resolve important issue question sep. from merits 3) Render effectively unreviewable on appeal from final judge OR Partial SJ and express det. Final judgment

4) Relief from Judgment 60(b)

Rule 60(b): Can make motion in action in which judgement was rendered: 1) Mistake, surprise, excusable neglect 2) New evidence 3) Fraud 4) Judgement void 5) Judgement satisfied or judgement on which based overturned (Reed v. Allen) 6) Any other reason justifying relief - exclusive of others

Other means of relief: Bring sep. equity suit if facts = grave miscarriage of justice or await execution

Res Judicata and Collateral Estoppel

Res Judicata/Claim Preclusion New claims on same set of events
Basic Requirements 1) Same parties or privies 2) Same transaction or occurences 3) Final and Valid decision 4) On the merits
Claims under 18(a) arising out of same transaction able to bring in suit 1 Compulsory Counter claims under 13(a)

Collateral Estoppel/ Issue Preclusion

Same issues on new set of events
1) Same parties or privies 2) Same issue of fact/law actually litigated 3) Actually decided - must be part of decision 4) Necessary to the judgement - not alternative theories
Issues that were decided on - not in the alternative - must be necessary to the case

Barred in suit 2

Not Barred in Suit 2

Claims under 18(a) not out of same transaction or which could not have been brought in first suit (b/c of exclusive jx or nosupp jx)

Permissive Counterclaims under 13(b)

Cross-claims under 13(g) Impleader - Rule 14 - but note collateral estoppel if try to bring in suit 2 Permissive joinder - Rule 20 - note collateral estoppel