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Civil Procedure Outline

  1. Subject Matter Jurisdiction

    1. Introduction

  • Rule 8 a) Claims for relief – pleading shall contain: short and plain statement of the grounds upon which the court’s subject matter depends, unless the court already has jurisdiction and the claim needs no new grounds of jurisdiction to support it.

  • Rule 12H4 whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction over the subject matter, the court shall dismiss the action. . .

  • Capron v. Van Norden (prior to Rules of Civ Pro) Capron fails to establish SJM initially and then goes to the court requesting that the case be dismissed on the grounds that 1) No mention of SJM and 2) No SJM. Case is dismissed. Represents the courts Represents the courts breaking of procedure to maintain the purity of the system.

  • Rule 15a does not apply at this state because there is no pleading this is an appeal.

  • 28 USCS § 1653 Defective jurisdiction may be amended , upon terms, in the trial or appellate courts. (rule of forgiveness which encourages sloppiness. Safety valve)

  • Exceptions-Lack of SJM cannot be challenged later

    • Res Judicata

    • Collateral Estoppel

    1. Diversity Jurisdiction

      1. Introduction:

  • Grant of Jurisdiction from Article III, §2 of Constitution.

    • 1332 does not allow the full statutory grant in two ways.

      • Amount in Controversy 75K

        • Doctrine of Aggregation may add up amts. from different claims as b/t same parties to meet the amt. in controversy requirement.

      • Complete Diversity Requirement. (Strawbridge v. Curtis)

      1. Domicile determines citizenship- An alien is a citizen of the state in which he is domiciled.

        1. Domicile has a unique federal meaning:

          1. Where you are found

          2. Where you intend to remain

          3. (or it can be the last place you were domiciled as in Mas)

        2. Mas v. Perry (5th Cir., 1974) Defendant appeals on ground of lack of diversity jurisdiction. Plaintiff was a citizen of France, and under common law, his wife would also be considered a citizen of France and thus a citizen of no state (outside of the reach of § 1332). Court suspends common law rule: When husband is an alien, the common rule no longer applies.

          1. Courts decision to suspend the rule of unity of domicile, was motivated by desire to preserve the ultimate goal of the rule, to preserve the ability of Husband and Wife to Sue together.

        3. Coporations are citizens of wherever they are incorporated and where they have their principal place of business

          1. § 1332 (c) 1 – a corp is a citizen of all states where it is incorporated. Most states only incorporate in 1 state. You are also the citizen of the 1 state where the corporation has its principle place of business.

          2. EXAM CHEAT:

            1. Look at corporation’s nerve center  where decisions are made (headquarters).

            2. Look to corporation’s muscle center  where corporation does more “stuff” than anywhere else. Manufacturing.

            3. Most court’s look to the total activities of the corporation  we will use the nerve center as the principle place of business, unless all the activities are in a single state. If the there are 5 plants in different states, then we will look to nerve center, but if all plants are in one state, that is where we will look.

            4. You must analyze on exam, talk about nerve, muscle, total activities.

            5. EXAM HYPO- D is incorporated in Delaware, factory in PA, headquarters in NY, other plants in 6 other states. We know its Delaware citizenship and also analyze 3 factors to figure out principal place of business.

          3. Diversity is determined at the time complaint is filed and is not affected by subsequent changes in domicile of parties.

          4. St. Paul Mercury Rule: Gives the benefit of the doubt to the ∏ that the claim will meet the amount in controversy unless it is quite clear it will be less. This rule is heavily weighted toward the ∏ Where there is a legitimate debate, the congressional mandate is satisfied. Hard time in keeping intangible damages out of federal court.

    1. Federal Question Jurisdiction/Implied Remedy Doctrine

      1. Introduction

        1. Federal Courts did not have arising under Jurisdiction until 1875

          1. To encourage uniformity of interpretation of Federal Law

          2. Federal Judges are smarter, and have greater expertise

          3. Provide for a vindication of federal rights against states.

        2. Like Diversity Jurisdiction, Statutory Grant of “Arising Under Jurisdiction”, 28 U.S.C. §1331 is not the full Constitutional amount.

        3. What does arising under mean? Is the primary question

          1. First, when looking at arising under jurisdiction, ask what th the proper contours of the claim are, . . . whether the claim is as lean as it could be or whether it is anticipating defense

      2. Well pleaded complaint rule

        1. A federal question that arises under an anticipated defense cannot be the grounds upon which the case reaches federal court.

        2. Louisville & Nashville R. Co. v. Motley, Scotus (1908)

          1. Court took notice of lack of jurisdiction sua spontedoesn’t arise under.

          2. Cause of action here was breach of contract - state law.

          3. Plaintiff’s attempt to anticipate defense that federal law would preempt their claim - Court says cannot do that.

          4. The federal claim must arise on the face of a well-pleaded complaint.

          5. The π doesn’t create a federal question by anticipating, in the complaint, a federal defense.

      3. 3 theories- The Scope of Federal Arising Under.

        1. Creation\Cause of Action Theory (Justice Holmes-American Welworth)

          1. Narrow under Constitution and 28 USC § 1331

          2. Only if the federal law creates the cause of action

        2. Ingredient or “But for Test” – (Justice Marshall, Osborn v. Bank of the United States,)

          1. Osborn v. Bank of the United States,

            1. Constitutionally this case can go to Federal Court – the bank was created by federal law. Fed Law is an indispensable ingredient to the creation of the Bank. (There is a causal chain that is rooted in federal law)

            2. Within the charter, the Congress has conferred Jurisdiction in Federal Court. This was sufficient, but we don’t know until the 90’s that this was necessary condition. The charter must expressly say “sue in federal court”

        3. Meaning and Applicaton- (Smith, Moore, Merrell)

          1. An federal question arises, by requiring decision maker to engaged some decision of Federal Law. The courts have decided that there is a Constitutional Power to send some cases to Court even when the claim does not arise under federal law

            1. Harms v. Eliscu – ∏, Harms Co and ∆ Eliscu are fighting about the copyrights to a song. No diversity this must come to court as a federal question. Lower court decides that there is no Arising Under Jurisdiction because court need not open up the copyright statute and interpret it. Judge Friendly distinguishes from an action for infringement, which would require interpretation.

              1. Congress could have granted jurisdiction in this case, but Congress did not use it because they didn’t include the language in the grant.

              2. This doesen’t get in via § 1331 – Constitution has immaent power but does not have the steam to structure the system. The congress must parse and allocate federal Jurisdiction.

              3. This case would go to federal court under Osborne, the distinction made is that Federal law here creates the entity at issue and not the parties at issue. 28 U.S.C. § 1338  are specialized grants to the federal courts not arising from 1332.

            2. Smith v. Kansas City Title and Trust Co., State law creates the cause of action. Claim is that ∆ is investing, contrary to MO corporate law, securities unlawfully created. To resolve this question court must resolve an issue of whether the Act authorinzing the issuance was Consstitutional- This case goes to federal Court.

            3. Moore v. Chesapeake & Ohio- ∏ claimed under state liability act that they could not be held contributorily negligent because ∆ employer violated a federal statute. You can’t avoid looking at the federal law. The court does not allow this to go federal Court. Court says federal law issue is not substantial without adequately distinguishing from Smith.

            4. Merrell Dow v. Thompson (SCOTUTS 1986)

              1. ∏ sues Merrell Dow in Ohio State Court. Merrell Dow Removes to Federal Court, ∏ object asserting that there is no SJM

              2. The majority of the claims are state law claims with one claim under the FCDA which if the ∆ have violated will be negligent per se. The 6th circuit finds that there is no federal SJM here because liability could have been found without looking at the federal statute- The outcome doesen’t depend on the Meaning and application of the Federal Statute.

              3. SCOTUS creates a new theory of meaning and application test:

  • Federal jurisdiction applies if there is a federal law claim under which there could be a separate cause of action filed in federal court

  • Without an independent Cause of Action there can be no Federal Jurisdiction

  • Does not require that the ∏ sue on this question, only that the cause of action exists.

              1. Because the Court finds that there is no independent cause of action that comes from the Food Drug and Cosmetic Act, there is no SJM “arising under”

              2. If federal question wasn’t necessarily decided as part of case, then it doesn’t meet the meaning/application theory criteria. Necessarily decided test.

              3. “A complaint alleging a violation of a federal statute as an element of a state cause of action, when Congress has determined that there should be no private, federal cause of action for the violation, does not state a claim ‘arising under…’”

        1. Implied Remedy Doctrine:

          1. Dissent in Merrel - Does lack of mechanic for bringing a cause of action, make a statue any less substantial in deciding a state law issue?

          2. Decision does nothing to forward goals of federal jurisdiction 1) nothing to forward uniformity or expertise, 2) neutral at best on the protection of federal rights.

          3. Under the Common Law rights and Causes or Action were unified

          4. Statutory commands which often makes prescriptions but does not supply what to do if prescriptions are not followed.

              1. Is there a cause of action?

              2. What is the Remedy ?

              3. What is the Jurisdiction?

            1. Cort v Ash, (Scotus, 1975) – ∏ sues Behlehem violation of 18 USC 610, which prohibits contributions of corporate funds to political parties. First remedy is dismissed- change in law. The court then deals with the question of damages

            2. Sets up a four part test to determine implied remedy:

              1. Is the ∏ of the class entitled to protection?

              2. Any indication of the legislative intent to create or deny a remedy?

              3. Is it consistent with the legislative intent to apply a remedy ( What is the law? Does Suing advance purpose?)((will the suing by stockholders reverse or change corporate influence))?

              4. Is the cause of Action traditionally relegated to state law, making it inappropriate to infer federal cause of action?

            3. In this case, Court found no private cause of action implied. Intervening legislation by fed. election commission created an enforcement mechanism for complaints relating to violations of election law.

            4. Schooner Peggy Doctrine (side note):

              1. If between judgment and decision of appellate court, a law intervenes and positively changes the rule which governs, the intervening law should be applied. Doctrine of retroactivity.

              2. The court must make decision in light of law as it stands when the court makes its decision.

            5. Bivens v. Six Unknown Agents of FBI (SCOTUS, 1971)

              1. Court creates an implied right of action from the Fourth Amendment of the Constitution – to be free from unreasonable search and seizures.

            6. Bell v. Hood – don’t need an express remedy Bivens - don’t need an express cause of action either.

              1. Black dissents: Congress should create these causes of action; the Courts should not pull them out of nowhere. Congress specifically granted a statute for federal cause of action against state officials acting under color of state law - §1983 – why didn’t they create one for federal officials?

              2. Today, courts tend to look to plain meaning of statute to see if a right of action is created, hesitate to imply a right of action.

    1. Supplemental Jurisdiction

      1. Introduction

        1. Multiple Claims and Multiple Parties some of which, if looked at alone, would not have federal Jurisdiction(Riding the Coattails)

        2. Prior to 28 USC § 1367, the terminology spoke of pendant or ancillary claims. Terminology obsolete and we now talk about supplemental claims and supplemental parties.

        3. First, Primary Claim – determine and distinguish primary claims from supplementary claims

        4. Second, Identify claims that are asserted against same party and separate parties. 1367 gives very different treatment to claims that involve same and different parties.

      2. Joinder of Claims

        1. Rules:

          1. Rule 13(a) Compulsory Counterclaims

            1. Must arise from same T&O (same scope as Res Judicata)

            2. Failure to assert leads to waiver leads to waiver of the counterclaim

          2. Rule 13 (b) Permissive Counterclaims

            1. Does not have to come from same T&O

            2. Failure to assert does not arise in Waiver

            3. Permissive only to the extent that they are not barred by Res Judicata

          3. Rule 13 (f) Omitted Counterclaims:

            1. Court may allow amendment to fix omitted counterclaims

          4. Rule 13 (g) Cross Claims:

            1. Permissive, No Waiver

            2. Must arise out of same T&O

          5. Rule 18 (a) Joinder of Claims

            1. Party May join as many claims as they have whether or not same T&O, Supplemented by the rules of Res Judicata

            2. Allows aggregation of claims for amount in controversy requirement.

        2. Joinder of Parties:

          1. Rule 14 Third Party Practice – Not as Strong as rule

            1. Not as strong as 19 in Forcing 3rd party onto a claim. ∏ can object

          2. Rule 14 (a) When ∆ may Bring in Third Party. (Impleader) – Joint Tortfeasors

            1. ∆ may implead a third party that is responsible for all or some of the ∏ claim against the 3rd party ∏

            2. 3rd party ∆ may assert counterclaims or cross claims; raise defenses agains plaintiff’s original claim; assert claims arising out of the same T&O against ∏ (RULE 13)

          3. Rule 14 (b) When a ∏ may bring in a 3rd Party

            1. When a counterclaim is asserted against a plaintiff he may implead a third party ∆ under the rules above.

          4. Rule 19 Compulsory Joinder of Parties – (Forcing Parties onto a case)

            1. Parties needed for a “just adjudication”-necessary parties for case to progress

            2. 2 Categories: necessary and indespensible

          5. Rule 19(a)- Requires “necessary” parties to be joined if it will not deprive the court of SMJ

          6. Rule 19(b)- When joinder of a “necessary” party is not possible, provides for dismissal of the case or if the party is not necessary, the continuation of the lawsuit without the party.

          7. Temple v. Synthes: (SCOTUS, 1990, Court does not allow dismissal as doctor is not a necessary party, joint tortfeasors are always permissive parties ∏ Injured by a plate in his spine; sues manufacturer ∆ in federal court and sues the doctor in state court. ∆ moves to dismiss for failure to join necessary parties (Doctor) under Rule 19(b).

            1. No inquiry under Rule 19 (b), because requirements under Rule 19 (a) not satisfied.

            2. Reasons barring Res Judicata for this case include no final judgment and the parties are different.

          8. Rule 20 Permissive Joinder of Parties:

            1. Grants permission for federal lawsuits with multiple parties on either side of the “v” (multiple ∏ or ∆) – parties can come together and sue

            2. Two requirements for

              1. Claim must arise out of same T&O

              2. Claim must have a common question of law or fact

          9. A and B do not have to include C-Subject to rule of intervention

          10. Rule 22 Interpleader

            1. See also 28 U.S.C. § 1335

            2. Nationwide service of Process authorized

          11. Rule 23 Class Actions (See Supplement)

          12. Rule 24 – Intervention – used by outsiders

            1. Rule 24 (a)- Intervention of Right

              1. Mandatory party has right to be in suit

              2. Permissive must get permission from Court

              3. Strict test for Mandatory intervention: statute must confer a right to intervene, or have an interest in the prop. And the interest of the intervening party is not protected by existing parties

            2. Rule 24 (b) – Permissive Intervention

              1. Must have a common question of law or fact

              2. Difficult to get –judge will consult the existing partie.

      1. Pre § 1367:

        • U

          Doctrine of Res Judicata is hovering above Gibbs. Failure to join these cases will prevent the adjudication of the contract claims if they are not joined together in federal court.

          MWA v. GIBBS, (SCOTUS, 1966), The question is whether the primary claim can carry secondary claims into federal court. Gibbs bringing suit under § 303 of Labor Management and Relations Act and 2 additional Contract Claims.

        1. Claims for which there is no independent basis for jurisdiction must arise common

Nucleous of operative Fact”

        1. Claims arising from same “nucleus” satisfy the Constitutional requirement of same case

Or controversyEvolves into same transaction and occurrence

        1. Reasons to dismiss a pendant claim:

          1. Primary federal claim is dismissed early in the case.

          2. Questions of State law predominate

          3. Combining two claims will confuse the jury.

        2. Pendent claims in diversity jurisdiction cases

          1. A&B are of diverse citizenship and primary claim meets the amount in controversy requisite

          2. Additional claims that do not meet the Amount are allowed only between the same parties (whether the claims are related or not)

  • Trend toward the narrowing of Pendant Party Jurisdiction

  • Pendant Party: Fed Claim against ∆ X and a Transactionally-related state claim against ∆ Y. but there is no independent grounds of SMJ to support the claim agains ∆ Y.

Jurisdictional Statute

Substantive Law





Presumption of PP Jurisdiction



State law

No jurisdiction unless complete diversity


1346 (b)

1346 (b)

Presumption PP Jurisdiction

  • Aldinger v. Howard (SCOTUS 1976) , ∏ brings suit agains offericers under 42 USC § 1983 tries to sue the county. Did not succeed. SCOTUS said 1983 did not allow the county to be sued.

          1. Court would not assume a Congressional grant of jurisdiction in this case. Pendant party jurisdiction denied under Civil Rights Act, 42 USC §1983

            1. The decision in Aldinger is very specific to the language of § 1983. The proposition unless congress excludes the exercise of pendant party jusridition it will be allowed. Negative affect but positive pronouncement.

            2. Court says this is not a constitutional problem. The claims do arise from the same case and controversy, however, § 1983 refers to “officers and persons” an implied negative pregnant. Which bars suit against the county.

            3. Presumption in favor of pendent party jurisdiction if claims related – unless Congress stated otherwise. No jurisdiction is the result – but jurisdiction presumed is the rule.

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