Civil Procedure Outline 1. The constitutional bases for federal court jurisdictionin Article III, section 2 of the U.S.

Constitution, primarily Diversity of Citizenship Jurisdiction and Federal Question Jurisdiction; 2. The analysis and tests required to determine whether diversity of citizenship jurisdiction exists under the Diversity of Citizenship Statute (28 U.S.C. 1332),1 including: a. At the time the case is filed (Mas v. Perry): b. The tests/rules/criteria for determining the state of citizenship of a party (these vary depending on whether the party is an individual, a corporation, an unincorporated association, etc.); i. Individual: Domicile Test (2 parts) 1. The true, fixed, and permanent home, and 2. To which has the intention of returning whenever is absent therefrom (needs evidence of intent, i.e. changing drivers license, voters registration, telling people this is his/her new home) 3. Also must actually physically be there ii. Corporation: deemed a citizen of any State where it is incorporated and where it has its principal place of business 1. Incorporated test- check the Secretary of State database 2. The Principal Place of Business = the nerve center test: -The place where a corporations officers direct, control, and coordinate the corporations activities, the nerve center, which in practice should normally be the headquarters (Hertz Corp. v. Friend) iii. An Unincorporated Association: 1. Considered a citizen of all states of which its members are citizens 2. L.L.C. citizenship is left to the courts to decide- they are treated like unincorporated associations (Belleville Catering Co. v. Champaign Market Place L.L.C.) c. After one has determined the citizenship of each party in a case, whether complete diversity of citizenship exists according to the judicial gloss placed on the Diversity of Citizenship Statute by the Supreme Court in Strawbridge v. Curtiss; and

As you will learn in Legal Research and Writing, a citation such as this refers, in the first set of numbers to the Title of the Unites States Code, the books in which statutes passed by the U.S. Congress are located. The U.S. Code is organized into titles and Title 28 is for Civil Procedure. (Other titles deal with other aspects of judicial matters. For instance, Title 18 contains most of the criminal provisions; Title 42 deals with litigation of civil rights cases, etc.) The 1332 in the citation 28 U.S.C. 1332 is the specific section within Title 28 that defines the requirements for Diversity of Citizenship jurisdiction. This Code section is in your 2011-12 Rule Supplement, along with other key statutes, after the Rules. See pages 197 and after in your Rules Supplement. Also note that last but not least in your Supplement is the United States Constitution. We will generally review the structure of the Constitution, but focus on Article III dealing with the judicial power of the United States.

Rule of Diversity of Citizenship (Complete Diversity): All Plaintiffs must be of diverse citizenship from all Defendants (28 U.S.C. 1332) d. Decedents, minors, or incompetents: The citizenship of the dependent, and not the representative, is what applies e. Miscellaneous Diversity Issues i. 28 U.S.C. 1359: there is no jurisdiction over cases in which any party, by assignment or otherwise, has been improperly or collusively made or joined to invoke the jurisdiction of such court 1. Torts cases are generally not assignable, contract cases are if it is for value 2. DOES NOT apply to a person changing their domicile to create diversity ii. Federal court does not do issues such as divorce, alimony, and child custody decrees f. Determination of whether a sufficient amount in controversy exists ($75,000) to satisfy the Diversity of Citizenship Statute. i. Legal Certainty Rule: j. The sum claimed by the plaintiff controls if the claim is apparently made in good faith...and that inability of the plaintiff to recover an amount adequate to give the court jurisdiction does not show his bad faith or oust the jurisdiction (St. Paul Mercury Indem. v. Red Cab. Co.) ii. UNLESS the claim never could have amounted to the sum necessary 3. The analysis and tests required to determine whether federal question jurisdiction exists/arise under the general Federal Question Statute (28 U.S.C. 1331), including the well-pleaded complaint rule, which determines whether a federal question is part of the plaintiffs claims in the case a. The well-pleaded complaint RULE: The plaintiffs compliant states the claim at issue, the elements of that claim and it is determined based on that if the plaintiff were to plead such a claim hypothetically would they NEED to plead any federal law (to satisfy any of the elements)? b. Declaratory Judgment Action: would-be defendant can bring suit to have the matter tried and resolved i. Plaintiff Defendant ii. Well-pleaded complaint would still depend on the would-be plaintiff a.k.a. the party who has the claim, now the defendant because of Declaratory Judgment 4. The analysis and tests required to determine whether removal of a case from state court to federal court is proper under the Removal Statutes (28 U.S.C. 14411447),2 including: a. Whether a basis in federal jurisdiction exists (for our purposes, either Diversity of Citizenship or Federal Question, such that the case is one within the federal courts jurisdiction);
2

i.

As with the Diversity Statute, the Removal Statutory provisions are in Title 28. As you may gather, the dash between 1441 and 1447 means all sections from 1441 through 1447. Again, these are all in your Rules Supplement book. We will concentrate on three sections28 U.S.C. 1441, 1446 & 1447.

b. Whether any defendant is a citizen of the state in which suit is brought (28 U.S.C. 1441 prohibits removal if that is the case for reasons we will discuss); - if there is a D who is a citizen of the state in which the suit is brought and it is being removed for Diversity of Citizenship reasons, then it is NOT able to be removed. c. Whether the removal was to a federal district and division encompassing the state court from which it was removed; d. Whether all of the numerous requirements for removing a case under 28 U.S.C. 1446 have been satisfied; y All Ds must join y Must file in appropriate U.S. District Ct. /Fed. Ct. y Must give notice to P (all adverse parties) and State court clerk y Must have all signatures y Attached is everything that was served to D: all process (aka service= complaint + summons), order (pretrial order), pleadings (aka complaint) y Within 30 days from when D was served y A short and plain statement requesting removal y (Should also demand a jury trial at this time, otherwise it will have to be requested within 14 days of removal filing- better to do it now so it is not forgotten) e. The deadline for a plaintiff to move to remand a case from federal court to state court, the grounds on which the plaintiff may do so, and the manner of moving to remand; and y Based on Lack of Subject Matter Jurisdiction (either Diversity or Fed. Quest.), then there is no deadline to remand y 30 days for any and all other reasons to remand f. The trap in which many plaintiffs have lost the right to a jury trial because their lawyer was not aware of a deadline triggered by removal for demanding a jury. y Should file automatically, but if not y Must be filed within 14 days of notice of removal 5. The tests, doctrines, and principles for determining whether a court in a given state (regardless of whether it is a federal court or a state court of that state) has personal jurisdiction consistent with the Due Process Clause of the Constitution, including: a. Preliminary questions a litigator should consider that would establish personal jurisdiction without great difficulty, such as where a nonresident has consented to jurisdiction in the state where suit is brought; b. The difference between General Jurisdiction and Specific Jurisdiction; c. The test, rules, and criteria for determining whether General Jurisdiction exists; d. Specific Jurisdiction as the minimum contacts test developed in a series of Supreme Court decisions, the factors, tests, criteria, and analyses one would employ to determine whether personal jurisdiction existed in a given set of circumstances; and

e. Whether a nonresident should appear in a foreign (other than U.S.) state and, if so, the methods for challenging personal jurisdiction. 6. The requirements of the General Venue Statute (28 U.S.C. and how they funnel a case to an appropriate venue, including: a. The extent to which personal jurisdiction analysis learned above is incorporated into the venue state to identify a district as one in which suit can be brought; b. The ability to use the alternative grounds of supporting venue based on the acts or omissions in the suit, and how that can lead to several districts and is often the most employed part of the venue statutes c. How to challenge venue as a defendant.