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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
OR
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
NOT
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)
or
Claim under federal law No state has general Jx (good for foreign Ds Exercise of Jx constitutionally/statutorily sound
State Court
Long Arm statute Persons: Consent, in -state service, presence, domicile Corporations: Incorporation, nerve center, consent - in state agent Civil Status cases
Basis
Full extent of Constitution: CA Particular Circumstances: NY Specify exactly when can take JX Particulars but construed broadly: at full extent of constitution
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
Reasonableness
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
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
ERIE
No
Yes
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?
Yes
No
Yes
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.)
No No
Yes
No
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
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
+
Mechanics
Common question of law/fact Not need claims against all parties- decide each according to respective rights
Permissive - 24(b)
Common question of law/fact + Discretion of court
Jurisdiction
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
2
unRelated
3PD
3PD v. D/P/new 3PD P Claims /
Counterclaim
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
3PD
Cross claim
Counter claim
3PD
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
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 -
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
Can not rest on the pleadings if opposing motion for SJ - Rule 56(e)
When
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.
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
JMOL/ JNOV
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
of
the
Renew JMOL
Grant
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
Deny
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
Grant
Both JMOL and New Trial Motion deniedAbility to appeal Appellate court can 1) Order JMOL 2) New Trial 3) Let Verdict stand
Deny
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
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
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)