Civ Pro

28 U.S.C. § 1332(a)(1)-(a)(4): Diversity Jurisdiction

(a) The district  courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between:

(1) citizens of different States;

(2) citizens of a State and citizens or subjects of a foreign state, except that the district courts shall not have original jurisdiction under this subsection of an action between citizens of a State and citizens or subjects of a foreign state who are lawfully admitted for permanent residence in the United States and are domiciled in the same State;

(3) citizens of different States and in which citizens or subjects of a foreign state are additional parties; and

(4) a foreign state, defined in section 1603(a) of this title, as plaintiff and citizens of a State or of different States

28 U.S.C. § 1332( c)(1): Diversity Jurisdiction for Corporations

A corporation shall be deemed a citizen of "every State and foreign state by which it has been incorporated and of the State or foreign state in the state where their principal place of business."

28 U.S.C. § 1331: Federal Question

The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.

What are the other bases for jurisdiction in federal district court?

1. 28 U.S.C. § 1333: civil cases of admiralty or maritime jurisdiction

2. 28 U.S.C. § 1334(a): bankruptcy

3. 28 U.S.C. § 1338(a): patent, copyrights and trademarks, and plant variety

4. 28 U.S.C. § 1345: all civil actions, suits, or proceedings commenced by the U.S

5. 28 U.S.C. § 1351: all civil actions and proceedings against consuls or vice consuls of foreign states

28 U.S.C. § 1441: Removal of Civil Actions

The general removal statute permits only defendants to remove a case that is pending in state court to federal district court.

• “Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.”

28 U.S.C. § 1454: Patent, plant variety protection, and copyright cases

If any party asserts a claim for relief arising under any Act of Congress relating to patents, plant variety protection, or copyrights may be removed to the district court of the United States for the district and division embracing the place where the action is pending.

28 U.S.C. § 1441 (b)(2): Removal of Civil Actions

Forbids “in-state defendants” from removing cases in certain circumstances:

• “A civil action otherwise removable solely on the basis of the jurisdiction under section 1332(a) of this title may not be removed if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.”

28 U.S.C. § 1446 (b)(1): Procedure for Removal of Civil Actions

Requires the defendant to file the notice of removal within 30 days of receiving either the initial pleading or the summons (whichever is sooner). If there are multiple defendants, this deadline applies independently to each defendant.

28 U.S.C. § 1446 (b)(2)(a): Procedure for Removal of Civil Actions

Proper removal requires all the defendant to consent to removal

28 U.S.C. § 1446 (b)(3): Procedure for Removal of Civil Actions

If a case was not originally removable but becomes so, the 30-day clock for removal runs from the moment the case becomes removable (not if one year since the action commenced has passed)

28 U.S.C. § 1446 (c ): Procedure for Removal of Civil Actions

non-jurisdictional objections to removal must be raised within 30 days of the filing of the notice of removal

28 U.S.C. § 1446 (c)(1): Procedure for Removal of Civil Actions

A case may not be removed based solely on § 1332 jurisdiction “more than 1 year after commencement of the action, unless the district court finds that the plaintiff has acted in bad faith in order to prevent defendant from removing the action”

28 U.S.C. § 1447 (a)-(d) - Procedure After Removal Generally

(a)

In any case removed from a State court, the district court may issue all necessary orders and process to bring before it all proper parties whether served by process issued by the State court or otherwise.

(b)

It may require the removing party to file with its clerk copies of all records and proceedings in such State court or may cause the same to be brought before it by writ of certiorari issued to such State court.

(c)

A motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal under section 1446(a). If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded. An order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal. A certified copy of the order of remand shall be mailed by the clerk to the clerk of the State court. The State court may thereupon proceed with such case.

(d)

An order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise, except that an order remanding a case to the State court from which it was removed pursuant to section 1442 or 1443 of this title shall be reviewable by appeal or otherwise.

28 U.S.C. § 1448 - Procedure After Removal

In all cases removed from any State court to any district court of the United States in which any one or more of the defendants has not been served with process or in which the service has not been perfected prior to removal, or in which process served proves to be defective, such process or service may be completed or new process issued in the same manner as in cases originally filed in such district court.

This section shall not deprive any defendant upon whom process is served after removal of his right to move to remand the case.

FRCP Rule 4(k)(1)(a): Territorial Limits of Effective Service

(1) In General. Serving a summons or filing a waiver of service establishes personal jurisdiction over a defendant:

(a) who is subject to the jurisdiction of a court of general jurisdiction in the state where the district court is located

FRCP Rule 4(c): Service

(1) In General. A summons must be served with a copy of the complaint. The plaintiff is responsible for having the summons and complaint served within the time allowed by Rule 4(m) and must furnish the necessary copies to the person who makes service.

(2) By Whom. Any person who is at least 18 years old and not a party may serve a summons and complaint.

(3) By a Marshal or Someone Specially Appointed. At the plaintiff's request, the court may order that service be made by a United States marshal or deputy marshal or by a person specially appointed by the court. The court must so order if the plaintiff is authorized to proceed in forma pauperis under 28 U.S.C. §1915 or as a seaman under 28 U.S.C. §1916.

FRCP Rule 4(a)(1): Contents

(1) Contents. A summons must:

(A) name the court and the parties;

FRCP Rule 4(d): Waiving Service

(d) Waiving Service.

(1) Requesting a Waiver. An individual, corporation, or association that is subject to service under Rule 4(e), (f), or (h) has a duty to avoid unnecessary expenses of serving the summons. The plaintiff may notify such a defendant that an action has been commenced and request that the defendant waive service of a summons. The notice and request must:

(A) be in writing and be addressed:

(i) to the individual defendant; or

(ii) for a defendant subject to service under Rule 4(h), to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process;

(B) name the court where the complaint was filed;

(C) be accompanied by a copy of the complaint, 2 copies of the waiver form appended to this Rule 4, and a prepaid means for returning the form;

(D) inform the defendant, using the form appended to this Rule 4, of the consequences of waiving and not waiving service;

(E) state the date when the request is sent;

(F) give the defendant a reasonable time of at least 30 days after the request was sent—or at least 60 days if sent to the defendant outside any judicial district of the United States—to return the waiver; and

(G) be sent by first-class mail or other reliable means.

(2) Failure to Waive. If a defendant located within the United States fails, without good cause, to sign and return a waiver requested by a plaintiff located within the United States, the court must impose on the defendant:

(A) the expenses later incurred in making service; and

(B) the reasonable expenses, including attorney's fees, of any motion required to collect those service expenses.

(3) Time to Answer After a Waiver. A defendant who, before being served with process, timely returns a waiver need not serve an answer to the complaint until 60 days after the request was sent—or until 90 days after it was sent to the defendant outside any judicial district of the United States.

(4) Results of Filing a Waiver. When the plaintiff files a waiver, proof of service is not required and these rules apply as if a summons and complaint had been served at the time of filing the waiver.

(5) Jurisdiction and Venue Not Waived. Waiving service of a summons does not waive any objection to personal jurisdiction or to venue.

FRCP Rule 4(e): Serving an Individual Within a Judicial District of the United States

(e) Serving an Individual Within a Judicial District of the United States. Unless federal law provides otherwise, an individual—other than a minor, an incompetent person, or a person whose waiver has been filed—may be served in a judicial district of the United States by:

(1) following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made; or

(2) doing any of the following:

(A) delivering a copy of the summons and of the complaint to the individual personally;

(B) leaving a copy of each at the individual's dwelling or usual place of abode with someone of suitable age and discretion who resides there; or

(C) delivering a copy of each to an agent authorized by appointment or by law to receive service of process.

FRCP Rule 4(h): Serving a corporation, partnership, or other association

Unless federal law provides otherwise or the defendant's waiver has been filed, a domestic or foreign corporation, or a partnership or other unincorporated association that is subject to suit under a common name, must be served:

(1) in a judicial district of the United States:

(A) in the manner prescribed by Rule 4(e)(1) for serving an individual; or

(B) by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process and—if the agent is one authorized by statute and the statute so requires—by also mailing a copy of each to the defendant; or

(2) at a place not within any judicial district of the United States, in any manner prescribed by Rule 4(f) for serving an individual, except personal delivery under (f)(2)(C)(i).

FRCP Rule 4(l): Proving Service (clarifies, if disputed, the plaintiff has the burden of establishing that the defendant was properly served)

(1) Affidavit Required. Unless service is waived, proof of service must be made to the court. Except for service by a United States marshal or deputy marshal, proof must be by the server's affidavit.

(2) Service Outside the United States. Service not within any judicial district of the United States must be proved as follows:

(A) if made under Rule 4(f)(1), as provided in the applicable treaty or convention; or

(B) if made under Rule 4(f)(2) or (f)(3), by a receipt signed by the addressee, or by other evidence satisfying the court that the summons and complaint were delivered to the addressee.

FRCP Rule 4(m): Time limit for service

If a defendant is not served within 90 days after the complaint is filed, the court—on motion or on its own after notice to the plaintiff—must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period. This subdivision (m) does not apply to service in a foreign country under Rule 4(f), 4(h)(2), or 4(j)(1), or to service of a notice under Rule 71.1(d)(3)(A).

FCRP Rule 5(a)(1): Service when required

In General. Unless these rules provide otherwise, each of the following papers must be served on every party:

(A) an order stating that service is required;

(B) a pleading filed after the original complaint, unless the court orders otherwise under Rule 5(c) because there are numerous defendants;

(C) a discovery paper required to be served on a party, unless the court orders otherwise;

(D) a written motion, except one that may be heard ex parte; and

(E) a written notice, appearance, demand, or offer of judgment, or any similar paper.

(2) If a Party Fails to Appear. No service is required on a party who is in default for failing to appear. But a pleading that asserts a new claim for relief against such a party must be served on that party under Rule 4.

(3) Seizing Property. If an action is begun by seizing property and no person is or need be named as a defendant, any service required before the filing of an appearance, answer, or claim must be made on the person who had custody or possession of the property when it was seized.

Rule 5 (b)(2)(E): Service: How Made

(2) Service in General. A paper is served under this rule by:

(E) sending it to a registered user by filing it with the court's electronic-filing system or sending it by other electronic means that the person consented to in writing—in either of which events service is complete upon filing or sending, but is not effective if the filer or sender learns that it did not reach the person to be served

Rule 5 (d)(3)(A): Filing

(3) Electronic Filing and Signing. 

(A) By a Represented Person—Generally Required; Exceptions. A person represented by an attorney must file electronically, unless nonelectronic filing is allowed by the court for good cause or is allowed or required by local rule.

Minimal diversity

The plaintiff has a different state citizenship than at least one defendant, but may have the same state citizenship as another defendant of the same party.

Complete Diversity

No plaintiff has the same state citizenship as any defendant. We need complete diversity for the federal district courts to have subject matter jurisdiction under § 1332(a).

What is the domicile test?

A person’s domicile is the place of “his true, fixed, and permanent home and principal establishment, and to which he has the intention of returning whatever he is absent therefrom…” A person retains their current domicile until they establish a new one.

Alienage jurisdiction

A citizen of a foreign nation cannot be a citizen of the State for purposes of § 1332(a).  In order for a U.S. citizen to be a citizen of the state, they must have a physical resident with the intent to remain indefinitely. Otherwise, they are “stateless.” If someone is a foreign citizen, but is a permanent legal resident of a U.S. state, they cannot bring suit against another U.S. citizen who has the same state citizenship

How does the domicile test apply to state citizenship of corporations?

A corporation shall be deemed a citizen of every state where it is incorporated and where it has its principal place of business.

How does the domicile test apply to other business entitites?

Businesses that are not corporations are treated as groups of litigants. The citizenship of each partner or member of the association is considered in determining whether there is diversity between the partners or members and the parties on the other side of the case.

What is the amount-in-controversy requirement?

A case must meet the minimum amount in controversy requirement of more than $75k to be eligible to bring an issue to federal district court.

Controversies that arise where one or more parties assert separate claims

• A single plaintiff may aggregate any separate claims she has against a single defendant to meet the amount-in-controversy requirement, even if the claims are unrelated.

  • A plaintiff cannot add claims against different defendants to meet the requirement

  • A counterclaim cannot be aggregated with the plaintiff's claim to meet the amount requirement

• Co-plaintiffs cannot add their claims together to reach the amount requirement, or add amounts demanded from different defendants

• If one plaintiff’s claim fulfills the requirement, but the other plaintiff is at or below the requirement, the requirement is met so long as it is against a single defendant

What is the well-pleaded complaint rule?

• The case arises under federal law, as that phrase used in § 1331, if the federal issue appears on the face of the well-pleaded complaint, that is, if a proper complaint, limited to the allegations necessary to state a proper claim for relief, relies on federal law.

  • The analysis must focus on the allegations in the plaintiff's complaint, not potential defenses the defendant might assert in her answer.

    • The complaint must contain a claim created by federal law and a claim that federal law entitles the plaintiff to the relief she seeks.

If a federal question issue is brought up in a counterclaim, can it be removed to federal district court?

No, unless the counterclaim is asserted under § 1338 (patent, plant variety, or copyrights)

If a case becomes “removable” one year after the complaint was filed, can it be removed to federal court?

No, it cannot be removed to federal court.

What happens if a non jurisdictional error is made when removing a case to federal court?

The federal court can disregard the error because they are only concerned with whether or not they have subject matter jurisdiction.

What are the alternative bases for personal jurisdiction?

1. Specific personal jurisdiction

2. General personal jurisdiction

3. Transient presence jurisdiction

4. The defendant’s consent, waiver, or forfeiture of its objection to personal jurisdiction

What is a direct challenge to personal jurisdiction

Raising the defense in the action itself (in which the defendant believes the court lacks personal jurisdiction).

When can a defendant raise a direct challenge to personal jurisdiction?

A defense must be raised in the defendant’s first responsive filing—in the pre-answer Rule 12 motion or the answer to the complaint.

What are collateral challenges to personal jurisdiction?

By never appearing in the action and then asserting–when the plaintiff attempts to enforce the judgment–that the judgment is void. A defendant can fail to appear, and suit will eventually proceed to a default judgment in favor of the plaintiff. The plaintiff will then need to file an action to enforce the judgment. The defendant could then appear in the enforcement action and raise the defense that the default judgment is void for want of personal jurisdiction.

What are the requirements of specific personal jurisdiction?

1. The defendant must have purposeful minimum contacts with the forum state

2. The claim arises out of those contacts or the claim is sufficiently related to those contacts

3. The exercise of personal jurisdiction would be fair and reasonable

How is the “minimum contacts” requirement satisfied?

A defendant has minimum contacts with the forum state when it intentionally directs its activities into that forum. The defendant purposely avails the privilege of conducting activities in the forum state.

What is the claim-by-claim analysis?

When a plaintiff asserts multiple claims, the fact that the court has personal jurisdiction over the defendant for one claim asserted by the plaintiff does not mean it necessarily has jurisdiction over the defendant for the plaintiff’s other claims

What is the requirement for general personal jurisdiction?

The defendant must be “at home” in the forum state.

Does the claim have to arise or be sufficiently related to the forum state to have general personal jurisdiction?

No, it authorizes personal jurisdiction with respect to any claim against the defendnat.

Where is a defendant “at home”?

1. Individuals are at home in their state of domicile

2. Corporations and other associations are at home in two places:

   1. the state of incorporation

   2. the state of their principal place of business

Can a defendant be sued in a forum state for any claim that is unrelated to its in-state activites?

Yes, the claim does not have to arise out of the forum state. A defendant may be sued in the state for any claim, even one completely unrelated to its in-state activities.

What does process consist of?

1. A copy of the complaint filed by the plaintiff

2. A court-issued summons to appear in court

What is transient presence jurisdiction?

If a defendant is voluntarily present in the forum state and is served with process while there, the state will have personal jurisdiction over the defendant.

How can a defendant grant the court personal jurisdiction?

Through consent, waiver, or forfeiture of the defense.

How can a defendant consent to personal jurisdiction?

The simplest way to consent is by agreements in advance. Contracts often include forum-selection clauses, by which the parties agree to litigate any disputes arising out of their dealings in a particular forum.

How wan a defendant waiver/forfeit the defense that the court lacks personal jurisdiction?

A defendant can waive their defense by failing to object in accordance with Rule 12.

What is a long-arm statute?

A long-arm statute authorizes personal jurisdiction over non-residents who engage in some activity in the state or cause some action to occur within the state. They stretch the “long arm of the law” into another forum to authorize personal jurisdiction. Thus, a court’s exercise of a specific personal jurisdiction over a nonresident defendant must be both consistent with the Due Process Clause and within the authority granted by the applicable state long-arm statute.

What is service of process?

The presentation to the defendant in a lawsuit of the documents that notify the defendant of the lawsuit and require the defendant to appear and defend.

Under Rule 4( c)(1), what must “process” include?

A court summons requiring the defendant to appear in court and a copy of the plaintiff’s complaint.

What is a complaint?

The initial pleading filed by the plaintiff, which must contain:

1. The basis for the court’s subject matter jurisdiction

2. A short and plain statement of the plaintiff’s legal claim(s) against the defendant

3. A demand for relief

If a plaintiff is compliant with the constitutionally adequate notice, does that mean the service was legally sufficient?

Not necessarily; the method of service must comply with the applicable rules for the court system in which the suit has been filed.