LexisNexis Capsule Summary - Civil Procedure
LexisNexis Capsule Summary
Civil Procedure
Chapter 1
STATE AND FEDERAL COURT SYSTEMS
§ 1.01 Federal Judicial System
(1) Federal district courts are courts of original jurisdiction.District courts, like all federal courts, are also courts of limited subject matter jurisdiction, in that statutes authorize them to hear only certain kinds of cases, namely those based on federal questions or diversity of parties.
(2) Circuit Courts are courts of appellate jurisdiction as they are authorized only to review decisions on appeal from district courts,certain specialized federal courts or federal administrative agencies. There are thirteen federal circuit courts; twelve for each one of the geographic circuits and one designated as the Federal Circuit which hears appeals from various specialized federal courts. Appeals from many of the administrative agencies go to the Court of Appeals for the D.C. Circuit.
(3) United States Supreme Court has original jurisdiction over cases affecting ambassadors and in which states are parties. Its appellate jurisdiction over all other types of cases is largely discretionary. The Court‘s rules list the following factors as relevant in granting certiorari:
?inter-circuit conflicts
?conflicts between the courts of appeals and state courts of last resort
?interstate conflicts on federal questions
?conflicts with Supreme Court decisions on federal questions
?important and unsettled federal questions
?Other federal rulings calling for the exercise of the Supreme Court‘s power of supervision.
§ 1.02 State Judicial Systems
State judicial systems typically include:
(1) A variety of courts of limited subject matter jurisdiction,authorized to hear specific types of cases, e.g., traffic, landlord-tenant, small claims or probate.
(2) A court of original and general jurisdiction that hears all claims not exclusively vested in courts of limited jurisdiction, such as state claims and nonexclusive federal question claims that also could have been brought in federal district courts. State courts of general jurisdiction often exist at the county level. Such courts vary in their designations, e.g., Superior Court in the District of Columbia, Circuit Court in Virginia, and Supreme Court in New York.
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In some states courts of general jurisdiction also possess appellate jurisdiction over cases originally tried in courts of limited jurisdiction. Appellate review in such cases is de novo; little or no deference is paid the lower court decision because of restrictions on its jurisdiction and, in many cases, on its procedures.
(3) An intermediate appellate layer, generally available only in more populous states. In some jurisdictions, the decision of the intermediate appellate court is final for the most fact-bound and routine kinds of cases, such as domestic relations and non-
capital criminal cases, subject perhaps to discretionary appeal for constitutional questions.
(4) A court of appellate jurisdiction, variously called the Supreme Court, the Court of Appeals, or, in Massachusetts, the Supreme Judicial Court. Where a state provides for an intermediate appellate court, the existence of such allows the highest state court to exercise considerable discretion in selecting cases for further review. Appeal from the intermediate appellate court to the highest court is predominantly by permission, with exceptions for a small number of important cases selected by the legislatures, such
as administrative law cases involving governmental parties or capital criminal cases. Finally, the United States Supreme Court has the authority to review state court rulings
on the meaning and application of federal law, although in practice the Court seldom exercises this authority.
§ 1.03 Selecting the Court in Which to Bring Suit
The following factors influence the parties‘ choice of forum for litigating a given matter:
(1) there must be sufficient contacts between the defendant and the forum state to exercise personal jurisdiction over the defendant (see Chapter 2);
(2) the court must possess subject matter jurisdiction over the controversy (see Chapter 4);
(3) where a case is originally brought in state court but may be subject to the jurisdiction of the federal court as well, the defendant will consider opportunities for removal to federal court (see Chapter 2);
(4) concerns of judicial efficiency and convenience of parties and witnesses will influence the appropriate venue within a specific court system in which to try the case (see Chapter 5);
(5) various tactical factors such as: reputation of judges presiding in specific courts, court calendars, and procedural differences influencing, for example, availability
of a jury trial, required level of agreement for verdicts, applicable rules of evidence or availability of appellate review (see Chapters 12, 13);
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(6) client characteristics;
(7) where suit can be brought in more than one jurisdiction, differences in substantive law will be evaluated so that the law most favorable to a party‘s claim may be applied (see Chapter 6).
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Chapter 2
PERSONAL JURISDICTION
§ 2.01 Personal Jurisdiction Based on Citizenship, Consent and Waiver
[1] Suit in the Defendant’s Home State
A defendant is subject to the personal jurisdiction of his/her/its home state. ―Home state‖ may be defined:
(1) for individuals by residence, citizenship and domicile.In Milliken v. Meyer, 311 U.S 457 (1940), the Supreme Court upheld the validity of personal jurisdiction based on domicile even though the defendant was absent from the state at the time.
(2)for corporations by the state of incorporation or where the corporation conducts its principal operations.
[2] Consent
A defendant may consent to the court‘s personal jurisdiction in advance of suit, and such consent, if expressly made, functions to cure any jurisdictional defects that might otherwise exist. Examples of express consent include:
(1) forum-selection clauses in contracts [see Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585 (1991), in which the Court upheld a clause printed on the back of the plaintiff‘s steam ship ticket]; and
(2) consent documents filed by foreign corporations with state authorities as a condition for doing business in the forum.
[3] Waiver
When a nonresident defendant objects to a state‘s personal jurisdiction over him/her on due process grounds, he/she must preserve such objection or risk waiving it. Waiver need not be express. It is enough that a party act in a way which is incompatible with the party‘s argument that the forum lacks a basis for asserting personal jurisdiction over
him/her.
Defendant will waive his/her challenge to personal jurisdiction if he/she either fails to include it in a motion to dismiss made on other grounds, or fails to otherwise raise the matter by motion or pleading.
Today, most states, as well as the federal system, no longer require a defendant to make a special appearance for the purpose of contesting jurisdiction, separate and apart from any
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other grounds on the merits of the case. Defendant does not prejudice his/her motion to dismiss by joining with it other grounds for dismissal.
§ 2.02 When Parties Cannot be Served Within the Forum State
In the seminal case of Pennoyer v. Neff, 95 U.S. 714 (1877), the Supreme Court held that due process prevented suit against nonresident defendants who could only be found and served elsewhere.
Pennoyer involved a default judgment entered by an Oregon state court against Neff for attorn ey‘s fees. Neff was neither a citizen of Oregon nor had he been served there, although he did own property in the state. Neff‘s Oregon property was seized and sold by the sheriff to Pennoyer in order to satisfy the judgment. Subsequently, Neff sued Pennoyer in federal court for recovery of his property.
Concluding that Oregon could not exercise personal jurisdiction over Neff in an action to determine personal liability, the Court invalidated the default judgment and resulting sheriff‘s sale. The Court held that if a state court attempts to exercise personal jurisdiction over a defendant, the defendant ―must be brought within its jurisdiction by service of process within the State, or his voluntary appearance.‖
§ 2.03 Minimum Contacts with Forum State
[1] International Shoe
In International Shoe Co. v. Washington, 326 U.S. 310 (1945), the Supreme Court articulated a new test of determining whether personal jurisdiction exists over a nonresident defendant who cannot be found and served within the forum state: whether the defendant has certain minimum contacts with the forum state, such that the maintenance of the suit does not offend ?traditional notions of fair play and substantial justice.‘ ‖
The facts of International Shoe are as follows: International Shoe Company was incorporated in Delaware and had its principal place of business in Missouri. The company employed Washington residents to solicit orders there, who reported directly to the company‘s main office in Missouri. The state of Washington sued International Shoe to collect unemployment compensation tax upon salaries defendant had paid to its Washington employees, and International Shoe challenged personal jurisdiction in Washington. The Supreme Court affirmed Washington‘s exercise of personal jurisdiction over International Shoe, finding sufficient contacts with the state to do so. International Shoe identified two types of contacts a nonresident defendant could have with the forum:
(1) those related to the controversy (specific jurisdiction); and
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(2) those unrelated to the controversy that are of such a nature as to justify suit against defendant in the current controversy (general jurisdiction).
[2] Contacts Related to the Controversy
[a] Single or Isolated Activities
In International Shoe, the Supreme Court noted that a corporation‘s ―single or isolated items of activities in a state . . . are not enough to subject it to suit on causes of action unconnected with the activities there‖; in McGee v. International Life Ins. Co., 355 U.S. 220 (1957), the Court addressed the issue of whether a “single or isolated activities” related to the controversy could support personal jurisdiction. The Court answered in the affirmative.
McGee, as the beneficiary of her deceased son‘s life insurance policy, sued defendant International Life in California. Defendant was served by mail in Texas, its corporate home. International Life declined to appear in the case and plaintiff obtained a default judgment in California, which she attempted to enforce in Texas. International Life collaterally attacked the judgment, arguing that California did not have personal jurisdiction.
Despite the fact that the defendant conducted virtually no business in California, with the only California poli cy in force being the decedent‘s, the Court nonetheless held that California had validly exercised jurisdiction over the defendant. The Court emphasized the fact that the contract sued upon had a substantial connection to the forum state, as well as Calif ornia?s strong interest in protecting its citizens.
[b] Sufficient Related Contacts Found
Burger King Corp. v. Rudzewicz [471 U.S. 462 (1985)] demonstrated that not all of the defendant‘s contacts related to the controversy must be within the forum. Through negotiation with Burger King‘s regional office in Michigan, Rudzewicz and another Michigan defendant obtained a franchise in that state. Defendants failed to make payments, and Burger King brought a federal diversity suit on the franchise agreement in Florida, its headquarters and place of incorporation.
The Supreme Court concluded that personal jurisdiction over Rudzewicz was constitutional, finding that there were enough Florida contacts related to the controversy to satisfy the test. Defendants at times dealt directly with Burger King‘s Miami headquarters; they contracted with Burger King to have Florida law govern the franchise agreement;and they promised to send their franchise payments to Burger
King‘s Florida address. Under the circumstances, the Court refused to attach importance to the fact that Rudzewicz had not been in the forum state.
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[c] Insufficient Related Contacts Found
In World-Wide Volkswagen v. Woodson, 444 U.S. 286, 297 (1980), the Court further refined the minimum con tacts test, stating that ―critical to due process analysis . . . is that the defendant‘s conduct and connection with the forum State as such that he should reasonably anticipate being haled into court there.‖
In this case, the plaintiffs purchased an Audi from defendant retailer Seaway Volkswagen in New York. Thereafter, while traveling across country in the automobile, they were involved in a collision in Oklahoma, and the gas tank ignited, seriously injuring the plaintiffs. Plaintiffs brought suit in an Oklahoma state court against manufacturer Audi, importer Volkswagen of America, World-Wide Volkswagen and Seaway.
Noting that the only connection of the defendants with Oklahoma was that an automobile sold in New York to New York residents became involved in an accident in Oklahoma, the Court held that Oklahoma courts were without minimum contacts necessary to assert personal jurisdiction. Defendants did not sell cars, advertise, or carry on any other activity in the state. Thus, the Court reasoned that the conduct of the retailer and wholesaler was not such as to cause them to anticipate being sued in Oklahoma.
[3] Contacts Unrelated to the Controversy
When a non-resident defendant cannot be found and served within the forum, and when the cause of action arises outside of the forum, exercise of personal jurisdiction over the defendant requires contacts with the forum state that are “systematic and continuous.”[Perkins v. Benguet Consolidated Mining Co., 342 U.S. 437 (1952)]. Such standard was met in Perkins, an action arising out of out-of-state activities, where the defendant maintained an office and conducted business in the forum state. However, in Helicopteros Nacionales de Columbia, S.A. v. Hall, 466 U.S. 408 (1984), the mere fact that the nonresident defendant made regular purchases in the forum state was not held sufficient to justify personal jurisdiction in a case not related to such purchases.
[4] Combining Related and Unrelated Forum Contacts
Keeton v. Hustler Magazine, 465 U.S. 770 (1984), presented the situation where a nonresident defendant has contacts with the forum state that are both related and unrelated to the controversy. Keeton sued Hustler Magazine in federal court in New Hampshire for libel. Hustler Magazine had circulated in New Hampshire copies of the magazine alleged to have libeled plaintiff (related contacts), and it had circulated other issues there in a continuous and systematic fashion (unrelated contacts).
While there is some question whether either defendant‘s related or unrelated contacts would have alone been sufficient to support personal jurisdiction, the Court found that the aggregate of defendant‘s contacts with the forum were proved sufficient.
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[5] “Notions of Fair Play and Substantial Justice”
In Asahi Metal Industry Co. v. Superior Court, 480 U.S. 102 (1987), the Court interpreted the standard from International Shoe that ―maintenance of the suit does not offend
?traditional notions of fair play and substantial justice.‘ ‖
The plaintiff sued in California over a serious accident there, allegedly caused by failure of the rear tire of plaintiff‘s motorcycle. The plaintiff sued the Taiwanese tire manufacturer, which to bring Asahi, a Japanese concern and manufacturer of the tire‘s valve assembly, into the case on a theory of indemnification.
The Court held that California‘s attempt to assert personal jurisdiction over the foreign defendant was unreasonable on balance. The Court found the interests of the plaintiff and the forum s tate to be ―slight,‖ and Asahi‘s burden from defending in California
―severe.‖
§ 2.04 State Long-Arm Statutes
In response to International Shoe and its progeny, most states have enacted long-arm statutes, authorizing out-of-state service on defendants who otherwise could not be served. Long-arm statutes vary greatly from state to state, but there are three basic types:
(1) conferring jurisdiction to the full extent permitted by the Fourteenth Amendment right to due process(sometimes called ―blanket‖ or ―limits of due process‖);
(2) listing specific instances under which the state can exercise jurisdiction (sometimes called ―enumerated‖ or ―laundry list‖); a nd
(3) an intermediate type listing specific instances but authorizing court discretion in interpreting the instances.
§ 2.05 Transient Jurisdiction
Transient jurisdiction is based on service within the forum of a nonresident defendant passing through the state, and has been upheld by the Supreme Court in Burnham v. Superior Court, 495 U.S. 604 (1990).
§ 2.06 Quasi In Rem Jurisdiction
[1] General Rule
Quasi in rem jurisdiction is another method for exercising jurisdiction over a defendant, albeit in a limited manner, based on the defendant‘s property located within the forum. Quasi in rem jurisdiction can be used to adjudicate personal obligations, not merely rights
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in the res. However, it binds the defendant only with respect to his interest in the res upon which jurisdiction is based, and thus, the value of a quasi in rem judgment cannot exceed the value of the res.
[2]Extension of Minimum Contacts Test to Quasi in Rem Jurisdiction
Quasi in rem jurisdiction has essentially become obsolete as a result of the Supreme Court‘s decision in Shaffer v. Heitner, 433 U.S. 186 (1977), in which it extended the minimum contacts test to quasi in rem cases.
In Shaffer, the plaintiff brought a shareholder derivative suit against officers and directors of the Greyhound Corp., a Delaware corporation, and its subsidiary, Greyhound, Inc. The defendants neither resided in Delaware nor were served there, and the alleged wrongful acts occurred outside Delaware. However, plaintiff asserted quasi in rem jurisdiction over the defendants, each of whom held stock in Greyhound, relying on a Delaware statute which conferred quasi in rem jurisdiction over stock issued by corporations chartered there. The Court found such grounds insufficient and stated that all a ssertions of state court jurisdiction must be based on “minimum contacts.” The test was not satisfied here where the defendant‘s in-state property was ―completely unrelated to the plaintiff‘s cause of action. Significantly, the Court held that “the presen ce of the property alone would not support the State?s jurisdiction.”
In another quasi in rem case arising out of an automobile accident [Rush v. Savchuk, 444 U.S. 320 (1980)], the Court struck down the Seider doctrine which provided that service within the forum on a nonresident driver‘s insurer conferred quasi in rem jurisdiction, with the res being the insurer‘s duty to de fend and indemnify the nonresident defendant. Exercise of jurisdiction over the defendant here was found to be was improper, as he had no other contacts with the forum state.
§ 2.07 In Rem Jurisdiction
Distinct from personal and quasi in rem jurisdiction – both of which support claims against a defendant for personal obligations –in rem jurisdiction focuses on property within the forum and can only be used to adjudicate claims regarding such property. In rem jurisdiction may also attach to ―status‖ suc h as marital status in a divorce action.
§ 2.08 Jurisdictional Challenges
A defendant may challenge the court‘s personal jurisdiction in two ways:
[1] Direct Attack
A direct attack involves the defendant‘s participation in the lawsuit in order to att empt to prevent the court from reaching the merits of the case.The jurisdictional challenge may be joined with other arguments in support of dismissal. However,direct attack forces the
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defendant to forfeit part of the protection secured by due process as he experiences the increased burden of defending in a distant and inconvenient forum as soon as he begins participating in the case.
[2] Collateral Attack
A defendant who objects to a court‘s personal jurisdiction over him/her and defaults in an action may subsequently bring a collateral attack against the judgment. However, if the defendant participated in the case without objecting to the court‘s personal jurisdiction, he/she cures any defect by waiver. If the defendant did challenge the court‘s p ersonal jurisdiction in the first case, he/she is precluded from relitigating the question in the judgment-enforcement proceeding.
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Chapter 3
NOTICE REQUIREMENTS
§ 3.01 Due Process
The Due Process Clauses (found in the Fifth Amendment and the Fourteenth Amendment) of the United States Constitution deny effect to adjudications unless the parties to be bound were given prior notice and an opportunity to participate. Notice that satisfies due process may be found from proper service of process or other recognized alternatives. Process usually consists of a summons directing defendant to respond or appear in court on penalty of default. Service is the formal means by which process is delivered to a defendant.
§ 3.02 Procedure for Service of Process
Rule 4 of the Federal Rules of Civil Procedure (FRCP 4) sets forth the methods for effectuating service in federal trials. Specific procedures are outlined for various parties: individuals, infants and incompetents, corporations and associations, foreign, federal, state and local governments, as well as individuals in foreign countries.
In federal actions, a plaintiff may serve process upon an individual, corporation or association by:
(1) delivering the summons and complaint to the individual personally;
(2) leaving the summons and complaint at the individual's dwelling house or usual place of abode with a person of suitable age and discretion then residing therein;
(3) delivering the summons and complaint to an agent authorized by appointment or by law to receive service of process.
However, FRCP 4(d)(2) provides incentives for a defendant to agree to waive formal service and instead accept service by mail. Upon notice of the commencement of the action and a request for waiver of service from the plaintiff, a defendant who so agrees is granted an extended time within which to answer – 60 days instead of the 20 days granted when process is formally served. FRCP 4imposes upon the defendant ―a du ty to avoid unnecessary costs of serving the summons,‖ and therefore, failure to accept process by mail subjects the defendant to liability for costs of service as well as attorney‘s fees incurred in any motion to collect the costs of service.
§ 3.03 Feasibility of Individual Notice
Alternative means of notice, such as newspaper publication, may satisfy due process where individual notice is impracticable and the party seeking to bypass individual notice can demonstrate that (1) the suit is in the interest of the absentees, (2) they will be
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adequately represented by one before the court, and (3) the value of their individual interests is not too great. Where the identities and parties can be reasonably ascertained, however, individual notice is required. [Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950)]
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Chapter 4
SUBJECT MATTER JURISDICTION
§ 4.01 Subject Matter Jurisdiction
[1] Defined
Subject matter jurisdiction refers to a court‘s authority to decide a particular kind of controversy. Subject matter jurisdiction can be concurrent — shared between several different kinds of courts — or exclusive, restricted to a particular kind of court.
[2] Scope of Federal Subject Matter Jurisdiction
The United States Constitution sets out the permissible scope of the judicial power of federal courts in Article III, § 2. It lists the following types of federal subject matter jurisdiction:
?cases ―arising under‖ the Constitution, laws of the United States, and treaties (federal question jurisdiction);
?cases affecting ambassadors and other official representatives of foreign sovereigns;
?admiralty and maritime cases;
?controversies to which the United States is a party;
?controversies between states and between a state and citizens of another state;
?cases between citizens of different states (diversity jurisdiction);
?cases between citizens of the same state claiming lands under grants of different states;
?cases between a state or its citizens and foreign states and their citizens or subjects (alienage jurisdiction).
Article III vests the Supreme Court with original jurisdiction of cases affecting ambassadors and other foreign officials and those to which a state is a party, and such appellate jurisdiction as Congress may create. Article III vests no jurisdiction directly in lower federal courts but authorizes Congress to create and endow them with subject matter jurisdiction.Congress has never vested lower federal courts with as much subject matter jurisdiction as Article III permits. Today, the main sources of federal jurisdiction are federal question jurisdiction and diversity jurisdiction, usually concurrent with state court jurisdiction.
§ 4.02 Federal Question Jurisdiction
In order to establish federal question jurisdiction, a ―right or immunity created by the Constitution or the law of the United States must be an element, and an essential one, of the plaintiff‘s cause of action‖ [Gully v. First National Bank, 299 U.S 109, 112 (1936)]. Even where a cause of action arises under state law, a federal court may have jurisdiction
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if it appears that the right to relief rests on the construction or application of a federal law [Smith v. Kansas City Title & Trust Co., 255 U.S. 180 (1921)]. However, the mere presence of a federal issue in a state-created cause of action does not automatically confer federal question jurisdiction. Its availability depends in part on ―an evaluation of the nature of the federal interest at stak e‖:whether it is sufficiently important to require a federal trial forum [Merrell Dow Pharmaceuticals, Inc. v. Thompson, 478 U.S. 806 (1986)].
A plaintiff cannot invoke the original jurisdiction of the federal courts either by anticipating a federal defense or otherwise importing a federal question into his complaint that is not essential to his case.
§ 4.03 Diversity Jurisdiction
[1] General Rule
Under the federal diversity jurisdiction statute, 28 U.S.C. § 1332, a federal court has subject matter jurisdiction over a matter where:
(1) there is complete diversity among the parties such that no plaintiff shares citizenship with any defendant; and
(2) the amount in controversy exceeds $75,000.
Limited exceptions to the complete diversity requirement apply where specifically created by Congress, e.g., in interpleader actions, only two adverse claimants need be of diverse citizenship. [28 U.S.C. § 1335(a)(1)]
[2] Limitations on Diversity Jurisdiction
Deferring to state courts, federal courts have traditionally declined to exercise jurisdiction in the following types of cases, even when the parties satisfy the requirements for diversity jurisdiction:
?certain in rem cases.
?probate cases.
?domestic relations cases.
Additionally, courts are obliged by statute to deny jurisdiction which has been
―improperly or collusively made.‖
[3] Citizenship
Citizenship for diversity purposes requires a party to be a citizen of both the United States and of a state.
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Individuals– The courts have equated the state citizenship of natural persons with domicile in a state. Domicile is created by the concurrent establishment of physical residence in a state and an intent to remain there indefinitely.Although a person can have more than one residence at one time, he can have only one domicile at a time. Corporations– The diversity statute deems a corporation to be the citizen of ―any State by which it has been incorporated and of the state where it has its principal place of business.‖
Unincorporated associations– Unincorporated associations, such as partnerships and labor unions, take the citizenship of each member.
[4] Amount in Controversy
[a] “Legal Certainty Test”
The present amount in controversy is $75,000, exclusive of interest and costs. Jurisdictional amount is ordinarily computed from the plaintiff‘s viewpoint without regard to possible defenses, and pl aintiff‘s good faith pleading controls unless the court concludes to ―a legal certainty‖ that he cannot recover the pleaded amount.
[b] Aggregating Multiple Claims
Individual claims that do not alone satisfy the jurisdictional amount may be aggregated in the following circumstances:
?plaintiff asserts multiple claims against a single defendant, whether or not they are transactionally related.
?plaintiff joins several defendants to the same claim pursuant to FRCP 20 if the several defendants have a common undivided interest or title in the claim.
?several plaintiffs join in the same claim against one or more defendants pursuant to FRCP 20 when the several plaintiffs have a common undivided interest or title in the claim.
§ 4.05 Removal Jurisdiction
A defendant may, pursuant to 28 U.S.C. § 1441,remove a civil action pending in a state court to a federal court if the federal would have had original jurisdiction over the plaintiff?s claim. The assertion of a defense or counter-claim based on federal law does not convert a non-federal case into a federal one.
Diversity cases are removable only if none of the defendants is a citizen of the state in which the action is pending. [28 U.S.C. § 1441(b)]
When a federal court already has jurisdiction over a claim based on a federal question, it has discretion to remove separate and independent state-law claims in order adjudicate
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the entire case if the state law claim is part of the same constitutional case or controversy as the federal question claim. [28 U.S.C. § 1441(c)] If such test is met, the state law claim falls within the supplemental jurisdiction of the federal court and can thus be removed.
§ 4.06 Supplemental Jurisdiction
[1] General Rule and its Antecedents
When a federal court possesses subject matter jurisdiction over a matter, it may exercise supplemental jurisdiction over one or more related claims that would not independently satisfy subject matter jurisdictional requirements. Supplemental jurisdiction, a legislative creation since 1990 [28 U.S.C. § 1367], supplants two related judicial doctrines –pendent and ancillary jurisdiction.
[2] Pendent Jurisdiction
Pendent jurisdiction refers to the courts‘ extension of jurisdiction from a freestanding (usually federal question) claim to an otherwise jurisdictionally insufficient pendent (usually state law) claim by a plaintiff or plaintiffs.
[a] Pendent Claim Jurisdiction
In United Mine Workers v. Gibbs[383 U.S. 715 (1966)]Supreme Court was presented the question whether the federal courts had jurisdiction over the state claim in the absence of diversity. The Court held that constitutional power exists to decide the nonfederal claim whenever it is so related to the federal claim that they comprise “but one constitutional …case.? ”It suggested a three-part test for constitutional case:
(1) plaintiff must assert a federal claim that has ―substance suffic ient to confer subject matter jurisdiction on the court.‖
(2) freestanding and pendent claims ―must derive from a common nucleus of operative fact.‖
(3) the federal and nonfederal claims must be such that the plaintiff ―would ordinarily be expected to try them all in one judicial proceeding.‖
[b] Pendent Party Jurisdiction
Pendent party jurisdiction was also relied upon to assert claims against new parties over whom independent federal subject matter jurisdiction was unavailable. In Zahn v. International Paper Co., 414 U.S. 291 (1973), pendent party jurisdiction was invoked in a diversity action to add a defendant against whom the value of the claim was less than the jurisdictional amount. The Court found the exercise of pendent party jurisdiction to
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be improper, suggesting that pendent party jurisdiction could not be used to avoid the rule against aggregation.
Pendent party jurisdiction was also invoked in federal question cases to add non-diverse parties to state law claims. In Finley v. United State, 490 U.S. 45 (1989), the plaintiff asserted a freestanding claim within the exclusive jurisdiction of the federal courts and sought to join transactionally-related state law claims against non-diverse defendants. Absent pendent party jurisdiction, plaintiff would have had to forego her state law claims against the non-diverse parties or to bring separate actions in federal and state court. The Court acknowledged the inefficiency and inconvenience of this result, yet denied pendent party jurisdi ction, because the underlying jurisdictional statute contained no ―affirmative grant of pendent-party jurisdiction.‖
[3] Ancillary Jurisdiction
Ancillary jurisdiction extended jurisdiction from the freestanding (often diversity) claim to an otherwise jurisdictionally insufficient claim by the defendant(s) or similarly situated parties such as intervenors as of right. E.g., in a diversity action, ancillary jurisdiction supported a compulsory counterclaim or cross-claim for less than the jurisdictional amount or impleader of a non-diverse party.
Ancillary jurisdiction originally developed independently of pendent jurisdiction. The Supreme Court recognized ancillary jurisdiction of claims:
?―ancillary and dependent, supplementary merely to the original sui t, out of which it had arisen.‖ [Freeman v. Howe, 65 U.S. 45 (1860)]
?transactionally-related state law counter-claims. [Moore v. New York Cotton Exchange, 270 U.S. 593 (1926)]
?in diversity cases where there existed constitutional power to hear the jurisdictionally insufficient claims and where Congress had neither expressly nor
impliedly negated the exercise of jurisdiction. [Owen Equipment & Erection Co. v.
Kroger, 437 U.S. 365 (1978)]
Nevertheless, following Finley (regarding pendent party jurisdiction), some lower federal courts extended to ancillary jurisdiction Finley’s insistence on affirmative evidence of Congressional approval for such exercise of jurisdiction by federal courts.
[4] Supplemental Jurisdiction
In 1990, Congress responded to Finley by enacting the supplemental jurisdiction statute, essentially over-ruling the case.[28 U.S.C. § 1367]
[a] Qualifying Under Section 1367(a)
Subsection 1367[a] expressly extends federal jurisdiction from freestanding claims within the original jurisdiction of the federal court to supplemental claims that are ―so related [to
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the freestanding claims . . . that they form part of the same case or controversy under Article III of the United States Constitution.‖
Subsection 1367(a) overrules Finley by expressly providing that ―supplemental jurisdiction shall include claims that involve joinder or intervention of parties,‖ thereby authorizing jurisdiction over what were formerly called pendent party claims. Most courts have found that claims which satisfy the same transaction or occurrence standard for joinder under FRCP 13(a) (compulsory counterclaim), 13(g) (crossclaim), or 20 (joinder of parties) also qualify for supplemental jurisdiction.
[b] Disqualifying Under § 1367(b)
Subsection 1367(b) provides that in diversity-only cases the courts do not have supplemental jurisdiction over claims by plaintiffs against persons made parties by FRCP 14 (impleader), 19 (compulsory joinder of parties), 20 (permissive joinder of parties) or 24 (intervention), when exercising such jurisdiction would be inconsistent with the jurisdictional requirements of the diversity statute. Thus, a plaintiff may not assert claims against parties in a diversity action if supplemental jurisdiction would negate complete diversity.
[c] Discretion Under § 1367(c)
Subsection 1367(c) gives courts discretion to refuse jurisdiction when it believes, in the interests of judicial economy, convenience, fairness, and comity, that the supplemental claims would more appropriately be decided by state courts.
[d] 100-mile Bulge Rule
When supplemental jurisdiction is asserted over third-party defendants and indispensable parties, service may be effectuated by the 100-mile bulge rule, if such parties cannot be served within the state in which the federal court sits. The rule allows service on such added parties anywhere within 100 miles of the federal courthouse in which the action is pending. [FRCP 4(K)(1)(B)]
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Chapter 5
VENUE
§ 5.01 General Principles
Venue refers to the place within a judicial jurisdiction in which a case is to be tried. Venue principles are aimed at the selection of the most convenient and logical court within a given court system.
Venue is determined by statute, but parties can stipulate or contract to an otherwise improper venue. Objections to venue are waived unless timely asserted. Improper venue does not subject a judgment to collateral attack.
§ 5.02 Venue Under State Judicial Systems
Typically venue in state judicial systems may be based on some or all of the following factors:
?the locus of the res (property) or event that is the subject of the lawsuit.
?where the defendant resides.
?where the defendant does business, or retains an agent.
?where the plaintiff resides.
?where the plaintiff does business.
?in suits by or against government parties, where the seat of government is located.§ 5.03 Venue Under the Federal Judicial System
Venue in federal courts is controlled by 28 U.S.C. § 1391. The statute provides two grounds for venue and a fallback provision.
[1] Defendant’s Residence
In both diversity and federal questions cases, venue may be proper in the district where the defendant resides, or if there are multiple defendants, in any district where any defendant resides provided that all defendants reside in the state in which the federal court sits. Most courts equate residence with domicile for venue purposes. Subsection 1391(c) defines the residence of a defendant corporation to be ―any judicial district in which it is subject to personal jurisdiction at the time the action is commenced.‖ This test has been applied to unincorporated associations as well for purposes of venue.
[2] Locus of Substantial Part of Events or Property at Issue
Venue may be proper in the judicial district ―in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of the property that is the subject of the action is situated.‖
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[3] Fallback Venue
If, based on the preceding grounds, there is no district in which the action may otherwise be brought:
(1) diversity actions may be brought in ―a judicial district in which any defendant is subject to personal jurisdiction at the time the action is commenced.‖ [28 U.S.C. §1391(a)(3)]
(2) federal question cases may be brought in a judicial district ―in which any defendant may be found.‖[28 U.S.C. § 1391(b)(3)]
The fallback provision set forth in § 1391(a)(3) is largely invoked when there are defendants who do not reside in the same state and either the claim arose outside the United States or all of the defendants are not subject to personal jurisdiction where a substantial part of the claim-related events occurred.
§ 5.04 Change of Venue Outside of Judicial System; Forum Non Conveniens
State courts have no power to transfer cases to the courts of other states, and neither state nor federal courts have the power to transfer cases to the courts of foreign countries.In such cases, most judicial systems permit dismissal of suits under the common law doctrine of forum non conveniens,in anticipation that the plaintiff will recommence the suit in the alternative foreign venue. To obtain a forum non conveniens dismissal, the defendant must:
(1) demonstrate that an adequate alternative forum is available.[Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947)]
(2) show that considerations of party and forum convenience override the plaintiff?s choice of forum and justify dismissal. Typical such considerations include: relative ease of access to proof, availability of compulsory process for attendance of witnesses, the cost of obtaining their attendance, the possibility of obtaining a jury view
of the scene of the accident or property which is the subject of the action, and the enforceability of any eventual judgment in the original forum.
§ 5.05 Transfer of Venue Within the Same Judicial System
Inter-system transfer has been codified in many jurisdictions. Under the federal transfer statute, 28 U.S.C. § 1404, both plaintiffs and defendants may seek transfer to a district where the case could have originally been brought. Transfer is available upon a lesser showing than required for forum non conveniens dismissal; generally for ―the convenience of parties and witnesses, [or] in the interest of justice.‖ [28 U.S.C § 1404(a)] Any contractual choice of forum between the parties is not dispositive but is a factor to be considered.
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