Civi Procedure Class Notes
Tuesday, September 27, 2011
Note taker: Ed Francis
A few more words on removal
o There is a federal venue statute determining which district an action can be brought
in in federal court
o You can only remove to the district surrounding the state court in which the
original action was brought
o There will always be venue, despite what the venue statute says
o You may subsequently be able to transfer to another district with venue
o We will talk about transfer later
o You have to remove within 30 days of the state court service
o You file a notice with the federal court, and notify the state court
o The federal court will decide whether or not removal was appropriate
Will remand if necessary
o The rule is generally 30 days from service – there are exceptions in cases where, for
example, a complaint is amended later, only then adding evidence of federal SMJ –
in this case, the 30 days starts from the date of that amendment
P brings a diversity suit in federal court against D alleging $100k for personal injuries in
negligence. P recovers only $3k from the jury. Should the court dismiss for want of diversity
rather than enter a judgment for $3k?
o The court should not dismiss for want of diversity
o The mere fact that you got less than the jurisdictional minimum does not mean
that the amount in controversy does not satisfy the minimum
o Is it enough that the plaintiff asks for more than the minimum? NO
o Why not have such a rule?
After all, Rule 11 helps keeps people from lying about this
This rule also helps: S. 1332: Except when express provision therefore is
otherwise made in a statute of the United States, where the plaintiff who
files the case originally in the federal courts is finally adjudged to be entitled
to recover less than the sum or value of $75k, computed without regard to
any setoff or counterclaim to which the defendant may be adjudged to be
entitled, and exclusive of interest and costs, the district courts may deny
costs to the plaintiff and in addition, may impose costs of the plaintiff.
o The test for whether the jurisdictional minimum is satisfied: St. Paul Mercury test:
It must appear to a legal certainty that the claim is really for less than the
jurisdictional minimum amount to justify dismissal
Restatement of this test: is it legally possible for the jurisdictional minimum
to be satisfied in the claim? If it is legally possible, it should not be dismissed.
Reference to the Sierocinski case
o Should we take into account legal liability or focus on the amount of damages
sought?
o We are not focusing on whether or not there is liability; we are asking whether or
not the amount of controversy is satisfied
So will look to damages alleged in complaint – whether it is legally possible to
get above jurisdictional minimum
o Must you look at evidence to determine whether or not it is legally possible for the
plaintiff to meet the 75K amount in controversy jurisdictional minimum?
It is compatible with Rule 11 for you to not have any evidence, but merely
the prospect of obtaining evidence
So, maybe we shouldn’t have to look at evidence, but rather focus instead on
what the plaintiff has put in the complaint?
You can’t have a rule that insists on reviewing evidence, because R 11
doesn’t even require that the plaintiff have evidence at the outset of
the law suit
You want to be able to determine jurisdiction at the initiation of the
law suit
If the court doesn’t have to, can it look at the evidence? Yes – they
can pierce the pleadings and look at the evidence available at
initiation of suit
Tort cases, personal injury cases typically are easy to argue as meeting the jurisdictional
minimum
Breach of contract cases, where the amount of damages is clear, may be harder to argue,
but you can also bring up consequential damages associated with violation of the contract,
that justify a claim above the minimum
What kinds of cases are those where you can argue the jurisdictional minimum is not
satisfied? Tend to be financial cases with clearly delimited damages.
P (NY) brings an action against D (NJ) in NY state court for loss of his hand in a car accident.
P asks for $70K. May D remove?
o Just because P asks for less, doesn’t mean he/she can’t get more, unless P insists
on affirmatively waiving any damages above the sought amount.
o Assuming the P does not waive in this case, what must the defendant show?
o One possibility, aim to meet the St. Paul Mercury standard – show that it is legally
possible that the claim meets the jurisdictional minimum, e.g. that previous cases
have awarded greater amounts for hand loss
o Four standards that federal courts have used to determine whether or not the
amount in controversy is satisfied for removal
Is it legally possible to get above jurisdictional minimum
Is it not legally possible to get below jurisdictional minimum
Is it more probable than not that you will get above the jurisdictional
minimum
Is there a reasonable probability you will get above the jurisdictional
minimum
o Green thinks it makes no sense not to use the St Paul Mercury standard
It should not be harder for a defendant to remove to federal court than it is a
plaintiff to sue in federal court
Aggregation
o We’ve been asking about the jurisdictional minimum. In what cases can you
aggregate various amounts in controversy, sometimes between multiple plaintiffs
and multiple defendants, sometimes multiple claims between the same people, in
order to satisfy the jurisdictional minimum?
o P (NY) sues D (CA) for battery ($40K) and for breach of an unrelated contract ($40K)?
Can these two claims be aggregated, permitting federal court trial?
Yes
P and D had an agreement for P to do some work for D for $50,000. P does the work but D
doesn’t pay. In P’s (NY) complaint against D (NJ), P asks for $50,000 under a theory of
breach of contract. Alternatively – if it is found that there is no contract – he asks for
$40,000 in quantum meruit (the fair market value of the labor he performed). Diversity
case?
No, because these two amounts are alternative possible awards; there is no
way that they will both be awarded, so the legal minimum is assured not to
be met
o D (CA) beats up :1 (NY) and P2 (NY) in a barroom brawl. P1 and P2 together sues D,
asking for $40K damages each
Can they bring in federal court?
No, you can’t aggregate between two P’s against 1 D
When you look at it from the opposite perspective, can the defendant
remove, it seems more fair for removal to be allowed (after all, the
consequence for the D of state court prejudice is $80K), but it is not allowed.
If one P is suing for more than the minimum, can another plaintiff suing for less than the
minimum join his action under supplemental jurisdiction?
o First of all notice that this is not attempted aggregation of plaintiffs’ claims
Aggregation of plaintiffs’ claims would be when the plaintiffs are all below
the jurisdictional minimum but attempt to get above by adding their claims
together
In this case, someone already above the jurisdictional minimum, and the
other plaintiff is trying to piggy-back on him using supplemental jurisdiction
Should it be allowed? It looks like an end run around requirement of a
jurisdictional minimum?
There is some puzzling law on this however (due to the supplemental
jurisdiction statute 28 USC 1367), which we will deal with later.
Someone has died. The two children of the decedent (p1 (NY) and P2 (NY)) are the
distributees of his estate – that is, they have a right to inherit. P1 and P2 bring an action
against the executor of the estate (D (CA)), who, they allege, has absconded with $80,000.
$40,000 of that should go to P1 and $40,000 to P2.
o Can you aggregate the two P’s claims against 1 D to meet the minimum? The rule is
still no in general, but this is an exception. Here the two P have a “common and
undivided interest” whereby the award will go to both of them, and there is no
conceivable way for one of them to get relief and the other not to – their claims are
one and the same, only one right is being adjudicated.
o Problem: how far does this go? How about punitive damages?
Judicially created exceptions to diversity
o You cannot bring divorce cases, child custody cases etc. in federal courts, even
though the federal court would have decided the matter under state law. Family
law matters are considered to be intrinsically state court matters, even though there
is diversity and the jurisdictional minimum is satisfied.
Personal jurisdiction in state court
o Personal jurisdiction is a horizontal federalism question, about mutual limitations
that states put on one another
o Personal jurisdiction is a defense that is brought up in state court
o Distinguishing personal jurisdiction from choice of law
Choice of law is about what law the court applies to the event being litigated
between the parties
Personal jurisdiction is about whether or not the court has the right to drag
you before it and adjudicate your rights
The two concepts can both be violated; for example if you are erroneously
dragged into the court of another state, and then they apply their law to you,
that’s doubly bad
o P and D are NYers who get in a brawl in NY. D is in Oregon on business trip. P sues D
in Oregon state court. D is served in Oregon with summons and complaint
Here, personal jurisdiction is legitimate under Pennoyer because the person
was tagged in the state.
Choice of law is not ok, however, because the court has no right to apply
Oregon law to the NYers based on an incident in NY
o Domicile can be a source of personal jurisdiction, allowing a court to exercise
jurisdiction over a person even about events that took place outside the state.
[Question from Francis: would they still need to consider choice of law? Green: The
choice of law inquiry is different. Sometimes the law of the defendant’s domicile
applies or the fact that the defendant is domiciled in the state is a factor in
determining whether that state’s law applies, but usually not.]
o Service and personal jurisdiction are not the same. There are lots of other ways of
getting PJ besides tagging in the forum state.
Pennoyer v. Neff
o Some forms of Pennoyer jurisdiction were knocked out by International Shoe;
things were also added
o The theory of PJ expressed in Pennoyer is an example of international law;
sovereigns can claim power over persons and things within their borders
o In personam – the source of personal jurisdiction is the presence of D at the
initiation of the suit (NOT at the time of the event being adjudicated)
o In rem – the source of personal jurisdiction is presence of D’s property at initiation
of suit
Used for suits concerning ownership of the property (e.g. a quiet title action)
Binding upon all possible claimants
Court’s decision applies globally; the court is adjudicating ownership of the
thing with respect to everyone in the word
o Quasi in rem – the source of personal jurisdiction is D’s property in state at initiation
of suit, but the suit does not have to concern the property
If adjudicating ownership of the property, the adjudication is only concerning
certain parties, not apply globally (otherwise it would be called in rem)
But cause of action does not have to be about ownership of property at all
Although if P wins, D’s property may be used to execute judgment
The power that the court has to litigate the defendant in a quasi in rem case
is limited by the value of the property
o In Pennoyer, the SCt held that 14th Amendment due process requires that the
state court satisfy these requirements of international law that are expressed in
the Pennoyer framework