Civil Procedure Outline

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					                                                                                                Civil Procedure

                                        Civil Procedure Outline
                                         Professor Neuborne
                                                Fall 1998
I. Traditional Bases of Jurisdiction
   A. Types of Jurisdiction
     1. In personam: total power over a person because of physical presence.
     2. In rem: dispute over property.
     3. Quasi in rem 1: Obtaining jurisdiction over a person through property, which is closely connected
          to the dispute.
     4. Quasi in rem 2: Obtaining jurisdiction over a person through property, but the property has no
          connection to the dispute.
   B. Pennoyer v. Neff (US 1878): Mitchell sues Neff in OR court for $300, notifies Neff through an OR
      publication. Default judgment in favor of Mitchell, then attachment of Neff’s property. SCT says
      deprivation of property with out due process when attach property after judgment. Need POWER
      over person in order to adjudicate. Get power through attachment.
   C. Expanding the Bases of Personal Jurisdiction – Consent: States pass a law saying that once you
        enter the borders, you give your consent to be sued in the state if you should get into an accident.
        Neuborne’s question – this is good for car accidents because of state interest in regulating highways,
        but is it the same for contracts and business dealings? Hess v. Pawloski: State has statute that said
        drivers gave consent to serve the secretary of state when they get into an accident SCT says this is

II. Contemporary Notions of Jurisdiction
   A. New Theory of Jurisdiction - International Shoe v. Washington (US 1945) and Minimum
        Contacts: International Shoe contracts 10 sales people to hock their product. They have one shoe a
        piece and when people want to order, the person calls International Shoe directly. No warehouses or
        factories in WA state. But WA state says International Shoe must pay into the unemployment
        compensation program and sues International Shoe in state court, serves International Shoe in St.
        Louis. SCT says WA has power to adjudicate case because of minimum contacts with the state.
     1. Notions of fairness. Neuborne: this sounds good, but is worthless as a rule of law because -no clear,
          subjective rule that provides stability, don’t have ability to plan.
     2.Types of contacts
        a. Continuous-related: fair minimum contacts.  has established enough of a presence, either
             through business dealings, travel, property, to make it fair to exercise in personam jurisdiction.
        b. Continuous-unrelated: continuous dealings with the state, but the suit deals with a matter not
             related to the contacts.
        c. Isolated-related: fair minimum. A single event, which the suit arises out of.
        d. Isolated-unrelated: SCT says fair minimum, Neuborne says not. Where one contact (i.e., lay-
             over in airport) has nothing to do with the law suit.
     3. Extent of jurisdiction: look to the type of contacts the  has with the state.
        a. General Jurisdiction:  is subject to law suit on any claim in the forum. Harder to get if the  is
             not a resident of state. Will want this kind of jurisdiction when the claim is not related to the
        b. Specific Jurisdiction: Gives rise to jurisdiction only for claims related to the jurisdictional
             contact with the state, easier to get, especially for tortious actions.
   B. Specific Jurisdiction and State Long Arm Laws: Need to analyze state laws to make sure if they
        provide for the reach that the  wants over  and if they are constitutional.
     1. Voluntary association with state: if  voluntarily associated himself with state through a
          commercial dealing, SCT will uphold jurisdiction, but if the association has been unknowingly
          through a third party or through a consumer, then there is no minimum contacts with the state if
          that one isolated incident is all that the contact  had with state. This goes to the foreseeability of
          consequences on ’s part.
        a. Torts
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             i. Gray v. American Radiator (Ill. 1961): Gray sues radiator maker and valve maker in IL for
                      defective design. Valve maker does not sell in IL, only sells to radiator maker, who
                      then sells in IL. IL court upholds jurisdiction b/c of definition of tortious act in
                      statute (making the valve) and due to the reasonableness of the stream of commerce.
             ii. World Wide Volkswagen v. Woodson (US 1980): Family buys a VW in NY and drives to
                      OK, where they have horrible car crash. Want to sue both NY dealer and German
                      corporation in OK. SCT says no jurisdiction b/c of purposeful availment and
                      unilateral activity – NY dealer did not voluntarily associate with OK and although it
                      was foreseeable that  would bring car to OK, a unilateral move does not give
                      jurisdiction. “amenability to suit would travel with the chattel.” J. White talks about
                      a sovereignty and liberty interests are at stake here. (Cites Hanson v. Denckla (US
                      1958): unilateral move of owner of trust did not make DE trustee amenable to suit in
                      FL, new home of owner of trust.)
     b. Contracts: More recently, courts have been less flexible in commercial settings. Basis of contract
          notions is that it is voluntary and a long term decision. All variables – choice of state to litigate
          matters – must have been given thought.
             i. Burger King v. Rudzewicz (US 1985): BK sued in FL over a MI franchise contract. MI s
                      “deliberately created a continuous obligation” with BK in FL, must be ready to
                      defend in that state.
             ii. McGee v. International Life Insurance Co. (US 1957) TX insurance company sending a
                      contract for reinsurance to an insured in CA, SCT says okay.
  2. International companies and voluntary association: SCT has been more hesitant to drag in
        international companies when their contacts are slight or even more than slight because they have
        not voluntarily associated themselves with the forum state.
     a. Perkins v. Benguet Consolidated Mining (US 1952): Benguet was a Filipino company, but due to
          the war, the president, an OH resident, moved the headquarters to OH.  brought suit over mis-
          management in OH and SCT held that because of “continuous and systematic” dealings, OH
          had in personam jurisdiction. (General Jurisdiction and state long arm)
     b. Helicopteros Nacional v. Hall (US 1984):  sues in TX against  (Colombian) because of a
          helicopter crash in Peru.  buys parts in TX, pilots are trained there, bank accounts are there but
          ’s claims do not arise out of activities in TX, court says no minimum contacts. (continuous
          unrelated) Brennan dissent – says that ’s business could not operate without the TX
          connections, so that is fair and just for minimum contacts. Like the Turkish airline case with the
          NYC bank accounts.
     c. Asahi Metal Industry v. Superior Court (US 1987):  (CA) sues 1 (Taiwanese) and 1 sues 2
          (Japanese). 2 sells nothing to CA, only sells to 1 in Taiwan.  settles with 1 and courts say
          that CA has no jurisdiction to hear 1 v. 2, almost exactly like Gray v. American Radiator.
          Not fair to have Japanese company be liable in another legal system.
  3. Family law and jurisdiction: two different cases, one where the ex-husband was physically present
        and the other ex-husband’s contact with CA was to send his daughter to live with the ex-wife.
        SCT decided both ways, depends on physical presence (Scalia view) and amount of voluntary
     a. Kulko v. Superior Court (US 1978): CA ex-wife sued NY ex-husband in CA for modification of
          child support because he had sent children to her. SCT says no jurisdiction because the father
          was sending daughters in interest of family harmony and not to “purposely avail himself of the
          benefits and protections of California laws.”
C. Jurisdiction based upon power over property
  1. Debts: Property doesn’t have to be tangible. (Harris v. Balk, US 1905: Harris brings Balk’s
        property into MD, $180 owed to Balk, and Epstein, who Balk owed $360, attached the debt and
        got quasi in rem 2 over Harris. Symbolic attachment of Balk’s property – quasi in rem jurisdiction
        over Balk through Harris.
  2. Stocks: Even though the situs of stocks may be in a certain state, that alone will not give rise to
        jurisdiction based on a claim unrelated to the contacts. (Shaffer v. Heitner, US 1977: Modern
        Harris v. Balk. Heitner sued Shaffer and other directors in DE because stocks of corporation
        located in DE over matters that happened in OR. SCT says continuous unrelated, no jurisdiction
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           and DE’s statutes don’t show that they intended to have this kind of long-arm reach. This case
           using International Shoe, discussed below in contemporary notions.)
  D. A refrain: Jurisdiction based upon physical presence: Burnahm v. Superior Court (US 1990):
        NY ex-husband came to CA on business and spent time with the kids. CA wife served him with
        divorce papers. SCT says okay for jurisdiction, but split on reasons. Neuborne says bad decision,
        not fair.
     1. Scalia: writes the opinion. Physical presence is all that is needed for power. In personam
           jurisdiction can always be obtained when person is in jurisdiction – it is a historical tradition.
           Scalia based his decision on the facts at hand, using a Pennoyer power-based argument. It is not a
           binding precedent because there is no majority opinion. If you have other facts to consider, you
           can take into account all the other justices’ opinions.
     2. Brennan: bases his opinion on International Shoe with minimum contacts and fairness. Must have
           minimum contact – took into account that the ex-husband spent three days in CA benefiting from
           CA’s laws. Scalia derides this reasoning.
  E. Using your own law: SCT has said that you need a “significant aggregation of contact that create a
        state’s interest, such that choice of its law is neither arbitrary nor fundamentally unfair.” (Allstate)
     1. Allstate Ins. Co. v. Hague (US 1981): After death of husband  moves to Minnesota, where
           husband used to work and they have a stacking insurance policy. Wisconsin, where the accident
           took place, doesn’t have a stacking policy.  sues in Minnesota and court says Minnesota has
           enough of a stake because  is a Minnesota resident. Broad test to decide law.
     2. Phillips Petroleum v. Shutts (US 1985): Court says yes to class action in KS (suing over royalties),
           people don’t have to opt in, opting out is fine, but the class has different people from different
           states, so can’t just apply KS law, need to apply the laws of the other states, because no significant
           contacts. (Cites Allstate to decide this)
  F. Competing Interests and Reasonableness: Take into account these factors to decide the fair and
        substantial justice component of minimum contacts. This all goes into foreseeability of where you
        will need to defend yourself.
     1. 's interest
        a. convenience
           i. WW Volkswagen: strong  interest in keeping case in OK, recuperating from injuries and
                      accident happened in the forum state.
           ii. Asahi: no  interest, so you get an easy case, no need for jurisdiction. 1 can litigate in Japan
                      or Taiwan for indemnification.
        b. choice of law: what is most favorable for ? Burden of proof for .
     2. 's interest
        a. convenience: Long distance for  to travel? Can the  afford the travel and defense?
        b. choice of law: Bad for the ? Burden of proof for .
        c. ’s contacts: Are they systematic and continuous? Do they satisfy minimum contacts and
     3. Forum state's interest
        a. convenience: state interest in providing a convenient forum for dispute resolution of people who
               live there
        b. control of disputes: forum state's desire to control the behavior that gave rise to dispute (i.e. car
               accidents, highway accidents)
           i. applying own law
           ii. own evidence standards
     4. Sister state's interest
        a. convenience
        b. controlling behavior at stake

III. Notice
   A. Requirement of Reasonable Notice: Due Process requires reasonable efforts to be made with
       regard to persons whose interests are to be determined. (Mullane)
     1. Pennoyer v. Neff (US 1878): publication not enough when other methods are available, like
         property seizure.
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    2.     Mullane v. Central Hanover (US 1950): Bank (NY) holds multiple trusts and gives income
           regularly to some of them, and other beneficiaries will receive the principle, so no regular
           communication. Every 18 months the bank goes into court to settle accounts, so that beneficiaries
           can’t sue for mismanagement. When trust is established, bank mails the beneficiary a letter stating
           this and then every 18 months, publishes in a newspaper. SCT says this is not good enough for
           people whose addresses are known, must give them better notice because it would be of little
           expense to the bank. For people who are unknown (heirs, unborn, etc.) and/or addresses that are
           unknown, publication is okay.
  B. Opportunity to be heard: there is an unfairness when property is seized before it is ever proven
        that you owe the debt s say you owe. You should be able to have a mini-hearing before seizure to
        give  a chance to repudiate the conclusory statements made by s with regards to the debt. SCT
        decides based on type of commodity being seized, its value to the s, and the proof s have to show
        in order to have items seized. This is in direct contradiction to Pennoyer, which said seize first,
        litigate later.
  1. Wage garnishment: Seizing wages has a dramatic effect on . Forces them to settle with  just to
        get wages back. SCT holds no good in Sniadach v. Family Finance (US 1966):  garnished wages
        to have jurisdiction over . This is unfair because it forces  to settle – need their wages. SCT says
        you can’t do this without notice and a chance for s to defend themselves. Something has to be
        done before seizure.
  2. Consumer goods
     a. Fuentes v. Shevin (US 1972):  bought a stereo and stove on an installment plan from , Firestone.
            claims that  has defaulted on payments and seeks to replevy the items, claiming that they are
           wrongfully detained. All that is needed is an affidavit and a bond.  holds the property as the
           lawsuit is going on,  can only recover property back by filing its own bond in double the amount.
           Sniadach involves a life/death property, therefore the interest of the debtor is greater than that of
           the creditor. Fuentes is quasi in rem 1, claim is intimately connected to property seized and there
           is a shared property interest. SCT votes that still need an opportunity for some kind of hearing
           before seizure. What is single most important fact about Fuentes? -- Only 7 people voting. 4-3
           Powell and Rehnquist didn’t vote. Rule of 5 is most important rule in US.
     b. Mitchell v. W.T. Grant (US 1974): Louisiana court ordered the seizure. Had to show a shared
           property interest and then ask the judge to grant sequestration. Fundamental difference: clerk
           ordered the seizure in Fuentes, here the judge ordered it. In this case, documentary proof is better
           in LA and debtor can seek immediate dissolution of the writ of replevin, right after seizure. Is this
           enough of a safeguard? SCT thought so, said there was no need of pre-hearing in this case. Here,
           5-4 votes. Stewart in dissent says that court is blatantly disregarding stare decisis, there really is
           no way a judge can see beyond what is stated in the ex parte papers.
**Neuborne’s theory of pre-seizure hearings: Real reason to have them is to up the transaction costs, so
that the creditors won’t seize willy nilly and only seize when the claim is really important.
  3. Seizure of bank accounts: North Georgia Fishing v. Di-Chem (US 1975): clerk-issued seizure of
        bank account. There is no shared property interest and like Sniadach, the bank account is the
        life/death for a company because no commercial activity can be done without the account. SCT says
        still needs pre-seizure hearing, not going to distinguish types of property when the method of seizing
        like Sniadach.
  4. Real Estate: Connecticut v. Doehr (US 1991):  was victim of assault and battery by  and  files a
        lien against ’s real estate to insure the ability to satisfy any judgment that arises out of the tort suit.
        This is not a physical seizure, a theoretical one, but it does freeze your ability to sell your property.
        ’s assertion of a lien has no shared interest in the property. Sniadach  Di-Chem  Doehr = any
        effort to interfere with property that is unconnected with claim and no shared property interest, must
        have pre-seizure hearing.

IV. Subject Matter Jurisdiction
  A. Subject Matter Jurisdiction in State Courts: Collateral attacks. Once case is finalized, no other
      state court can overturn based on lack of jurisdiction to hear the case. Lacks v. Lacks (NY CT of
      App. 1976) : four years after the divorce was finalized by the Court of Appeals, ex-wife realizes
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     that ex-husband was not a resident of NY, one of the requirements of NY state courts to grant
     divorces. Couldn’t re-open case.
B. Federal Courts – Diversity of Citizenship: Article III grants Congress the right to have federal
     courts (at their discretion, not mandatory), to hear cases between citizens of different states, between
     state and citizen thereof and foreign states, citizens or subjects. Left out are state-less persons and
     two aliens can sue each other. Minimum diversity. §1332: Congress requires maximum diversity –
     everybody has to be diverse. [Strawbridge v. Curtiss (US 1806)] Now, the money amount is
     $75,000 excluding costs and interests if your claim is only based on diversity of citizenship.
  1. Test for citizenship
     a. Natural persons: domicile can mean to be a place where you intend to be permanently in the
           future, not necessarily where you are stationed at time of lawsuit. Dominant facts to determine
           your geographical concerns is your driver’s license, days spent in the state – this is a soft
           concept. Artificial rule is to be domiciled where you were last. Mas v. Perry (5th Cir 1974):
           argument over where Mrs. Mas was a domicilliary of which state. Court strains to find MS
           domicile – arguing that she hadn’t given up her old domicile, because as a student in LA, she
           hadn’t established a new one yet.
     b. Permanent resident aliens: in the old days, they were a citizen of their homeland. Under §1332,
           considered to be a citizen of the state in which they are domiciled. Same treatment as a natural
     c. Aliens: Considered citizens of homeland [two citizens cannot sue one another in US under Article
     d. Corporations: Natural person has only one citizenship, but a corporation can have more than one.
           A corporation is a citizen of any state that it is incorporated in, and can incorporate in as many
           states as they want. Also, considered to be domiciled in the principal place of business.
     e. Fiduciary: Used to measure diversity for fiduciary by citizenship of Executor. Potential for
           manipulation. The present rule is for both executors and guardianships, you test the citizenship
           of beneficiary/person represented to prevent manipulation. (They forgot about trustees. Now a
           split in lower courts- congressional intent or literal)
     f. Labor Unions: Test citizenship by citizenship of every member.
     g. Class: Group of people with out independent legal status- test by citizenship of named
           representatives (allowing for strategic behavior/manipulation –so easy to get way that you want)
           Supreme Tribe of Ben Hur v. Cauble (US 1921): test for diversity by using the named
           representatives of the class.
  2. When do you test for diversity? In US, the convention is the citizenship at the time of action is
        commenced. And if a company sells or assigns liability to someone of different citizenship, you
        test the buyer’s citizenship.
  3. Jurisdictional amount: Must be more than $75,000 exclusive of costs and interests, including
        punitive. Why should the money be the determinative factor to tell us that the claim is genuine for
        federal court? Amount repealed in federal question repealed after Watergate and federal court
        threw out the lawsuit to subpoena president tapes because only worth $63. The rule is good faith
        allegation of amount in controversy by . If  wants to dismiss based on jurisdictional grounds, 
        must prove that there is no possibility that ’s case not worth that amount.
     a. Class actions: for diversity purposes, you take the named representatives of the class. The whole
           class becomes the citizen of the state that the representative is a citizen of. Jurisdictional
           amount – you get a diametrical opposite. The class is a collection of individuals. So if you are
           alleging a diversity jurisdiction in a class action, each individual member of the class has to
           independently satisfy the jurisdictional amount. Punitive damages become very important. But,
           most class actions are federal question issues which arise under and you don’t have to worry
           about amount. One  can aggregate her claim against one  (two claims at $45,000), fine. But
           not in class action. Inconsistent with citizenship.
     b. What if you don’t want money? The case could be an injunction. How do you test for
           jurisdictional amounts? You can value you it as what the gain to the  will be or what Loss to
           the  will be (how much it will take  to do ’s proposed actions).
C. Federal Questions: Article III provides that for cases arising under the constitution or federal laws,
     there is federal jurisdiction. Again, Congress can provide for their own provisions. First was the
     1875 statute that gave federal courts jurisdiction over federal question cases, then §1331 gives
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   power. §1331 uses the same language as Article III, but the question is does it take an expansive
   view or narrower?
1. Broad view of federal question power: Osborn v. Bank of the United States (US 1824): only
      statute here is the one where the Bank of US can sue or be sued in federal court. Ohio auditor
      breaks into the bank and seizes the money. Bank responds by suing the Ohio auditor and seeks an
      injunction in federal court on the grounds that the tax is a violation of the Constitution (inter-
      governmental tax immunity). Is the statute that gives Bank the right to sue and be sued in federal
      courts constitutional? Bank seeks an injunction on the tax because of the inter-governmental tax
      immunity that is in the federal constitution. When does something arise under the Constitution?
      Bank is the creature of federal law, created by a federal statute. Precise issue that the bank is
      trying to litigate depends on a construction of the constitution. Marshall gives an expansive view
      – any time the bank is a party, it is going to be a federal question because the bank is a federally
      created entity.
   a. Arises under federal law: Look at the complaint. What is the source of the plaintiff’s right? If
         federal source of law, then classically arises under federal law. Says no tax -  needs to tell
         why no tax. If legal theory is linked to a construction of the federal constitution, if the
         constitution read one way, there is a tax and vice versa. If ’s theory of recovery depends on
         winning an argument about the meaning of the constitution, then the  has pegged their
         complaint to a piece of federal law, then their claim arises under federal law.
   b. Osborn #2: When the Bank wants to sue an individual for not living up to a contract (which is
         state law), this doesn’t need to be decided by the SCT because of Marshall’s dictum.
2. Well-pleaded complaint rule: In §1331, Congress decides to exercise a small piece of Osborn’s
      broad reading. The ’s claim must be grounded in a federal issue to be in federal court. If 
      proposes that ’s defense will be a federal claim, not good enough, this is just trying to move
      around the parties. And if the lawyers switch the parties, so that the  is seeking a pre-emptive
      move, still not good enough. The real s must be the s raising the federal issue.
   a. Louisville & Nashville R. Co. v. Mottley (US 1908): Contract between railroad and sympathetic
         old couple where the couple purchased the free pass through a settlement. Argument is that it is
         unconstitutional for the government to abrogate this couple’s contract – there was consideration,
         and everything. They go into federal court. Louisville and Mottley fit under the Osborn second
         day and you don’t have any federal entities, claim arises under contract law which is state law.
         Complaint says contract – free pass, railroad refuses to abide by it because of the federal statute,
         which is unconstitutional. Federal question claim is the defendant’s claim. If railroad were to
         sue the Interstate Commerce Commission (the regulatory body of railroads), then would be in
         federal court, because then the claim would arise under the federal statute prohibiting
   b. Franchise Tax Board (US 1983): Neuborne tells story as California Tax Board versus a Pension
         Fund to collect a CA tax based on CA state law. Pension Fund tries to remove to federal court
         because under ERISA, they are exempt from tax Under well pleaded complaint rule, ’s claim
         is the one that results in state or federal jurisdiction. Want state court to decide state law.
3. Arises under means having to decide federal law: If in order the state law question, you must also
      decide the federal question issue, then federal courts have jurisdiction.
   a. Smith v. Kansas City Title (US 1921):  claims that the bonds that the Bank wishes to sell are
         unconstitutional, based on state law, which derives its claim from the constitution.  claim
         arises under state statute, but to know whether state law has been violated, must first decide
         whether the bond is unconstitutional. SCT said the federal question was an important federal
   b. Moore v, Chesapeake (US 1934): Similar claim as Kansas City, but federal statutory interest here
         not as great as the one in Kansas City Title. In Kansas City, the issue was whether the
         government had the right to issue bonds, extremely important for the country. SCT says no to
         federal jurisdiction.
4. Private causes of action under federal law: In Bivens v. Six Unknown Agents (US 1971): SCT
      held that the Fourth Amendment gave citizens a private right to sue for unreasonable searches and
5. Incorporation of a federal statute within a state law private claim: Merrell Dow
      Pharmaceuticals v. Thompson (US 1986): products liability case. One of six counts states a
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        failure to comply with a federal standard, which caused the tortious actions that hurt . All other
        counts in the complaint allege state tort law claims. Congress chose not to endorse this, so you
        can’t get through the back door by having the state law incorporate federal law.
D. Supplemental Jurisdiction: This is when your case raises both federal and state theories, under
     regular subject matter jurisdiction, you would have to bifurcate your case into federal and state court.
     If read the word “case” broadly to mean not just the claims, but all the facts that give rise to the
     litigation, then you can have both claims in federal court.
  1. Policy reasons: Neuborne says this is good because you don’t want to cost the system more money
        than you need to. If you had to slice the case, then not only would legal fees for s and s be
        high, but the system costs increase as well. The case means the entire factual picture – can’t really
        slice and if you have jurisdiction over the federal theory, over anything.
  2. Pendant jurisdiction: First have to identify the base claim that the court has good federal
        jurisdiction over, this is needed to lock the case into federal court so the claim has to be credible.
        Then, you can hang on to that claims (pendant on) for which there would be no jurisdiction, but
        that arise out of the common nucleus of facts that give rise to the case. This is a discretionary
        jurisdiction, not obligatory. If the state claim is a novel one, then federal judge will give back to
        state. Or judge might say pendant state claim is more important than federal, then send down to
        state. Once the case is in the federal court, though, the judge can reserve judgment on the federal
        issue, if  can be granted full relief based on state law.
     a. Pendant claims: United Mine Workers v. Gibbs (US 1966): Gibbs’ lost his job contract with the
           Grundy mine when UMW workers picketed his mine, claiming that the mine was opened so that
           UMW workers didn’t need to be used. Gibbs filed suit based on two counts – one, that the
           UMW picketing violated §303 of the National Labor Relations Act with respect to primary and
           secondary boycotting, and two, that by doing illegal picketing (violent, etc.), this maliciously
           interfered with his employment contract (tort law).
        i. Diversity Jurisdiction? No, because a labor union’s citizenship is that of its workers. So, even
                though Gibbs sued the international part of UMW, the union is an unincorporated
                association with members in Tennessee. As long as one of the members of the union live in
                Tennessee, no complete diversity. Also, Gibbs didn’t certify the union as a class, so no
                using the named representative as basis for diversity.
        ii. Pendant jurisdiction: There is a federal question – whether §303 gives rise to a private cause
                of action and a state question – malicious interference with a contract. Need to read “case”
                as encompassing not just the legal theory, but the entire fact pattern, and then the federal
                courts have jurisdiction.
  3. Ancillary jurisdiction (pendent parties): Can not pendent parties on to the law suit to get into
        federal court when there is no independent federal jurisdiction over additional party.
     a. Aldinger v. Howard (1976):  sued individuals under federal law and then the county under state
           law because at the time, couldn’t sue entity under the federal law.  tried to get into federal
           court, but SCT didn’t allow ancillary jurisdiction when no independent federal question issue
           with entity. SCT looks to the statute and says this would frustrate the intent of the statute.
     b. Owen Equipment v. Kroeger (US 1978): ’s husband was killed in an accident, and she sued
           OPPD, his employer. OPPD, a Nebraska citizen, who in turn sued Owen, claiming that Owen
           really responsible for the accident. OPPD was granted summary judgment and dismissed from
           the case, leaving  v. Owen. Originally, Owen had been a Nebraska citizen both based on its
           incorporation and primary place of business. Problem: there was an avulsion of the river
           between Nebraska and Iowa, causing the principle place of business to be in Iowa (river
           changed courses). There was no longer complete diversity, SCT says no federal jurisdiction,
           and upholds a strict diversity jurisdiction reading. Again, SCT looks to the intent of the statute.
           Don’t want parties to be able to use ancillary jurisdiction to get around the statute.
     c. Finley v. United States (1989):  sued US and San Diego, the claim against both arose out of
           same fact pattern. SCT says that if the federal statute does not affirmatively permit the adding
           of parties, then the courts cannot imply that there is power to do so. Very strict ruling on
           statute. Triggers a huge response.
  4. §1367: an effort to codify Gibbs and Kroeger and reverses Finley by saying that if the statute is
        blank, then it is okay to use ancillary jurisdiction as long as the Gibbs test is satisfied. However,
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          with the statute in place, courts are now trapped in the words of the statutory commands. Courts
          must give reasons for remands and must fit the reasons into one of the four excuses outlined in the
        a. Class action problem: In Zahn, you treat the class as an aggregation of the individuals and
             under Ben Hur, you look to the citizenship of the named representative. SCT allows both
             simultaneously without any direction for future cases. The language of 1367 seems to say that
             you must have the class members in under supplemental jurisdiction and you treat the class as
             an entity to test for jurisdiction. (You’d be taking the class members under the named
             representative who don’t have as much money at stake as named representative and bringing
             them in under 1367) Called 1367 jurisdiction. Neuborne likes.
        b. Executive Software v. US District Court (1994):  brings five claims in state court, three of
             which are based on CA law and two are based on federal law.  removes to federal court.
             Shows the problem with 1367 – district court did not give a good reason under 1367(c)(4) to
             remand back to state court and appellate court said that case had to stay in federal court.
  E. Removal: Codified in 1441. If the claim could have been brought to federal court originally, then 
        has option of removing it to federal court.
     1. Restrictions:  can only remove to federal court if the claim was not filed in his home state, and
          this only when the basis for removal is diversity jurisdiction. If claim is a federal question issue,
          then can remove to federal court. Policy is that federal courts are for protecting against prejudice
          that  might face in a state that he is not a citizen. Anomaly is that  can file in a federal court
          when in ’s home state and this allows  to always choose federal court. And can’t remove a
     2. Roe v. Little Company of Mary Hospital (1992):  sues hospital and Red Cross for negligence in
          giving him tainted blood. Have a similar Osborn statute, where the Red Cross can sue and be sued
          in federal court. Roe argued that his state claims dominate, and indeed the court found that they
          did, but they also read 1441(c) narrowly and said that removal must be made pursuant to 1331
          jurisdiction, and the Red Cross federal jurisdiction is outside 1331, given independently. Says you
          can disentangle the claims, but for the case at hand, kept in federal court for efficiency under
          1367(a). Question is does the judge have the power to disentangle under 1367? Neuborne says
          that the judge should have the power.

V. Convenience
  A. Venue: moving people around within a particular judicial system, there is no break in the litigation,
       just slide into a new court.
    1. Waivable: unlike in personam jurisdiction, venue is waivable. Venue is an effort to assist the
          parties to provide thought in advance as to where to bring the suit. As long as you have in
          personam jurisdiction, and  doesn’t invoke venue rules, then case will go forward in the place it
          was filed.
    2. §1391 rules for federal courts
       a. If jurisdiction based on diversity: Must be in ’s residence, but if multiple ’s, then only use
             residence if all s reside in same state. If all s don’t reside in same state, then the ’s state
             option is gone. Then, use where the area that the facts gave rise to the case, where the evidence
             is. It is the cheapest because the witnesses are there and a substantial proportion of the facts
             arises. Predominance test. If you can’t get either of those, then sue  where ever a  may be
       b. If jurisdiction based on federal question: ’s residence option same is diversity. Area is the
             district where the facts occur. Last is where the  is found.
       c. Corporations: When a corporation is a , the corporation is deemed to be a resident of any
             judicial district where they can be served.
    3. Substantial part of the events: How does one decide what a substantial part of the events giving
          rise to the claim are? In Bates v. C&S Adjusters (1992), 2nd Circuit said that receipt of the
          collection notice by  in NY is a substantial part of the events giving rise to a claim under the
          statute  complained on. The  should have marked “do not forward” if he didn’t want to answer
          a suit outside his district. It is a volitional connection, almost like stream of commerce.
                                                                                              Civil Procedure

  4. 1404(a) transfers v. 1406 transfers: 1404(a) is to transfer a case that was properly brought in
        current court to a place where it also could have been brought (this is for convenience sake) and
        therefore, the law from original court follows. 1406 is an improperly brought case (either lacking
        venue or ipj) and instead of dismissing, the court just transfers to another court, where it should
        have been brought originally, and therefore the law in the new court rules.
     a. Transferee court needs to have venue and ipj: The parties can only transfer a case to another court
           if the new court is one where the suit could have been brought originally. Similar in thinking to
           removal (where  can only remove to federal court if could have been brought there originally).
           Hoffman v. Blaski (1960):  filed suit in TX and  transferred to IL under 1404(a), but s
           could not have originally brought the suit in IL. SCT says can only transfer to where originally
           can bring suit by s, otherwise, it would do “violence to the plain words of §1404(a).”
     b. Transferee court applies transferor court law in 1404(a) transfer:  can maneuver to get the best
           law when there are two jurisdictions in which the suit can be filed. In Ferens v. John Deere
           (1990),  filed two different suits in both PA and MS, but then moved to have the MS case
           transferred under 1404(a) for convenience. The longer statute of limitations of MS followed the
           case, benefiting . Can give rise to forum shopping for statutes.
     c. Bailing out s who choose wrong: A court can choose to 1406 transfer a case in which  has
           neither venue or in personam jurisdiction, helping out s who should have known better. This
           is upheld in Goldlawr v. Heiman (1962), where  filed suit in PA, but had neither venue nor ipj
           and PA court transferred to NY court. SCT said that purpose of 1406 was to help out s who
           bad a bad guess with reference to venue. Broad reading of the statute, but is still consistent with
           Hoffman, as the case needs to end up where it could have been brought originally. But still
           interesting because you shouldn’t be filing a law suit where you can’t serve the .
B. Forum non conveniens: This is where the case is forced into another system and it is not a smooth
     transition. Judge must dismiss the case and then the s must re-file the case in the proper court.
     There are important consequences if it is close to the end of statute of limitations. Absent some
     special rule, you test for statute of limitations at then date of the last filing.
  1. Piper Aircraft v. Reyno (US, 1981): Airplane crash in Scotland and the decedents’ families file suit
        in CA, through CA lawyer who appoints his secretary as administrator of the Scots decedents for
        purposes of dealing with American assets. Manufacturers are American, 1 is Piper (nationwide
        company), 2 is propeller manufacturer, not nationwide. CA has in personam over Piper, not
        really over Hartzell. Case is removed to federal court and then s move to transfer to PA federal
        court on grounds of substantial part of evidence in PA. 1404(a) transfer as to Piper, but as to
        propeller person, there was no ipj in CA, therefore, if transfer, then 1406 transfer. Interesting case
        because if case had gone forward in PA, two different laws would have been applied. s then
        move in PA court to dismiss for forum non convenience because case should really be brought in
        Scotland. s argue that bringing suit in Scotland would radically change outcome of case,
        different law and mindset. Before, this used to work. Not any more and SCT says whether or not
        a different law will apply might be relevant, but it is not dispositive.
  2. Preventing foreign s from getting benefit of American law: this seems to be the outcome of
        Piper and was applied in the recent Bopal case in India. 2 nd circuit dismissed the case brought by
        Indian s. Forum non is not really granted when the s are American. Neuborne wonders if it
        should make all that much difference what the identity of the s are?

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