Federal Removal Chart by fwo13163

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									                                      Federal Subject Matter Jurisdiction
   Question: 1331                                 Diversity: 1332                            Supplemental- 1367                       Removal - 1441

Federal creates cause Source: Art III, but Sec. 1332 narrower b/c                                                                     • 1441: Any matter f ed.
                                                                                                 Constitutional Basis                 Cts have orig. jx can be
 of action: express or include amt. in controversy req. and                                                                           removed
                                                                                           • Article III of the Constitution - must
Impliedif unsure can bring & complete diversity requirement                                                                          Only D, only to Fed
                                                                                             be same case or controversy
     dismissal on merits                 Complete Diversity                                                                           Fed decides
                                                                                           • Look to Gibb test: Common                NO appeal of remand
                                    • Real persons: Citizenship = Domicile (last place       nucleus of Operative Fact
            OR                                                                                                                          •Complete Unanimity
                                      intended to stay indef initely/”mind/behind”) (Mas     (CNOF)- same case or controversy
                                                                                                                                         among D’s required

Federal law is central
                                      v. Perry)                                                             +                           •“well-pleaded complnt”
                                    • Artificial Persons:                                                                                applies (Caterpillar)
 but claim not arise                     • Corporations : Citizenship = State of                      Statutory Basis                   •Remove only to f ed ct.
        from it                            Incorporation + Principle place of business     • Federal Question: 1367(a) Orig.             embracing state ct.
                                             • Place of Operations                           claim has Fed. JX and supp.                 where action pending
                                             • Nerve Center                                  claims are part of same
           NOT                               • Total Activity/Primary Activity Test          case/controversy (Gibbs)
                                                                                                                                        •(b): If removal based
                                                                                                                                         on diversity - can NOT
  Federal defense or                     • Associations: citizens of ALL states where          •Basically f ull reach of                 remove if any D is
                                           members are citizens                                 constitutional authority                 citizen of f orum state
  anticipated federal
                                    • Improper/collusive assignment or joinder NOT         • Diversity Cases: 1367(b) supp. Jx          •Removal OK even If st.
  defense (Mottley):                  permitted to def eat or create diversity               NOT extend to:                              ct. did not have jx
    Well pleaded                    • If non-diverse D’s joined af ter removal, may be         •Claims by P’s vs. parties joined         remove to f ed ct and
   complaint rule                     remanded or joinder denied 1441 (c)                       under 14, 19, 20, 24                     dismiss (12 b 2)
                                                                                               •Claims by persons’ included as        •1446: Procedure
  P Master of the complaint                    Amount in Controversy                            P’s under 19 or 24                      •(b) W/N 30 days of
                                    • Min. amt. In controversy = $75K- met unless              •Otherwise inconsistent w/1332            service of 1st of
   preemption (Caterpillar)
                                      “legal certainty” will not recover                   • Court Discretion 1367(c): may               summons or complaint
Note: Rule 8(a)(1):                 • Value of injunctions- to either P or D (Glenwood)      decide NOT to exercise Jx if               •Multiple D’s - cts. split
                                    • Aggregation: Single P can aggregate against            Novel issue of state law;                   if get add’l 30 days;
Complaint must have short                                                                    supp. claim >original claim
statement of grounds for              single D. But can’t aggregate claims of dif ferent                                                 later D can remand if
                                                                                             dismiss all claims w/ orig. jx;
                                      P’s (Zahn). Counterclaims generally NOT of f set;                                                  w/in 30 days
subject matter JX                                                                            exceptional circumstances
                                      also issue w/ 1367 (b) and Zahn.                                                                  •Must still f ile w/n a year
                                                                               Removal means                                             if removal based on
                                                                               venue rules DON’T           1447 Post-Removal             diversity
Wat ch out f or: patent infringement v. breach of K related to patent          apply. Can only             (c) Motion to remand w/in 30 days af ter f ile notice
Must have direc t reliance on federal law for substantive right                remove to area where        (d) Remands NOT appealable
“Artful Pleading” to stay in ST crt when really can be remov ed b/c fed        action is pending.          (e) post-removal joinder which can destroy subj.mat jx.
issue                                                                                                      Court’s discretion remand (allow) or continue (NOT)
                                             Personal Jurisdiction
Federal                        Rule 4(K)(1)                                      Rule 4(K)(2)                               Minimum
                      • (A) Subject to JX in state where                  • Claim under federal law
Court                   Dist. Ct. located                                 • No state has general Jx
                      • (B) Joined under Rule 14 or 19 and
                        w/n 100 mls of ct. (bulge Jx)
                                                                or          (good for foreign D’s
                                                                          • Exercise of Jx
                                                                                                                 +         with the US
                                                                                                                           as a whole-
                      • (C) Joined under interpleader                       constitutionally/statutorily                   5th Ammend
                      • (D)Auth. By fed. statute                            sound

                                           Basis                                       Long Arm Statute
                             • Long Arm statute                                 • Full extent of Constitution: CA
                             • Persons: Consent, in -state                      • Particular Circumstances: NY
                               service, presence, domicile                         • Specify exactly when can take
                             • Corporations: Incorporation, nerve                    JX
State                          center, consent - in state agent                 • Particulars but construed
Court                        • Civil Status cases                                 broadly: at full extent of constitution

                                                              Constitutional Analysis
                                          Minimum Contacts                                Reasonableness
                             • General: Persons- domic, pres; Corp--Incorp,
                                                                                   • State interest in hearing the case
                               doing biz - “continuous and systematic” (Shoe)
                                                                                   • Burden on Defendant
                             • Specific: 1) Claim arise/relate to contacts 2)
                               Purposeful availment (McGee/Kulko/Keeton NOT        • Plaintiff interest in relief
                               Hanson)                                             • Judicial system intrst in efficient resolutn
                                 •Directed at forum (Calder,, driving)             • Shared interest of several states in
Rule 4                           •Stream of commerce: Gray (prob. Asahi—ads          forwarding public policy
Mullane letters;                  required, O’Connors)                             • Balancing test (Burger King)
Mennonite address:           • Applies to in rem Shaffer
Lehr “f ather”; posters
on door

                              Objections: Either direct attack (special appearance) or collateral attack (allow default, challenge
                                             domestication) - Note Rule 12 - must object at first opportunity or waive
               VENUE and forum non conveniens

Venue-      • Diversity: 1391(a) - Venue proper if
1391/             • 1) Any D reside in the district provided all D’s reside in the state (“Reside” for maj of states = domicile)
                  • 2) Judicial district where “transitory rule” eventsclaim took place or “local rule” property subject of
1404/1406           action located
                  • 3) District where any D subject to under personal jx - if no district where action could be brought
            • Subject matter/Other:1391(b): (1) and (2) same as 1391(a)
                  • (3) District where any D may be found, if no other district where action can be brought - (served w/
                    process, but also poss to use personal jx)
            • Corporate Defendants (not Ps) 1391 (c) : Defines corporate residence as particular District where D has
              contracts - even if subject to personal jx in state - may not be proper venue -
                  • Resides in every district where the corp. is subject to personal jx - even if only specific jx for this claim-
                    treat district like a separate state for min. contacts analysis
            • Aliens 1391(d): Any district
            • 1406 - If venue wrong or at discretion of the court - can dismiss or transfer to 1404-any other district where
              could have been brought originally

Forum Non          •·Discretionary power to Ct. to decline jurisdiction when convenience of parties and ends of
Conveniens         justice would be better served if action were brought and tried in another forum. (Piper)
      In Fed. Ct. under Diversity JX - Where fed. Law is not controlling, fed. Ct’s must apply state law
Arguably Procedural               (Sibbach v. Wilson—not substantive just         No          Clearly SubstantiveApply State law (Erie—
        b/c has to do w/ right; if procedural, really procedural)                            willful v. negl.stdrd; Klaxton—choice of law <if PA
                                                                                             choice of law sends to NY law, use NY NOT PA>)
          Procedures in conflict?                                                          Apply Both - (Cohen v. Beneficial Life—
                                                                                   stockholderspost security <state>; <fed> silent on issue)
   Federal rule, valid and on point                                                Apply federal rule if 1) w/n rules enabling act
                                                                                  2) Constitutional (Hanna svc of process on point Rule 4
                                   No                                             express requirements [broad interp] and L. Walker Steel—
                                                                                  Rule 3 NOT on point b/c not intended to relate to stat of lim.
Outcome Determinative:              (Hanna twin aims of                                   [construe narrowly] <Ragan-stare decisis.)
 Erie - 1) Forum shopping 2) inequitable admin of laws//
   modifies Guaranty Trust v. York—laches v. stat of               No
      limprocedural BUT outcome determinative)                                                       Apply Federal Law
Overriding Federal Interest (7th A rt to jury;                                                         Apply State Law
 div btw judge/jury, due process, div btw TC & AP,
           liberal pleading, res judicata?
                                                                                     Apply Federal Law - Byrd Balancing Test
                               Yes                                 No             ByrdJdge/Jry decides if person was EEJURY 7th Am rt.
        Able to accommodate both
                               Yes                                          Reverse Erie: Must have overriding fed. Interest
                                                                            •   Dice-FELA judge (ST)/jury (FD)fed FELA overriding intrst in jury
Make accommodation:          Gasperini-2 separate                           •   Is the rule integral to the remedy?
Erie analyses: New Trstate b/c no rule on point;                           •   Is the rule part and parcel to the remedy Congress intended?
   AppealFed interest in review and separate                               •   Would state practice unduly interfere w/ P's opprtny to recover remedy?
                  Trial/Appeal                                              •   <FED> Felder—uniformity goal w/ liberal Federal pleading procedure
                                                                            •   <STATE> Johnson—interlocutory appeal is burden
                               Joinder of Claims
                        Possible Claims to be joined                 Jx question

PD       • Original Claim
          • May add additional unrelated claims - Rule 18

DP       • Must assert compulsory counterclaims - Rule 13(a)
            that arise out of same transaction or occurrence
          • May assert unrelated, permissive counterclaims -
            Rule 13(b)
D1  D2   • May assert cross-claim - Rule 13(g) - must be same
          • Once assert valid crossclaim, may then add unrelated
            claims - Rule 18
D2  D1   • May assert cross-claim - Rule 13(g) - must be same
          • Must assert compulsory counterclaim 13(a) against D1’s
          • Once valid crossclaim/counterclaim, may add unrelated
            claims - Rule 18 or assert permissive counterclaims
            13(b) against D1
                                     Joinder of parties/Intervention
                  Permissive Joinder -
                        Rule 20                          Intervener - Rule 24                        Compulsory Joinder - Rule 19

                                                          As of right - 24(a)                               Should they be joined?
                                                                                                  • 19(a)(1) - If no complete relief in persons’ absence
                    Single Transaction
                                                      (1) Statute gives right                     • 19(a)(2) - If judgment in absence of party
                              +                                                                      • (i) As practical matter impair protection of parties’
                                                      (2) 3 -prong test
                                                                                                     • (ii) impose multiple or inconsitent obligations

                   Common question of                    • Interest in subj matter based on
                       law/fact                            property or transaction
                                                         • Ability to protect interest would be
                                                                                                              Can they be joined?
                 Not need claims against                 • Inadequate representation              • Terr. JX - Must be subj. to service of process - can
                                                                                                    be waived - Bulge Jx- 4(K)(1)(B) - must be w/n 100
                 all parties- decide each                                                           miles
                 according to respective                 Permissive - 24(b)                       • Subj. Matter Jx: Joinder can not deprive of jx - note
                           rights                                                                   for purposes of diversity - no supp. Jx if join as P’s
                                                          Common question of
                                                                                                    but yes if join as D’s
                                                                law/fact                          • Venue: No join if make venue improper
                                                                    +                             • Refusal: Can still be made involuntary P or
                     Join other P’s or
                                                           Discretion of court
                       make co-D’s                                                                    If they can’t be, but should be?
                                                                                                  • Prejudice: Extent prejudice absent party
               Terr JX: Must have Jx over each        Subj. Matter: Indep. Grounds req.           • Framing judgment: poss. frame judge. To mitigate

               D - may be out of range even if jx     Fed. Q - permitted                            prejudice
               could be constitutional 4(k)(1)(B) -   Diversity - 1367(b) - Can not               • Adequacy of remedy: Can adequate remedy w/
               must be w/n 100 miles ??               intervene as a Plaintiff and have             absense
               Subj. Matter:                          subj. matter jx. If break diversity         • Result of dismissal: Will adequate remedy if P
               Fed. Q - always permitted;                                                           dismissed
               Diversity - No supp. Jx over state-
               law claims v. non-divers Ds -
               1367; circuit split over P’s
                                   Rule 14 and 13(h) Joinder of Parties
                                                     Rule/Mechanics - Power                                         JX - Permission
                                 • Must be related to P’s orig. complaint or previous counterclaim - same       • ALWAYS exists under 13(g) -
D v. D: Cross                      transaction/relate to property test from 13(a) Comp. Counterclaim              b/c same transaction req.
- claim 13(g)                    • Never mandatory                                                                meets CNOF test and not
                                                                                                                  excluded by 1367(b)
                                 • Must claim actual relief

D v. P + Other                   • On counterclaim/cross-claim - D can join additional parties to the
                                   counter or crossclaim as long as joinder meets reqs. In Rule 20(a) -
party 13(h)                        Same transaction + Common question law/fact.

D v. 3PD -                       • When: Anytime after commencement - if after 10 days of answer, need          • Original claim: Impleading
                                   leave of court (liberal)                                                       3PD by D, NOT affect jx over
14(a)                                                                                                             orig. claim even if not diverse
                                 • Derivative action: must be asserting 3rd party’s liability depends on D’s
                                   liability to orig. P.                                                        • Impleader claim - must still
                                          •Same Case/Controversy                                                  have supp. Jx
    1                   2        • Additional Claims: Once properly impleaded 3PD can assert other                  • Usually will under 1367(b)
Related            unRelated       unrelated claims - 18(a)                                                           - since excludes parties
                                 • Denial: Can deny 1) Undue delay 2) Complication issues 3) Prejudice to             joined by P’s under 14
                                   P - can separate suits                                                       • Venue: 3PD not taken into
          3PD                                                                                                     consideration
                                 • NOT mandatory

3PD v. D/P/new 3PD               • 14(a) allows 3PD to assert:
   Claims /     P                   • Counterclaim against 3PP/Def. - not need to be related
                                    • Cross-claims against any other 3PD- must be related
                             D      • Claims against orig. P that arise out of same transaction as orig. P/D
3PD                Counter
                   claim              suit
       claim           3PD          • Defenses against orig. P and 3PP/Def
                                 •Original P can assert claims against 3PD                                      • 1367(b) If claims by P’s
P v. 3PD                                                                                                          against parties joined under
                                 •Must be related to orig. claim b/t P and orig. D
                                                                                                                  14 - not have supp. Juris. If
                                 •Independent juridisdictional requirement - prevent collusion b/t D and P to     orig. jx is based on diversity
                                 maintain diversity
                           Summary Judgement - Rule 56

              Moving Party has            Moving Party not have
              Burden at trial - P          Burden at trial - D
                                                                        Standard: No genuine issue of
             • Must present                • Must point to specific     material fact an that moving party
Burden of      Affirmative Evidence          places lacking in the
                                             record showing no GIMF     entitled to judgment based on
Production • Can not rely on the             - Celotrex                 undisputed facts.
                                           • Not require affirmative
                                                                        Partial SJ: Rule 56(d): SJ can be
                    • Who bears the risk of non-persuasion?
                                                                        granted w/ respect to certain claims -
Burden of        • All reasonable inferences viewed in light most
Persuasion                 favorable to non-moving party                Quasi-Interlocutory Appeal: Rule
              • Take account of burden at trial - Anderson v. Liberty   54(b) but appeal can be had only if
                                     Lobby                              express determination by judge that
                                                                        final judgment
                • Can not rest on the pleadings if opposing motion
                                 for SJ - Rule 56(e)
               • Must present affirmative evidence in substance but
Motion for
                            not form admissible at trial
                   • If affidavits not available - court can issue
                        continuance for more discovery - 56(f)
                        Judgment as Matter of Law
             Rule                When                Evidence Required                            Trial Std               Ap Std
                                                   • Solely on the pleadings                  Plaintiff can prove no
Failure to   12(b)(6)                              • Judge will ascertain whether             set of facts based on
                          motion - not need                                                   the allegations in the
                                                     viewing the pleadings in light most
State a                   to make at first
                                                     favorable to P whether states a          complaint that would
claim:                    opp.                       legally sufficient claim                 entitle him to relief
                                                   • P given at least one opp. To
                         Typically after           • Moving party has burden at trial:        No genuine issue of
                         discovery since if not       Must show affirmative evidence          material fact an that
          Rule 56        suff. evidence, parties   • MP NOT have burden at trial - no         moving party entitled to
Summary                                               affirmative evidence, BUT, must point   judgment based on
                         can continue
Judgement                discovery (56(f))            to specific places in evidentiary       undisputed facts.
                                                   • Burden of persuasion taken into acct.

                         After non-moving                                                     No legally sufficient
JMOL/                    parties’ case in chief        • Based on evidence presented          basis for a reas. jury to
              Rule                                       at trial                             find for the non-moving
Directed      50(a)
                         or at any time before
                                                                                              party.    “   but    one
                         sub. to the jury.             • Must specify places in
Verdict                  Poss. allow motion              evidentiary record- allow            reasonable conclusion:      De Novo:
                                                         ammendment                           2 stds:                     Verdict
                         after issue presented                                                1) Consider only evidence   insuff. As
                                                       • Viewed in light most favorable
                        After jury verdict: w/n                                               f avorable to NMP and all   matter   of
                                                         to non-moving party
                                                                                              inf er.   in   light most   Law
                        10 days of entry of                                                   f avorable to NMP. OR
JMOL/         Rule      judgment - BUT make
                                                                                              2) Include evidence by MP
JNOV          50(b)     JMAL motion before                                                    that is not impeached
                        submission to jury                                                    /contradicted by opposing
                                                                                              party evidence
                        After jury verdict: w/n    • Based on evidence presented at trial
             Rule                                                                             Great weight of the         Abuse of
New Trial               10 days of entry of        • Includes procedural factors              evidence.
              59        judgment                                                                                          Discretion
                                                   • Viewed in light most favorable to                                    (Gasperini)
                                                     non-moving party
                                                 Post -Verdict Options
                                                                                                                  Renew JMOL
1) Renew JMOL - 50(b)
                                                                                                   Grant                                      Deny
• Must have motioned before submitted
  to jury                                                                            JMOL granted and New trial              Both JMOL denied and New
                                                                                     conditionally granted Can              Trial GrantedNo appeal until
• If grant JNOV, must also conditionally

                                                                                     appeal                                  2nd trial is over

                                                        Move for New Trial
  rule on new trial
                                                                                     Appellate court can 1) Uphold           Dif f result in Trail 2: Loser can claim
                                                                                                                             new trial was abuse of discretion
                                                                                     JMOL or 2) New Trial - Std.
2) Move for New Trial - 59                                                           review abuse of discretion will stand   Same result: Loser can appeal both
                                                                                                                             new trial and JMOL
• Tl. Ct has discretion in granting new
  trial - less likely to cause 7th A probs as                                        JMOL granted and New trial
  JNOV                                                                                                                       Both JMOL and New Trial
                                                                                     conditionally deniedCan
                                                                                                                             Motion deniedAbility to
• Grounds for new trial - 59(a)(1): Any                                              appeal

  reason granted in past include...judicial                                          Appellate court can 1) Uphold
  error, prejudicial error, juror misconduct, verdict                                                                        Appellate court can 1) Order
  against great weight of evidence; newly
                                                                                     JMOL or 2) Reinstate verdict or         JMOL 2) New Trial 3) Let
  discovered evid                                                                    3) Order new trial (Abuse               Verdict stand

3) Appeal                  Need Final Judgement + Substantial Stake+ Trial court Error (Procedural, misapply substantive law, or gross
                           misapprehension of f acts) - note harmless error - Rule 61

                           Interlocutory Appeals: Collateral Order Doctrine: 1) Conclusive 2) Resolve important issue question sep. from
                           merits 3) Render effectively unreviewable on appeal from final judge OR Partial SJ and express det. Final

4) Relief from           Rule 60(b): Can make motion in action in which judgement was rendered: 1) Mistake, surprise, excusable
                         neglect 2) New evidence 3) Fraud 4) Judgement void 5) Judgement satisfied or judgement on which based
Judgment -               overturned (Reed v. Allen) 6) Any other reason justifying relief - exclusive of others
                         Other means of relief: Bring sep. equity suit if facts = “grave miscarriage of justice” or await execution
                   Res Judicata and Collateral Estoppel
                                                                                Collateral Estoppel/ Issue
                           Res Judicata/Claim Preclusion                                Preclusion

                     New claims on same set of events                     Same issues on new set of events
 Requirements         1) Same parties or privies                        1) Same parties or privies
                      2) Same transaction or occurences                 2) Same issue of fact/law actually litigated
                                                                        3) Actually decided - must be part of decision
                      3) Final and Valid decision
                                                                        4) Necessary to the judgement - not
                      4) On the merits                                  alternative theories

                     • Claims under 18(a) arising out of same           • Issues that were decided on - not in the
Barred in suit 2       transaction able to bring in suit 1                alternative - must be necessary to the case
                     • Compulsory Counter claims under 13(a)

                     • Claims under 18(a) not out of same transaction
                       or which could not have been brought in first
Not Barred in          suit (b/c of exclusive jx or nosupp jx)
Suit 2               • Permissive Counterclaims under 13(b)
                     • Cross-claims under 13(g)
                     • Impleader - Rule 14 - but note collateral
                       estoppel if try to bring in suit 2
                     • Permissive joinder - Rule 20 - note collateral

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