CIVIL PROCEDURE OUTLINE
PROF. WAX
FALL 2002
Jamie Greenberg
Quick Rules
I. Scope of Rules
– One Form of Action
Rule 1: Scope of Rules
Rule 2: One Form of Action
II. Commencement of Action
Rule 3: Commencement of Action
Rule 4: Summons
4a:Form
4b.Issuance
4c.Service
With Complaint; by Whom Made
4d:Waiver
of Service; Duty to Save Costs of Service; Requests
4e:
Service Upon Individuals W/in a Judicial District of the U.S.
4h:Service
Upon Corporations and Associations
4k:Territorial
Limits of Effective Service
4m:Time
Limit for Service
4n.
Seizure of Property; Service of Summons Not Feasible
III. Pleadings and Motions
Rule 7: Pleadings Allowed; Form of
Motions
7a:Pleadings
7b:Motions
and Other Papers
7c:
Demurrers, Pleas, etc., Abolished.
Rule 8: General Rules of Pleading
8a:Claims
for Relief
8b:
Defenses; Form of Denials
8c:Affirmative
Defenses (19 listed)
8d:Effect
of Failure to Deny
8e:Pleading
to Be Concise and Direct; Consistency
8f:
Construction of Pleadings
Rule 9: Pleading Special Matters
9a:Capacity
9b:Fraud,
Mistake, Condition of the Mind
9c:Conditions
Precedent
9d:Official
Document or Act
9e:Judgment
9f:Time
and Place
9g:Special
Damage
9h:Admiralty
and Maritime Claims
Rule 10: Form of Pleadings
10a:Caption;
Names of Parties
10b:Paragraphs;
Separate Statements
10c:Adoption
by Reference; Exhibits
Rule 11: Signing of Pleadings, Motions
and Other Papers; Representations to Court; Sanctions
11a:Signature
11b:Representations
to Court
11c.Sanctions
11d.
Inapplicability to Discovery
Rule 12: Defenses and Objections—When
and How Presented—By Pleadings or Motion—Motion for Judgment on
the Pleadings
12a:When
Presented
12b:How
Presented
12c:Motion
for Judgment on the Pleadings
12d:Preliminary
Hearings
12e:Motion
for More Definite Statement
12f:Motion
to Strike
12g:Consolidation
of Defenses in Motion
12h:Waiver
or Preservation of Certain Defenses
Rule 13: Counterclaim or Crossclaim
13a:Compulsory
Counterclaims
13b:Permissive
Counterclaims
13c:
Counterclaim Exceeding Opposing Claim
13d:Counterclaim
against U.S.
13e:Counterclaim
Maturing/Acquired after Pleading
13f:
Omitted Counterclaims
13g:
Counterclaim against Co-Party
13h:
Joinder of Additional Parties
Rule 14: Third Party Practice
14a:
When Δ May Bring in 3rd Party
14b:
When Π May Bring in 3rd Party
14c:Admiralty
and Maritime Claims
Rule 15: Amended and Supplemental
Pleadings
15a:Amendments
15b:
Amendments to Conform to the Evidence
15c:Relation
Back of Amendments
15d:Supplemental
Pleadings
IV: Parties
Rule 18: Joinder of Claims and Remedies
18a:Joinder
of Claims
18b:Joinder
of Remedies; Fraudulent Conveyances
Rule 19: Joinder of Persons Needed
for Just Adjudication
Rule 20: Permissive Joinder of Parties
Rule 21: Misjoinder and Non-joinder
of Parties
Rule 23: Class Actions
Rule 24: Intervention
V: Depositions and Discovery
Rule 26: General Provisions Governing
Discovery; Duty of Disclosure
26a:Required
Disclosures; Methods to Discover Additional Matter
26b:Discovery
Scope and Limits
26c:Protective
Orders
26d:Timing/Sequence
26f:Conference
Required
Rule 30: Depositions Upon Oral Examination
Rule 31: Depositions Upon Written
Questions
Rule 32: Use of Depositions
Rule 33: Interrogatories to Parties
Rule 34: Production of Documents and
things; Entry Upon Land
Rule 35: Physical and Mental Examinations
of Persons
Rule 36: Requests for Admission
VI: Trials
Rule 41: Dismissals of Actions
41a:
Voluntary Dismissals
41b:
Involuntary Dismissal
Rule 45: Subpoena
45a:Form
45b:Service
45c:Protection
of Persons Subject to Subpoena
45d:Duties
in Responding
Rule 47: Jurors
47a:Examination
of Jurors
47b:Peremptory
Challenges
47c:Excuse
Rule 48: Number of Jurors
– Participation in Verdict
Rule 49: Special Verdicts and Interrogatories
49a:Special
Verdicts:
49b:General
Verdict Accompanied by Answer to Interrogatories
Rule 50: JAML in Jury Trials; Alternative
Motion for New Trial; Conditional Rulings
50a:Judgment
as a Matter of Law
50b:Renewing
Motion for Judgment After Trial; Alternative Motion for
New Trial
50c:Granting
Renewed Motion for Judgment as a Matter of Law;
Conditional Rulings; New Trial Motion
50d:
Same: Denial of Motion for Judgment as a Matter of Law
Rule 51: Instructions to Jury: Objection
Rule 52: Findings by the Court; Judgment
on Partial Findings
52a:
Effect
52b:
Amendment
52c:
Judgment on Partial Findings
VII. Judgment
Rule 56: Summary Judgment
56a:For
Claimant
56b:For
Defending Party
56c:Motion
and Proceedings Thereon
56d:Case
Not Fully Adjudicated on Motion
56e:
Form of Affidavits; Further Testimony; Defense Required
56f:
When Affidavits Are Unavailable
56g:Affidavits
Made in Bad Faith
Rule 59: New Trials; Amendment of
Judgments
59a:Grounds
59b:Time
for Motion
59c:Time
for Serving Affidavits
59d:On
Initiative of Court
59e:Motion
to Alter or Amend a Judgment
Rule 60: Relief from Judgment or Order
60a:
Clerical Mistakes
60b:
Mistakes; Inadvertence; Excusable Neglect; Newly Discovered
Rule 61: Harmless Error
VIII. Provisional and Final Remedies
Rule 64: Seizure of Person or Property
28 United States Code
§ 1251:
Original Jurisdiction
§ 1253:
Direct Appeals from decisions of three-judge courts
§ 1254:
Courts of appeals; certiorari; appeal; certified questions
§ 1257:
State courts; appeal; certiorari
§ 1291:
Final decisions of state courts
§ 1292:
Interlocutory decisions
§ 1331:
Federal Question
§ 1332:
Diversity of citizenship; amount in controversy; costs
§ 1337:
Commerce and antitrust regulations
§ 1345:
United States as plaintiff
§ 1361:
Action to compel an officer of the U.S. to perform his duty
§ 1653:
Amendment of pleadings to show jurisdiction
Case List
SMJ
& Diversity
Capron
(1804)
SMJ can never be waived
Marbury
(1803)
Established Principle of
Judicial Review
Mas
(1975)
Exception to rigidity of
Domicile Rules- If NO current domicile – reverts to last known domicile
Federal
Question
Osborn
(1803)
"Sue and be sued"
- but for element of ingredient component theory
Harms
(1964)
Rejects But for ingredient
test as too expansive
Smith
(1921)
Necessarily must interpret
federal law to resolve case – Meaning & Application Test
Moore
(1934)
Conflict w/ Smith – restricts
M&A test --> superceded by Merrell Dow
Merrel Dow
(1986)
Test for "arising under"
is, in absence of express provision, of congressional intent.
Applies Implied CoA Test from Cort v. Ash
Implied
Remedy Doctrine
Cort v. Ash
(1975)
Federal Statutes/Acts: 4
Part Test to determine private right of action in absence of express
provision (part of class, indications of intent, consistency, state
law)
Bivens
(1971)
Constitution: Presumed to
imply rights of action
Other
Issues
Schooner
Peggy (1801)
Intervening decisions apply
to all pending cases; law applies as it currently stands (not once stood)
Mottley
(1908)
Well-Pleaded-Complaint Rule:
SMJ for fed q’s can't be based on anticipated defenses
Supplemental
Jurisdiction
Temple
(1990)
FRCP 19 NOT apply when FRCP
14 can; Joinder of joint tortfeasors is always permissive
Pre
1367 Case Law:
Gibbs
(1966)
(codified later as 1367(c))
– for pendant claim fed q juris where primary is fed q & secondary
is state claim – must arise from one common nucleus of facts or same
T&O
Aldinger
(1976)
(default) Pendant Party
Jur OKAY unless there is express language against it  applied this to §1331
Kroger
(1978)
P. Party juris can NOT change
complete diversity requirements; timing doesn't matter
Finley
(1989)
Scalia – plain statement
rule - reverses presumption of Aldinger; Congress must spell it out
Other
Issues:
Abbott Labs
(1995)
§ 1367 allows fed cts to
exercise supplemental juris over class members who independently fail
to satisfy amount in controversy (FRCP 23 NOT listed exception)
Patterson
(1993)

joined originally under 20 so NOT subject to 1367(b) exceptions that
only apply to parties joined later.
Removal
Jurisdiction
Shamrock
(1941)

can NOT remove based on a counterclaim
Thermtron
(1976)
Remanded properly removed
case bc crowded docket so NOT entitled to the std of NO review for remand
bc 1447 (c) &(d) must be applied together
Cohill
(1988)

dropped fed. claim; Ct. says can remand (not dismiss) for reasons of
efficiency, fairness and comity – no longer an issue w/ TOLLING
Traditional
Basis for PJ
Tickle
(1956)
Fraud nullifies service
of process
Pennoyer
(1877)
Failure of service (no PJ)
to collaterally attack a default judgment – property NOT correctly
attached
Blackmer
(1932)
Established domicile as
a ground for PJ
Milliken
(1940)
Domicile is alone sufficient
to bring absent D under state's jurisdiction
Hess
(1927)
Constitutional to have state
laws that establish constructive consent to suit (consent by use of
highway)
Modern
Theory of PJ
Shoe (1945)
Minimum contacts test subject
to "traditional notions of fair play and substantial justice"
Gray (1961)
stream of commerce
- Systemic relevant factors & purposeful availment
McGee (1957)
Single contract enough for
PJ; pointed to volitional – purposeful availment plus systemic factors
Hanson (1958)
Sets "purposeful availment"
as standard (old lady moves to Florida)
WW VW (1980)
Systematic factors accentuate
that barely minimum contacts give no PJ (car wound up in OK)
Hustler (1984)
's
contacts don't matter; only have to look at Δ's level of minimum contacts
& sold many mags
Burger King (1985)
Purposeful availment, choice
of law clause, reasonable expectation to be sued
Asahi (1987)
O'Connor suggests “stream
of commerce plus” std – affiliating factors necessary – goes beyond
Gray
General Jurisdiction
Perkins (1952)
Continuous and systematic
connections can give rise to GJ
Helicopteros (1984)
consumptive purchases can
never themselves ground PJ (Rosenberg)
Other
Basis for Jurisdiction
Harris v. Balk (1905)
Debt travels w/ debtor;
enough to establish PJ
Shaffer (1977)
applies Shoe minimal
contacts test to QIR jurisdiction
Burnham (1990)
tag jurisdiction is enough
for PJ; presence remains a gold standard – but issue is a mess (see
kids in Cali)
Baldwin (1931)
If make no appearance in
case #1, can collaterally attack default judgment for lack of PJ later
Bremen (1972)
Upheld forum selection clause
as sufficient for PJ
Carnival Cruise (1991)
Notice, not a necessity,
resulting lower prices so forum selection clause is good
Omni (1987)
4(k)(2) - Allows a federal
district court to assert PJ over a foreign defendant who has minimum
contacts with the U.S. as a whole, but not any one state
Stafford (1980)
Stewart's dissent that national
in personam jurisdiction should exist
Oxford (1974)
Assertion of PJ is subject
to fairness considerations
Hellenic Challenger
Can serve anyone in a corporation
that it is reasonable to think should receive service
Notice
Mullane (1950)
Best Notice Practicable
Standard; need not succeed, but must give best effort
Mennonite (1983)
Publication and seizure
is not good enough under best notice practicable, if another method
is better
Greene (1982)
Fact specific analysis needed
Opportunity
to be Heard
Fuentes (1972)
Notice/Process has be BEFORE
the deprivation and BOTH parties have to be able to participate
Sniadach (1969
Pre-judgment garnishment
of wages violated due process absent notice and opportunity to be heard
Mitchell (1974)
Upheld pre-hearing seizure;
LA had very protective procedure
Di-Chem (1975)
Like Sniadach: Pre-judgment
garnishment of wages violated due process absent opportunity to be heard
Matthews (1976)
Set out three part test
for opportunity to be heard: value of private interest, risk of erroneous
deprivation, and cost/burden of moving up hearing
Doehr (1991)
Applied Matthews
test to private interest
Good Property (1993)
Applies Matthews
test to forfeiture action
Venue
Generally
Burlington (1992)
Venue as sub-constitutional
status; can discriminate btwn in-state and out of state residents
John Deere (1992)
Required that transferee
forum apply transferor forum under Van Dusen Rule; encourages
forum shopping
Hoffman (1960)
"Could have been brought"
means at the time that  filed
Goldlawr (1962)
If a court lacks both venue
and PJ, can transfer to a proper court under 1406
Forum
Non Conveniens
Piper (1981)
FNC – court in Scotland
much more appropriate – so dismiss
Buildup
to Erie
Swift (1842)
RDA applies to statutory
law; federal courts only have to follow state statutes, not judge made
rules
B&W Taxicab (1928)
Holmes' dissent emphasizes
federal common law as unconstitutional – call to overrule Swift
Erie (1938)
Overrules Swift; RDA applies
to both state statutory law and state decisional law for diversity cases
Evolution
of Erie Doctrine
York (1945)
"Outcome determinative
test" -- if use of rule will lead to substantially diff. outcome,
then state law applies
Byrd (1958)
Modified outcome determinative
test to account for legitimate federal policy interests
Hanna (1965)
If rule "arguably procedural"
then presumptively valid; Supremacy clause requires even if outcome-determinative
Modified Outcome Determinative Test: encourage forum shopping? Unequal
outcomes?
Walker (1980)
Must be a "direct collision"
btwn federal rule and state law to warrant Erie question
Stewart (1988)
Arguably procedural: federal
statute sufficiently broad to cover the issue?
Klaxon (1941)
Fed. Courts must apply the
conflict-of-law rules of the states in which they sit
Clearfield Trust
(1943)
Exception to Fed. common
law: encourage uniformity so US only has to deal with one set of rules
Pleadings
Generally
Conley (1957)
FRCP just require "short
and plain statement of the claim"
Dioguardi (1944)
Degree of specificity varies
w/ parties; do NOT need to state facts sufficient to constitute a CoA
Lodge 743 (1962)
No grant of motion for more
definite statement if Δ can sufficiently form an answer
Garcia (1951)
FRCP asks  to do very little. Mentioning buzzwords
can be enough
Affirmative
Defenses
Ingraham (1987)
Test to determine if an
issue is an affirmative defense which must be pleaded or is waived
Taylor (1987)
Symmetrical argument contesting
Ingraham; 
doesn't have to plead amount, so why Δ plead the cap
Gomez (1980)
Look to text of statute
first before moving onto Ingraham four-part test
Amended
Pleadings
Moore (1978)
Ct. found implied consent
to issues under Rule 15(b) b/c reasonably expected to have notice
Aquaslide (1977)
Δ can't amend pleading
if "bad faith, prejudice, or undue delay" ; not found here,
can amend
Worthington (1992)
Relation back clause is
strictly interpreted and trumps state law (here)
Summary
Judgment
Alderman (1953)
SJ for Δ will be granted
when 
cannot meet her burden of production
Celotex (1986)
Under Rule 56, party w/out
burden of production does not have to submit evidence w/ motion for
SJ
Anderson (1986)
Must apply evidentiary standard
necessary for the case to the standard for SJ (incoherent case)
Voluntary
Dismissal
McCants (1986)
's
motion for dismissal granted to avoid SoL problem
Messenger (1956)
For failure to prosecute,
standard for dismissal is lack of due diligence
Link (1962)
Ct, dismissed sua sponte
for failure to prosecute
JAML
Considerations
Lavender (1946)
Ct. found that  only
has to introduce enough evidence that a reasonable jury could find for
him; Only in the "complete absence of probative facts to support
the conclusion" should JNOV – scintilla test
Denman (1961)
State court found that jury's
verdict was matter of speculation and sustained JNOV
Penn R.R. (1933)
Ct. views both sides of
information on Δ's motion for JAML – strains limits of Lavender
Hartwig (1990)
Δ must meet the burdens
of production for his affirmative defense, or can face JAML
Discovery
Marresse (1984)
Requests for discovery require
balancing of 's
and Δ's interests; think intermediate options
Seattle Times (1984)
1st Amd right to print doesn't
apply to items forced into disclosure through discovery
Work
Product Rule - Experts
Hickman (1947)
Two-tiered system for work-product:
Qualified v. Absolute; codified in 26(b)(3)
UpJohn (1981)
Privilege is meant to encourage
free and open communication, so it must apply to all acting in a legal
capacity. Privilege does not block independent discovery of the information
held
Perry (1971)
Non-testifying expert in
anticipation of litigation can be disclosed only through "exceptional
circumstances"
Claim
Preclusion (RJ)
Fetter (1697)
Only one bite at the apple
Des Moines (1887)
Defects in SMJ should be
noted in direct line of review. Reluctant to void decision that
ran thru Sup Ct.
Ticor Title (1994)
Class Action: opt out? Sup.Ct.
DIGs and claims RJ
Rush (1958)
RJ applies against a "claim
that could have been brought"
Jones (1937)

failed to sue for full amount, so was barred from trying to recover
difference later
Fed.Dept.Stores (1981)
RJ applies even if the decision
was wrong (if you failed to appeal it)
Issue
Preclusion (CE)
Cromwell (1876)
Must be exactly the same
issue for CE to apply
Russell (1876)
Necessarily decided elements
are what applies in CE
Bernhard (1942)
Ok to assert CE against
a 
who lost on the issue before
Blonder-Tongue (1971)
Defensive non-mutual okay
in patents. Litigant should only get one full and fair opportunity
for resolution of same issue
Parklane Hosiery
(1979)
Ct. allows offensive use
of CE; Judge's discretion to decided if Δ should be bound against new 
Martin (1989)
Non-parties cannot be bound
by a decision
Antrim Mining
Private contract can not
bind/limit non-party's legal rights (to bring a claim)
Jury
Alexander (1959)
Failure to object properly
to erroneous jury instructions waives right to contest
Atkinson
Plain Error Doctrine; if
error is so obvious or affects integrity of court, then can correct
w/o proper objection
Price (1960)
Jury misconduct can constitute
reversible error
Appeals
Hicks
Error in law is held to
a different standard than an error in facts (more stringent) – should
have been de novo
SUBJECT MATTER
JURISDICTION
Jurisdiction: The power
of a court to adjudicate a case (hear, decide, issue an order, force
parties to obey an order).
Federal Courts Jurisdiction
Courts of limited jurisdiction.
Article III provides jurisdictional
power; legislative grant is necessary to convey that power to the courts.
Congress need not exercise its entire scope of authority to confer jurisdiction,
they can chose to confer only some parts of its jurisdiction
Federal questions (§ 1331)
Diversity cases (§ 1332)
Admiralty cases (§ 1333)
Bankruptcy (§ 1334)
Patents & Copyrights (§
1338)
Supreme Court Jurisdiction
(28 U.S.C. § 1251)
Original and exclusive jurisdiction:
Controversies between two
or more states.
Original but not exclusive
jurisdiction:
Ambassadors or other ministers
of foreign states.
Controversies between U.S.
and a State.
Proceedings by a state against
citizens of another state or aliens.
Writs of certiorari (discretionary
jurisdiction).
state courts are courts of
general/plenary jurisdiction - can hear any case that arises under law
from whatever source, including federal
Subject Matter Jurisdiction (SMJ):
The extent to which a court can rule of the conduct of persons or the
status of things; over the nature of the case and type of relief sought.
SMJ is the heart of the authority of a court.
Cannot be waived by parties
- SMJ is present or not.
FRCP 12(h)(3) - Court
SHALL dismiss for lack of SMJ. Can be noted at any time during
a proceeding (by suggestion of parties or noticed by the court sua
sponte).
Exception: Des Moines
- did not allow collateral attack for lack of SMJ because the case had
already run through appeal to Sup Ct.
Capron
v. Van Noorden
ISSUE: Can  appeal on the basis that court lacked SMJ when
he forgot to plead it?
Circuit Ct. is of limited
jurisdiction – and the record does not show that the “other” party
is an “alien”– doesn’t discuss if Capron IS a citizen of NC,
just discusses whether it states that he is/not
FRCP 8(a) –  pleading
must state basis for jurisdiction = what is written in the pleading
assumed that there is NOT
SMJ, which would lead you to believe that Capron is from NC so you can’t
amend the pleadings (where you usually would) - so since there is NO
SMJ, and 
knows that, reveal this to the court and get the case dismissed under
12(h)(3)
Marbury
v. Madison
ISSUE: can the court, where
the case is originally brought, have the authority to issue the writ
of mandamus? Does Sup. Ct. have original jurisdiction?
Decides – No SMJ bc No Original
Jurisdiction 
In Art. III, §2, for Sup. Ct. does NOT include WoM. Makes implication
that at the end of the list it says, “and nothing else”
Marshall argues that the expression
of one is the exclusion of others (statutory construction) and the Rule
of superfluity. **This is transparently wrong** May have original jurs.
in these things that you can’t take away – but doesn’t mean you
cannot add to it.
Diversity Jurisdiction
Article III § 2: Gives federal
courts jurisdiction over “controversies between the citizens of different
states.”
** 28 USC §1332
how is there jurisdiction
that lies unused by Congress in §1332 vs. Art III ??
Amount in Controversy
requirement - today greater than $75K
Complete diversity
requirement - No plaintiff can be from the same state as any defendant
(Strawbridge v. Curtis)
DIVERSITY = complete diversity
AND meeting Amt-in-Cont.
diversity of citizenship based
on domicile
Domicile = residence and intent
to remain
If you have no current domicile,
then you are citizen of your last known domicile (Mas v. Perry)
An alien admitted as permanent
resident is considered citizen of where they are domiciled
Citizenship of corporations
§1332(c)
Incorporation (can be all
states) AND
Principle place of business
(this is usually one) [muscle – where ops are done] [nerd – headquarters]
Diversity is determined at
the time complaint is filed and is not affected by subsequent changes
in domicile of parties.
Also need amount in controversy
requirement
Aggregation – adding
together the amount in controversy in distinct claims between identical
parties to meet requirement – consider one cause of action
Courts have decided 1332 permits
aggregation
Can NOT aggregate amount in
controversy for claims to different parties under 1332 – AB 50K,
AC
50K
NOTE: marriage is an exception
supplemental jurisdiction
1332(b) – if judge is suspicious
that claim is really less –may impose costs etc
Mas
v. Perry
Mas (France). Wife Judy
Mas. Perry (LA). Filed in Fed Ct. together in tort action.
2 verdicts awarded. Δ made motion at trial that there was no
SMJ --- didn’t show diversity / complete diversity of citizenship
Court said no intention to
remain in LA bc they were just students – so no domicile in LA
BUT – common law rule that
husband & wife have same domicile. Mas is citizen of France,
domiciled in France  wife is domicile of France BUT she is a US citizen.
Under this logic she wouldn’t be able to sue or be sued in the US.
(outside scope of §1332)
Court decides to suspend common
law rule in situations where husband is alien.
Her domicile becomes her last
previous known domicile
Federal Question
– Arising Under Jurisdiction
Article III, § 2: Gives federal
courts jurisdiction over cases “arising under this Constitution, the
Laws of the United States, and Treaties…”
28 U.S.C. § 1331
To encourage uniformity of
interpretation of federal law.
Federal judges are seen as
more qualified/greater expertise.
Provide for vindication of
federal rights unpopular in some states
BUT – what is “arising
under”?
Well Pleaded Complaint Rule
Federal question jurisdiction
must exist from the cause of action itself, not from anticipated defenses.
Asks whether the  would
have to raise the federal issue in a complaint which includes the elements
she needs to prove to establish her claim, and ONLY those elements.
A complaint MAY be well pleaded
(go beyond necessary 8(a) requirements) BUT courts to
determine fed q jurisdiction MUST look at sparest form and will NOT
look at anticipated defenses
Louisville
& Nashville RR Co. v. Mottley
NO diversity  filed in Fed Ct. 3 arguments made: unlawful
cancellation – breach of K; * due to act of Congress – blanket ban
on giving free passes, and if applies to their pass then application
is a retro-active taking – * unconstitutional
There are 2 anticipations
here.

is not prohibited from trying to anticipate the defenses in their complaint
– in fact it may even be a good idea as a matter of strategy  but
this is a distinct issue from whether or not they can get SMJ from this
Court says does NOT belong
in federal court
BOTTOM LINE:
Anticipated federal defense is NOT enough to bring it into federal court
under federal question jurisdiction
Cause of action = state law
breach of K claim
This anticipated defense may
be enough under § 1257 to jump over to the Sup. CT. after it went through
the state system  but not enough for it to start in fed court
Scope of Arising Under Authority –
Art III gives authorization BUT statutory grant is less than constitutionally
allowed
Cause of Action
– Creation Test (Holmes – American Well Works)
Case arises under federal
law ONLY when federal law “creates” the CoA.
Very limited
“But for” Ingredient
Test (Marshall – Osborne)
Cases arises under federal
law if not by virtue of federal law, there would be no controversy
Very (too) expansive
Constitution - YES
Osborne - includes
jurisdiction for federal creations as parties
Harms (NOT holding)
- any case that involves any entity that springs into existence by virtue
of federal law [copyright] (nothing stops Congress from giving J)
Statutory Grant – It depends
Osborne - congress
has to create this entity – exercise of power – and can say as they
did in bank charter – they can always be in fed court
Harms - could have
given federal SMJ – but statute did NOT – so does not extend to
all creatures of Fed Law - **REJECTS “but for” test **
SG v. Red Cross –
1991 – Sup. Ct. said must explicitly say “sue and be sued in
federal court”
Osborn
v. Bank of the United States
Claim – stop Ohio from collecting
unconstitutional tax
Gives you jurisdiction automatically
Marshall goes beyond to discuss
what jurisdiction in the next case where the constitution was not the
cause of action  Planters Bank case
Act that charters the bank
authorizes it to be in federal court whenever bank is a party
Bank itself is a creature
/ creation of federal  federal law is an “ingredient” of any case
involving the bank  but for federal law – there would be no bank
– there would be no case
Doesn’t need to fall back
on §1331 – has it’s own jurisdictional grant
Meaning & Application
Test
Cases arises under federal
law if a federal law or the Constitution must be interpreted or applied
by the court in the course of resolving a case.
Flows from the need for expertise/uniformity
in interpreting federal law
Constitution
Smith – YES
Moore – NO
Merrill Dow – implied
CoA test – Cort v. Ash
Statutory Grant
Smith – implied in
§1331
Merrill Dow
TB
Harms Co & Eliscu
Fighting over ownership /
assignment of copyright - Rights are contractually assigned
Trial court – J. Weinfeld
and US Ct of Appeals – J. Friendly says --- NO arising under
All of the legal issues at
dispute have nothing to do with federal law. All the law that
determines the outcome has to do with state law
Only federal law involved
is that it created the copyright --- don’t even need to look at the
federal statutes at all
Fails the Holmes – American
Well Works – cause of action test
Could pass the Art III –
“but for” ingredient test
BUT - §1338 and §1331 –
have construed the arising under language more narrowly
Rejects but for test as too
expansive
Smith
v. Kansas City Title & Trust
Challenge under Missouri law
to stop the company from investing in certain federal bonds on the ground
that an Act of Congress authorizing their issuance was unconstitutional.
Missouri law said that an
investment in securities whose issuance was not authorized by valid
law was wrong = State Law CoA
BUT - In order to resolve
this need to determine the meaning/application of the act of congress
to see if the bonds were issued in violation of the fed const.
BOTTOM LINE: where
is appears from the bill or statement of the  that the right to relief depends upon the construction
or application of the Constitution or law of the US, and that such federal
claim is not merely plausible and rests upon a reasonable foundation,
the DC has SMJ.
Court here said arising under
– yes – Meaning & Application Test
Moore
v. Chesapeake & Ohio Ry. Co.
** Holding contradicts Smith
**

seeking to bar 
from using certain defenses as per clause in Kentucky ER Liability Act
that has to do with Fed. Safety Appliance Act
arguably you would have to
look at that Act, and determine whether or not the ER was in compliance
RULE: a suit brought under
the state statute which defines liability to ee’s who are injured
while engaged in intrastate commerce, and brings within the purview
of the statute a breach of a duty imposed by the federal statue, should
NOT be regarded as a suit arising under the law of the US and cognizable
in the federal court in the absence of diversity.
Court says – arising under
= NO – Restricts M&A Test
Wax: “distinction without
a difference”
Classic impasse for future
cases
New Interpretation
of Meaning & Application Test  Implied Cause of Action
Merrell
Dow Pharmaceuticals Inc. v. Thompson
1, 2 (aliens)
sue Merrell in state court. Merrell removes. s challenged
the removal and smj of fed court – motion to remand. Alleged
basis of smj was arising under
State law cause of action
– tort – multiple claims – where only one depends on a violation
of the FDCA (branding and labeling requirements) which creates a presumption
of negligence on 
Have to look at act to see
if it was violated
Looking to Smith – said
it was arising under in DC but then dismissed on forum non conveniens
grounds
Strategic move of Merrell
to get rid of case (case should have been brought in Canada or Scotland)
6th Cir – reversed
noting that the FDCA does not create or imply a private right of action  so
could not have dismissed on FNC grounds bc must have smj to do that
Fed Q jurisdiction would exist
only if 
right to relief depended necessarily on a substantial Q of fed law.
Referred to the FDCA only
as one available criterion
Sup. Ct also said NO SMJ arising
under 
but totally different theory  “IMBEDDED/IMPLIED CAUSE OF ACTION TEST”
The meaning of the fed law
that will be used to resolve – does this fed law allow someone to
bring a suit directly on this law?
Simple case: when fed
law provides an express cause of action
Ex: Fed Sec Exchange Act –
says SH can sue under statute to enforce certain rights, Title VII CRA,
Problem case: when
you have federal enactments that don’t do this – right w/out remedy
– “positive law” [thou shalt…] vs. common law [which can be
considered as solely the right to sue (Posner)]  do you infer an implied cause of action:
Cort v. Ash Test (but this isn’t the final word and hard
to apply)
Sup Ct Holds NO implied CoA
under FDCA
Elements for Implied CoA Test:
(Cort v. Ash)

are a part of the class for whose benefit the statute was passed
legislative intent reveals
congressional purpose of a private cause of action;
a federal cause of action
would advance the underlying purpose of the legislative scheme;

cause of action is a subject traditionally relegated to state law, so
that it would be inappropriate to infer a cause of action based solely
on fed law.
Problems: test is ambiguous,
hard to apply, and there are 4 parts – how do you break tie
Cort
v. Ash
Alleged violation of Fed Law
re: campaign expenditures (act had no express CoA)
State law cause of action
– SH claims hurt by this company’s irresponsible expenditures that
were against this Fed Law
Should stay in State Court
under Implied CoA test
SH not the class for whose
benefit statute was passed - point was to clean up system in general
No intent to create private
CoA
Individual SH suit has no
effect on underlying purpose of legislative scheme
Traditional area of state
legislation
Bivens
v. 6 Unknown Fed. Narcotics Agents
§1983 – gives right to
sue state officials for violation of 4th Amendment – Constitution.
but here – involves federal officials  enter implied cause of action doctrine
state law is inadequate
Sup Ct – Yes. There
is a cause of action against the federal officials for violation of
4th amendment
Note: Bell v. Hood
– cited in Bivens – where no express coa – no express remedy
– but courts will just do what they normally do which is give damages
or injunctions
Builds on this to infer CoA
Dissent – should not infer
the CoA – systemic – they knew how to create the CoA against the
state officials and clearly did not do it for fed officials (expressio
unius) – so shouldn’t go in and do what congress should have done
Does the “implied cause of action”
test make sense?
expertise – fed courts better
to look at federal issues [probably doesn’t make much sense – need
expertise whether or not we make it the implied CoA]
uniformity – seems arbitrary
distinction btwn statutes – so again – arg doesn’t make much sense
protecting rights of individuals
under fed law – again – arbitrary – if supposed to protect rights
– would have cause of action – but this makes more sense than other
arguments
if have this implied cause
of action – why didn’t sue under this in the first place… usually
strategic bc state law remedies can be more attractive

Merrell Dow has a lot of criticism – but it does have affect of
cutting down number of cases that fall under the “arising under”
jurisdiction
Supplemental
– Pendant Jurisdiction
jurisdiction over claims brought
btwn existing parties or existing parties and other parties, over which
there is no independent source of federal SMJ for those claims/parties
when considered separately
Joinder
of Claims
** FRCP 18 **– Joinder
of Claims and Remedies
liberal - allows joinder of
all claims one party has against an opposing party
a party MAY join claims against
another party – ANY claim (related and unrelated) – no limitation
with regard to arising from the same situation etc. – as long
as you satisfy all the other requirements for bringing a suit (ex: SMJ)
Hovering over is RJ – you
MUST join all related claims arising under the same set of core facts
or waived
What happens if there is a
related claim but there is no independent SMJ? Enter supplemental jurisdiction
** FRCP 13**
– Counterclaim & Cross-Claim
Counter – made by Δ  
13(a) – compulsory – SHALL
-(incorporates RJ elements in opposite direction)
SAME T&O
Assert or WAIVE
13(b) – permissive – discretionary
- MAY
do NOT need to be same T&)
NOT waived if NOT asserted
13(f) – Omitted
when a counter claim is admitted
– the court may allow amendment
Cross – either   3rd
or Δ 
3rd or   3rd
13(g) – MAY state any claim
by a party against a co-party pertaining to the transaction or occurrence
that is the subject matter either of the original action or counterclaim
therein or relating to any property that is subject matter of the original
action.
Permissive – NO waiver if
NOT asserted
SAME T&O
Joinder of Parties
***FRCP 14*** - 3rd
party practice - Impleader
if there is even the potential
for Δs to be jointly/severally liable, then you have a FRCP 14 situation
14(a) – When  may bring
in (
is 3rd party )

can cause summons/complaint to be served upon a person not party to
the action who is or may be liable to the  for all or part of the  claim against him.  3rd Party 
   (3P)  2
(3P)
SHALL - 3P has to file all motions etc. defenses as provided
in 12 and counter/cross claims as in 13 --- as if you were initial 
3 may assert defense against original  that
the 3P
did
3P may assert any claim against the  that
arises out of same T&O and is the subject matter of the original
claim against 3P
(counter claim)

may assert against 3P any claim that arises out of the same T&)
and is the subject matter
** any party may move to strike
3rd party claim or for its severance or separate trial
14(b) – When  may bring
in
when counterclaim is brought
against 
- they may bring in a 3rd party as a  would under rules in (a)
NOTE: SMJ problems when there
is a mandatory counterclaim but there is no separate SMJ for other claim
--- enter supplemental jurisdiction rules that most often would allow
you to bring the claim and stay in fed court
** FRCP 19 ** = mandatory
joinder of necessary and indispensable parties
“Parties needed for a just
adjudication”
19(a) – necessary party
– must join if have SMJ
19(b) – BUT – if joinder
of that necessary party is NOT possible  must we really join?
If YES – case will be dismissed
and can be refilled in state ct or different place
If NO – (necessary but not
indispensable) case will continue w/out the party
Temple
v. Synthes Corp.

(Miss.) sues Synthes (PA) for defective product in Fed Ct (state law
under diversity)

(Miss) sues DR (LA) and Hospital (LA) is state administrative proceeding
and then LA state court
parallel actions arising out
of the same set of events
no RJ bc no final judgments
(race to the courthouse) and parties are different
In fed court – Δ moves
for dismissal bc parties weren’t joined
Parties who should be here
are not (FRCP 19)  Δ args must dismiss
NOTE:  could have brought in under 20, Δ could have
impleaded under 14 OR court order under 19(a)
Essentially – Δ put one
over on DC and Appeals
Sup. Ct. found that the lower
courts misinterpreted 19 and 14
BOTTOM LINE:
NO dismissal bc NOT a necessary party. Joinder for Joint tortfeasors
is ALWAYS permissive
This is a 14 situation and
even if you were to apply 19 – 19(b) and dismissal does NOT come into
play bc the party is NOT necessary.
Not like Provident Bank –
where you have fixed pot and so need all the people there

usually – rules are very forgiving with respect to how  wants
to structure their complaint with respect to parties. Not the
same with joinder of claims.
***FRCP 20***
– Permissive Joinder of Parties
permission for either  or Δ
to bring in more parties (more narrow than mandatory counterclaim and
RJ) never mandatory
20(a) – MAY join if:
SAME T&O AND
any question of law or fact
in common
no express timing element
court has discretion
FRCP 21 – Misjoinder
and non-joinder
Not a ground for dismissal
Either add or drop parties
by order of the court on motion by any party or at its own initiative
FRCP 22
– Interpleader
See also 28 U.S.C. § 1335
Nationwide service of process
authorized
* FRCP 24 *
– Intervention
Person outside the lawsuit
“wants” to come in
24(a) – intervention as
of right
stringent requirements bc
second guessing 
applicant must have interest
in property or tranx
disposition of the action
may result in the impairment or impediment of being able to protect
that interest
existing parties will not
adequately protect the applicants interest
not “mandatory” in the
sense we have previously used it – if you chose to intervene – the
court will allow it – but if they chose not to – that is their choice.
The present parties could
force the potential interveners into the case with FRCP 19
24(b) – permissive intervention
wholly at the discretion of
court – rarely granted
requires interest -
common question of law or fact
FRCP 23
- Class Action
Class actions in general
Relatedness
Permit large numbers of people
to join together and sue together if their legal/factual issues are
significantly related
Numerosity
For efficient --- and would
seem inefficient to adjudicate separately
Representation – no real
diversity within the members
Remedy –
give relief to one – then
would give relief to all (easiest situation) (structural injunction)
(usually no opt out – don’t want free riders)
fully divisible – money
– court in these situations more likely to allow opt-out
murky and uneasy status in
system
open to abuse (lawyers - $$)
worries about actual efficiency
– lack of DP (usually take care of this by proxy/representatives)
possible new law --- opt out
for all
Pre- § 1367
Constitutional
– Art. III
Statutory
Supplemental Jurisdiction
Pendant Claims
Fed Q - Gibbs – Yes.
When come out of same t&o – “case” or “controversy” in
art III & fed q is primary claim
Diversity – Yes on primary,
yes on secondary
Fed Q
-Gibbs – implied Yes. 1331 – when have Gibbs like pattern
– then statutory authorization
Diversity – Yes. §1332 –
separate claims that don’t meet a. in. c. riding with primary that
do OR combing primary and secondary when not themselves meet a. in c.
Need not be related t&o. No restriction on aggregation.
Pendant Parties
Fed Q - Aldinger – Yes.
When come out of same t&o –
Diversity – Yes – no complete
D necessary in art III
Finley – yes. Can’t
change this now.
Fed Q - Aldinger – §1343
– NO but implied §1331 YES – no express statement against it
Diversity – Owen v. Kroger
– will not overrule that §1332 requires complete diversity – if
complete – Yes
Finley – requires plain statement
for ppj
**
UMW v. Gibbs ** - Pendant Claim – Fed Q
G  UMW under LMRA for secondary boycott and for
interference with contract
Independent SMJ for LMRA claim
– no independent SMJ for contract claim bc parties not diverse  K
claim would have to be pendant claim
From Hurn v. Oursler
– state law claims are appropriate for fed court determination if
they form a separate but parallel ground for relief also sought in a
substantial claim based on federal law.
Distinguish between a case
where 2 distinct grounds in support of a single of action are alleged,
only 1 which presents a fed question (allowed) and a cases where 2 separate
and distinct causes of action are alleged, 1 of which is federal in
character (not allowed).
Created possibility for piecemeal
litigation if decide you cant bring them together
RJ problem – may be an issue
from being barred from bringing state law claim if brought fed claim
first – state may say they are close enough related to be RJ or vice
versa
Sup. Ct
If you MUST bring claims together
as per RJ 
then you MAY bring them together under pendant J as long as one has
correct fed smj
Formal  functional test
BOTTOM LINE:
one common nucleus of fact or transaction and occurrence
such that one would expect you to try them together BUT – delegates
to judges discretion to allow this pendant claim jurisdiction – this
pendant jurisdiction is not a right
May split out state court
claims
When they are the main claims
When fed claims drop out early
in the proceeding
Issues of comity and relationship
btwn state v. fed
Novel/confusing issue of state
law
BOTTOM LINE: Only about
this specific situation where primary claim is federal question, and
secondary claim is state law.
Art III – “case” and
Statutory – arising under
Note: Fed law claim ultimately
fails here as JNOV but the court says this is still okay – just because
the fed claim drops out at the end – it doesn’t defeat jurisdiction
Pendant Claim – Diversity
AB (diversity primary claim – amount in controversy
and complete D)
A ==>B (secondary – parties still
diverse – BUT – does it meet amount in controversy?)
** you can aggregate these
claims
non – constitutional issue
bc amount in controversy is not in constitution
Aggregation permission on
diversity side for pendant claims is far broader than for federal question  extends
beyond related same t&o claims
What if primary claim does
not meet amount in controversy? Can still be brought
Pendant Parties
Aldinger
v. Howard
A  officers under §1983 (CRA)– Bivens
– creates cause of action
Arising under – fed Q
Wants to bring in county as
another Δ – problem – county not a “person” as spoken in the
language of law (since overturned)
No independent fed SMJ on
this claim
Can this claim Acounty
(state law) – ride the primary claim into fed court?
NO – said clear that didn’t
want counties to be included
Come to stand for pendant
party j under statutes in general when case was really about §1343
– juris. for CRA
BOTTOM LINE: Default
assumption 
Pendant Party Jurisdiction OKAY unless there is express language against
it 
courts have applied this to §1331
Owen
v. Kroger
(Diversity basis) K (iowa)  OPPD(NB)  Owen
(Iowa). K wanted to amend to be K ==>OPPD, Owen --- BUT OPPD
drops out
Argument that at least for
a while, there was independent smj over k/oppd, then owen should be
let in as pendant party claim
Court says NO.
NO complete diversity –
OPPD impleading Owen okay regardless of citizenship of Owen. BUT
– since K sues Owen – end result would be wholesale end run around
complete diversity rule, even if OPPD stays in.
BOTTOM LINE: what the
case looks like in the end – not how you got there  you must stay with §1332 and complete diversity
Finley
v. US
F  US (FTCA) – fed law gives CoA but applies
state law. Amend to include state law tort against city of san
diego and utility comp. No. Diversity. No independent SMJ
Language within FTCA with
regard to jurisdiction
Aldinger – requires
express language denying it – or else okay
Finley claims ambiguity in
FTCA language – and since it is not absolutely clear that she cannot
do --- she should be able to do it
Scalia --- plain statement
rule – reverses presumption of Aldinger
and says that if congress wants there to be pendant party jurisdiction
– they MUST spell it out (note – they do NOT in §1331/2)
Don’t want court taking
power from legislature. More looking to precise words of statutes
to define congressional intent
Post Finley
– 3 part analysis
Whether there was a constitutional
basis for the exercise of jurisdiction over the related but jurisdictionally
insufficient claim
Turns on whether the  had asserted
a substantial claim w/in fed juris. and whether the state law claim
was part of the same “constitutional case” or “nucleus of operative
facts” (Gibbs)
If you satisfy constitutionally
asserting juris over the entire case, look to the congressional intent
behind the statute that granted juris over the proper federal claim
If Congress had expressly
or by implication negated juris over the related jurisdictionally insufficient
claim (Aldinger) then can NOT hear.
If congressional intent was
broad – then the court at least has the power to hear the entire case
If 1 & 2 are met – look
to the discretionary factors in Gibbs
Supplemental Jurisdiction
under §1367
Geared towards restoring status
quo before Finley
Basic idea: mostly preservative
of prior law, esp. Kroger v. Owen (complete D), Zahn v. Int’l
Paper but NOT of Finley. Want to satisfy Scalia –
expressly authorized pendant party J in a wide way
Wax: not such an improvement
28 USC § 1367
– Judicial Improvements Act (1990)
1367 (a) – broad – except
as in (b)(c) or other statute 
if there is a cause of action
over which the court has original jurisdiction – primary claim –
then there is jurisdiction over any claim that is added to this claim
to make up one law suit (same case/controversy or T&O) --- whatever
the basis of original jurisdiction --- so long as the supplemental claim
goes to the same “case”, regardless of whether it is joinder of
claims with the same parties or different parties
1367 (b) – “takes a bite
out of (a)” – involves diversity 1332 claims
SHALL NOT have supplemental
jurisdiction over claims by  against persons made parties under 14,19,20,24
or over claims by persons proposed to be joined as  under 19 or seeking to intervene as  under
24, when exercising supplemental juris would be inconsistent with requirements
of 1332
** wants to preserve complete
diversity
** if not in diversity –
not in b** ** if not in joinder of parties – not in b **
1367 (c) – codifies discretionary
aspects of Gibbs – supp juris never a right – DC MAY decline
to exercise supp Juris over claim in (a) or sever supplemental claims
if:
If claim involves a novel
question of state law.
If supplemental claim substantially
predominates over primary claims over which there is independent basis
for jurisdiction.
All claims with jurisdiction
have been dismissed.
Exceptional circumstances
with compelling reasons.
Colorado River Abstention
Doctrine - use only in exceptional circumstances
ct saying that different to
send back supp claims that have juris only by primary claim v. sending
back whole case even though could hear primary claim- cts wary of judge’s
ability to decide which claims they decide to hear BUT retain discretion
to send back entire case
Cohill
issue – can remand instead of dismiss? (Cohill
issue not that important anymore bc of (d))
1367 (d) – “tolling rule”
permits  whose state claims are dismissed out of federal
court, and the SoL would have run out  tops the clock on the state SoL for the period
that the state cause of action is pending before fed ct and the day
that it is dismissed – clock starts running again – and regardless
– you get another 30 days [or usually since SoL probably out – 30
days]
** means wont lose your CoA
– important
looks ahead to Erie
(says SoL part of state cause of action) – 1367 (d) expands the state
cause of action – could be open to constitutional challenge
To evaluate §1367 questions:
Step 1: what is the primary
claim – and what is the source of original Juris in that claim?
Step 2: identify the supplemental
claims over which there is no independent jurisdiction
Step 3: is the supp. claim
joinder of new claim (FRCP 18) or joinder of parties (14,19,20,24)
Step 4: are supp claims related
to primary in way that 1367 demands? Same T&O?
What effect does §1367 have on Aggregation
Rules?
Courts have held that §1367
does NOT change aggregation rules.
Get around this by saying
whole thing is one “civil action of which the district courts have
original jurisdiction.”
This is one exception for
multiple claims between same parties in amount in controversy cases.
In
re Abbott Labs (Zahn Problem)
State law antitrust Class
action case filed in state court in LA, removed to federal court by
the defendant on diversity jurisdiction. Plaintiffs seek to remand
to state court for lack of SMJ.
Defect in diversity - Class
representatives’ claims met the amount in controversy requirement
(with attorney’s fees), but the claims of the class members did not.
can the rest of the class
ride the coattails?
Zahn v. Int’l Paper
VT homeowners sue NY developer.
Ct found class action FRCP 23 was not an end run around diversity requirements.
Come to mean that Amt-in-Controversy MUST be met BUT complete diversity
of citizenship among class members NOT strictly adhered to
BOTTOM LINE in Zahn:
the claim of each class member must independently meet the amount in
controversy requirement.
ISSUE: does the Judicial Improvement
Act overrules Zahn v. Int’l Paper
5th Circuit says
– look to §1367
§ 1367(a) gives unnamed class
members jurisdiction riding in on the primary claim of class representatives.
§ 1367(b) does not