Civil Procedure I

Due process requires notice and opportunity for hearing appropriate to the case.

Personal service (someone hading to the defendant in person) is a classic form of notice that is always ok.

Due process requires notice to be reasonably calculated, under the circumstances, to apprise interested parties of the pendency of the action and afford an opportunity to present objections.

Mere gesture is not sufficient; it must seek to actually inform parties.

Publication is okay only if it is not reasonably possible or practical to give more adequate warning.

Reference: Mullane

Rule 12(b)(4) & (5) permit dismissal for lack of process or lack of service of process.

• Lack of process means some defect in the paperwork
• Lack of service of process means some defect in the way it was served

Under Rule 4(d), one can waive service to receive 60 days from the date of request until an answer is required, as opposed to the default of 21 days.

If a waiver is requested and not granted, the defendant must pay the costs of being served and will only have 21 days to answer the complaint.

Defendants have 30 days to respond to a waiver.

Statute of limitations does not stop until service, so don't try a waiver request if it's close.

Can't ask US Government for a a waiver—must serve both US Attorney and US Attorney General, but they always receive 60 dyas to answer.

Venue is the place within a court system that a case can be heard. It is chosen by the plaintiff, but is subject to statutes guiding venue.

The federal court system's concept of venue is based on 28 U.S.C. § 1391.

FRCP 12(h) says venue can be waived like personal jurisdiction. It must be objected to based on 12(b)(3) at the same time any other motions based on 12(b)(2)–(5) are.

28 U.S.C. § 1391(b) says, unless another statute says otherwise, a civil action may be brought in:

1. a judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located;
2. a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated; or
3. if there is no district in which an action may otherwise be brought as provided in this section, any judicial district in which any defendant is subject to the court’s personal jurisdiction with respect to such action

Federal Jurisdiction is:

1. Limited
   • Can only hear cases under Article III Section 2.
2. Concurrent
   • Federal Court share most of their jurisdiction with state courts.
3. Exclusive
   • Exclusive federal jurisdiction is where only the federal courts can hear a case, not the state courts.
   • Federal courts have exclusive jurisdiction in the following types of cases:
     • Bankruptcy [28 U.S.C. § 1334]
     • Patent and Copyright [28 U.S.C. § 1338]
     • IRS [28 U.S.C. § 1340]
     • Postal Matters [28 U.S.C. § 1339]
     • Securities [15 U.S.C. § 1340]
     • Antitrust [15 U.S.C. § § 1-27]
     • Misc not on test:
       • Admiralty [Art III; § 1333; but exclusivity only re: limitation of liability and “in rem” matters]
       • Miscellaneous cases where U.S. is involved, i.e. cases involving fines/forfeitures under federal law, torts or crimes against U.S.; customs review.

As well as:

• Proscribed

Federal limited jurisdiction is granted in three cases:

1. Federal Question Jurisdiction

   28 U.S.C. § 1331:

   The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.

   "Arising under" means the claim is “substantially founded” on a federal law.

   The well-pleaded complaint rule says that the federal question must be part of plaintiff's complaint. It cannot be a defense of the defendant's that is merely anticipated. Louisville & Nashville Railroad Co. v. Mottley.

2. Diversity Jurisdiction

   Diversity jurisdiction has two basic requirements:

   1. Complete Diversity
   2. Amount in controversy

   Diversity jurisdiction is governed by 28 U.S.C. § 1332:

   1. The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between—
      1. citizens of different States;
      2. citizens of a State and citizens or subjects of a foreign state, except that the district courts shall not have original jurisdiction under this subsection of an action between citizens of a State and citizens or subjects of a foreign state who are lawfully admitted for permanent residence in the United States and are domiciled in the same State;
      3. citizens of different States and in which citizens or subjects of a foreign state are additional parties; and
      4. a foreign state, defined in section 1603(a) of this title, as plaintiff and citizens of a State or of different States.

   If foreigners are on both sides, an American is needed on both sides.

   Must have complete diversity at the time of the complaint.

   Complete Diversity

   To have complete diversity, no defendant can be of the same domicile as any plaintiff. Strawbridge v. Curtis.

   A corporation's domicile is based off their place of incorporation and their principal place of business. 28 U.S.C. § 1332(c). This is the same as for personal jurisdiction.

   An exception is class actions. If the class action is for over $5 million only a minimal diversity is needed. 28 U.S.C. § 1332(d)(2). This means that only any plaintiff has to be from a different state than any defendant. An exception to this exception is if between one-third and two-thirds of the plaintiffs and the primary defendant are both from the forum state, in which case the court may still deny such a class action. 18 U.S.C. § 1332(d)(2)(3)

   Amount in Controversy

   For diversity, the amount in controversy that the plaintiff reasonably expects to receive must exceed $75,000.

   Interest and attorney fees are excluded unless they are part of the cause of action. 28 U.S.C. § 1332(a)

   Defendant can contest the amount for diversity only if there is no legally possible recovery exceeding $75,000.

   When plaintiff seeks non-monetary relief, there are three ways to determine the amount in controversy. The value to plaintiff, defendant, or the one seeking diversity.

   A single plaintiff can aggregate all his various claims against a single defendant. Two plaintiffs may aggregate their claims unless they are separate and distinct.

   In a class action, at least one person must be over $75,000.

   Class actions have special rules if they are over $5 million. Then they do not need anyone with over $75k and only need minimal diversity. 28 U.S.C. § 1332(d)(2)(A)

3. Supplemental Jurisdiction

   Supplemental jurisdiction gives subject matter jurisdiction over additional claims that do not independently qualify for federal subject matter jurisdiction when the original claim establishes federal question jurisdiction or diversity jurisdiction.

   Under 28 U.S.C. § 1367(a), federal courts shall exercise supplemental jurisdiction over a claim "so related" that the claims "form part of the same case or controversy." This means the claims "derive from a common nucleus of operative fact" and are of such a nature that courts "would ordinarily be expected to try them all in one judicial proceeding." United Mine Workers of America v. Gibbs.

   In diversity-only cases, a plaintiff cannot bring a supplemental jurisdiction claim against another defendant or join another suit, when doing so would be inconsistent with complete diversity. 28 U.S.C. § 1367(b).

   Courts have discretion under 28 U.S.C. § 1367(c) to decline supplemental jurisdiction if:

   1. it is a novel/complex issue of state law
   2. the state claim predominates the federal claim
   3. the court has dismissed the original claims upon which jurisdiction was granted
   4. there are other compelling reasons

   If a claim is dismissed under 1367(b) or (c), the statute of limitations is tolled for at least 30 days. 28 U.S.C. § 1367(d)

In addition to the outcome determinative test, to apply state law the court must also find that the state rule is "bound up" with state created rights or obligations. If so, the court must balance the state interest against the federal interest in maintaining the integrity of its court system. However, when balancing, the state rule is applied absent a strong countervailing federal interest that would compromise the integrity of the federal court system. Byrd.

When state law would apply using the balancing approach in Byrd, the court must also examine whether it can accommodate or reconcile both the state and federal law. If not, apply the state law as is. Semtek.

If there is a direct and irreconcilable conflict between the state rules and the Federal Rules of Civil Procedure, apply the Federal Rules of Civil Procedure unless it

1. goes beyond “prescribing general rules of practice and procedure,” or
2. “abridges, enlarges, or modifies a substantive right.”

Hanna v. Plumer.