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Civil Procedure: This outline accords with Friedenthal et al, Civil Procedure: Cases and Materials
(11th ed.)

Table of Contents
Subject matter jurisdiction......................................................................................................1
Horizontal choice of law........................................................................................................21
Personal jurisdiction..............................................................................................................27
Venue & Erie.........................................................................................................................41
Relief pending litigation........................................................................................................55
Procedural due process.........................................................................................................59
Discovery..............................................................................................................................67
Voluntary dismissal & right to a jury trial..............................................................................71
Post-trial practice..................................................................................................................71
Appellate litigation...............................................................................................................74
Expanding the lawsuit...........................................................................................................77
Claim & issue preclusion........................................................................................................79
Class actions..........................................................................................................................84

Subject matter jurisdiction
Osborn v. Bank of the United States (1824)
SCOTUS

1. Rule of Law a. Federal courts have original jurisdiction over any matter that involves a federal question.

2. Facts a. Plaintiff: Bank of the United States b. Defendant: Osborn, Ohio's state auditor c. P brought suit in federal court to enjoin D from collecting tax that P alleged to be unconstitutional. Court granted temporary injunction. D forcibly entered bank and took money. Court ordered officials to return the money. D appealed on the grounds that the federal court lacked subject-matter jurisdiction. 3. Procedural History a. See above.

4. Legal Question a. Did the federal circuit court have jurisdiction?

5. Holding and Reasoning: Marshall, CJ
a. Yes, because the congressional act chartering the bank authorized it.
b. Reasons for:
i. Congressional act chartering the bank authorized it "to sue and be sued in any Circuit Court of the United States." This was a grant by Congress of jurisdiction to federal courts in all cases to which the bank was a party.
ii. Considers whether Congress had constitutional power to confer jurisdiction of these cases pursuant to "arising under" language of Article
III § 2.

1. Clearly true in actual case, since constitutionality of Ohio's tax on the bank was at issue.

2. But also because every case and issue involving the bank "grows out of, and is tested by" federal law.

3. The existence of non-federal questions does not deprive a federal court of the right to hear it, so long as a federal issue is also an ingredient of the matter.
iii. Judgment for P affirmed.
Louisville & Nashville Railroad v. Mottley (1908)
SCOTUS

1. Rule of Law a. Well pleaded complaint: For a suit to arise under the Constitution and laws of the United States, giving a federal court jurisdiction to hear the case, a plaintiff must allege a cause of action based upon those laws or that Constitution.
i. Under Mottley, the plaintiff has the burden of alleging the federal issue as an element of her claim; if the federal issue is assigned to defendant as an affirmative defense, federal jurisdiction cannot be asserted.

2. Facts a. Plaintiff: The Mottleys b. Defendant: Louisville & Nashville Railroad Co.
c. In 1871, P were injured in railway accident. D settled P's claim with a lifetime pass for free transportation, expressed in contract. In 1906, Congress passed an act forbidding granting of free passes or free transportation. In 1907, D refused to renew P's passes.

3. Procedural History a. P brought suit in federal district court, seeking specific performance of their settlement agreement with the railroad. P alleged that the act did not apply to their free pass and that, if the law is construed as prohibiting such passes, it deprives them of their property in violation of the Fifth Amendment.
b. D demurred to P's complaint. Trial court overruled D and entered judgment in favor of P.
c. D appealed to SCOTUS.

4. Legal Question a. Did the circuit court have jurisdiction?

5. Holding and Reasoning: Moody, J
a. No, because the original cause of action does not "arise under the Constitution or the laws of the US"
b. Reasons for i. Questions of whether the act prohibits P's passes, and of whether the act is constitutional, do not need to be addressed.
ii. No diversity of citizenship iii. Jurisdiction only in the case that the suit was "arising under the
Constitution or laws of the United States." This means that P's statement of his own cause of action shows that it is based upon those laws or that
Constitution.
iv. Not enough for P to allege an anticipated defense to action and that the defense is invalidated by the Constitution. Although such questions may arise in the course of the litigation, the original cause of action does not arise under the Constitution.
c. Reasons against i. Neither party has questioned the circuit court's jurisdiction.

1. But it is the duty of the court to see that the jurisdiction of the circuit court, which is defined and limited by statute, is not limited.
d. Judgment reversed and remitted to circuit court with instructions that the case be dismissed for want of jurisdiction.

Structure of Federal Complaint:
Allege Subject Matter Jurisdiction
Allege Venue
Allege Parties  Jurisdiction over person or property
Allege Facts  What law applies
 Horizontal Choice of Law (multiple states)
 Vertical Choice of Law



Constitution Article III § 3 28 U.S.C. § 1331
When Congress enacts a federal statute, the presumption is that both the federal and state courts have competence to enforce the law. 


o This presumption of concurrent jurisdiction is rooted in a "system of dual sovereignty." (CB 265 note 7)
Areas in which Congress has given federal courts exclusive jurisdiction (among other things):
o certain securities-law class action; bankruptcy; patents and copyrights; actions against foreign consul and vice-consuls; actions to recover a fine, penalty, or forfeiture under federal law; and actions involving certain seizures. (CB 302 note 2)
Not all causes of action created by federal law confer federal question jurisdiction:
o Shoshone Mining v. Rutter (1900) involved federal statute that provided the right to possession was to be determined by "local customs and rules." The cause of action was created by federal law, but did "not involve any question as to the construction or effect of the Constitution or laws of the United States." (CB 304 note 2). Appears to be exception to well-pleaded complaint rule. [Prof hates this law.]
Not all causes of action created by state law are outside 28 U.S.C. § 1331:
o Smith v. Kansas City Title & Trust Co (1921) shareholder sued to enjoin the Trust
Company, a Missouri corporation, from investing in certain federal bonds on the ground that the Act of Congress authorizing their issuance was unconstitutional.
"The general rule is that where it appears from the bill or statement of the plaintiff that the right to relief depends upon the construction or application of the Constitution or laws of the United States, […] the District Court has jurisdiction." (CB 304 note 3)
A state statute that requires compliance with federal statute does not necessarily create jurisdiction:
o Moore v. Chesapeake & Ohio Railway Co (1934) plaintiff brought action under
Kentucky's Employer Liability Act, which barred an affirmative defense for contributory negligence or assumption of risk if defendant failed to meet state or federal safety requirements. P alleged D's failure to comply with Federal Safety
Appliance Act.
o SCOTUS found federal question jurisdiction did not exist, since "a suit brought under a state statute which define liability to employees who are injured while engaged in intrastate commerce, and brings within the purview of the statute a breach of the duty imposed by federal statute, should not be regarded as a suit arising under the laws of the United States." (CB 305 note 4)
28 U.S.C. § 2201(a)
Handout: First Federal Savings Bank

Declaratory Judgment Exception: 28 USC 2201(a) allows declaratory judgment in fed court if imaginary lawsuit meets SMJ requirements (First Savings Bank)

Grable & Sons Metal Products, Inc. v. Darue Engineering & Manufacturing (2005) SCOTUS

1. Rule of Law a. A federal court may have jurisdiction over a state cause of action, if the action has a substantial federal component in actual controversy, and federal jurisdiction would not disrupt the balance of labor between state and federal courts.

2. Facts a. Plaintiff: Grable & Sons Metal Products, Inc.
b. Defendant: Darue Engineering & Manufacturing c. In 1994, IRS seized Michigan property belonging to P to satisfy federal back taxes owed to IRS by P. After giving to P statutorily guaranteed notice of upcoming sale via certified mail, IRS sold the property to D.
d. Five years after the sale, P filed a motion to quiet title in state court, alleging that he did not receive proper notice of the sale because he was not personally served in the manner required by statute.

3. Procedural History a. D removed the case to Federal District Court as presenting a federal question,
because the claim of title depended on interpretation of the notice statute in federal tax law.
b. District Court declined to remand the case at P's behest after finding that the
"Claim does pose a 'significant question of federal law." District Court ruled that
P's lack of federal right of action to enforce its claim against D did not bar the exercise of federal jurisdiction.
c. On merits, District Court granted summary judgment to D, holding that substantial compliance with statute vis-à-vis delivery was enough.
d. Court of Appeals for Sixth Circuit affirmed, since the title claim raised issue of federal law and implicated substantial federal interest (in construing federal tax law); CoA also affirmed DC on merits of case.
e. SCOTUS granted certiorari on jurisdictional question.

4. Legal Question a. "Whether want of a federal cause of action to try claims of title to land obtained at a federal tax sale precludes removal to federal court of a state action with nondiverse parties raising a disputed issue of federal law."

5. Reasoning and Holding: Souter, J
a. No, "the national interest in providing a federal forum for federal tax litigation is sufficiently substantial to support the exercise of federal-question jurisdiction over the disputed issue on removal, which would not distort any diversion of labor between the state or federal courts."
b. Reasons for:
i. State-law cause of action may give rise to a federal question, and thereby give the federal court federal question jurisdiction, if the right to relief is based on the application of federal law. The federal law must actually be in controversy. 1. While the cause of action here is a state quiet title dispute, the issue is whether or not the IRS properly provided P notice of its property's sale, as defined by federal tax law.
ii. The court must consider whether taking the case would upset the balance of labor between state and federal courts. In this case, it does not.
iii. Government and litigants benefit from having access to federal judges who are familiar with tax issues, and because quiet title actions rarely involve federal component, there is little likelihood that giving jurisdiction will flood the federal courts.
c. Reasons against:
i. Merrell Dow to the contrary? Not applicable because the strength of the federal interest at stake and the implications of opening the federal forum meant that federal jurisdiction was unavailable.
d. Judgment of CoA affirmed.

In-class
Subject matter jurisdiction: Where does a lawsuit have to begin?
 Assume some court has power to hear any given case. So assume state court has the power. The question is: can it also be started in federal court, or can it only be started in a state court? Does the plaintiff have the choice? The term is subject matter jurisdiction. This term can be misleading, since it doesn't always have to do with subject matter - in diversity, it can deal with the parties, for instance.
o Turns out, where a case begins can also determine whether an appellate court has the power to hear it. A court has to start in the right place for a higher court within that system to hear it.
 Cause of action: theory of why you should get something
 Concurrent jurisdiction: presumption that we indulge. Not irrefutable; can be rebutted.
Without evidence from somebody (Congress), we will presume that when Congress creates a type of lawsuit (a cause of action), it intends for the state courts to be able to hear that action, unless it says otherwise.
 Exclusive jurisdiction: congress has said that a particular type of lawsuit must go to federal court, even though the states 'stand ready.'
 Mottley

Likely it was the railroads that asked congress to pass the law. Passengers were probably upset.
o The only live issues are federal law issues; but the federal court cannot rule on these issues.
o Neither party has questioned circuit court's jurisdiction. Jurisdiction is one of the only things that the court will bring up on its own. "A federal court must notice a potential defect in its subject matter jurisdiction. If a federal court notices a 

potential defect, it must immediately adjudicate that defect before doing anything else. If it lacks SMJ, it must dismiss.
o Three years later, the case eventually went through state court back to SCOTUS,
which then decided upon the two federal questions.
o The point is that the federal can't hear it unless it began in state court. It lacked subject matter jurisdiction.
o Sua Sponte (on their own) notice the issue, then figure it out on its own. Must start in right court, and have the right appellate justifications. If either is missing,
higher court must dismiss it.
o Parties cannot just create FSMJ by consent.
o One other quirk: with respect to SMJ, unlike almost any other doctrine, parties can reverse their positions. So plaintiff can file in federal district court, go to trial,
lose, then appeal and say the federal court shouldn't have heard the case based on SMJ. Likewise, defendant can reverse and say oh yes there was SMJ, even if it earlier argued against.
o So, parties can reverse and courts must notice sua sponte --- this indicates SMJ
must be a big deal.
o Okay so both P and D are from Kentucky. So no diversity SMJ. Instead, we look for "arising under."
o We don't have arising under because this is taken as a contract dispute, which is state law. The cause of action is breach of contract, a state law.
What does a federal law cause of action look like? (Supplement p 237 42 USC §1983)
o The cause of action has to arise under federal law, not necessarily the substantive issues under question.
When congress creates a cause of action, we still need something else for there to be
SMJ: We need both Constitution and Federal Statute to tell us that we can go forward with a certain type of case. Constitution Article III AND 28 USC §1331

The lower federal courts are the reason we need the statutes. Why? Not b/c constitution limits Article III. It has to be something else: the statute §1331.
Unless the congress has given power to the lower federal courts to adjudicate something, they can't! Since Congress created lower federal courts (not the constitution, which created Supreme Court), they get to decide how the lower federal courts work.
o "Set of all possible lawsuits" > "Article III: what federal courts can decide" > "28
USC §1331"
 What Mottley teaches us is that if it's outside of §1331 but inside Article
III, it can go to federal courts but must begin in state courts.
 But §1331 and Article III language seems the same. But evidently a certain type of case has to begin in the state courts and another doesn't.
 The way in which it is smaller is because we look to the nature of the cause of action: this is the well pleaded complaint rule.
 There is a concern about power grabs by the federal government.
State courts are supposed to be the default, and federal courts

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