Questions and Answers of Civil Procedure

11. The law is ever changing; so too are lawyers’ strategic assessments of the relative advantages of litigating in the United States rather than in courts abroad. Indeed, commentary has identified
10. Does Sinochem foreclose an appeals court from determining whether a district court had subject-matter jurisdiction in an action removed to federal court and then dismissed on grounds of forum non
9. In SINOCHEM INTERNATIONAL CO. LTD. v. MALAYSIA INTERNATIONAL SHIPPING CORP., 549 U.S. 422, 127 S.Ct. 1184, 167 L.Ed.2d 15 (2007), the Supreme Court affirmed the dismissal of an action against a
8. Courts are divided as to whether the following factors affect the district court’s discretion to dismiss an action on grounds of forum non conveniens:(a) Federal statutes that include specific
7. In making a decision on forum non conveniens grounds, how much weight should be given to plaintiff’s forum preference? In WIWA v. ROYAL DUTCH PETROLEUM CO., 226 F.3d 88 (2d Cir.2000), three
6. Assuming an alternative adequate forum is found to exist, the court then is expected to weigh the public and private factors identified in the Gilbert and Pipercases. Should courts rethink the
5. Should an international tribunal such as the International Court of Justice, the World Trade Organization, or the United Nations Compensation Commission ever be an acceptable alternative forum for
4. In TUAZON v. R.J. REYNOLDS TOBACCO CO., 433 F.3d 1163 (9th Cir.2006), plaintiff, a Philippine citizen, filed a federal action in Washington State against a United States tobacco company, alleging
3. When considering a forum non conveniens motion, the first step in the court’s analysis is to determine whether there is an adequate alternative forum. In ISLAMIC REPUBLIC OF IRAN v. PAHLAVI, 62
2. An empirical study of reported decisions of forum non conveniens motions in the period 1982 2006 concluded that the alternative forum was found to be adequate eighty-two percent of the time and
1. Lord Denning famously said: “As a moth is drawn to the light, so is a litigant drawn to the United States.” Smith Kline & French Labs. Ltd. v. Bloch, [1983] 2 All E.R. 72, 72 (Eng.C.A. 1982).
13. The circuits are divided on whether the law of the transferor court under 28 U.S.C. §1407 ought to apply to a federal claim. In IN RE KOREAN AIR LINES DISASTER OF SEPT.1, 1983, 829 F.2d 1171,
12. In LEXECON INC. v. MILBERG WEISS BERSHAD HYNES & LERACH, 523 U.S.26, 118 S. Ct. 956, 140 L.Ed.2d 62 (1998), the Supreme Court held that 28 U.S.C. §1407 imposes a duty on the Panel on
11. In IN RE: MF GLOBAL HOLDINGS LTD. INVESTMENT LITIGATION, 857 F.Supp.2d 1378, 1380–81 (Jud.Pan.Mult.Lit. 2012), defendants in three actions and twelve“tag-along” actions, pending in four
10. An important development in federal venue procedure authorizes the temporary transfer of related cases to one district when the cases involve common questions of fact and law and transfer would
9. Is it in the “interests of justice” to dismiss or to transfer a misfiled case in the following circumstances:(a) The original complaint named several “John Doe” defendants with unknown
8. In GOLDLAWR, INC. v. HEIMAN, 369 U.S. 463, 82 S.Ct. 913, 8 L.Ed.2d 39 (1962), discussed in the principal case, the Supreme Court held that 28 U.S.C. § 1406 authorizes the transfer of an action
7. When is a district court permitted to transfer under 28 U.S.C. § 1406(a), rather than under Section 1404(a)? When a case is transferred under Section 1406, the court will treat the action as if
6. An empirical study found that plaintiff won in fifty-eight percent of nontransferred cases that went to judgment, but only in twenty-nine percent of cases that were transferred.See Clermont &
5. When a district court is asked to transfer an action pursuant to a venue-selection clause, should the motion be analyzed under the multifactor test of 28 U.S.C. § 1404 or under the reasonableness
4. Of what relevance is the Van Dusen rule when the district court transfers an action within its federal question jurisdiction? See Marcus, Conflict Among Circuits and Transfers Within the Federal
3. To what extent should the transferee court under 28 U.S.C. § 1404 attempt to reach the same result on the merits that would have been reached by the transferor court? In VAN DUSEN v. BARRACK, 376
2. Is a district court limited in its transfer analysis to the specified factors of party and witness convenience, or is the “interest of justice” factor a separate consideration that embraces a
1. Does 28 U.S.C. § 1404(a), as amended in 2012, abrogate Hoffman v. Blaski or only limit its application?
9. Some federal statutes contain special venue rules for where a civil action may be brought. An example may be found in 42 U.S.C. § 2005e-5(f)(3), which defines the venue for an action under Title
8. In a lawsuit with multiple parties or multiple claims, does the federal court have discretion to apply a doctrine of “pendent venue”? Commentators explain that under this doctrine, venue would
7. Recall that many state venue rules incorporate a “local action” doctrine for lawsuits involving property. In LIVINGSTON v. JEFFERSON, 15 F. Cas. 660 (C.C.D. Va. 1811), Chief Justice Marshall,
6. How should substantiality be determined under 28 U.S.C. § 1391(b)(2)? What approach did the Batescourt take? When applying the substantiality requirement under the pre-2012 version of the federal
5. What is the test under 28 U.S.C. § 1391(c)(2) to determine the residence of an entity?Is the test the same whether the entity is incorporated or unincorporated? Notice that the definition
4. What is the residence for venue purposes of a non-United States citizen who is not lawfully admitted for permanent residence in the United States? See 28 U.S.C. § 1391(c)(3).Does the same
3. What is a natural person’s residence for venue purposes? See 28 U.S.C. § 1391(c)(1). Is this definition the same as for citizenship under 28 U.S.C. § 1332? Does it apply to aliens who are
2. 28 U.S.C. § 1391(b), unlike earlier versions of the federal venue statute, sets a unitary venue rule for diversity and federal question cases. Venue in both categories may be based on two
1. Federal venue rules underwent significant revision in 1990, followed by additional reforms in 1992 and 1995, and then again pursuant to the Jurisdiction and Venue Clarification Act of 2011. Does
8. In City of Chicago v. International College of Surgeons, 522 U.S. 156, 118 S.Ct. 523, 139 L.Ed.2d 525 (1997), the Supreme Court clarified that supplemental jurisdiction may be exercised in cases
7. Consider how the following situations will affect removal:(a) After removal, plaintiff amends her complaint to ask for less than the amount-incontroversy requirement. See St. Paul Mercury Indem.
6. How is the amount in controversy determined for removal on grounds of diversity of citizenship? See 28 U.S.C. § 1446(c)(2). Under what circumstances may defendant assert a different amount in
5. The Rose case, p. 281, supra, illustrates plaintiff’s effort to block removal by joining nondiverse parties. Under the doctrine of fraudulent joinder, removal is permitted if plaintiff has no
4. An important limitation on the removal of a diversity action is the ban on removal by an in-state defendant. See 28 U.S.C. § 1441(b). In a multi-defendant action, does the presence of even one
3. Just as plaintiff cannot create federal jurisdiction by anticipating defendant’s responses, so plaintiff cannot block removal by disguising the federal nature of his claim.In BRIGHT v. BECHTEL
2. Defendant’s pleading of a federal affirmative defense to a state law claim generally does not support removal. An important but complex exception involves the doctrine of complete preemption,
1. In Shamrock, defendant could have filed his federal counterclaim as an independent action in federal court, yet plaintiff functionally in the position of defendant to the counterclaim could not
3. The principal case was overruled on other grounds by California Dept. of Water Resources v. Powerex Corp., 533 F.3d 1087 (9th Cir. 2008), holding that a district court’s discretionary decision
2. May a district court retain supplemental jurisdiction even after the federal claims are dismissed? Consider the following situations:(a) The federal claims are dismissed after extensive discovery,
1. The circuits remain divided on when supplemental jurisdiction may be declined under 28 U.S.C. § 1367(c). One approach, illustrated by the Ninth Circuit in the principal case, is that the statute
3. The legislative history to 28 U.S.C. § 1367(b)indicates the intent to prohibit supplemental jurisdiction when its exercise would circumvent traditional330limitations on the grant of diversity
2. What is the significance of the statute’s use of the words “so related” and its omission of the Gibbslanguage referring to a “common nucleus of fact”? See 28 U.S.C. § 1367(a). Based on
1. Does 28 U.S.C. § 1367(a) codify the Gibbs test for determining when two claims “form part of the same case or controversy under Article III of the United States Constitution”? Is it clear
3. In FINLEY v. UNITED STATES, 490 U.S. 545, 109 S.Ct. 2003, 104 L.Ed.2d 593 (1989), plaintiff’s husband and two of her children were killed when their plane struck electric power lines on its
2. In OWEN EQUIPMENT & ERECTION CO. v. KROGER, 437 U.S. 365, 98 S.Ct. 2396, 57 L.Ed.2d 274 (1978), Kroger, a citizen of Iowa, brought a diversity action in Nebraska against Omaha Public Power
1. In ALDINGER v. HOWARD, 427 U.S. 1, 96 S.Ct. 2413, 49 L.Ed.2d 276 (1976), a Washington State citizen brought a federal civil rights action under 42 U.S.C. § 1983 against several state officials;
4. Does the Gibbs rationale for pendent jurisdiction justify an analogous doctrine of“pendent” personal jurisdiction, for example, in a suit in which defendant is amenable to jurisdiction
3. What are the policy justifications for pendent and ancillary jurisdiction? Commentary points to at least two purposes:First, it ensures that litigants will not be dissuaded from maintaining their
2. What is the constitutional and statutory basis for the jurisdiction recognized in Hurn and in Gibbs? Recall that the language of 28 U.S.C. § 1331 is virtually identical to that of Article III. Is
1. In Hurn, discussed in Gibbs, the Court permitted a district court with original jurisdiction over a federal claim to exercise pendent jurisdiction over a state law claim when the two claims
7. In MIMS v. ARROW FINANCIAL SERVICES, LLC., 565 U.S. ___, 132 S.Ct. 740, 181 L.Ed.2d 881 (2012), the Supreme Court resolved that Congress’s grant of jurisdiction to state courts to hear disputes
5. It has been argued that the search for “a single, all-purpose, neutral analytical concept which marks out federal question jurisdiction” is futile. See Cohen, The Broken Compass: The
4. Commentators anticipated that Grable’s multifactor test would be more permissive than Merrell Dow or American Well Works in extending a federal forum to state law hybrid claims. However, a study
3. How does Gunn v. Minton clarify when an interest is substantial for purposes of jurisdiction under 28 U.S.C. § 1331? Does this distinction explain why jurisdiction was found to be present in
2. The dissent in Empire Healthchoice emphasized the role of federal common law in resolving the carrier’s reimbursement claim. The topic of federal common law is a complex one and is taken up in
1. What is the test for jurisdiction under 28 U.S.C. § 1331 after Grable, Empire Healthchoice, and Gunn? Do these opinions incorporate the earlier tests from Mottley, Smith, and Moore, or do they
5. In MERRELL DOW PHARMACEUTICALS INC. v. THOMPSON, 478 U.S. 804, 106 S.Ct. 3229, 92 L.Ed.2d 650 (1986), plaintiff sued a drug manufacturer in state court on a number of state law claims including
4. In MOORE v. CHESAPEAKE & OHIO RAILWAY CO., 291 U.S. 205, 54 S.Ct. 402, 78 L.Ed. 755 (1934), plaintiff brought an action under Kentucky’s Employer Liability Act, which barred an affirmative
3. Should all causes of action created by state law be outside 28 U.S.C. § 1331? In SMITH v. KANSAS CITY TITLE & TRUST CO., 255 U.S. 180, 41 S.Ct. 243, 65 L.Ed. 577 (1921), a shareholder sued to
2. Should all causes of action created by federal law confer federal question jurisdiction? SHOSHONE MINING CO. v. RUTTER, 177 U.S. 505, 20 S.Ct. 726, 44 L.Ed.864 (1900) involved a federal statute
1. AMERICAN WELL WORKS CO. v. LAYNE & BOWLER CO., 241 U.S. 257, 36 S.Ct.585, 60 L.Ed. 987 (1916), involved a claim by a pump manufacturer that a competitor had damaged its reputation by telling
2. Areas in which Congress has given the federal courts exclusive jurisdiction include, inter alia, certain securities-law class actions, 15 U.S.C. § 77p(b) and (c); bankruptcy, 28 U.S.C. § 1334;
1. Would a congressional statute conferring federal jurisdiction over a case like Harms be constitutional under Osborn’s ingredient test?
5. The Declaratory Judgment Act, 28 U.S.C. §§ 2201–2202, allows the federal court to issue a declaration of “rights and other legal relations” to an “interested party” in “a case of
4. Under Mottley, 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
3. Following the Court’s decision, the Mottleys commenced an action in a Kentucky state court. The case ultimately was brought to the United States Supreme Court by appeal from the highest court in
2. After the Civil War, the number of lawsuits filed in the federal courts dramatically increased, but Congress was slow to increase judicial capacity or to meet the problems of court congestion. See
1. Some commentators question the Court’s interpretation of 28 U.S.C. § 1331, pointing to the statute’s legislative history. See Chemerinsky, Federal Jurisdiction § 5.2 (6th ed. 2011)(quoting
3. The concept of “protective jurisdiction” draws from Osborn’s broad interpretation of Article III and allows a federal court, in the absence of diversity of citizenship, “to hear state law
2. In VERLINDEN B.V. v. CENTRAL BANK OF NIGERIA, 461 U.S. 480, 103 S.Ct. 1962, 76 L.Ed.2d 81 (1983), the Supreme Court, in a unanimous opinion written by Chief Justice Burger, observed that
1. The contract case discussed in Osborn was presented by the companion case of BANK OF THE UNITED STATES v. PLANTERS’ BANK OFGEORGIA, 22 U.S. (9 Wheat.) 904, 6 L.Ed. 244 (1824). The Bank of the
3. The question of how to value non-damages relief such as a declaratory judgment or injunction has divided the courts of appeal. See McInnis, The$75,000.01 Question: What is the Value of Injunctive
2. Is it so clear that the amount in controversy in the principal case did not meet the statutory condition? When the validity of an insurance policy is in dispute, should the facevalue of the policy
1. Plaintiffs in the principal case asked for costs and interest, in addition to declaratory relief. Why didn’t the dollar value of that request supply the missing penny?
6. Federal Rule 23 permits a plaintiff to sue on behalf of a class of similarly situated persons and to represent the interests of all members of the class. For a discussion of the
5. Consider whether the amount-in-controversy requirement is met in the following cases and whether you need additional information to answer the questions:(a) One plaintiff sues one defendant,
4. The Federal Rules authorize the joinder of multiple parties and multiple claims in a single lawsuit. See Chapter 9, infra. Many joinder variations are possible. For example, a single plaintiff may
3. Is diversity jurisdiction lost if plaintiff’s recovery turns out to be less than the amountin-controversy requirement? See 28 U.S.C. § 1332(b). Should events that take place after the filing of
2. The party invoking diversity jurisdiction has the burden of showing that the amountin-controversy requirement is met. In meeting this burden, the Supreme Court has established a rule that “the
1. Article III does not impose an amount-in-controversy requirement on the grant of diversity jurisdiction. However, the limitation has existed since 1789, when the amount was set at a sum that
5. In ROSE v. GIAMATTI, 721 F.Supp. 906 (S.D. Ohio 1989), Pete Rose, the manager of the Cincinnati Reds baseball team, filed a state court action to enjoin the Commissioner of Baseball from
4. Does 28 U.S.C. § 1359 prevent using assignment to destroy diversity of citizenship, and so to block defendant’s removal of an action from state to federal court? The Fifth Circuit has held that
3. In KRAMER v. CARIBBEAN MILLS, INC., 394 U.S. 823, 89 S.Ct. 1487, 23 L.Ed.2d 9(1969), a Panamanian corporation assigned its interest under a contract with a Haitian corporation to Kramer, a Texas
2. Under the current version of 28 U.S.C. § 1332(a), can a district court exercise jurisdiction if a permanent resident alien who is domiciled in New York sues two defendants, one of whom is a
1. Why would treating a permanent resident alien as a state citizen and allowing her to sue another permanent resident alien who is treated as a citizen of a different state raise a constitutional
13. Should a “stateless” person meaning an individual who is not a citizen of any country be eligible to invoke alienage jurisdiction? In BLAIRHOLDINGS CORP. v.RUBINSTEIN, 133 F.Supp. 496
12. A “dual national” is a citizen of the United States as well as a citizen of a foreign country. In SADAT v. MERTES, 615 F.2d 1176 (7th Cir. 1980), the Court of Appeals considered whether
11. In JPMORGAN CHASE BANK v. TRAFFIC STREAM (BVI) INFRASTRUCTURE LIMITED, 536 U.S. 88, 122 S.Ct. 2054, 153 L.Ed.2d 95 (2002), the Supreme Court, in a unanimous opinion by Justice Souter, held that a
10. How do the requirements of diversity jurisdiction differ from those of alienage jurisdiction under 28 U.S.C. § 1332 (a)(2), (3), and (4)? Test your reading of the statute by explaining whether
9. In a direct-action case, plaintiff sues the insurance company without naming the insured party whose wrongdoing gave rise to the claim. How does the citizenship rule for insurers in direct-action
8. Some individuals or entities can appear in court only through a legal representative.Examples include a decedent’s estate, an infant, and a person who lacks mental competence.In 1988 Congress
7. Unincorporated associations include organizations such as partnerships, charitable organizations, and trade unions. Under the general diversity rules, unincorporated associations are not treated
6. Special rules govern the citizenship of a bank chartered under federal law so-called“national banks.” 28 U.S.C. § 1348 provides that national banks are “deemed citizens of the States in
5. Like a natural person, a corporation is treated as an entity for purposes of determining citizenship; unlike a natural person, a corporation may275have multiple states of citizenship. See 28
4. The party invoking diversity jurisdiction has the burden of proving its existence. What factors ought the court to consider in assessing whether plaintiff and defendant are citizens of different
3. Can a United States citizen who is domiciled abroad invoke diversity jurisdiction?See Cresswell v. Sullivan & Cromwell, 922 F.2d 60, 68 (2d Cir. 1990).

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