Civil Procedure II

17 October

• Unexploited, but available, federal jurisdiction: lower amount in controversy, the well-pleaded complaint rule, incomplete diversity, etc.
• LLC is like a partnership: look where the members of the LLC are. So for diversity, you need all the members to be diverse from the plaintiff.
• For the amount in controversy, generally what is pled controls, but trust in the pleadings is not unlimited. For example, the value of an injunction to the plaintiff vs the cost of compliance, or the cost to the party invoking federal jurisdiction.
• The amount in controversy article (pp 221-223? in Supp) is important to the removal assignment
• Removal Assignment
  Neopose makes postal meters (competes with Pittney-Bowes).

  Summons and complaint served 2/20/2003. Neopost Inc. is a DE corp with ppb at 30955 Huntwood Ave Hayward, CA 94544. Neopost is owned by Neopost S.A. (French).

  Notice of removal: covil cover sheet, certificate of interest, cover letter to clerk of court (probably obsolete now that there's e-filing, so figure out if we have to file this electronically), and anything else that's needed (like a filing fee). Also short memo explaining grounds for removal. Also, when the answer is due.

  We want this in federal court because the federal court hates the WI Fair Dealership Act.

  Due 10/31.

• Aggregating claims and counterclaims. Things arising out of the same sets of facts and circumstances are probably compulsory (i.e., they'll be lost to claim preclusion if they're not litigated now).

  WI does not have a compulsory counterclaim rule (like the feds do) in its statutes, but you still have to bring them because of claim preclusion.

• When a plaintiff's claim falls short of $75K but the counterclaim brings it over, it's not settled whether there's jurisdiction.
• A plaintiff can aggregate 2 unrelated claims. But related plaintiffs can't.
• § 1367 covers supplemental jurisdiction. Article III grants authority to all cases, whereas the statutes grant authority to claims. That's why § 1367 is constitutional: the claims are part of a case arising under.
• So, for example, a case might be all state law claims, but there's also a § 1983 action. The federal court can decide all the claims, if it wants (it usually does if they're really part of the same case; if the federal claim evaporates, the state claims will probably be remanded-- the main exception would be if the case has come along far enough that remanding would be wasteful).
• No supplemental jurisdiction when diversity is the sole basis for federal jurisdiction if joinder destroys diversity.
• So there's less subject matter jurisdiction under diversity than there is in arising under.
• Note that the amount in controversy has to exceed $75K (it is not sufficient merely to equal it)
• In re Aeriquest Mortgage Co. Mortage Lending Practices Litigation
  Supplemental jurisdiction exercised because declining to do so might affect the amount of relief granted.
• Szendrey-Raos v. First Bancorp
  § 1367(c) factors for deciding not to exercise supplemental jurisdiction in spite of the fact that the case nominally qualifies for it under § 1367(a).

19 October

• Hypothetical
  CA Plaintiff, v NY Defendant. Contract claim for $100K, agreement made in CA, performance to be in NY. This could be in state courts in CA or NY, or in federal court in CA and NY.

  Plaintiff sues in CA state Court. § 1441(a) says what actions are removable. § 1441(b) limits this: with arising under jurisdiction is generally removable but otherwise you can't remove unless there is diversity and no defendant is a citizen of the state where the suit was brought (i.e., narrower than full diversity jurisdiction).

  Why should that make a difference? We allow diversity suits into federal court, so why limit removal on the basis of defendant citizenship?

  Note that the limitation is for diversity-only cases: if there are some claims with arising under jurisdiction, you can remove.

  Finally, you can remove even if the state court lacked jurisdiction, as long as the grounds for removal are proper.

• § 1446(a): notice of removal. § 1446(b) specifies time limits for diversity removal. You cannot remove a diversity case more than a year after the commencement of the action, even if it otherwise would have just become removable. § 1446(c) talks about notice to parties and state court.
• If there's a motion for TRO or other injunction, you might want to get your notice of removal in fast with the state court clerk, before that motion gets heard, so they can't go forward with that.
• Notice should say why this district court, why there's jurisdiction, and why the notice is timely. Usually you'd attach the pleadings and anything else that has come into the state court as well.
• Notice of removal is due on or before the 30th day.
• In a WI tort complaint, you cannot include a damages amount in the "wherefor" clause. So you may not know the amount in controversy if it's not someplace else in the complaint.
• If the complaint is below the amount in controversy, you can file a motion prior to 1 year in state court (or a contention interrogatory) limiting recovery to the amount in the complaint. Then if you get something higher back, you can treat that as a pleading and remove.
• §1447(c) remanding back to state court.
• Note that if you seek attorney fees, you're going to have to produce your billing records for inspection by the court: pays to have them be complete and broken down by category or task. Some clients want that anyway. Nice even to document no-charge items (i.e., called client left message re pros and cons of settlement offer).
• § 1447(d) except in civil rights cases (§ 1443), orders remanding cases back to state court are not reviewable. You can appeal from a denial of a motion to remand, though.
• § 1447(3), if plaintiffs join other defendants after removal to destroy diversity, the court can deny the joinder. Or not.
• Caterpillar v. Lewis
  So there were problems here, but we're going to ignore them, aparently.
• Rule 6: computing time. Make sure you have the current rules; compare with the state rules. Also Rule 5 (service).
• And that's it for subject matter jurisdiction.

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• The EERIE PROBLEM
  The Rules of Decision Act (now § 1652): laws of the states shall be rules of decision in federal courts where they apply, assuming federal law or constitution doesn't specify otherwise.

  A state court's case law was not "the laws" of the state, says Swift v. Tyson; this is what Eerie overrules.

• Eerie
  What level of duty is owed to a trespasser. In PA: only "wanton negligence." In NY something else. In federal court, ordinary negligence.

  The opinion doesn't really specify where its constitutional power derives from.

• Guaranty Trust v. York
  "Substance" and "procedure" aren't self-defining. You have to reason about them, and the way you reason is by deciding whether the outcome on federal court would be the same as in state court.