1. Mon., Sep. 4

2. review session every Monday from now on

3. what statutory materials are you responsible for?

4. removal

5. P (NY) brings an action against D (NJ) in NY state court for loss of his hand in a car accident P asks for $70k May D remove?

6. 1446(c)(2) If removal of a civil action is sought on the basis of the jurisdiction conferred by section 1332(a), the sum demanded in good faith in the initial pleading shall be deemed to be the amount in controversy, except that- (A) the notice of removal may assert the amount in controversy if the initial pleading seeks-- (i) nonmonetary relief; or (ii) a money judgment, but the State practice either does not permit demand for a specific sum or permits recovery of damages in excess of the amount demanded; and (B) removal of the action is proper on the basis of an amount in controversy asserted under subparagraph (A) if the district court finds, by the preponderance of the evidence, that the amount in controversy exceeds the amount specified in section 1332(a).

7. St. Paul Mercury test “It must appear to a legal certainty that the claim is really for less than the jurisdictional amount to justify dismissal.”

8. devices to defeat diversity/alienage

9. adding plaintiffs to defeat diversity

10. P (Texas) assigns 1/10 of its contract right against D (New York) (worth $8,000 if the action prevails) to X (New York) for $1,000 P and X sue D in state court in Texas May D remove to federal court?

11. adding defendants to defeat diversity

12. - P (NJ) wishes to sue the D Corp. for fraud - D Corp
- P (NJ) wishes to sue the D Corp. for fraud - D Corp. has is incorporated in NY with PPB in NY - P does not want the action removed by the D Corp. to federal court - So P joins X (NJ), an accountant who was in part responsible for the D Corp.’s misrepresentations, as a defendant - Can the D Corp. successfully remove?

13. fraudulent joinder

14. Rose v. Giamatti, 721 F. Supp. 906 (S. D. Oh
Rose v. Giamatti, 721 F. Supp. 906 (S.D. Oh. 1989) “In fraudulent joinder cases the underlying reason for removal is that there is no factual basis upon which it can be claimed that the resident [!] defendant is jointly liable or where there is such liability there is no purpose to prosecute the action against the resident defendant in good faith….”

15. A (Nev. ) sues B (France) and C (Oreg
A (Nev.) sues B (France) and C (Oreg.) in Nevada state court for battery A asks for $80k each from B and C B wants to remove but C refuses may the case be successfully removed to the D. Nev.?

16. 1446(b)(2)(A) When a civil action is removed solely under section 1441(a), all defendants who have been properly joined and served must join in or consent to the removal of the action.

17. we will speak of counterclaims in connection with removal later

18. 1441(f) The court to which such civil action is removed is not precluded from hearing and determining any claim in such civil action because the State court from which such civil action is removed did not have jurisdiction over that claim

19. Avitts v. Amoco Production Co. (5th Cir. 1995)

20. procedure for removal

21. timing

22. P sues D in state court under state battery law and federal civil rights law 33 days after the complaint was filed in state court and 27 days after it was served on D, D files a notice removal in federal court too late?

23. § Procedure for removal of civil actions … (b) Requirements; generally.--(1) The notice of removal of a civil action or proceeding shall be filed within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within 30 days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.…

24. P sues D1 and D2 in state court under state battery law and federal civil rights law D1 is served 3 days before D2. 30 days after D2 is served, D2 wants to remove. too late?

25. 1446(b)(2) …(B) Each defendant shall have 30 days after receipt by or service on that defendant of the initial pleading or summons described in paragraph (1) to file the notice of removal. (C) If defendants are served at different times, and a later-served defendant files a notice of removal, any earlier-served defendant may consent to the removal even though that earlier-served defendant did not previously initiate or consent to removal.

26. P sues D in state court under state battery law one and a half years after D is served, P amends his complaint to include a federal civil rights action within 30 days of service of the amended complaint, D seeks to remove too late?

27. 1446(b) … (3) Except as provided in subsection (c), if the case stated by the initial pleading is not removable, a notice of removal may be filed within 30 days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable. (c) Requirements; removal based on diversity of citizenship.— (1) A case may not be removed under subsection (b)(3) on the basis of jurisdiction conferred by section 1332 more than 1 year after commencement of the action, unless the district court finds that the plaintiff has acted in bad faith in order to prevent a defendant from removing the action (B) If the notice of removal is filed more than 1 year after commencement of the action and the district court finds that the plaintiff deliberately failed to disclose the actual amount in controversy to prevent removal, that finding shall be deemed bad faith under paragraph (1).

28. waiving objections to non-removability

29. PERSONAL JURISDICTION IN STATE COURT

30. relationship between sovereigns

31. P (NY) and his landlord D (NY) have a dispute about the rent for his New York apartment P sues D in Iran (D has no connection to Iran) D fails to appear and a default judgment is issued against D

32. distinguish PJ from choice of law

33. - P and D are New Yorkers who get in a brawl in New York - D is in Oregon on business trip - P sues D in Oregon state court - D is served in Oregon with summons and complaint

34. distinguish PJ from subject matter jurisdiction

35. - P (NY) slips and falls in D’s (Germany) store in Germany - D has no connection with US - P sues D in in federal court in New York asking for $100,000 - D is served in Germany with the summons and complaint

36. distinguish PJ from service/notice

37. - P and D are New Yorkers who get in a brawl in New York - P sues D in Oregon state court - D is served in New York with summons and complaint

38. - P and D are New Yorkers who get in a brawl in New York - P sues D in New York state court - P serves D by taking the summons and complaint and flushing it down the toilet

39. Pennoyer v Neff (US 1878)

40. what happened in Mitchell v. Neff?

41. Mitchell v. Neff - Mitchell sues Neff for unpaid legal services in Oregon state court - Neff has moved to Cal. - service was by a publication that had practically no circulation outside Oregon - Neff defaults - the Ore. state court attaches Oregon land and sells it in payment of the debt to...Mitchell himself - Mitchell sells it to Pennoyer

42. what happened in Neff v. Pennoyer?

43. Neff v. Pennoyer - Neff sues Pennoyer in ejectment in federal court in Ore. - diversity case - Pennoyer claims it is his, because it was Mitchell’s, who got it pursuant to the enforcement of a valid Ore. state ct judgment - so Neff is collateral attacking the validity of the judgment in Mitchell v. Neff - was there PJ? - federal trial court says no - US SCt affirms (for different reasons) – no attachment of the property at the initiation of the suit

44. dicta: the matter going forward will be governed by the 14th A
dicta: the matter going forward will be governed by the 14th A. - but not in the present case, because the 14th A. had not been ratified when Mitchell v. Neff occurred - the question must be answered according to international law (or natural law) on the recognition of foreign judgments (as interpreted by federal courts)

45. was it really necessary that the property be attached at the initiation of the suit…?

46. distinguish PJ from forms of preliminary relief

47. - Mitchell sues Neff in state court in Oregon - the source of PJ is property Neff has in Oregon, identified at the initiation of the lawsuit - it does not look like Neff is at risk of selling is property to escape jurisdiction, so the court refrains from attaching the property

48. - the requirement of attachment for in rem/quasi in rem was soon abandoned, provided that the property is identified at the outset

49. Amendment XIV. Section 1.  nor shall any State deprive any person of life, liberty, or property, without due process of law…

50. effect of limits on PJ being read into the 14th Amendment...

51. - P sues D in Oregon state court (action A) - D has no connection with Oregon, but Oregon law allows the assertion of PJ over D. - D defaults. - P then sues on the default judgment in Oregon state court (action B) Pre-Pennoyer: D has no grounds for challenging the assertion of PJ in action A (or the recognition of the judgment of action A in action B) that could be entertained by the US SCt Post-Pennoyer: D can challenge the assertion of PJ in action A (or the recognition of the judgment of action A in action B) as a violation of the Due Process Clause of the 14th Amendment and appeal to the US SCt

52. what obligation does a court have to respect the judgment of another court system at all, even if there was PJ?

53. - D, a US national residing in NY, is sued by P, an Iranian, in an Iranian court concerning a brawl that D got into with P in NY. - D is tagged while in Iran on a brief trip. - D defaults and a monetary judgment is issued against D. - P then sues upon the judgment in New York state court.

54. - D, a citizen and resident of NY, is sued by P, a citizen and resident of CA, in California state court concerning a brawl that D got into with P in NY. - D is tagged while in CA on a brief trip. - D defaults and a monetary judgment is issued against D. - P then sues upon the judgment in state court in NY.

55. Art IV, § 1. Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

56. - D, a citizen and resident of NY, is sued by P, a citizen and resident of CA, in California state court concerning a brawl that D got into with P in NY. - D is tagged while in CA on a brief trip. - D defaults and a monetary judgment is issued against D. - P then sues upon the judgment in federal court in NY.

57. 28 U.S.C. § State and Territorial statutes and judicial proceedings; full faith and credit ... The records and judicial proceedings of any court of any such State, Territory or Possession, or copies thereof, shall be proved or admitted in other courts within the United States and its Territories and Possessions by the attestation of the clerk and seal of the court annexed, if a seal exists, together with a certificate of a judge of the court that the said attestation is in proper form. Such Acts, records and judicial proceedings or copies thereof, so authenticated, shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such State, Territory or Possession from which they are taken.

58. - D, a citizen and resident of NY, is sued by P, a citizen and resident of CA, in federal court in California concerning a brawl that D got into with P in NY. - D is tagged while in CA on a brief trip. - D defaults and a monetary judgment is issued against D. - P then sues upon the judgment in state court in NY.

59. Art. VI This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

60. but no FF&C obligation if the judgment was invalid for lack of PJ

61. distinguish federal constitutional limits (under the 14th A
distinguish federal constitutional limits (under the 14th A.) on a state’s assertion of PJ over a defendant - what a state can do what a state has chosen to do under its own law

62. The Pennoyer Framework

63. in personam – source of PJ is presence of D at initiation of suit (NOT at time of event being adjudicated) tagging

64. in rem – source of PJ is presence of property at initiation of suit suit concerns ownership of property (e.g. quiet title action) binding upon all possible claimants

65. quasi in rem two types: 1) source of PJ is D’s property in state at initiation of suit, but suit does not concern ownership of property although if P wins, D’s property may be used to execute judgment

66. 2) suit concerns ownership of property (e. g
2) suit concerns ownership of property (e.g. quiet title action), BUT binding only on certain named parties

67. what type of personal jurisdiction was Mitchell attempting in Mitchell v. Neff?

68. the Pennoyer framework in action

69. - Mitchell, an Oregon resident, sues Neff, a California resident, in Oregon state court for unpaid lawyer’s fees that Neff incurred in Oregon while he was a resident of Oregon. - Service of the summons and complaint are delivered to Neff in hand in California. - PJ permissible?

70. - Mitchell, an Oregon resident, sues Neff, a California resident, in Oregon state court for unpaid lawyer’s fees that Neff incurred in Oregon while he was a resident of Oregon - There is in-hand service of the summons and complaint upon Neff while he is in Oregon on a brief business trip - PJ permissible?

71. - Mitchell, an Oregon resident, sues Neff, a California resident, in Oregon state court for unpaid lawyer’s fees that Neff incurred to Mitchell in California – Neff was never an Oregon resident - There is in-hand service of the summons and complaint upon Neff while he is in Oregon on a brief business trip - PJ?

72. § 78. Individual Voluntarily Within The State A state can exercise through its courts jurisdiction over an individual voluntarily within its territory whether he is permanently or only temporarily there.

73. - Pennoyer, an Oregon resident, sues Neff, a California resident, in Oregon state court in order to quiet title to property in Oregon that each claims he owns. - Service on Neff is in-hand in California

74. § 101. Jurisdiction Over Land A state can exercise through its courts jurisdiction over land situated within the territory of the state, although a person owning or claiming an interest in the land is not personally subject to the jurisdiction of the state.

75. - Pennoyer, an Oregon resident, brings a suit to quiet title to Oregon property that he claims he owns. - He brings an action in Oregon state court that will bind everyone in the world - Service is by publication.

76. - Pennoyer, an Oregon resident, sues Neff, a California resident, in Oregon state court for breach of a contract Neff entered into in California to sell Pennoyer property in California - Pennoyer gave Neff the money but Neff has not given Pennoyer the property - Pennoyer asks for an injunction ordering Neff to transfer title to Pennoyer - Service is in hand on Neff in Oregon.

77. - Pennoyer, an Oregon resident, sues Neff, a California resident, in Oregon state court for breach of a contract Neff entered into in California to sell Pennoyer property in California - Pennoyer gave Neff the money but Neff has not given Pennoyer the property - Pennoyer asks the court to transfer title to Pennoyer - Service is in hand on Neff in Oregon.

78. - Mitchell, an Oregon resident, brings an action against Neff in Oregon state court concerning $ in legal fees that were incurred in Alaska. - Neff resides in California. - The Oregon state court attaches property in Oregon owned by Neff worth $300 at the beginning of the suit.

79. - Mitchell lures Neff to Oregon with a story that Neff has won a contest. - While he is in Oregon, Neff is served for a suit brought by Mitchell in Oregon state court concerning unpaid lawyers fees. Neff chooses to default. - Under Oregon law, someone can be submitted to personal jurisdiction on the basis of tagging in the state even when the tagging is the result of fraudulent inducement. - Mitchell then brings a suit in California state court to execute the Oregon judgment. - Under California law someone cannot be submitted to personal jurisdiction on the basis of tagging in the state when the tagging is the result of fraudulent inducement. - Neff argues that the earlier Oregon judgment is void. - What result?

80. Full Faith and Credit: The recognizing jurisdiction must give the judgment the same preclusive effect it would have in the rendering jurisdiction’s courts. e.g. a California court must give the Oregon judgment the same preclusive effect it would have in Oregon state court.

81. - Neff is domiciled in Oregon, but is on an extended trip in California. - Mitchell sues Neff in Oregon state court for unpaid lawyers fees incurred in Alaska. - He has Neff served in California. - Neff defaults. - Mitchell then brings a suit in California state court to execute the Oregon judgment. - Neff collaterally attacks the judgment. - What result?

82. - Neff is domiciled in California, but is spending the summer residing in Oregon. - Mitchell sues Neff in Oregon state court for unpaid lawyers fees incurred in Alaska. - He has Neff served in California, while he was there for a brief trip home. - Neff defaults. - Mitchell then brings a suit in California state court to execute the Oregon judgment. - Neff collaterally attacks the judgment. - What result?