1. CIVIL PROCEDURE CLASS 26 Professor Fischer Columbus School of Law The Catholic University of America October 25, 2002

2. WRAP-UP Last time we studied the basic procedure that happens at a civil trial (both jury trials and bench trials) We also studied some procedures that provide for judicial control on juries: Jury Instructions, Special Verdicts, Bifurcation/Trifurcation, J.N.O.V., and Order for New Trial We considered whether J.N.O.V.s are constitutional, given the right to jury trial in civil actions under the Seventh Amendment.

3. WHAT WILL WE DO TODAY? Learn about two more judicial controls that exist for juries - Remittitur/Additur, Order to Vacate Judgment

4. REMITTITUR/ADDITUR What is remittitur? What is additur? Is remittitur constitutional? Why or why not? Is additur constitutional? Why or why not?

5. MOTIONS TO VACATE JUDGEMENT FRCP 60 - judgments may be vacated both for clerical mistakes (60(a)) and other reasons set out in 60(b) Rule 60 permits relief from a judgment even where the time limits for j.no.v., new trial motion, or appeal have expired BUT THIS IS LIMITED, EXTRAORDINARY RELIEF. What are the grounds for vacating a judgment under R.60?

6. CLERICAL MISTAKES IN JUDGMENTS OR ORDERS FRCP 60(a) When can courts correct clerical mistakes in judgments, orders, or other parts of the record? What is a “clerical mistake”?

7. CLERICAL MISTAKES IN JUDGMENTS OR ORDERS When can courts correct clerical mistakes in judgments, orders, or other parts of the record? At any time, on motion of party or on court’s own initiative What’s a clerical mistake? A minor, ministerial error arising from simple oversight or omission. NOT substantive factual or legal error

8. 60(b): OTHER REASONS FOR VACATING JUDGMENT 2 categories of motions: 1. Motions based on some grounds are subject to a timing limitation that they must be made no more than 1 year after entry of judgment or order: which grounds are these? 2. Motions based on the other grounds for a 60(b) motion must just be made within a “reasonable time”. Which are these?

9. 60(b):Motion must be made within 1 year of judgment/order CATEGORY 1: subject to timing limitation that they must be made no more than 1 year after entry of judgment or order: 1. Mistake, inadvertence, surprise, excusable neglect 2. Newly discovered evidence that by due diligence could not have been discovered in time to move for a new trial under 59(b) 3. Fraud, misrepresentation, or other misconduct of an adverse party

10. 60(b) motions that must be made within a reasonable time 4. judgment is void (e.g. no personal jurisdiction, no subject matter jurisdiction) 5. Judgment satisfied, released or discharged 6. Catch all: any other reason justifying relief from the opeartion of a judgment in the interests of justice

11. CATCH-ALL CATEGORY: FRCP 60(b)(6) “for any other reason justifying relief from the operation of the judgment” reserved for extraordinary circumstances Can the catch-all category be used for motions that would also fit within another 60(b) category?

12. PRACTICE EXERCISE 20 Judge Paz must rule on a motion for a directed verdict on all 4 counts in City of Cleveland What is your advice to the judge?

13. PRACTICE EXERCISE 20: CAUSES OF ACTION 1. Civil rights violation under 42 U.S.C. §1983 (based on violations of XIV Amendment’s Equal Protection and Due Process Clauses) 2. Conspiracy under 42 U.S.C. §1985 to deprive plaintiffs of their constitutional rights 3. Violations of Title VII of the Civil Rights Act of 1964 4. Violations of Ohio Revised Code §124.58 (prohibiting fraud in examination).

14. PRACTICE EXERCISE 20 CB p. 530 1. Would the defendant’s motion for directed verdict be allowed on the state claim for fraud under the civil service statute (clerks A- G)? 2. On the conspiracy claim? (clerks H-P) 3. On the section 1983 discriminatory claim? (clerks Q-Z)

15. SUBJECT MATTER JURISDICTION What is subject matter jurisdiction? REVIEW: Every U.S. state has a court of general jurisdiction; other courts e.g. probate courts have specialized jurisdiction Federal Courts are courts of limited jurisdiction under Article III of the U.S. Constitution - so a party can only file an action in federal court in limited circumstances! State courts handle more litigation than federal courts do.

16. ARTICLE III Section 1 of the U.S. CONSTITUTION “The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish” Article III Section 2 sets the boundaries for subject matter jurisdiction of the federal courts.

17. Article III Section 2 The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two or more states;-- between a state and citizens of another state;- -between citizens of different states;-- between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects. between a state and citizens of another state

18. ARTICLE III Sect. 2 Sets out the scope of federal judicial power list of all areas in which federal courts may subject-matter jurisdiction Congress does not have power to extend the subject matter jurisdiction of the courts beyond the list in Article III What happens if Congress passes a statute that purports to grant the federal courts power beyond these areas?

19. MAJOR AREAS IN WHICH FEDERAL COURTS EXERCISE SUBJECT- MATTER JURISDICTION 1. FEDERAL QUESTION cases 2. DIVERSITY cases Others include admiralty and maritime cases, suits in which U.S. a party

20. FEDERAL QUESTION STATUTE What is the general federal question statute? Note: there are many other statutes that specifically confer federal subject-matter jurisdiction over cases arising under various federal laws, for example certain securities statutes, civil rights statutes, title 11 bankruptcy cases, patents etc. See, e.g. 28 U.S.C. §§ 1333-1338

21. CONCURRENT JURISDICTION In most cases, federal court subject-matter jurisdiction is CONCURRENT with that of state courts. What does concurrent jurisdiction mean? In some cases, e.g. copyright infringement actions or patent infringement actions, federal courts have EXCLUSIVE subject- matter jurisdiction

22. CHOOSING A COURT If plaintiff had a choice, why would a plaintiff choose federal court over state court? Why would a plaintiff choose state court over federal court? TO THINK ABOUT: Is this parallel federal-state system sensible or dysfunctional?

23. 28 U.S.C. section 1331 “The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States” What do you think is the basis for including federal question jurisdiction in the Constitution? Is there an amount in controversy requirement for federal question cases?

24. IS THERE AN AMOUNT IN CONTROVERSY REQUIREMENT FOR FEDERAL QUESTION CASES? There used to be (originally $10,000) 1980 amendment to sect. 1331 changed this. Why do you think the amount in controversy requirement was abandoned for federal question jurisdiction?

25. LOUISVILLE & NASHVILLE RR CO. v. MOTTLEY (1908) Famous U.S. Supreme Court case – please remember the name of this case!

26. LOUISVILLE & NASHVILLE V. MOTTLEY Why did the Mr. and Mrs. Mottley bring this lawsuit in the circuit court of the US for the Western District of Kentucky? What was their cause of action? Was it state or federal? What remedy did they seek? What was the railroad’s defense? Was it state or federal? How did the trial court rule?

27. THE SUPREME COURT What were the two legal questions that were appealed to the Supreme Court? Did the Supreme Court decide these issues? Why or why not? NOTE THAT NEITHER PARTY QUESTIONED SUBJECT-MATTER JURISDICTION. SEE FRCP 12(h)(3)

28. FEDERAL QUESTION JURISDICTION: In Louisville & Nashville RR v. Mottley, did the federal court have diversity jurisdiction? Did the Supreme Court find that the federal court had federal question jurisdiction? Why or why not?

29. THE WORDS OF JUSTICE MOODY “It is not enough that the plaintiff alleges some anticipated defense to his cause of action, and asserts that the defense is invalidated by some provision of the Constitution of the United Stats.” THUS, THE MEANING OF “ARISING UNDER” IN §1331 IS THAT PLAINTIFF’S STATEMENT OF HER OWN CAUSE OF ACTION MUST BE BASED ON SOME FEDERAL LAW OR THE CONSTITUTION

30. The Aftermath of Louisville & Nashville v. Mottley Supreme Court reverses and remands with instructions to circuit court to dismiss for lack of jurisdiction. Action recommenced in a state court Action eventually ends up in the U.S. Supreme Court U.S. Supreme Court finally rules on the merits The Mottleys lose (see 219 U.S. 467 (1911)). Why did Supreme Court allow this result to happen? Didn’t they foresee the outcome on the merits?

31. COUNTERCLAIMS Well-pleaded complaint rule still applies Thus, a defendant cannot create federal jurisdiction by pleading a counter-claim arising under federal law.