1L Substantive Law Questions (c/o 2017) Forum

[nothingtosee]

So let's say I want to bring a state law claim against Book Co., which is incorporated in Deleware, but has its principal place of business in Washington state.
I want to sue in federal district court in Washington state.

Can I use the fact of Delaware incorporation to establish diversity jurisdiction, but use the principal place of business in WA to establish personal jurisdiction?

Are you domiciled in WA? I'm assuming you are, because if you were in neither DE nor WA there would be no question about diversity.
Then I don't think you get to invoke diversity jurisdiction, because complete diversity requirement from Strawbridge is not satisfied.

This. For diversity they are citizens of DE and WA, not or WA.

For the sake of this hypo, I'm domiciled in WA.

What case/rule/statute says that they are citizens of both states?

[03152016]

1332(c)(1)

[nothingtosee]

1332(c)(1)

thanks everyone

[BVest]

For the case to have been removed in the first place, there needed to have been either FedQ or Diversity independently authorizing the removal of at least one claim within fed courts' competency.

I don't think that's true. Procedurally, when someone removes the state court ceases action and the federal court proceeds, regardless of whether the removal was proper. This is to prevent an overlap in jurisdiction at one time, and reduce confusion about where the case is. This means its the federal courts job to decide whether there was FedQ or Diversity authorizing removal. When someone motions to remand the fed court then has to decide that issue.

Right. Removal is automatic, even if removal is improper. It is the fed court that decides on the propriety of removal.

Here's my outline on Removal/Remand:

[outline]

(If you're having trouble understanding any of the outline, feel free to ask. That bit about bad faith is basically if you've kept a D in the case just so you don't have diversity, and then after 366 days you drop claims against that D, that would be an example of bad faith that would allow the other Ds to remove after the 1-year limit.

that's a solid outline. do you have one for pleadings and discovery perchance?

They're separate because of two-semester civ pro, but here are my full outlines:

Fall (SMJ, PJ, Supp. J, Removal, Venue, Pleadings)

Spring (Joinder, Aggregate Lit, Discovery, Judgment Motions, Preclusion, Erie (very limited on Erie))

[foundingfather]

They're separate because of two-semester civ pro, but here are my full outlines:

Fall (SMJ, PJ, Supp. J, Removal, Venue, Pleadings)

Spring (Joinder, Aggregate Lit, Discovery, Judgment Motions, Preclusion, Erie (very limited on Erie))

so you're awesome

[BVest]

I'll post more in the future. I'd been closely guarding my 1L outlines, without having an especially clear reason why (other than we worked so hard on them). But lately my attitude about them (and law school in general) has been significantly less uptight. Plus I figure I should share them while the case law is still mostly good (esp. for civ pro and con law).

[hdunlop]

Wait. Shit. Erie.

So is it ONLY for diversity cases or is it for only state law claims -- including those that could have an embedded federal question -- but not federal law claims?

[foundingfather]

Civ Pro

Is a 12(b)(1) motion ever waived? I'm getting contradictory info from different sources

nevermind i got my answer. according to 12(g)(3) you may even move to dismiss for lack of SMJ on appeal

[whats an updog]

Wait. Shit. Erie.

So is it ONLY for diversity cases or is it for only state law claims -- including those that could have an embedded federal question -- but not federal law claims?

Erie will apply to anything that arises solely out of diversity jurisdiction, or supplemental claims that are not federal themselves. Really, I think you could just apply the Erie test to everything if you wanted. I basically look at the test like this:

1. Does the Federal Constitution cover this? (Yes, apply federal law, no, ask next question)
2. Does a Federal statute cover this? (Yes, apply federal law, no, ask next question) <--- this stage would probably take most cases that came into federal court under 1331 off the table
3. Is a FRCP in direct collision with the state law? (Yes, then apply FRCP, no, ask next question)
4. Is the state law procedural or substantive? (Apply outcome determinative test with twin aims of Erie in mind i.e. ex ante Hanna)

Q3 should be seen through the scope of Shady Grove, but because this is basically up to how the judges are feeling, anytime you have a close call question about whether there is a direct collision on an exam my guess is that you should examine it both as if there were direct collision and as though there were not (like Ginsburg in Shady Grove)

you probably weren't asking for the whole lay out, but maybe someone can tell me if i'm wrong

[hdunlop]

I appreciate that. That's how I'm looking at it too, but a minority of model answers (and one commercial outline) say it's *only* for diversity cases. I have in my notes that we were taught it's diversity and a handful of supplemental and state claim with embedded federal question cases, which makes more sense to me -- although the latter are perhaps unlikely to actually arise on a test. Your #1/2 are great ways to keep it straight in my head -- thanks!

[sesto elemento]

Civ Pro

Is a 12(b)(1) motion ever waived? I'm getting contradictory info from different sources

nevermind i got my answer. according to 12(g)(3) you may even move to dismiss for lack of SMJ on appeal

Yup SMJ is never waived and courts can bring it up sua sponte

[BVest]

Civ Pro

Is a 12(b)(1) motion ever waived? I'm getting contradictory info from different sources

nevermind i got my answer. according to 12(g)(3) you may even move to dismiss for lack of SMJ on appeal

Here's the full list of waivable vs unwaivable 12(b) motions:

Disfavored/Easily Waived (Must be raised in pre-answer motion or First answer (including amendment to first answer as matter of course)):
personal jurisdiction;
venue;
insufficient process;
insufficient service of process

Favored/More Protected (Raised in Pleading, Motion, or at Trial):
failure to state a claim/affirmative defense;
failure to join an indispensable party

Extremely Favored/Unwaivable (raised any time, even on appeal for first time):
subject matter jurisdiction

[dibreezy]

Civ Pro

Very basic question but important none the less.

I am trying to understand forum. I did a little googling but didn't find anything I really liked.

My understanding of forum worked like this. If it is in state court the forum is the state i.e. Texas. If it is Fed. Ct. forum is the federal district i.e. the Western District of Texas.

This is important for a lot of things in Civ Pro, but I am specifically working on venue at 1391(b).

So is a forum not based on the court you are in (the state or the federal district), but instead just the State? Does forum mean state & only mean state?

[sesto elemento]

CivPro

Are cross claims under 13g, permissive or compulsory?

I'm guessing they're permissive, but once you file it, any compulsory counter claims to that cross claim must be raised or else they be waived.

[monsterman]

Does anyone else get prof's practice exams where a question has a scenario where there is clearly no subject matter jurisdiction, but then there are a shit ton of other things to address in the case? Should I just go, 'clearly no subject matter jurisdiction, but I'll assume no one notices for the time being and just address all the other issues then?' My prof gives extremely broad questions after huge fact patterns so I don't really have a formula for this shit.

[whats an updog]

Civ Pro

Very basic question but important none the less.

I am trying to understand forum. I did a little googling but didn't find anything I really liked.

My understanding of forum worked like this. If it is in state court the forum is the state i.e. Texas. If it is Fed. Ct. forum is the federal district i.e. the Western District of Texas.

This is important for a lot of things in Civ Pro, but I am specifically working on venue at 1391(b).

So is a forum not based on the court you are in (the state or the federal district), but instead just the State? Does forum mean state & only mean state?

BVest laid out some simple explanations earlier in this thread that may be helpful for you:

CivPro Question:

Can anyone help me out a little with venue? I'm sorry I don't have a more specific question to ask, but I'm not sure I have a basic enough understanding to ask specific questions.

My professor opened up talking about venue with saying that its the easiest thing to test on the final (*wink, wink*), and then proceeded to blast through all the content in 10 minutes and moved on.

Here's what I've got on Venue. And your professors disclaimer makes it sound like there won't be Venue questions (or if they are, they'll basically be a restating of rule without analysis), but you'll certainly need to be prepared for them.

And remember the distinctions between jurisdiction, forum, and venue I discussed above:

Jurisdiction: Power of the court to try the case in that state

Forum: System of which the court is a part has the jurisdiction to try the case, but there's another system that would be better (if you're in Federal Court, a forum motion is claiming another country's courts are more appropriate; if you're in state court, you're claiming that the proper forum is another state or country).

Venue: The court has jurisdiction, and you're in the proper court system, but another location would be more appropriate (e.g. one county over another within a state court system; one state/district over another in federal courts). As I recall, state cases that have been removed to federal court have some special venue issues, but I don't remember them.

[sesto elemento]

Does anyone else get prof's practice exams where a question has a scenario where there is clearly no subject matter jurisdiction, but then there are a shit ton of other things to address in the case? Should I just go, 'clearly no subject matter jurisdiction, but I'll assume no one notices for the time being and just address all the other issues then?' My prof gives extremely broad questions after huge fact patterns so I don't really have a formula for this shit.

1L so take this with a grain of salt, but if there is no SMJ, then you have to write out why?

Why don't the facts meet FQ?
Why don't they meet Diversity? Lack of AiC?
Why isn't supplemental jurisdiction possible?

Simply stating no SMJ is akin to just giving the C in IRAC.

But like I said disclaimer, I'm a 1L.

[whats an updog]

CivPro

Are cross claims under 13g, permissive or compulsory?

I'm guessing they're permissive, but once you file it, any compulsory counter claims to that cross claim must be raised or else they be waived.

Crossclaims are never compulsory because defendants pointing fingers at each other would essentially weaken their position so to make them compulsory would be advantageous for P who might try to add all types of Ds. And yes you are right, that if you do file a crossclaim under 13(g) then counterclaims to those crossclaims then go back and fall under 13(a)

[monsterman]

Does anyone else get prof's practice exams where a question has a scenario where there is clearly no subject matter jurisdiction, but then there are a shit ton of other things to address in the case? Should I just go, 'clearly no subject matter jurisdiction, but I'll assume no one notices for the time being and just address all the other issues then?' My prof gives extremely broad questions after huge fact patterns so I don't really have a formula for this shit.

1L so take this with a grain of salt, but if there is no SMJ, then you have to write out why?

Why don't the facts meet FQ?
Why don't they meet Diversity? Lack of AiC?
Why isn't supplemental jurisdiction possible?

Simply stating no SMJ is akin to just giving the C in IRAC.

But like I said disclaimer, I'm a 1L.

I should have clarified. I meant I go through all of that first and say no subject matter jurisdiction. But then there are like three more pages of additional facts relating to the same suit improperly in federal court...so it gets really open ended without a solid direction to take

[dibreezy]

Civ Pro

Very basic question but important none the less.

I am trying to understand forum. I did a little googling but didn't find anything I really liked.

My understanding of forum worked like this. If it is in state court the forum is the state i.e. Texas. If it is Fed. Ct. forum is the federal district i.e. the Western District of Texas.

This is important for a lot of things in Civ Pro, but I am specifically working on venue at 1391(b).

So is a forum not based on the court you are in (the state or the federal district), but instead just the State? Does forum mean state & only mean state?

BVest laid out some simple explanations earlier in this thread that may be helpful for you:

Forum: System of which the court is a part has the jurisdiction to try the case.

So if I am understanding this correctly, forum is simultaneously the State and the Federal District...

[BVest]

BVest laid out some simple explanations earlier in this thread that may be helpful for you:

CivPro Question:

Can anyone help me out a little with venue? I'm sorry I don't have a more specific question to ask, but I'm not sure I have a basic enough understanding to ask specific questions.

My professor opened up talking about venue with saying that its the easiest thing to test on the final (*wink, wink*), and then proceeded to blast through all the content in 10 minutes and moved on.

Here's what I've got on Venue. And your professors disclaimer makes it sound like there won't be Venue questions (or if they are, they'll basically be a restating of rule without analysis), but you'll certainly need to be prepared for them.

And remember the distinctions between jurisdiction, forum, and venue I discussed above:

Jurisdiction: Power of the court to try the case in that state

Forum: System of which the court is a part has the jurisdiction to try the case, but there's another system that would be better (if you're in Federal Court, a forum motion is claiming another country's courts are more appropriate; if you're in state court, you're claiming that the proper forum is another state or country).

Venue: The court has jurisdiction, and you're in the proper court system, but another location would be more appropriate (e.g. one county over another within a state court system; one state/district over another in federal courts). As I recall, state cases that have been removed to federal court have some special venue issues, but I don't remember them.

To clarify a little bit, when you're making a motion to dismiss for Forum Non Conveniens, you're doing so because the system of which the court is a part (e.g. the Texas State Courts) have jurisdiction to try the case, but another system of courts (e.g. those of another state or country would be better. If the case is in the federal court, a motion to dismiss for FNC is a claim only that another country's court system would be better (because the states are already overlapped by the fed system).

But you're correct that Forum would mean Federal Court System if you're in a Fed District Court somewhere (no matter where). If, instead, you're in a Texas county court, the forum in question would be Texas. If there's an issue of where, within the forum, the case should be tried, that's an issue of venue.

ETA: I realize that my use of "Court system" may be confusing. Really: If case is in Texas State Court in Podunk, TX, the forum = entire state of Texas; if it's in Fed Dist Ct, Forum = Entire United States.

[dibreezy]

Okay thanks BVest. I have to be more specific in my question.

When the plaintiff is choosing a venue he may lay venue in any district where all Defendants reside. However a subpart of this, according to Freer, is that if all D's reside in the same forum, the P may lay venue in where any of them reside. He used an example where a case was being brought to district court. Where one D was from the Western District of Texas and the second D was in the Northern District of Texas.

He said because all D's reside in the same forum, P may choose either the Western or the Northern.

My problem is that, with my understanding of forum, they are not in the same forum. Unless, however, both the D's were simultaneously in their respective Districts and in the same State. Essentially, he used the state forum to move one of the D's to a different district, and consequently, a different forum. So uhh....you can do that?

[BVest]

That's a venue issue where there's no question of personal jurisdiction. To have proper venue in a fed dist ct under §1391, it must be

District where any D resides*, if they all reside in same state [note that if they all reside in the same state, there's PJ over all of them]
OR
District where a substantial part of events or omissions occur or substantial part of property situated
BUT,
If no district would qualify under the above two tests, the fallback is ANY district where ANY D is subject to personal jurisdiction in the current case.

In the case of the first test, where you have multiple Ds from all over Texas, you can file in any district in which at least one of the Ds resides.

It sounds like Freer is essentially saying "forum state" (whether or not he actually says the word "state"). And whether you're talking about forum the way I do or he does, it will always be either an entire state or an entire country. It will never be part of a state (or part of a country, unless it's exactly one entire state).

ETA: *resides =
................ district of domicile for individuals
OR
................ any district where an entity has enough contacts to be subject to personal jurisdiction for entities; if there's no district that meets that description, but the entity does have enough contacts statewide to be subject to personal jurisdiction in the state, then it's the district where the entity has the most significant contacts in the state. (The last part is a distinction that's unlikely to come up in an essay because it's a rabbit trail that your prof probably won't want you following)

[dibreezy]

That's a venue issue where there's no question of personal jurisdiction. To have proper venue in a fed dist ct under §1391, it must be

District where any D resides*, if they all reside in same state [note that if they all reside in the same state, there's PJ over all of them]
OR
District where a substantial part of events or omissions occur or substantial part of property situated
BUT,
If no district would qualify under the above two tests, the fallback is ANY district where ANY D is subject to personal jurisdiction in the current case.

In the case of the first test, where you have multiple Ds from all over Texas, you can file in any district in which at least one of the Ds resides.

It sounds like Freer is essentially saying "forum state" (whether or not he actually says the word "state"). And whether you're talking about forum the way I do or he does, it will always be either an entire state or an entire country. It will never be part of a state (or part of a country, unless it's exactly one entire state).

ETA: *resides =
................ district of domicile for individuals
OR
................ any district where an entity has enough contacts to be subject to personal jurisdiction for entities; if there's no district that meets that description, but the entity does have enough contacts statewide to be subject to personal jurisdiction in the state, then it's the district where the entity has the most significant contacts in the state. (The last part is a distinction that's unlikely to come up in an essay because it's a rabbit trail that your prof probably won't want you following)

Very helpful. I was failing to make the connection b/w federal courts and PJ. So much stuff swirling around my head right now. At least that's cemented in there now.

You're a legend BVest. BTW, if you want to let slip an outline section specifically pertaining to Discovery so that I can cross examine it with my outline I would not be complaining. That said, you're doing the Lord's work.

[BVest]

BTW, if you want to let slip an outline section specifically pertaining to Discovery so that I can cross examine it with my outline I would not be complaining. That said, you're doing the Lord's work.

They're separate because of two-semester civ pro, but here are my full outlines:

Fall (SMJ, PJ, Supp. J, Removal, Venue, Pleadings)

Spring (Joinder, Aggregate Lit, Discovery, Judgment Motions, Preclusion, Erie (very limited on Erie))