Just a note for those not in my class who are looking for civ pro exam questions. They are all available here. (Warning for those in my class: not all of these are suitable for you - some cover material we will not do this semester.)
I'm not getting as many wonky questions by email these days (midterms...?) so I thought I would post some more highlights from past years' questions. Here is one from two years ago:
Whenever a student prefaces a question with “This may be a simple question but…”, I know it’s not going to be a simple question. This is what a student asked: “This may be a super simple question, but if D is tagged on a Federal reservation in a state, is that enough for D to be subject to in personam jurisdiction in that state?” My gut said yes, but my gut also said that the answer would be easy to find. Not so.
The problem is that the question tends to get muddled together with other questions, like the power of a state to extend its laws to the enclave, or the power of state officials to exercise arrests within the enclave. The question here is simpler. Can tagging of a defendant in the enclave give a state court in personam jurisdiction over the defendant (especially for a non-federal cause of action)?
After considerable searching, I got my answer. See the discussion in Richard T. Altieri, Federal Enclaves: The Impact of Exclusive Legislative Jurisdiction Upon Civil Litigation, 72 MIL. L. REV. 55, 71-78 (1976). There is in personam jurisdiction due to such service (under the 14th Amendment). This makes sense. Any relinquishment of state sovereignty due to the creation of the federal enclave does not have to extend to the state's adjudicative power over defendants within its borders. By the way, this conclusion extends beyond “tagging” jurisdiction to general in personam jurisdiction over corporations. The corporation’s contacts with the federal enclave can support personal jurisdiction over the corporation in state court.
Yet another civpro question I had never thought of before.
In the news article the suit was brought in Nebraska state court (which is a court of general subject matter jurisdiction). But how about a suit in federal court? Federal question? Unlikely. Didn't look like he was suing under federal law. Diversity or alienage jurisdiction? I don't think so (God is not a citizen of a State nor is he a citizen or subject of a foreign state). The suit would probably have to be in state court.
By the way, there was a case in which someone sued Satan in federal court. Mayo v. Satan and his Staff, 54 F.R.D. 282 (W.D. Pa. 1971). (The opinion is a denial of an application to proceed in forma pauperis.) Federal subject matter jurisdiction in this case was federal question, since Satan was being sued under 42 USC 1983 for violation of the plaintiff's constitutional rights. One problem noted by the court was service, although I suppose you could ask it to approve service by publication. (Or is service unnecesssary because Satan is omniscient...?)
What about PJ over God in Nebraska? The state senator suggested that God, being omnipresent, would be subject to the power of a Nebraska state court. It is good that the senator appealed to a theory that would give the court general PJ. It needs general PJ, because the suit is (at least in part) about stuff God did outside Nebraska. Specific PJ would not work.
The scenario brings up the interesting issue of whether there can be general in personam jurisdiction, on the basis of the defendant's presence within the state at the initiation of the suit, when there is not actually service on the defendant in the state. We know from Milliken that there can be general in personam personal jurisdiction over a defendant who is domiciled in a state even if there is no service in the state, but I don't think the senator is claiming that God is domiciled in Nebraska. He is just present there.
If one looks for guidance in the language of § 78 of First Restatement of Conflicts, presence in the state at the beginning of the suit, without service in the state, would apparently be enough: “A state can exercise through its courts jurisdiction over an individual voluntarily within its territory whether he is permanently or only temporarily there.” And indeed, in hand service of the summons and complaint on the defendant in the forum state has been held to be unnecessary provided that the defendant is present in the state at the beginning of the suit. The cases that say this are those where there was some sort of substituted service (such as publication) and the defendant was present in the forum state at the time of the substituted service. So maybe the senator is right about PJ, although there remains the problem of providing service.
Last year I got the following question in an email:
Do you know of a case that had a claim for monetary relief, but was successfully removed to federal court because the non-diverse defendant was the result of a fraudulent joinder?
The reason he asked this question is that in Rose v. Giamatti the main reason that the district court found fraudulent joinder was that there was no way that the diversity-destroying defendants could provide the injunctive relief requested by Pete Rose. But anyone can pay damages.
Well courts certainly have found fraudulent joinder in damages cases. One example among many is Smith v. Amoco Corp., 113 Fed. Appx. 19 (5th Cir. 2004), in which the plaintiff was asking for damages due to unsafe conditions at a store, which resulted in an armed robbery that caused him harm. To defeat diversity, the plaintiff joined a mid-level supervisor of a number of stores, including the one that was robbed. The district court held that under Mississippi law, the supervisor could not be held liable personally for unsafe conditions at the robbed store and the 5th Circuit affirmed. Notice that the court did look a bit at the evidence of the supervisor’s responsibilities (conducting “remand discovery”).
It is important to note, however, that this is not the same as summary judgment. There isn't anything like full discovery (since the district court is trying to find out whether the case should proceed at all). Thus, courts are (usually) careful to distinguish a determination of fraudulent joinder from summary judgment. E.g. Crowe v. Coleman, 113 F.3d 1536, 1538 (11th Cir.1997) ( “While ‘the proceeding appropriate for resolving a claim of fraudulent joinder is similar to that used for ruling on a motion for summary judgment under Fed.R.Civ.P. 56(b),’ the jurisdictional inquiry ‘must not subsume substantive determination.’ ”)
Other examples of damages actions where fraudulent joinder is found are those in which no conceivable cause of action against the non-diverse defendant can be found in the facts pleaded by the plaintiff. This sounds like failure to state a claim, but once again, the standard for fraudulent joinder is more deferential to the plaintiff. E.g., Casias v. Wal-Mart Stores, Inc., 695 F.3d 428, 433 (6th Cir. 2012) ("When deciding a motion to remand, including fraudulent joinder allegations, we apply a test similar to, but more lenient than, the analysis applicable to a Rule 12(b)(6) motion to dismiss."). When deciding a motion to dismiss for failure to state a claim, a court will sometimes make very difficult judgments about the scope of the plaintiff's cause of action. That would be inappropriate in a fraudulent joinder determination.
In the review session, Shutao Zhang asked whether a federal court may dismiss an action, on its own motion, for failure to satisfy TwIqbal standards. They certainly have done so. E.g., Macronix Intern. Co., Ltd. v. Spansion Inc., 2014 WL 934505 (E.D. Va., March 10, 2014). Sua sponte dismissal makes sense if TwIqbal is understood as indirectly enforcing Rule 11 standards concerning evidentiary support for factual allegation. After all, a court can bring up Rule 11 on its own motion. The idea is that the court, and not merely the defendant, suffers when a plaintiff makes factual allegations that do not satisfy the TwIqbal standard, so the court can bring the matter up itself.
Here is a question that this year's class should be able to take a stab at even now:
Essay Question 2 (14 points)
Assume for the purposes of this question that the federal court in Florida entertaining Smith v. Insurer Corp. & Jones should use the plausibility pleading standard in Twombly and Iqbal. Has the standard been satisfied (particularly concerning paragraphs 9-15)?
This question concerns following complaint [sorry if the formatting is off here]
Let's return to Q. 9 of the MBE sample questions (by the way, this discussion is definitely not for my current civ pro class...yet):
9. A motorcyclist was involved in a collision with a truck. The motorcyclist sued the truck driver in state court for damage to the motorcycle. The jury returned a verdict for the truck driver, and the court entered judgment. The motorcyclist then sued the company that employed the driver and owned the truck in federal court for personal-injury damages, and the company moved to dismiss based on the state-court judgment. If the court grants the company’s motion, what is the likely explanation? (A) Claim preclusion (res judicata) bars the motorcyclist’s action against the company. (B) Issue preclusion (collateral estoppel) establishes the company’s lack of negligence. (C) The motorcyclist violated the doctrine of election of remedies. (D) The state-court judgment is the law of the case.
(C) and (D) are obviously nonstarters. The question is whether (A) or (B) is right. Let's start with issue preclusion. The examiners are right that issue preclusion is a problem because we do not know why the jury returned a verdict for the truck driver. It may not have been because the driver was found non-negligent. Indeed it may be that the issue of the driver's negligence never came up (perhaps negligence was admitted). The only finding might have been the contributory negligence of the motorcyclist. We just don't know. For that reason, I can't see why the examiners even say, "It is true that the same negligence issue that was presented against the truck driver is being presented in the action against the company and that that issue was actually litigated in the first action—two requirements for the application of issue preclusion." We don't know that the negligence of the driver was actually litigated and decided in the first action. Indeed, we don't even know that the action against the driver was for negligence. The question doesn't even say that!
The Multistate Bar Exam will have Civ Pro questions starting in February 2015. Here are some sample questions. I agree with Prof. Clermont that Question 9 is problematic, although my take on it is slightly different. I'll say a bit more about it soon. For the moment, here is the question:
9. A motorcyclist was involved in a collision with a truck. The motorcyclist sued the truck driver in state court for damage to the motorcycle. The jury returned a verdict for the truck driver, and the court entered judgment. The motorcyclist then sued the company that employed the driver and owned the truck in federal court for personal-injury damages, and the company moved to dismiss based on the state-court judgment. If the court grants the company’s motion, what is the likely explanation?
(A) Claim preclusion (res judicata) bars the motorcyclist’s action against the company. (B) Issue preclusion (collateral estoppel) establishes the company’s lack of negligence. (C) The motorcyclist violated the doctrine of election of remedies. (D) The state-court judgment is the law of the case.
It goes without saying that this is waydown the road for this year's class...
In addition to occasional posts on my own research, this blog is mostly for written responses to student questions. (Most questions I'll answer orally, but for particularly interesting or widespread questions, I like to provide written responses.) Later in the semester, you should also find it useful to look at some of the old exam questions and answers posted here, to anticipate what the exam will be like. But some of these old questions address material that I won't discuss this semester. Struggling with them won't be helpful. In addition, I discourage you from reading any of these old exam questions until we are sufficiently advanced in the course. I'll let you know which ones to look at when the time comes...
Magic Flute Charming version done by Ingmar Bergman (in Swedish) for Swedish TV
Wim Wenders, Himmel über Berlin I'm a sucker for this movie, mostly because it reminds me of Berlin in the late 80s. The Peter Falk stuff can get tiresome. At 11:50, you can see the Cinema Paris on the Ku'damm, which is where I first saw the movie. I remember at the time that it was an odd experience to see in a movie the very place where I was watching the movie. One of my favorite scenes is at 1:33:00