Michael Green's CivPro Blog

Diversity and LLPs

Sorry - I was in San Diego for a conference and so have gotten behind a bit....

Kevin Bender asked what the citizenship of a LLP (limited liability partnership) is for diversity purposes. And the answer is...

In Personam Jurisdiction

Cameron Ginder asked the following question (it also came up in a conversation with Rose Moore and Janie Brittan after class):

We continually refer to jurisdiction in personam as when the individual is "tagged" in the state.  I have taken this to mean service.  What happens if I am in Virginia when an action commences (and we've learned that an action commences on filing with the court) but I am served when I am in Indiana where I am domiciled at. I have assumed that tagging refers to the service rather than the time of actual filing.  It seems troublesome to determine where individuals are located the exact moment of filing. I just wanted to make sure this assumption is correct (and I very well may be wrong).  We just have talked about tagging, our examples in class use service, but we've also talked about when an action begins so I wanted to double check. This also stems from questions 17-19 on page 524.

Amount in Controversy

Chris Geddis asked another great question:

Also, do you know of a borderline case that was remanded to state court because the defendant was unable to convince the district court that the amount at controversy was above the jurisdictional minimum according to the standard of 28 U.S.C. § 1446(c)(2)(B)?

Fraudulent Joinder

Chris Geddis asked the following question:

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?

Arising Under...

James Damon asked the following excellent but frustrating question:

"Can you give an example of a case where the plaintiff's claim relies on both state law and federal law but where the claim relies so heavily upon a violation of state law and to such a small degree on violation of federal law that the federal district courts fail to take the case due to lack of subject matter jurisdiction? I understand the example about the securities fraud qualifying, I want an example of something that would likely fail to meet this standard. Right now, this 'sliding scale' notion feels too airy for me to wrap my brain around."

Getting the Mottleys into Federal District Court

After class, Trevor Johnson came up with a scenario in which the Mottleys may have been able to bring their suit in federal district court after all. They could have sued  the United States (or officers of the United States) claiming that the federal statute prohibiting free passes was a taking requiring compensation under the 5th Amendment. In that case their cause of action would have been under the 5^th Amendment. As such it would have had federal question jurisdiction under 28 USC 1331.

It's Citizenship, not Residence!

A class action was recently filed in federal court in the Northern District of California against Apple on behalf of purchasers, through iTunes, of Season 5 of the (excellent) TV show "Breaking Bad." The causes of action are under state law, but federal jurisdiction was asserted under the Class Action Fairness Act, 28 USC 1332(d) , which (with some exceptions) gives federal jurisdiction to minimal diversity class actions in which "the matter in controversy exceeds the sum or value of $5,000,000." All that is needed is minimal diversity - that is a case in which "any member of a class of plaintiffs is a citizen of a State different from any defendant." But, as every first year civ pro student knows (or should know) the question is citizenship, not residence. Take a look at the complaint.

Hold your hand out Matthew R. Wilson...

 

 

Suing Satan (and His Staff)

Since we are moving into service, I thought I would refer you to Mayo v. Satan and His Staff. The immediate issue was the plaintiff's petition to proceed in forma pauperis (that is, without having to pay filing fees, the costs of service, etc.). But in refusing the petition, Judge Weber notes the problem with service. By the way, there is also a problem of failure to state a claim, given that Satan is not, to my knowledge, a state official - nor does Mayo allege that Satan and his staff were acting in concert with state officials. It is unlikely, therefore, that he can be sued for civil rights violations under 42 U.S.C. § 1983. (The other two provisions that Mayo mentions are 28 U.S.C. § 1343, which gives federal subject matter jurisdiction for federal civil rights actions, and 18 U.S.C. § 241, which criminalizes conspiracy to commit civil rights violations - a provision that is obvious irrelevant in a civil suit.)

Rule 11 and Twiqbal

This is a particular good question from last year that I thought I would add:

Q. Assume that, pursuant to 11(b)(3), one specifically identified a factual allegation as lacking evidentiary support but likely to have such support after a reasonable opportunity for further investigation or discovery. Wouldn't that get you in trouble with TwIqbal?

Rule 11 Sua Sponte

I got the following question after class: Rule 11(c)(2) says that a "motion for sanctions" cannot be filed with the court if the challenged paper is withdrawn or appropriately corrected within 21 days after the offender has been served with a motion for sanctions.  But this rule doesn't address the judge.  Rule 11(c)(3), which allows a court on its own initiative to "order an attorney, law firm, or party to show cause why conduct specifically described in the order has not violated Rule 11(b)" doesn't explicitly include a grace period, so it seems to me that the challenged attorney could be sanctioned, even if he does happen to amend or withdraw his paper within 21 days.