I asked you to read the material on service of process for background, since the matter has been mentioned several times. Keep that in mind, even though we did not discuss it in class.
Your casebook states: "Venue, meaning place of trial, places a further geographical limitation on plaintiff's opposition in selecting a forum." Note the geographic nature of venue, as opposed to the sovereign nature of the Personal Jurisdiction analysis. There is an awful lot of overlap between Personal Jurisdiction and Venue. However, venue has a sharper focus. Think of Mikey and Minnie Mouse, they are subject to General Personal Jurisdiction in the state of Florida, based on their Florida domicile (remember page 796). However, they are subject to venue, based on their residence (1391(a)(1)), only in the US District court that covers Orlando, that is the Middle District of Florida (I called it the Central). Since the accident referred to in the practical project occurred in Alachua County, Florida, the federal court for the Northern District would also have venue over the case, pursuant to 1391(a)(2). Note that 1392(a)(2), and (b)(2), to the extent that they establish venue independently from the residence of defendants, are more likely to be useful in multiple-defendant cases.
If you do not know which District a city is in, where do you look it up? In the initial sections of Title 28. 28 USC sec. 89 covers Florida. Please keep this in mind when preparing for the exam.
28 USCS § 1392 (1996). Defendants or property in different districts in same State
Any civil action, of a local nature, involving property located in different districts in the same State, may be brought in any of such districts.
[Remember our discussion of the Rule 12 matter.]
CB-817: Venue Factors
(1) the location of property involved in the action,(2) the place where the cause of action arose,
(3) the location of some particular event or fact,
(4) defendant's residence,
(5) plaintiff's residence,
(6) defendant's place of business, and
(7) plaintiff's place of business.
[817] The Supreme Court has explained that "[i]n most instances, the purpose of statutorily specified venue is to protect the defendant against the risk that a plaintiff will select an unfair or inconvenient place of trial."
[Leroy had interpreted the pre-1990 version of section 1391 which read that venue was proper in "the judicial district . . . in which the claim arose".]
[818] This phrase gave rise to a variety of conflicting interpretations. Some courts thought it meant that there could be only one such district; others believed there could be several. Different tests developed, with courts looking for "substantial contacts," the "weight of contacts," the place of injury or performance, or even to the boundaries of personal jurisdiction under state law.
LEROY, FACTORS [818]
(1) the purpose of the 1966 statute was to close venue gaps and should not be read more broadly than necessary to close those gaps;
(2) the general purpose of the venue statute was to protect defendants against an unfair or inconvenient trial location;
(3) location of evidence and witnesses was a relevant factor;
(4) familiarity of the Idaho federal judges with the Idaho anti-takeover statute was a relevant factor;
(5) plaintiff's convenience was not a relevant factor; and
(6) in only rare cases should there be more than one district in which a claim can be said to arise.
[The amended 1391 was intended as a move away from number 6 and expressly recognized the possibility of multimple districts with venue. Additionally, note that exceptions to venue based on the residence of defendants nonetheless consider other factors that make litigation in that forum fair.]
[819] Since the new statute does not, as a general matter, require the District Court to determine the best venue, these factors will be of less significance. Apart from this point, however, Leroy and other precedents remain important sources of guidance.
[819] Under the version of the venue statute in force from 1966 to 1990, at least three District Courts held that venue was proper under the Fair Debt Collection Practices Act in the plaintiff's home district if a collection agency had mailed a collection notice to an address in that district or placed a phone call to a number in that district. * * * None of these cases involved the unusual fact, present in this case, that the defendant did not deliberately direct a communication to the plaintiff's district.
[819] We conclude, however, that this difference is inconsequential, at least under the current venue statute. The statutory standard for venue focuses not on whether a defendant has made a deliberate contact--a factor relevant in the analysis of personal jurisdiction (FN1)--but on the location where events occurred.
[Remember our discussion of Rule 12. The wavier of the defense of lack of Personal Jurisdiction is crucial, because it is unlikely that the court would have found minimum contacts based on the forwarding, since it appears to concede that there is no "purposeful availment". (Think about how the defendants might avoid even venue. Perhaps by prohibiting forwarding as the court suggests at page 820.) One alternate view of the purposeful availment problem is suggested by footnote 2 and by note 1, to make a finding that the effect of the actions was felt in New York. Certainly an American Radiator view of the world.]
[Note the discussion about the receipt and content of the letter, which is, for this court anyway, decisive.]
[821] 2. How should venue be handled when the defendant is an organizational entity but not a corporation? For purposes of diversity of citizenship federal court subject matter jurisdiction, voluntary associations like labor unions are not considered separate legal entities and therefore are generally considered citizens of the state in which any member resides. [Remember UMW v. GIBBS].
[821] 3.. . . One definite change is that before 1990 in diversity cases plaintiff's residence was a permissive venue. "Congress clearly removed the plaintiffs' venue option from diversity cases in the 1990 amendments. Diversity plaintiffs must now bring a diversity action where defendants reside or where a 'substantial part of the events or omissions giving rise to the events occurred.' " Berube v. Brister, 140 F.R.D. 258, 260-61 n. 12 (D.R.I.1992).
[821] Eliminating venue differences between diversity cases and other cases, like the plaintiff's residence under prior law, was also a goal behind the 1990 amendments. Was that accomplished? Compare subsections (a)(3) and (b)(3). The diversity provision had to be further amended in 1992 to bring it into line with the provisions of subsection (b)(3), and the use of the term "found" in the latter provisions may leave lingering differences in treatment. See Oakley, Recent Statutory Changes in the Law of Federal Jurisdiction and Venue: The Judicial Improvements Acts of 1988 and 1990, 24 U.C.Davis L.Rev. 735, 777. What is the focus of the third venue option, sometimes called the fallback option? "Subsection 3 is meant to cover the cases in which no substantial part of the events happened in the United States and in which all the defendants do not reside in the same state." H.R.Rep. No. 734, 101st Cong., 2d Sess.
[Note that the remaining differences in the language of 1391(a)(3) and (b)(3), mean that under (b)(3) personal service upon any defendant within the jurisdiction (a la Burham), is enough to establish venue under (b)(3), but probably not under (a)(3).]
[I will leave you to explore the meaning of "substantial" on your own].
[When reviewing Note 9, keep in mind the 1996 amendment to section 1392.]
THE THREE TYPES OF JURISDICTION WE have discussed can be seen as follows:
Generally, all three must be present for the case to be filed properly AT ITS INCEPTION. However, thereafter, the rules change. Subject-Matter Jurisdiction is always a requirement, and a most-favored defense. Personal Jurisdiction is always a requirement, unless the party voluntarily submits to jurisdiction, or waives the defense (as happened in Pace). One important exception is VENUE. Dismissal for lack of venue, is not available to impleaded third-parties. Nevertheless, the lack of venue can be considered by the court in exercising its discretion to preclude the Rule 14 impleader (see Rule 14(a)[3]), so the analysis is still important.
For the Federal Courts to have jurisdiction, there must a Constitutional Basis therefor, AND enabling legislation is also often required. In the case of sections 1332 and 1331, the constitutional source is in Art. III, section 2 of the Us. Constitution.
Keep in mind the following Constitutional language when reviewing today's material, as well as the general discussion of Federal subject-matter jurisdiction.
The judicial Power [of the United States] shall extend to [i] 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; [ii]to all Cases affecting Ambassadors, other public Ministers or Consuls; [iii]to all Cases of admiralty and maritime Jurisdiction; [iv]to Controversies to which the United States shall be a Party; [v]to Controversies between two or more States; [vi]between a State and Citizens of Another State; [vii][Controversies] between Citizens of different States; [viii]between Citizens of the same State claiming Lands under Grants of different States, and [ix] [Controversies] between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
[837] In the Judiciary Act of 1789 Congress vested federal courts with jurisdiction of cases in which there was diversity of citizenship in the predecessor to 28 U.S.C.A. Sec. 1332. In Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267, 2 L.Ed. 435 (1806), the Court held that ****the statute***** required "complete diversity," that no defendant come from the same state as any plaintiff. Read Article III Secs. 1 and 2 of the Constitution and section 1332.
[Hence, the Big circle represents Art. III, Section 2, "simple diversity", and the smaller circle completely contained within the larger one constitutes "Complete Diversity"].
[Please keep in mind that Mas discusses very succinctly, just about every rule applicable in the diversity context.]
[838-39] [1. Complete Diversity] It has long been the general rule that complete diversity of parties is required in order that diversity jurisdiction obtain; that is, no party on one side may be a citizen of the same State as any party on the other side. Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267, 2 L.Ed. 435 (1806). [2. Choice of Law] This determination of one's State citizenship for diversity purposes is controlled by federal law, not by the law of any State. [3. Relevant Time] As is the case in other areas of federal jurisdiction, the diverse citizenship among adverse parties must be present at the time the complaint is filed. [4. Subsequent Changes] Jurisdiction is unaffected by subsequent changes in the citizenship of the parties. [5. Burden of Proof] The burden of pleading the diverse citizenship is upon the party invoking federal jurisdiction, and if the diversity jurisdiction is properly challenged, that party also bears the burden of proof.
[839] [Citizenship=Domicile] To be a citizen of a State within the meaning of section 1332, a natural person must be both a citizen of the United States, and a domiciliary of that State. For diversity purposes, citizenship means domicile; mere residence in the State is not sufficient.
[839] [Domicile=(1) Physical Presence and (2) Intent to Remain] A person's domicile is the place of "his true, fixed, and permanent home and principal establishment, and to which he has the intention of returning whenever he is absent therefrom...." [Changes] A change of domicile may be effected only by a combination of two elements: (a) taking up residence in a different domicile with (b) the intention to remain there.
[Remember World-Wide Volkswagen where the Robinsons chose to retain their New York citizenship --with the intention of KILLING diversity.]
[839] While it is generally the case that the domicile of the wife--and, consequently, her State citizenship for purposes of diversity jurisdiction--is deemed to be that of her husband, * * *
[839] If Mr. Mas were considered a domiciliary of France--as he would be since he had lived in Louisiana as a student-teaching assistant prior to filing this suit--then Mrs. Mas would also be deemed a domiciliary, and thus, fictionally at least, a citizen of France. She would not be a citizen of any State and could not sue in a federal court on that basis; nor could she invoke the alienage jurisdiction to bring her claim in federal court, since she is not an alien. [The expatriate American scenario].
[840] It is well settled that the amount in controversy is determined by the amount claimed by the plaintiff in good faith. Federal jurisdiction is not lost because a judgment of less than the jurisdictional amount is awarded. That Mr. Mas recovered only $5,000 is, therefore, not compelling. As the Supreme Court stated in St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 288-290, 58 S.Ct. 586, 590-591, 82 L.Ed. 845:
The sum claimed by the plaintiff controls if the claim is apparently made in good faith.
[The Standard for Dismissal is] It must appear to a legal certainty that the claim is really for less than the jurisdictional amount to justify dismissal. The inability of the plaintiff to recover an amount adequate to give the court jurisdiction does not show his bad faith or oust the jurisdiction....
... His good faith in choosing the federal forum is open to challenge not only by resort to the face of his complaint, but by the facts disclosed at trial, and if from either source it is clear that his claim never could have amounted to the sum necessary to give jurisdiction there is no injustice in dismissing the suit.
[840] Thus the power of the federal district court to entertain the claims of appellees in this case stands on two separate legs of diversity jurisdiction: a claim by an alien against a State citizen; and an action between citizens of different States. [Hence, Diversity is divided into Alienage Jurisdiction (Art. III, Sec. 2, Clause ix) and traditional diversity (Art. III, Sec. 2, Clause vii).]
As I indicated in class, Mr. Mas' marriage to an American citizen does not automatically change his citizenship. He is eligible to apply for US citizenship BUT only after he or she applies for Permanent Resident Alien status. In other words, the marriage itself entitles the foreign citizen to apply for permanent resident status, and, his residence allows him to apply for citizenship after three years. A friend who practices immigration law explains the situation as follows:
An alien who marries a US Citizen is eligible *to apply for* for permanent residence. If the couple is married less than two years before the application for permanent residence is filed, then the alien will be granted a period of "conditional permanent residence" for a period of two years. In the 90 day period before the completion of that two year conditional period, the couple has to file a "joint petition to remove the conditional nature of the permanent residence," at which time the status is converted to regular permanent residence. If the couple is married for over two years at the time of the application for permanent residence, then the alien can receive regular permanent residence right away.
If a person obtains permanent residence through marriage to a US citizen, they are eligible to apply for citizenship after three years of permanent residence. (The normal wait is five years)
Nothing happens automatically: the couple must apply to INS for permanent residency (the procedures are different if the alien spouse is outside the US). A permanent resident retains his/her own citizenship (and is required to maintain a passport from that country as well). If they are interested in applying for US citizenship down the road, the US does recognize dual citizenship....the person would have to check with his or her own country, however, to determine what effect US naturalization would have on their foreign citizenship.
In reading Note 1, note that the amendment to the las paragraph of 1332(a) refers to Permanent Resident aliens, i.e., those with so-called "green" cards.
[841] 3. Whatever the wisdom of the complete diversity rule, the Court made clear in State Farm Fire & Cas. Co. v. Tashire, supra p. 253, that it is not constitutionally required. It upheld the requirement of "minimal diversity" in the federal interpleader statute: "Article III poses no obstacle to the legislative extension of federal jurisdiction, founded on diversity, so long as any two adverse parties are not co-citizens."
[The problem posed by the Singh case is reflected in the rule that you "need a Gringo in the case", i.e., at least one plaintiff or defendant must be an American Citizen, not an alien. This, it is argued, is required by Art. III, Sec. 2, Clause ix.]
Note 5 makes an important point, however, it is perfectly common, and not a violation of 1359, for an individual to move and establish a new domicile in order to create diversity.
The case mentioned in Note 8 at page 843 brings home the point of Rule 12(h)(3). Lack of subject matter jurisdiction is a most favored defense it can be raised at any time and is a winner, even if the party misled the other party. Of course, the LAWYERS for the company, local counsel in New Jersey and Washington, DC main counsel, had PERSONAL sanctions up to $40,000.00, imposed on them for their misconduct. But the case was gone from the Federal Court, and the statute of limitations had run.
[845] 13. Plaintiffs can cure jurisdictional problems created by the lack of complete diversity by dismissing as to the nondiverse defendant unless that defendant is indispensable under Rule 19(b). In Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 109 S.Ct. 2218, 104 L.Ed.2d 893 (1989), the Court held that Rule 21 permits this solution even when the case is on appeal when the lack-of-diversity problem appears.
[847] 5. The joinder rules lead to ironic results regarding aggregation of claims to satisfy the jurisdictional minimum. Thus, not only does Rule 18 allow plaintiff to combine all the claims he has against defendant, no matter how unrelated, into one suit, but the jurisdictional amount issue is resolved with reference to the aggregate total of all the claims. Where several plaintiffs can join under Rule 20 because their claims all derive from the same transaction or occurrence, however, they cannot aggregate these related claims to satisfy the jurisdictional minimum. Similarly, in class actions the claims of class members may not be aggregated to meet the jurisdictional minimum. Snyder v. Harris, 394 U.S. 332, 89 S.Ct. 1053, 22 L.Ed.2d 319 (1969); see generally C. Wright, Law of Federal Courts Sec. 36 (5th ed. 1994).
Review of Section 1332:
28 USC § 1332
(c) For the purposes of this section and section 1441 of this title
(1) a corporation shall be deemed to be a citizen of [a] any State by which it has been incorporated and [b] of the State where it has its ***principal*** place of business, except that in any ***direct action*** against the insurer of a policy or contract of liability insurance, whether incorporated or unincorporated, to which action ***the insured is not joined as a party-defendant***, such insurer shall be deemed a citizen of the [i-1] State of which the insured is a citizen, as well as [i-2] of any State by which the insurer has been incorporated and [i-3] of the State where it has its principal place of business; and
(2) the [a] legal representative of the estate of a decedent shall be deemed to be a citizen only of the same State as the decedent, and [b] the legal representative of an infant or incompetent shall be deemed to be a citizen only of the same State as the infant or incompetent.Several students asked about the meaning of "Direct Action" in 1332(c)(1). The example would be if Minnie Mouse in our Project had her car insured by an Insurance Company incorporated in Delaware with its principal (note that it is p-r-i-n-c-i-p-a-l NOT princip-l-e) place of business in Georgia. Assume further that all the persons involved in the accident are citizens of Florida, and that Florida allows the plaintiff, Daffy Duck, to sue the Insurance Company, ***without*** suing the insured. In that case, prior to the amendment to 1332(c)(1), the case could be filed in Florida US District Court on diversity grounds. The language of 1332(c)(1) was added expressly to prevent that from happening. Additionally, note what is NOT a direct action, a case like McGee, where the beneficiary of a life policy sues the insurance company. Additionally, a case in which the insured is suing to get coverage is not a direct action (it would also not be a case in which the insured is joined as a party-defendant).
My rule as to Federal Question:
If federal law creates the cause of action AND supplies the substantive standard there is federal question jurisdiction.
Additionally, if the field has been preempted by federal law, it is a federal question case.
[847-48] Article III, Sec. 2 of the Constitution vested the Supreme Court with judicial power extending 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." But Congress did not vest the lower federal courts with general jurisdiction over cases raising federal questions until 1875, when it passed the predecessor to 28 U.S.C.A. Sec. 1331: "The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States."
[849] * * * We do not deem it necessary, however, to consider either of these questions, because, in our opinion, the court below was without jurisdiction of the cause. Neither party has questioned that jurisdiction, but it is the duty of this court to see to it that the jurisdiction of the circuit court, which is defined and limited by statute, is not exceeded. This duty we have frequently performed of our own motion.
* * * It is the settled interpretation of these words, as used in this statute, conferring jurisdiction, that a suit arises under the Constitution and laws of the United States [1]when the plaintiff's statement of his own cause of action shows that it is based upon those laws or that Constitution. [2] 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 States. Although such allegations show that very likely, in the course of the litigation, a question under the Constitution would arise, they do not show that the suit, that is, the plaintiff's original cause of action, arises under the Constitution. * * *
[The notes at pages 850-53 and the note at page 864-65 are important illustrations of the different possibilities in this area. Please review them with care.]
[BIG IDEA: Please distinguish between the maximum extent of federal jurisdiction allowed under Article III, the big circle, and the statutory grant included in section 1331, which is what Mottley and the well-pleaded complaint rule go to. Review the circles graphic at the webpage. We will explore this distinction again when we discuss section 1367.]