1. 1 Agenda for 14th Class Admin – Handouts – Name plates Midsemester feedback Class actions Intro to subject matter jurisdiction

2. 2 Mid-Semester Feedback 2 suggestions made by large numbers of students – Shorter writing assignments – Longer introductions to material of next day’s class – Will implement, in part, by putting some questions in multiple choice format on Blackboard Other suggestions probably can’t implement this year – More field trips – Meet only 2 days a week Some issues – Laptops – Cold calling – Exam practice – Office hours Every day after class for 20 minutes – Any questions people want to ask in classroom – Then I go to my office and am happy to talk to students for the rest of office hours (e.g. until 11:35) – Usually I am in my office until noon, and I am happy to talk to students until noon – If need more time or prefer another time, email for an appointment

3. Federal Question Jurisdiction Assignment US Constitution Article III 28 USC 1331, 1338, 1441(a)-(b) FRCP 8(a)(1), 12(b)(1), 12(h)(3) Yeazell pp. 191-206 Questions to think about / Writing Assignment – Summarize Louisville. Your summary should include the answer to Yeazell. P. 199 Q1 – Blackboard multiple choice questions 1-4 – Questions on the next slide Optional -- Glannon Chapter 4 3

4. 4 Federal Question Jurisdiction Questions Under the FRCP as it exists today, answer the following questions about Louisville – If plaintiff had drafted a “well pleaded complaint,” what would have been the key allegations of that complaint? – If plaintiff had drafted a well-pleaded complaint, what paper would defendant have filed in response? What would have been the key elements of that paper? – How would plaintiff have raised the unconstitutionality the Act of Congress which the defendant alleges prohibited giving the passes that the railroad gave the Mottleys? – If defendant’s answer had admitted that it had given passes to the Mottleys, but argued that they were invalid, what motion would the plaintiff have had to make in order to get the Court to grant the Mottleys the relief they requested without discovery or trial? Yeazell pp. 199ff Qs 3, 4b

5. 5 Class Actions I Class Action is super joinder device – Way of joining lots of plaintiffs (or defendants) – Single lawyer represents all – Consent from each plaintiff not required – “Class representative” is “named plaintiff” Usually chosen by class lawyer Advantages – Low cost as compared to lots of individual suits – Allows case to be brought where each plaintiff has stake that is too small to justify individual suit But where, in aggregate, significant wrong has been done Disadvantages – Class lawyer does not always act in interest of class May be more interested in fees for self than in relief for class – Large magnitude of potential liability may “coerce” defendants into settling weak claims

6. 6 Class Actions II Class actions must be “certified” – Plaintiff’s lawyer first brings regular (non-class-action) case on behalf of named plaintiff(s) – Plaintiff’s lawyer then petitions judge to certify class Prerequisites for class action – 1. Numerosity. Class is so large that joinder (under Rule 20) is not practical. 23(a)(1) – 2. Commonality. There are questions of law or fact common to all class members. 23(a)(2) – 3. Typicality. The class representative(s) have claims which are typical. 23(a)(3) – 4. Adequacy. The class representative(s) can adequately represent class. 23(a)(4) Technically about parties. In reality, about class lawyers. Also, no conflicts of interest. – 5. Case must fit into one of 23(b) categories See next page

7. 7 Class Actions III 23(b) categories – (b)(3). Primarily for money damages E.g. mass tort Common issues must “predominate” Class action must be “superior to other available methods for fairly and efficiently adjudicating the controversy” – (b)(2). Injunctive or declaratory relief appropriate for whole class E.g. desegregation, prison conditions – (b)(1). Risk of inconsistent litigation E.g. limited fund or conflicting injunctions Not very common Interlocutory appeal of certification decision. 23(f) – Grant or denial – Discretionary with court of appeals

8. 8 Class Actions IV Notice and Opt-Out. 23(c)(2) – Only (b)(3) requires “best notice that is practical under the circumstances” – Only (b)(3) requires the class members be given the opportunity to “opt out” Settlement with court approval only. 23(e)

9. Class Action Questions – Yeazell pp. 881ff. Qs 1, 2 1) BadCorp manipulated the price of its stock by failing to disclose information that would cause share prices to fall. Would a class action alleging violation of federal securities law against BadCorp on behalf of all shareholders who purchased stock during the period when the information was being withheld be appropriate? 2) BadPharm supplied blood to hemophiliacs, but failed to screen adequately for AIDS. As a result, many hemophiliacs in dozens of states got AIDS and some died. Would a product liability class action against BadPharm on behalf of all hemophiliacs who contracted AIDS as a result of contaminated blood be appropriate? 9

10. Introduction to Subject Matter Jurisdiction I – Federal courts have limited jurisdiction Can hear only cases allowed by Constitution and statute Constitution sets outer limit of jurisdiction – But congress can choose to give courts less Constitution is not “self-executing” – Need statutory as well as constitutional authority – 2 principle categories Diversity – Plaintiff and defendant are citizens of different states – Complete diversity rules » No plaintiff is citizen of the same state as any defendant – Alienage » One party is US citizen, other party is foreign citizen Federal question – Cases arising out of federal statute or constitution – Other categories Admiralty Special statutes, such as 28 USC 1338 (patents, copyrights, etc) 10

11. Introduction to Subject Matter Jurisdiction II – Federal jurisdiction is usually “concurrent” Plaintiff can bring case either in federal court or state court – State courts can adjudicate issues of federal law or relating to treaties or the US Constitution – Sometimes, federal jurisdiction is “exclusive” Plaintiff cannot bring case in state court – If statute is silent on whether jurisdiction is concurrent or exclusive, it is concurrent See 28 USC 1331. Federal question jurisdiction – If jurisdiction is exclusive, statute will be explicit 28 USC 1338. “No State court shall have jurisdiction over any claim for relief arising under any Act of Congress relating to patents… or copyrights” – But does not specifically exclude state jurisdiction over trademarks, so states have concurrent jurisdiction. 11

12. Introduction to Subject Matter Jurisdiction III – Subject matter jurisdiction must be plead. See FRCP 8(a) & Form 7 Jurisdictional statement is about subject matter jurisdiction (not personal jurisdiction) – If court does not have subject matter jurisdiction Defendant can bring motion to dismiss under FRCP 12(b)(1) Court can (and must) dismiss, even if defendant does not make motion – Judge Snyder mentioned that her clerks (or externs) perform a subject matter jurisdiction check of every case – Case can be dismissed for lack of subject matter jurisdiction at any time Issue is never waived. Issue can be raised for the first time in appellate court – By judge or party 12

13. Federal Question Jurisdiction – Permissible because allowed by US Constitution, Article III “The judicial Power shall extent to all Cases …. Arising under this Constitution, the Laws of the United States, and Treaties….” – Authorized by 28 USC 1331 “The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties….” – What are cases “arising under” the US Constitution, federal law, or treaties Same words used in Article III and 28 USC 1331, but have different meaning In Article III: any case in which US constitution, federal statute, or treaty needs to be interpreted In 28 USC 1331: any case in which US constitution, federal statute, or treaty created the cause of action – E.g. if complaint would mention or implicitly refer to US Constitution, federal statute, or treaty » Well-pleaded complaint rule. Louisville & Nashvill Railroad v Mottley – Not sufficient that federal issue is a defense » Defense would be raised in answer, not complaint 13

14. Removal – If jurisdiction is concurrent, plaintiff can choose federal or state court But if defendant prefers federal court, it can “remove” the case to federal court. 28 USC 1441 – Removal is proper whenever a case could have been brought initially in federal court. 28 USC 1441(a) Except, in diversity cases, when the defendant is a citizen of the state in which sued. 28 USC 1441(b) 14