1. Civil Procedure 2003 Class 30: Subject Matter Jurisdiction: Aggregation and Supplemental Jurisdiction Nov. 2 2003

2. United Mine Workers v. Gibbs

3. Rationale in Gibbs According to Justice Brennan, what is the Constitutional source for exercising jurisdiction over pendant state claims When does a federal court have power to exercise pendant jurisdiction? Must that power be exercised in every case where it exists? What is the policy justification for pendant claim jurisdiction?

4. 2 step test in Gibbs 1. Does the court have jurisdictional POWER to entertain the pendant claim? Hint: look at relationship between claims 2. If the court has that power, does the exercise of sound DISCRETION indicate that the federal court ought to assert that discretion? What factors must the court take into account?

5. Federal Claim is dismissed before trial According to Gibbs, how should dismissal before trial of the federal claim affect the issue of whether or not to refuse jurisdiction over the state law claim?

6. TRADITIONAL RULES FOR AGGREGATION Single P w/2 or more claims vs. single D 2 Ps with claims against a single D - “separate and distinct”/”common & undivided interest” test Single P w/ claims vs. multiple Ds Counterclaims

7. HYPO Barbie (CA) and Ken (CA) are equal partners in a dressmaking business called “High Heels”. Skipper (N.Y.) orders 4 ball gowns from them. Barbie and Ken make the gowns and deliver them to Skipper along with an invoice for $90,000. After 18 months, Skipper has not paid Barbie and Ken a cent.

8. HYPO CONTINUED Barbie and Ken’s lawyer, Dawn, files an action in federal court, naming High Heels as plaintiff and claiming the amount of the $90,000 debt in damages. Barbie and Ken, as equal partners, each have an interest of $45,000 in the claim. Does the court have subject matter jurisdiction?

9. Does Supplemental Jurisdiction Statute Trump Traditional Aggregation Rules? Zahn – 414 U.S. 291 (1975) (predates statute) no ancillary jurisdiction over claims without independent jurisdictional basis in class action, where 1 class member had claim meeting jurisdictional amount, but other class members did not) Split in circuits on whether s. 1367 overrules Zahn.

10. Does 1367(b) apply? Multiple Ps sue the same D for different claims P sues multiple Ds for different claims; one claim meets the requirements of diversity but the others do not D counterclaims and P wants to implead a nondiverse third party for indemnification/contribution P wants to cross-claim against a nondiverse P

11. 28 U.S.C. sect. 1367(d) This is a tolling provision What is its effect? What is the reason for this tolling provision? Is it constitutional?

12. 28 U.S.C. sect. 1367(d) This is a tolling provision What is its effect? What is the reason for this tolling provision? Is it constitutional? Yes – see Jinks v. Richland County, 349 S.Ct 298 (2003) (necessary and proper and does not violate state sovereignty)

13. PRACTICE EXERCISE 31 CB p. 839 Plaintiff: Nancy Carpenter (NH) Ds: Dee (MA), Ultimate (MA) 3d Party Ds: McGills Garage (MA), Dale McGill (NH) Motion to dismiss for lack of subject-matter jurisdiction Motion to sever impleader

14. REMOVAL JURISDICTION What is removal? What is the policy justification for removal a. For diversity cases? b. For federal question cases?

15. LEGAL SOURCES FOR REMOVAL JURIDCITION NOT IN U.S. CONSTITUTION So, removal is purely statutory. There have been federal removal statutes since 1789.

16. LIMITS ON REMOVAL Can a plaintiff remove? Can a plaintiff remove if there is a counterclaim? Can a case be removed from federal to state court? Any types of actions non-removable?

17. WHEN IS A CASE REMOVABLE? There must be original subject-matter jurisdiction in federal court Basic rules of federal question and diversity/alienage apply Well-pleaded complaint rule applies Artful pleading rule

18. WHAT IF FEDERAL COURT HAS EXCLUSIVE JURISDICTION? P brings action in state court Can D remove? See 28 U.S.C. section 1441(e)

19. PROCEDURE FOR REMOVAL How does a defendant remove ? (see 28 U.S.C. section 1446) Can a defendant waive her right to remove? How many defendants must agree to remove a case?

20. WHERE IS CASE REMOVED TO? What court(s) may hear a claim that is removed? What is the applicable statutory provision determining this?

21. CHALLENGING REMOVAL How does a plaintiff challenge removal? Can a plaintiff waive her right to challenge removal? Are there any applicable time limits? If so what?

22. Burnett v. Birmingham Board of Education (N.D. Ala. 1994)