1. Thurs., Sept. 8

2. power

3. legislative power

4. adjudicative power

5. older view: legislative power is exclusive

6. what if the lawmaker with exclusive power does not exercise it?

7. delegated power

8. borrowing a standard from another jurisdiction’s law

9. more modern view: legislative power is concurrent (at least to some extent)

10. what if both jurisdictions use their power?

11. do their laws conflict?

12. how to resolve a conflict

13. let the adjudicating court decide

14. or have a rule of priority that is binding on all jurisdictions

15. do states have the power to regulate the procedure of federal courts?

16. people often say NO

17. Green: yes, to some extent (as we shall see)

18. is FRCP 4(e)(1) a recognition of state lawmaking power over service in federal court?

19. no – borrowed to serve federal purposes

20. does the federal government have the power to regulate the procedure of state courts?

21. Statutory interpretation

22. 4(c) Service. … (2) By Whom. Any person who is at least 18 years old and not a party may serve a summons and complaint.

23. 4(e) Serving an Individual Within a Judicial District of the United States.  Unless federal law provides otherwise, an individual — other than a minor, an incompetent person, or a person whose waiver has been filed — may be served in a judicial district of the United States by:

24. (1) following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made; or…

25. (2) doing any of the following:     (A) delivering a copy of the summons and of the complaint to the individual personally;     (B) leaving a copy of each at the individual’s dwelling or usual place of abode with someone of suitable age and discretion who resides there; or     (C) delivering a copy of each to an agent authorized by appointment or by law to receive service of process.

26. Rule 4. Summons (a) Contents; Amendments. (1) Contents
Rule 4. Summons (a) Contents; Amendments. (1) Contents. A summons must: (A) name the court and the parties; (B) be directed to the defendant; (C) state the name and address of the plaintiff's attorney or—if unrepresented—of the plaintiff; (D) state the time within which the defendant must appear and defend; (E) notify the defendant that a failure to appear and defend will result in a default judgment against the defendant for the relief demanded in the complaint; (F) be signed by the clerk; and (G) bear the court's seal. (2) Amendments. The court may permit a summons to be amended. (b) Issuance. On or after filing the complaint, the plaintiff may present a summons to the clerk for signature and seal. If the summons is properly completed, the clerk must sign, seal, and issue it to the plaintiff for service on the defendant. A summons—or a copy of a summons that is addressed to multiple defendants—must be issued for each defendant to be served. (c) Service. (1) In General. A summons must be served with a copy of the complaint. The plaintiff is responsible for having the summons and complaint served within the time allowed by Rule 4(m) and must furnish the necessary copies to the person who makes service. (2) By Whom. Any person who is at least 18 years old and not a party may serve a summons and complaint. (3) By a Marshal or Someone Specially Appointed. At the plaintiff's request, the court may order that service be made by a United States marshal or deputy marshal or by a person specially appointed by the court. The court must so order if the plaintiff is authorized to proceed in forma pauperis under 28 U.S.C. §1915 or as a seaman under 28 U.S.C. §1916. (d) Waiving Service. (1) Requesting a Waiver. An individual, corporation, or association that is subject to service under Rule 4(e), (f), or (h) has a duty to avoid unnecessary expenses of serving the summons. The plaintiff may notify such a defendant that an action has been commenced and request that the defendant waive service of a summons. The notice and request must: (A) be in writing and be addressed: (i) to the individual defendant; or (ii) for a defendant subject to service under Rule 4(h), to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process; (B) name the court where the complaint was filed; (C) be accompanied by a copy of the complaint, 2 copies of the waiver form appended to this Rule 4, and a prepaid means for returning the form; (D) inform the defendant, using the form appended to this Rule 4, of the consequences of waiving and not waiving service; (E) state the date when the request is sent; (F) give the defendant a reasonable time of at least 30 days after the request was sent—or at least 60 days if sent to the defendant outside any judicial district of the United States—to return the waiver; and (G) be sent by first-class mail or other reliable means. (2) Failure to Waive. If a defendant located within the United States fails, without good cause, to sign and return a waiver requested by a plaintiff located within the United States, the court must impose on the defendant: (A) the expenses later incurred in making service; and (B) the reasonable expenses, including attorney's fees, of any motion required to collect those service expenses. (3) Time to Answer After a Waiver. A defendant who, before being served with process, timely returns a waiver need not serve an answer to the complaint until 60 days after the request was sent—or until 90 days after it was sent to the defendant outside any judicial district of the United States. (4) Results of Filing a Waiver. When the plaintiff files a waiver, proof of service is not required and these rules apply as if a summons and complaint had been served at the time of filing the waiver. (5) Jurisdiction and Venue Not Waived. Waiving service of a summons does not waive any objection to personal jurisdiction or to venue. (e) Serving an Individual Within a Judicial District of the United States. Unless federal law provides otherwise, an individual—other than a minor, an incompetent person, or a person whose waiver has been filed—may be served in a judicial district of the United States by: (1) following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made; or (2) doing any of the following: (A) delivering a copy of the summons and of the complaint to the individual personally; (B) leaving a copy of each at the individual's dwelling or usual place of abode with someone of suitable age and discretion who resides there; or (C) delivering a copy of each to an agent authorized by appointment or by law to receive service of process. …

27. serving corporations or unincorporated associations

28. (h) Serving a Corporation, Partnership, or Association
(h) Serving a Corporation, Partnership, or Association. …must be served: (1) in a judicial district of the United States:     (A) in the manner prescribed by Rule 4(e)(1) for serving an individual; or     (B) by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process and — if the agent is one authorized by statute and the statute so requires — by also mailing a copy of each to the defendant...

29. 1) P files an action against the D Corp. in the E. D. Va
1) P files an action against the D Corp. in the E.D. Va. for violation of federal law. - P serves the D Corp. by having a process server leave a copy of the summons and complaint with a foreman at a D. Corp. plant in Pa. - The D. Corp. appears in the E.D. Va. and makes a motion to dismiss the complaint for insufficiency of service of process. What result?

30. 2) P files an action against the D Corp. in the E. D. Va
2) P files an action against the D Corp. in the E.D. Va. for violation of federal law. P serves D by having his lawyer leave a copy of the summons and complaint leaves at house of the CEO of the D. Corp. in Pennsylvania with his 18 year old son - The D. Corp. specially appears in the E.D. Va. and makes a motion to dismiss the complaint for insufficiency of service of process. - What result?

31. defenses

32. federal subject matter jurisdiction

33. do we have to have federal trial courts?

34. Article III Section 1. The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office. Section 2. The judicial power shall extend 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;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two or more states;--between a state and citizens of another state;--between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.

35. Article I Section 8. The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States; To borrow money on the credit of the United States; To regulate commerce with foreign nations, and among the several states, and with the Indian tribes; … To constitute tribunals inferior to the Supreme Court; … To exercise exclusive legislation in all cases whatsoever, over such District (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of Congress, become the seat of the government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings;--And … To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.

36. why have federal trial courts (and lower courts of appeals)?

37. Why have arising under jurisdiction?

38. An interpretation of federal law is issued by a district court in Virginia. It is affirmed by the 4th Circuit. The US SCt does not grant cert. Is a Virginia state court bound by the interpretation?

39. Why have diversity and alienage jurisdiction?

40. federal question (or “arising under”) jurisdiction

41. U. S. Const. Article III. Section. 2
U.S. Const. Article III.  Section. 2.  The judicial Power shall extend 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…

42. 28 U.S.C. §  Federal question The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.   

43. levels of federal law based on the lawmaker’s authority

44. U.S. Constitution authority – ratifying states

45. - federal statutes – Congress - federal regulations – entity to which Congress has delegated its power - FRCP – SCt - federal common law – federal courts

46. U. S. Constitution. - what is federal government’s power
U.S. Constitution - what is federal government’s power? - that is, what can federal government do? - if it goes beyond this power it is acting unconstitutionally and its action will be invalid (or invalidated by SCt)

47. Subconstitutional federal law
Subconstitutional federal law - how has the federal government exercised its power? - that is, what statutes, regulations, or common law rules has the federal government created?

48. Example of relationship between constitutional and subconstitutional law: - power of federal government to allow a type case to go to federal court (SMJ) is created (and therefore limited) by Article III - incl. “arising under”

49. How has the federal government exercised its power concerning federal SMJ? - 28 USC § 1331

50. Under 1331 federal SMJ is not exclusive - a plaintiff can, but need not, bring actions that fall under 1331 in federal court - note: but if the plaintiff brings them in state court the defendant may remove to federal court

51. In small number of cases, there is exclusive federal SMJ for a federal cause of action - federal securities fraud - federal antitrust

52. Another example of the relationship between constitutional and subconstitutional law: - the scope of the federal government’s power over a method of notice to the defendant in federal court is limited by the Constitution (Fifth A.) - Mullane test

53. How has the federal government exercised its power
How has the federal government exercised its power? - Congress delegated its power to SCt - SCt created FRCP 4

54. If asked – what can federal government do (e. g
If asked – what can federal government do (e.g. is this hypothetical federal statute valid)? - look to U.S. Const.

55. If asked – what can a party do in a federal court in the context of current law? - look to federal subconstitutional law (unless you have an argument that this law is invalid)

56. E. g. Can P bring this action in federal court
E.g. Can P bring this action in federal court? - look to 1331 (and other federal statutes) unless you have an argument that they are invalid (e.g. unconstitutional)

57. Louisville & Nashville RR Co. v. Mottley (US 1908)

58. - P sues D in federal court. - D appears
- P sues D in federal court. - D appears. - There is in fact no federal SMJ, but no one notices. - P gets a judgment of $100,000 in his favor; there is no appeal and the opportunity for appeal is exhausted. - The time period to make a motion to set aside the judgment has also passed. - P then sues on the judgment in state court to garnish D’s wages. - D collaterally attacks the judgment for lack of SMJ.

59. 28 USC § State courts; certiorari (a) Final judgments or decrees rendered by the highest court of a State in which a decision could be had, may be reviewed by the Supreme Court by writ of certiorari where the validity of a treaty or statute of the United States is drawn in question or where the validity of a statute of any State is drawn in question on the ground of its being repugnant to the Constitution, treaties, or laws of the United States, or where any title, right, privilege, or immunity is specially set up or claimed under the Constitution or the treaties or statutes of, or any commission held or authority exercised under, the United States. (b) For the purposes of this section, the term “highest court of a State” includes the District of Columbia Court of Appeals.

60. P(NY) sues D(NY) in state court under state law
P(NY) sues D(NY) in state court under state law. D introduces the defense that the state law is unconstitutional. May Congress passes a statute allowing the defendant to remove this action to federal district court?