J

1
JJ

• Professor Hricik
• David_at_Hricik.com
• Hricik_d_at_mercer.edu

2
Does the Client Have a Claim

• Whats a claim?
• Elements of claims
• What is an element of a claim?
• Whats a factor in an element?
• How determine

• State law claims
• Constitutional
• Statutory
• Regulatory
• Common law Federal claims
• Constitutional
• Statutory
• Regulatory
• Very few common law

3
What Law Governs the Claim?

• Substantive
• State law creates claim
• Erie says federal court ought to apply state law
  to a claim.
• Which state where multi-state activities are
  involved?
• Federal law creates claim
• S.Ct.
• Circuit
• District

• Procedural
• In federal court, federal procedure applies most
  of the time.

4
Next Semester

• What if client doesnt allege all elements of a
  claim?

• What if client cant prove each element of claims?

5
Can the Claim be Brought in Federal Court?

• (1) Statute must authorize
• (2) Statute must be constitutional

• Two Principle Statutes
• Diversity jurisdiction
• A claim for more than 75k between citizens of
  different states.
• Complete diversity
• Federal question jurisdiction
• If the claim arises under federal law, suit can
  be brought in federal court.

6
What if no Diversity or FQ?

• Defendant can file motion to dismiss for lack of
  subject matter jurisdiction under FRCP 12(b)(1)
  or court can dismiss on its own at any time.

• If the federal court lacks subject matter
  jurisdiction, it must dismiss claim.
• Plaintiff may be able to refile it in state court.

7
In Which State(s)?

• Personal Jurisdiction
• (1) Statute must authorize assertion of personal
  jurisdiction
• (2) Assertion of personal jurisdiction must be
  constitutional

• (1) Statute authorizes
• State claims
• State long arm statutes
• Federal claims
• State long arm statutes
• Federal statutes authorizing nation wide
  service of process?
• (2) Assertion must not violate Due Process right
  of Defendant.
• Minimum contacts
• Fair play

8
If court lacks personal jurisdiction over a claim

• Defendant can move under FRCP 12(b)(2) to dismiss
  claim for lack of personal jurisdiction

• If court lacks personal jurisdiction over claim,
  court can transfer claim to another federal court
  which would have personal jurisdiction or dismiss
  claim and plaintiff can refile it in state or
  federal court which would have PJ

9
In which district(s)?

• Most states have more than one federal district
  court.
• Federal venue statutes identify which district(s)
  in a state a claim can be brought.

• Proper v. improper venue
• Defendant may move under FRCP 12(b)(3) to dismiss
  claim if filed in an improper venue
• if improper, court can dismiss or can transfer
  claim to proper venue
• Parties can also move to transfer a claim from a
  proper venue to a more convenient venue

10
Removal and Remand

• What if a plaintiff files a suit in state court
  that could, also, be brought in federal court?

• In some circumstances, a defendant sued in state
  court can remove the case from state to federal
  court
• Statutes govern both what type of cases can be
  removed and the process for removing case from
  state to federal court
• Improperly removed cases can be remanded on
  motion of plaintiff or by courts own motion