Civil Procedure Outline – NYU – Hershkoff – Fall 2007

The featured outline contains 30 pages and was prepared for Professor Hershkoff’s fall 2007 civil procedure course at New York University School of Law. When you order this outline you will immediately receive an email containing links that will enable you to download both the DOC and PDF versions of the document. The links can be used to download both files as many times as you wish for 72 hours.

Diversity of Citizenship – 28 USC §1332
1. Complete diversity must be satisfied (see Strawbridge v. Curtiss).
2. Diversity is determined as of the date the action is filed. It does not matter if the parties move after the action has commenced.
3. Citizenship
a. For living persons the determining factor is domiciliary status, i.e. where you are and intend to be indefinitely. See Mas v. Perry.
b. For corporations the factors are state of incorporation and principal place of business. There are three tests.
(1) Nerve Center test – where the corporation’s headquarters are and where corporate management takes place.
(2) Corporate Activities/Operating Assets test – where most of the business takes place; for example the location of a factory.
(3) Totality of factors, which serves to balance between the two, depending on which is more important under the facts.
c. Guardians
(1) Guardians are generally deemed to be citizens of their own place of domicile.
(2) Exception for representing a decedent, infant or incompetent, in which case the guardian has the domiciliary status of the party represented.
d. For unincorporated partnerships, such as labor unions or law firms, the place of domicile is every state where any individual member resides.
e. Diversity cannot be defeated by joining unnecessary parties. The court will look at the real party in interest. See Rose v. Giamatti.
f. Litigants may not collusively create diversity by assigning a right to another corporation or party. 28 USC §1359 was meant to protect the state’s interests. Federal courts are courts of limited jurisdiction. See Kramer v. Caribbean Mills, Inc.
(1) Exception – independent business justification – if it is a regular action of the corporation to assign such cases to another entity, then the court will hear these claims.
Class action suits are special – they can proceed without complete diversity provided that:
1. the total value of damages exceeds 5 million; and
2. at least 1/3 of the plaintiffs are not from the same state as the defendant; provided that:
a. if between 1/3 and 2/3 of the plaintiffs are from the same state as the defendant, whether diversity exists is subject to the court’s discretion based upon:
(1) national or interstate interest;
(2) which state’s law will govern;
(3) whether the matter has been pleaded in order to avoid federal jurisdiction;
(4) whether the forum is the location of the nexus of the harm (i.e. was there forum shopping); and
(5) other.