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Articles 1 - 6 of 6
Full-Text Articles in Civil Procedure
Creating Diversity Jurisdiction In Removal Actions Through The Improper Use Of Federal Rule Of Civil Procedure 21: Procedural Blackjack Or Judicial Bust, Anthony Andricks
Creating Diversity Jurisdiction In Removal Actions Through The Improper Use Of Federal Rule Of Civil Procedure 21: Procedural Blackjack Or Judicial Bust, Anthony Andricks
Cleveland State Law Review
Recently, federal district courts have held that Federal Civil Rule of Procedure 21 bestows upon them the power to sever nondiverse parties or claims to create diversity jurisdiction without first finding that a party or claim is improperly joined. Severance may mean that a plaintiff who brings a state court action against multiple parties, one or more of which is not diverse, runs the risk of a federal court severing the action in a removal analysis, even where the plaintiff has committed no improper joinder of parties. Severance may leave a plaintiff with the need to conduct simultaneous suits--one in …
Ripple Effects: The Unintended Change To Jurisdictional Pleading Standards After Iqbal, James E. Von Der Heydt
Ripple Effects: The Unintended Change To Jurisdictional Pleading Standards After Iqbal, James E. Von Der Heydt
Cleveland State Law Review
This Note describes a little-observed ripple effect of the new pleading standard announced in Iqbal, the antiterrorism case whose holding swept broadly and changed the ground rules for considering allegations in so-called 12(b)(6) motions for all civil cases. This Note examines the interplay between the Twombly/Iqbal doctrine and federal courts’ practical approach to subject-matter jurisdiction. Part II describes the background jurisprudence on subject-matter jurisdiction, including the sharp line the Supreme Court has consistently re-drawn between claims lacking merit and those lacking jurisdictional basis, from Bell v. Hood through Arbaugh v. Y & H Corp. The consistent theme of this jurisprudence …
Suing A State In Federal Court Under A Private Cause Of Action: An Eleventh Amendment Primer, Donald L. Boren
Suing A State In Federal Court Under A Private Cause Of Action: An Eleventh Amendment Primer, Donald L. Boren
Cleveland State Law Review
A major obstacle facing an attorney, whose client is suing a state in federal court under a right created by a federal law, is the restraints placed on the federal court's jurisdiction by the eleventh amendment to the United States Constitution. The purpose of this article is to provide assistance through this wonderland of eleventh amendment jurisprudence. This article examines three major eleventh amendment issues, plus-and perhaps more importantly-methods of avoiding eleventh amendment litigation. Section I of the article examines the historical evidence on whether the amendment was intended to apply to cases in which a citizen of a state …
The Federal Preemption Question - A Federal Question - An Analysis Of Federal Jurisdiction Over Supremacy Clause Issues, A. Mark Segreti Jr.
The Federal Preemption Question - A Federal Question - An Analysis Of Federal Jurisdiction Over Supremacy Clause Issues, A. Mark Segreti Jr.
Cleveland State Law Review
This Article focuses on the issue of simplicity and predictability in analyzing federal question jurisdiction and recommends making federal court jurisdiction, in the area of federal preemption, consistent with logic. Federal question jurisdiction should be based on the source of the controlling substantive law. This approach is more logical, and therefore easier to understand. It is also more certain and therefore more predictable since it bases jurisdiction on the more realistic standard of governing law, rather than on speculation as to which party is the aggressor. This Article is not a recommendation to expand federal court jurisdiction; it is a …
The Leave To Plead As A Waiver Of The Jurisdictional Defenses, J. Patrick Browne
The Leave To Plead As A Waiver Of The Jurisdictional Defenses, J. Patrick Browne
Cleveland State Law Review
Civil Rule 12(B) includes three defenses which challenge in personam jurisdiction. They are the 12(B)(2) defense of lack of jurisdiction over the person, the 12(B)(4) defense of insufficiency of process, and the 12(B)(5) defense of insufficiency of service of process. Not infrequently, the assertion of any one or more of these defenses is haunted by the ghost of the old "special appearance," and that which makes the ghost rattle its chains is often the defendant's taking a leave to move or plead before presenting these defenses to the court. In such case it is usually said that the taking of …
Preserving Objections To In Personam Jurisdiction - Ohio's Persistent Shibboleth, J. Patrick Browne
Preserving Objections To In Personam Jurisdiction - Ohio's Persistent Shibboleth, J. Patrick Browne
Cleveland State Law Review
The scenario is commonplace: Plaintiff causes summons to be served on the defendant. The defendant believes the summons is fatally defective, or the service is faulty, or that, for some reason or another, the court in which the action is brought cannot lawfully obtain jurisdiction over his person. Accordingly, he files a motion to quash and set aside the summons, or a motion to dismiss for want of in personam jurisdiction. As so frequently happens, the court does not quite see the wisdom of defendant's position, and overrules the motion. Usually, the court's journal entry will note that the defendant's …