Supplemental Jurisdiction

Piggybacking state claims on the back of federal claims in federal court.

United Mine Workers v. Giibs (1966): State and federal claims must derive from a common nucleus of operative fact.

Common nucleus of operative fact is very similar to case requirements in case and controversy requirements in the Constitution.

28 U.S.C. 1367:

(b) There can never be supp. jur. over P’s claims against a party joined under Rule 14, 19, 20 or 24.

(c) 4 factors that permit a federal judge to deny supp. jur.: efficiency, convenience, fairness, state issues predominate, really novel issue of state law.

1367(b): Harshness mitigated b/c it only applies in cases where SM jur. is predicated on diversity.

Removal – 28 U.S.C. 1441


Top 3 Reasons Ds Want to Remove:

  1. Case Assignment: Computer tells you which judge your going to get in federal court. Ds don’t usually want to try cases and federal judges are encouraged to settle, so fed. judge more likely to encourage settlement. In state court there is no assignment calendar so nobody cares if your case settles b/c your motions will be before a different judge then you trial judge.
  2. Discovery: Federal rules of discovery are broader. Many states – including Oregon – have no Rule 16.
  3. Pro-P State For a: Some P’s attys are looking for the perfect liberal state court. Less likely to get a jury that is as avidly pro plaintiff in virtue of the way federal juries are selected.

Need formal service of process w/in 30 days of removal time. That means removal and P’s potential remand motion must happen very quickly.

Eerie Doctrine

Decision Tree

  1. Conflict: Between state and federal law. There may appear to be a conflict but the court says no real conflict. (Ragan cases)
  2. If Conflict, then

            FRCP Conflict? If so 2 part test from Hannah

  1. Is the Rule w/in the REA and constitutional?
  2. Constitutional if it is a “housekeeping” rule?

Answer will always be yes, so apply the FRCP.

Non-FRCP Conflict? If so 3 part test from Byrd

  1. Do we have a state created right or obligation? If so, then apply state law.
  2. If no, then balance interest underlying federal law against interest behind sate law.
  3. Least important part of test: Watered-down outcome test. “Is there a certainty of a different outcome?”

Federal Common Law       

No federal common law rule is limited to 1331 diversity jurisdiction cases. Okay to have federal common law in 1332 “arising under” cases. (Kimbell Foods)

Kimbell Foods (1979) : How to Create Federal Common Law:

  1. Must consider uniformity, but there are other considerations apart from whether there is a need for a uniform federal policy.
  2. Would federal programs be harmed by applying state law?
  3. Extent to which the application of a federal rule would disrupt commercial relationships predicated on state law?

Cort v. Ash (1975): Implying a Right of Action Based on Statute:

  1. Is P someone who should benefit under the statute?
  2. Is there leg. intent to create a remedy or deny one?
  3. Consistent w/ purpose of legislation to imply a remedy for P?
  4. Would implying a federal right of action mess w/ states rights?

It is easier to create federal common law in cases where a financial interest of the U.S. involved.

Rt. to a Civil Jury

Ross v. Bernhard – Footnote 10: 3 Part Test for Rt. to Jury:

  1. Pre-merger custom. Would P have had a right to jury before the merger of law and equity in 1938?
  2. Remedy sought: Is it a legal remedy or an equitable remedy?
  3. Practical abilities and limitations of juries (Note: 7th Amd. says nothing about this.)

Why are we using a “historical lens?” B/c the 7th Amd. says “preserve.”

Teamsters Local No. 391 v. Terry (1990)

Factor 1 severely downweighted.

Main focus is factor number 2.

Most cts. have not adhered to a complexity exceptions to rt. to jury

Granfinanciera (1989) – Public vs. Private Right of Action

General Rule: If there is a public right, then ct. will NOT assign to jury.

Rule: Is the issue integrated into a public regulatory scheme? If so, then it is a public right :: no jury. Ultimately you can have a public right in a dispute between two private parties if that right is intimately connected enough with a govt. regulatory scheme.


  1. Made during trial. Basically asking the judge to take the case away from the jury b/c it’s just too easy.
  2. Standard: No way a reasonable jury could render a verdict on behalf of the non-movant. (Very similar standard to SJ, but w/ SJ the judge weighs all of the inferences in favor of the non-movant.)
  3. Judges can’t weigh the ev.
  4. Scope of Review: de novo (Per commentators, very deferential to the jury.)


1.Made if you lose at trial.

  1. Standard: No way a reasonable jury could render a verdict on behalf of the non-movant. (Very similar standard to SJ, but w/ SJ the judge weighs all of the inferences in favor of the non-movant.)
  2. Judges can’t weigh the ev.
  3. Scope of Review: de novo (Per commentators, very deferential to the jury.)
  4. Prereq. to file this motion: File JML motion.

Lavender v. Kurn (1946):

Rule: Need complete absence of facts supporting the non-movants case for RJML to be granted.

Converse: IF there is some evidence in support of the verdict winner, the verdict stands.

New Trial

  1. If you are the loser, then you move for RJML, if you don’t get RJML, then you move for new trial.
  2. Standard: Verdict is against the weight of the ev. Almost inviting judge to weigh ev.
  3. Procedural error. E.g. admission of ev. that shouldn’t have come in or jury cuts the cards to determine who wins.
  4. Judge can weigh the ev.
  5. Scope of Review: Abuse of discretion. The trial judge really screwed up, deferential to trial judge.

            Why Grant New Trial but Deny RJML?

  1. Procedural errors
  2. Verdict against the weight of the ev.
  3. Easier to get new trial b/c it “only” involves the verdict being against the weight of the ev.

Rule 50(d): Even if you prevailed on verdict and prevailed on RJML, this Rule provides the opportunity to appeal. You make this motion if you are the verdict winner to the Ct. of Appeals. Motion made by appellee.  This motion is seldom made. Many attys are strategically reluctant to make this motion on appeal b/c you are basically saying “If we lose, give us a new trial” and you don’t want to put that idea into the app. ct.’s head.

Rule 60(b): Motion to set aside judgment/Motion to vacate.  Sometimes have to file, but really don’t ever want to. These motions are filed in cases of fraud, corruption, newly discovered ev. (that you couldn’t find before), mistake. One year limit to file, but you can bring a separate suit any time you want.