Civil Procedure Class Notes 8/19/03


More on Gordon today!


Administrative stuff


We’ll have to make up a week in November.  Details to come!


About Pennoyer – multiple readings will do it!


Legally Blonde!  The profs love their technology!


Gordon v. Steele is in the movie!


“They’re wrong!  I can’t believe it!”


“You can find Civil Procedure humor everywhere you go.”




The suit was filed in the U.S. District Court for the Western District of Pennsylvania.  Susan Gordon alleged that two doctors and a hospital in Erie, PA committed malpractice in treating her wrist.  She filed in federal court under diversity jurisdiction, but the question is: where is she from?


What is the procedural posture of this case?  What does “procedural posture” mean?  At what stage of the case is the opinion being drafted?  It looks like the lawyers filed a motion to dismiss for lack of diversity.


When you’re reading a case in Civil Procedure, don’t forget to find out what stage of procedure the case is in.


What would have happened if the court had granted the motion to dismiss?  The judge would have written an order to dismiss the case.  What would Gordon have to do?  She could maybe file the case in state court in Idaho or Pennsylvania.


Courts move on their own timetable.  Sometimes judges take a “peek” at the merits of the case and that may influence their decision on a point of procedure.  The trial is the only place where you determine whether the case is meritorious.


Judges are loathe to close litigants out.


If the state courthouse in Erie is right across the street from the federal courthouse, why did the lawyer decide to file in federal court?


-         Maybe the federal court has a “rocket docket”!

-         Maybe the lawyer knew the federal judges better than the state judges.

-         Maybe the opposing lawyers aren’t as familiar with federal court.  In other words, maybe you’ll gain a tactical advantage from filing in federal court.

-         Maybe you’d get a different jury composition in federal court than state court.

-         There’s the constitutional reason: local prejudice.  We wanted federal judges to be able to hear cross-state complaints because we thought local judges would be biased.

-         The federal rules of evidence apply in federal court, but state rules of evidence apply in state court.  The federal rules of evidence would have been more favorable for the plaintiff, especially in regard to expert testimony.


This is what we call forum shopping.  (Twinkle twinkle ching!)


The tort law of the state of Pennsylvania will apply to this case.


Reasoning of the Judge in Gordon


The judge denies the motion, meaning he finds that Gordon is a citizen of Idaho.


Where does diversity jurisdiction come from?  First off, from the Constitution.  Then there’s a statute that authorizes that authority to the federal court.  This is 28 U.S.C. Section 1332.


You need to allege over $75,000 in damages in order to qualify for diversity jurisdiction.  (At the time, it was $10,000.)


What sources does the judge draw on for precedent?  He uses a case from the Third Circuit, because that’s the circuit they’re in.  The only authority that is binding on the judge is the Third Circuit.


He relies heavily on Krasnov.  Krasnov gives us the rule of law.


The Rule


“One domiciled in a state when a suit is begun is a citizen.”


But what does domiciled mean?  That’s next.


You must have intent to remain, plus residence in that state.  That makes a domicile.


So for Gordon, residency is no problem.  She’s in Idaho.  But does she intend to remain?  How do we figure out if she intends to remain indefinitely in the state of Idaho?


Somebody asked and she answered…how, procedurally, did we find out her intention?  She was deposed.  There was a deposition.  Your deposition is then admissible at trial or as evidence in the motion to dismiss.  This is part of discovery.


Prof. Wright gives some examples of what would establish the intent to remain: exercise of political rights, payment of taxes, house of residence, and place of business, for example.


So the court weighs the factors that make Gordon a PA citizen versus the info that makes Gordon seem to be an Idaho citizen.


The court looks at a “laundry list” on each side.


Tomorrow we’ll start with a final comment on Gordon…what stereotypes did the judge have about women?


Tomorrow we’ll start on Pennoyer.


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