Daredevil, The Man Without…Jurisdiction?

Here’s one for the serious law nerds: a post about federal jurisdiction and civil procedure.  Daredevil #8 opens with Foggy Nelson serving what appears to be a discovery request on a cemetery employee.  Accompany Nelson are a group of plaintiffs, approximately 15 people, though it isn’t clear if this is all of the plaintiffs or a subset.  The basis of the suit is that Suncourt Cemetery has been negligent in the caretaking of the cemetery, leading to graves disappearing into the ground.

Okay, what’s the big deal?  Well, several things are a little strange here, but nothing’s necessarily wrong.  We’ll start with the lawsuit itself.

I. Negligent Cemetery Caretaking?

It’s not completely clear what Nelson’s theory of the case is.  Foggy says that he thinks “there’s more to it than soft soil,” and we later learn that the graves have been intentionally disturbed or even removed.  This suggests that the theory is that someone has been intentionally messing with the graves and the cemetery corporation is liable for negligently failing to prevent the disturbance.

The law in New York on this subject is unclear.  On the one hand, “the cemetery is under a duty and has a right to prevent any trespass upon the cemetery and its parts and any damage arising from such trespass. This duty and this right come from the fact that individuals interested in graves and lots are entitled to look to those conducting the cemetery for redress for permitting trespass.”  Orlowski v. St. Stanislaus Roman Catholic Church Soc., 292 N.Y.S. 333, 482 (Sup. Ct. Erie Cty, 1936).

On the other hand, other cases have held that there is no implied duty to prevent the robbing of graves and that cemeteries are not liable for damage to graves caused by people not under its control or supervision.  Independent Potok Zloty Sisters & Brothers Benevolent Soc. v. Highland View Cemetery Corp., 264 A.D. 396 (Sup. Ct. App. Div. 1942); Coleman v. St. Michael’s Protestant Episcopal Church, 170 A.D. 658 (Sup. Ct. App. Div. 1915).

So the law in this area is somewhat confused and also very old, but on the whole I wouldn’t bet on the plaintiffs.  A modern New Jersey case agreed with Coleman and held that a cemetery isn’t liable for vandalism caused by a third party.  Bauer v. Harleigh Cemetery Co., 651 A.2d 1084 (Sup. Ct. N.J. 1994).  And even if cemetery owners had a duty to prevent trespass, it’s not clear how reasonable care would have prevented grave robbing by the Mole Man (well, okay, it could have been somebody else but it sure looks like his handiwork).

So the suit is a little creaky, but there’s a colorable argument, particularly in light of the conflicting precedents and their age.  Other, larger questions remain, however, questions of procedure and jurisdiction.  Since procedure depends on jurisdiction, we’ll go there next.

II. Making a Federal Case Out of It

One of the odd things about the opening scene is that Foggy is holding a document that appears to be from the United States District Court for the Southern District of New York, which includes New York City.  But the case is plainly based on New York state law, so why are they in federal court?

The logical answer is “if it isn’t based on a federal claim, then it must be based on diversity of citizenship.”  Diversity of citizenship is found in the Constitution, which allows federal suits “between Citizens of different States.”  U.S. Const. art. 3 § 2.  As a general rule, a plaintiff can sue in federal court on a state law claim if none of the plaintiffs are from the same state as any of the defendants (aka “complete diversity”) and the amount in controversy exceeds $75,000, per 28 U.S.C. § 1332.

Complete diversity seems like bad news for Foggy, as it’s unlikely (though admittedly not impossible) that all of these surviving relatives are living outside of New York.  Further complicating things: if any of the relatives are suing as the representative of the estate of the deceased rather than in their personal capacity, then their state citizenship is the same as the deceased, which is presumably New York.

But there’s another glimmer of hope: they’re suing a corporation, and a corporation is considered to be a citizen (for diversity purposes) wherever it has its principal place of business.  Suncourt Cemetery could be owned by a corporation that runs lots of cemeteries and has its principal place of business in, say, New Jersey.  Then it wouldn’t matter if all of the plaintiffs were from New York; in fact, that would be great.

Another possibility is that Foggy is actually representing a class action.  It’s certainly possible.  There are at least 15 plaintiffs and there could be a lot more.  In a class action the diversity rules are relaxed considerably.  Depending on the details of the case, which we don’t have, it can go as far as “minimal diversity,” which requires only a single plaintiff be from a different state than a single defendant.

Now that we’re more or less comfortably in federal court we can turn to the issue of how Nelson gets away with taking a soil sample with a backhoe.

III. You Got a Court Order for That Backhoe?

Federal Rule of Civil Procedure 34(a)(2) allows for parties to serve requests to “permit entry onto designated land or other property possessed or controlled by the responding party, so that the requesting party may inspect, measure, survey, photograph, test, or sample the property or any designated object or operation on it.”  Suncourt Cemetery could oppose the request, but Foggy could then seek a court order compelling Suncourt to allow the sampling.  Since Foggy is holding up document on federal court letterhead, it seems like there has been a court order rather than a mere request.

And this makes sense because discovery happens after the complaint has been filed.  For the advanced students in the class: it probably also means the case has already survived the defendant’s motion to dismiss under 12(b)(1)  (for lack of jurisdiction) and 12(b)(6) (for failure to state a claim), which roughly correspond to sections II and I of this post, respectively.

IV. Conclusion

I have to admit, when I read the first page of this issue my gut reaction was that it was all wrong: Negligent cemetery caretaking? A state tort claim in the Southern District of New York brought by what appears to be a bunch of New Yorkers against a New York cemetery?  But surprisingly (to me, anyway) it all more or less hangs together, if a little tenuously.

In terms of writing and artwork, Daredevil continues to be great, and we recommend picking up #8 and Amazing Spider-Man #677, which contains the first half of this storyline.

15 responses to “Daredevil, The Man Without…Jurisdiction?

  1. It doesn’t seem unreasonable to me that the cemetary operator could be a Delaware corporation, unless some obscure NY statute requires cemetary operators, like insurance companies, to be locally incorporated.

    Having not read this comic, is it possible that one of the theories of the complaint is that the cemetary operator and/or some of its employees are involved more directly (meaning the tort would probably be IIED and conversion rather than negligence).

    (A side question: Does the Mole Man normally operated only six feet underground? The holes usually seem a lot deeper than that.)

    In Portland, OR, construction of a tunnel for the light-rail transit system passed some 60 feet UNDER the graves in a graveyard. Some graves were moved; mostly they weren’t. There was no subsidence, although as it turns out, the entire hillside is slowly sliding off the hill, at a rate of a couple of centimeters per decade or so.

    • You have identified an issue I purposefully glossed over for brevity in the post. For diversity purposes a corporation’s citizenship is both where it is chartered and where it has its principal place of business.

      This “dual-citizenship” restricts rather than expands diversity jurisdiction. For example, if a New York plaintiff sues a Delaware corporation with its principal place of business in New York, the plaintiff can’t claim diversity of citizenship. So having the cemetery company be a Delaware corporation wouldn’t help.

      The tunnels under the graves are found to go dozens if not hundreds of feet down, which is what makes some people suspect the Mole Man. That and the fact that the next issue is titled “Underworld Unleashed.”

      You raise a good point re: grave robbing by cemetery employees, and in fact New York has a statutory cause of action for desecration of a grave, but I didn’t address that possibility in the post because a) Foggy only mentions negligence, which implies by omission that the plaintiffs aren’t alleging any intentional misconduct and b) it turns out that it’s clearly the work of a superpowered being of some kind anyway.

  2. The mention of the Mole Man raises some general questions about territorial law in my mind. For instance, has it ever been defined how far down a state/nation/individual’s territorial claims remain applicable? Is everything underneath your territory, in a wedge all the way down to the center of the earth, theoretically part of your territory? Or does it cut off at some depth? I’d assume it goes down some distance, or else there’d be no point to laying claim on mines or oil deposits.

    • As best I can tell it’s a wedge all the way down, but I say that only because I can’t find anything that limits it to a particular depth. Most territorial law is concerned with water-based boundaries and the oceans, as you might guess.

      Were the Mole People around before the relevant territory became part of the United States? I think that would be an important factor.

      • Usually that sort of thing isn’t a problem because if you’re digging into the ground you’re probably based on the soil that definitely does belong to the nation in question. To date there’s no way to get deep enough for it to possibly involve more nations than those at the ground level and no economic reasons to want to. Of course if the Mole People existed and were at a reasonable point under the ground (maybe a mile or two underneath) that might make things different, even if the U.S is touchy about sovereignty.

        A possible source of information might be oil drilling near the border of another nation.

      • Okay, I know it is illegal to drill oil at an angle and steal a neighbor’s claim. Has there ever been an international case involving mineral rights where drilling or mining meant going underneath somebody else’s territory? What happens when an oil find or an ore find just happens to extend over another person’s land or another country’s territory? I know that it can be tricky when the oil is under the ocean floor and the find may be within 200 miles away of more than one country and multiple countries claim exclusive economic rights but has the problem ever come up with oil or ore found underground?

      • TimothyAWiseman

        @James Daily, perhaps the old maxim in property law: Cuius est solum eius est usque ad coelum et ad infernos which translates to “[for] whoever owns [the] soil, [it] is his all the way [up] to Heaven and [down] to Hell.” Would be informative about questions about ownership going beneath the earth. I know that this maxim is definitely no longer accepted in an absolute form, but I believe it is still taken as the baseline to which modifications are applied and would probably still form the starting point for discussions if ownership of truly deep subsurface areas every became a major question.

        @Martin Phipps Yes slant drilling has been a major issue in international affairs at times. One of the more recent and more significant incidences arrived shortly before the invasion of Kuwait by Iraq. Wikipedia has a good summary at http://en.wikipedia.org/wiki/Invasion_of_Kuwait#Economic_warfare_and_slant_drilling

      • Unfortunately the Iraq/Kuwait case isn’t very useful for purposes of law and sovereignty because the legitimacy of Iraqi complaints aren’t clear, the inherently political nature of OPEC production quotas and the entire matter was settled through military means, first by an Iraqi invasion and then by a U.N armed response.

      • TimothyAWiseman

        @Gyre, in one sense you are right, but it is worth remembering that International Law is all treaties and politics. While some overseeing bodies (UN, NATO, EU, even OPEC) have things mechanisms for dispute resolution within their scope, sometimes including courts, they were fundamentally created by treaty and are occasionally ignored by entities who either where not signatories to the treaties that created them and thus ignore them with some legitimacy, or by governments that simply chose to ignore them when convenient.

        When these organizations fail to resolve a dispute in some way that all parties accept and diplomatic negotiations break down, the matter often is settled through military means. This was just one example of that general trend.

  3. The common law rule was down to the center of the Earth, up to infinity… which was cut off by modern air travel (which also affected 4th amendment restrictions.) I’m sure there are some special rules for mining, along with special rules for pumping out fluids (both water and petroleum).

    Plus, of course, the subsurface rights as well as the aerial rights can be severed, so that ownership of the surface land might not include ownership of the subsurface.

    The Mole Man’s been around since the early 60’s, so he might have an adverse possession claim on the subsurface rights.

    • Generally for an adverse possession claim, the usage must be open and notorious. I think moleman’s activities are far from open, and while they may be “notorious” in one sense, I do not think they are notorious in the sense required for adverse possession (where the intention of that requirement is to give the title owner at least presumptive if not actual notice).

      If a court had reason to want to find territory rights for Moleman, it would likely have no hesitation limiting the old common law rule and could justify it on any number of grounds, but adverse possession in any traditional sense would probably fail.

      • I also suspect that while adverse possession might possibly give him an ordinary property right, it could not work to grant him sovereign territory, which seems to be what he really wants.

        Upon a little research it appears that the Mole Man’s realm, Subterranea, has existed for centuries, so the inhabitants could claim “we were here first” and thus that the United States does not have exclusive sovereignty over Subterranea. There would be a good argument for treating Subterranea as a Native American tribal land, I think.

        Actually, a story in which the government offers the Moloids tribal status could offer a pretty good exploration of the shoddy treatment of Native Americans by the U.S. government over the centuries.

      • James Pollock

        Mole Man’s been in sole possession of the subterranean tunnels for fifty years, and he did surface and announce his possession. I don’t know how much more open and notorious his possession can be… it’s been uncontested for decades.

        I don’t think he needs sovereign status… the common law would allow him to use force to eject trespassers on his property, so all the needs is a clear and uncontroverted title to the subsurface domains he claims… and an adverse possession claim to title would seemingly do that, if successful. He should be able to surface in Manhattan somewhere with enough gold in hand to obtain the services of a top firm to press his case for him (though apparently Nelson & Murdoch are conflicted out.)

      • TimothyAWiseman

        @James Pollock It must be open and notorious for the period of prescription. If he pops up and announces he has had control for 50 years, then the clock for adverse possession probably wouldn’t start running until the first time he popped up, and even then a judge might not deem it satisfied unless he was popping up and announcing himself on a regular basis. The point of that requirement is to give the legal property owners notice, at least presumptively, for the entire statutory period.

        A judge would likely be especially unwilling to extend adverse possession when they have other doctrines they could use to award him ownership if they wished, starting with further limiting the traditional ad coelum doctrine, which is already limited for air travel purposes. For that matter, many states (mostly Western states with large mineral reserves) already place limits on it by statute for mining purposes.

        And just as a pragmatic matter, if he is showing up with piles of gold, he probably has better routes than asserting any claims at all in Court. He would likely be better of negotiating with the Executive branch, and depending on what he wanted he could either likely have that territory declared its own state or even recognized as a separate sovereign nation. If he didn’t want to negotiate with the government, he could probably buy the subsurface rights from the owners. That of course would be awkward in that he would have to deal with all of the owners, but then he would have to sue all of them to assert adverse possession anyway (and the government might be happy to step in with eminent domain for any recalcitrants if he bought up most of the rights he needed swiftly and then made a few campaign contributions).

  4. Well, I happen to know that as a result of the era of coal mining in the South of the Netherlands, the border there on the surface is not identical to the border in the deeps of the earth, the reason is obvious, if you are mining near the border, it is easier to exchange deposits between countries, rather than to open new mines to exploit the deposits on the other side of the border the foreign mine can already. Border control IN mines is just not practical, but here we are talking treaties and international law, but it just goes to show that there are already cases in which one could cross the border just by digging/phasing down.

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