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.
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.