The document outlines the federal court system in New England, detailing various court structures, case types, and jurisdictions. It highlights the differences between federal and state courts, particularly in terms of cases related to the U.S. Constitution and the concept of diversity jurisdiction. Additionally, the document discusses procedural elements such as removal process, district court judges, case management, and initial scheduling conferences.

1. Federal Courts of New England: The Essentials

2. JUSTICE IS THE GREAT INTEREST OF MAN ON
EARTH. IT IS THE LIGAMENT WHICH HOLDS
CIVILIZED BEINGS AND CIVILIZED NATIONS
TOGETHER. WHEREVER HER TEMPLE
STANDS, THERE IS A FOUNDATION FOR
SOCIAL SECURITY, GENERAL HAPPINESS, AND
THE IMPROVEMENT AND PROGRESS OF OUR
RACE.
-Daniel Webster, 1845

3. John Joseph Moakley Courthouse Processional

4. John Joseph Moakley Courthouse Processional

5. John Joseph Moakley Courtroom Entrance

6. John Joseph Moakley Courtroom

7. Comparison Chart
Federal Court System State Court System
Cases that deal with the United States Constitution Most Civil and Criminal Cases
Cases involving the laws and treaties of the U.S. Contract Cases
Disputes between citizens of different states, or
citizens of a state and citizens of a foreign state
Tort Cases (Personal Injuries)
Criminal cases involving violation of the U.S.
Criminal Code
Probate Matters (involving wills/estates,
marriages, divorces, adoptions, etc.)
Admiralty Law, Bankruptcy
Minimum of six (6) person jury; unanimous verdict
required
Twelve (12) Person Jury;
only 5/6 or 10/12 need to agree
Well-funded by Federal Government
Generally underfunded as compared to Federal
Court

8. United States Judicial System
United States Supreme Court
• Limited Original jurisdiction: ex. suits between states
• Final Level of Appeal for cases involving constitutional and/or federal
law
• Discretion to hear appeals, only small percentage granted
United States Courts of Appeals
• Intermediate Level of appeals from Federal Courts and Administrative
Agencies
United States District Courts
• Trial courts—civil and criminal matters

9. United States Judicial System
• United States Bankruptcy Courts
• United States Court of Appeals for Veterans Claims
• United States Court of Appeals for the Armed Forces
• United States Tax Court
• United States Court of Federal Claims
• United States Court of International Trade

10. District Courts
At least one in each state
and District of Columbia
(Washington D.C.)
94 in the U.S.
Some States Have More
than one District
Territories of Virgin
Islands, Guam and
Northern Mariana Islands
also have District Courts

11. District Courts
• Organized into twelve regional circuits
• First through Eleventh Circuits
• District of Columbia Circuit
• Each circuit has its own Court of Appeal

12. Circuit Courts of Appeals
• Intermediate appeals from decisions of a U.S. District Court within the
circuit and decisions of federal administrative agencies.
• 13 Appellate Courts - one for Each Circuit
• 1st-11th Circuit,
• D.C. Circuit
• Court of Appeals for the Federal Circuit
• Specialized cases (ex. International trade, federal personnel and
veteran’s benefits, patents, trademarks)

13. District Court Circuits

14. First Circuit District Courts
Maine Massachusetts New Hampshire
Puerto Rico Rhode Island

15. Second Circuit District Courts
Vermont Connecticut New York
Four Judicial Districts
Northern, Southern,
Eastern and Western

16. United States District Court Jurisdiction
• Actual Legal Dispute
• Plaintiff must have “standing” (be aggrieved or legally
harmed)
• Dispute cannot be “moot”
• Within the jurisdiction of the court (limited)

17. Personal Jurisdiction
Power of court to make decision regarding a party being sued.
Generally follow rules of forum State
• Physical Presence
• Domicile
• Place of Business
• “Minimum Contacts”— nature and extent of activity in
the forum state
*Lack of personal jurisdiction can be waived.

18. Subject Matter Jurisdiction
• Only where authorized by the Constitution or federal statutes
• Can be challenged at any time
• By parties
• By the court, sua sponte
• Even during appeal

19. Diversity- 28 U.S.C § 1332
• Parties are diverse in citizenship
AND amount in controversy is more
than $75,000
Federal Question—28 U.S.C § 1331
• Cases arising under federal law, the U.S.
Constitution, or treaties
Admiralty; Bankruptcy; Actions against
foreign states
Subject Matter Jurisdiction

20. Diversity Jurisdiction—28 U.S.C. § 1332
(a) The district courts shall have original jurisdiction of all civil actions where the matter in
controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is
between—
(1) Citizens of different States;
(2) Citizens of a State and citizens or subjects of a foreign states, except that the
district courts shall not have original jurisdiction under this subsection of an action
between citizens of a State and citizens or subjects of a foreign state who are lawfully
admitted for permanent residence in the United States and are domiciled in the
same State;
(3) Citizens of different States and in which citizens or subjects of a foreign state are
additional parties; and
(4) A foreign state, defined in section 1603(a) of this title, as plaintiff and citizens of a
State or of different States

21. Diversity Jurisdiction Cont.—28 U.S.C. § 1332
(c) For the purposes of this section and section 1441 of this title
(1) a corporation shall be deemed to be a citizen of every State and foreign state by which it
has been incorporated and of the State or foreign state where it has its principal place of
business, except that in any direct action against the insurer of a policy or contract of
liability insurance, whether incorporated or unincoporated, to which action the insured is
not joined as a part-defendant, such insurer shall be deemed a citizen of:
(A) every State and foreign state of which the insured is a citizen;
(B) every State and foreign state by which the insurer has been incorporated; and
(C) the State or foreign state where the insurer has its principal place of business; and
(2) the legal representative of the estate of a decedent shall be deemed to be a citizen only of
the same State as the decedent, and the legal representative of an infant or incompetent shall
be deemed to be a citizen only of the same State as the infant or incompetent.

22. Diversity Issues
• Diversity is determined by looking at the citizenship of the parties at the time
the complaint is filed
• If case is removed from a state court, may also need to look at citizenship of
parties at time of removal.
• For diversity jurisdiction to attach every plaintiff must be diverse from every
defendant. See, e.g.,. See Strawbridge v. Curtiss, 3 Cranch 267, 2 L.Ed. 435
(1806).
• No diversity if any one of the plaintiffs shares the same state citizenship as
any one of the defendants.

23. DiversityIssuesUniquetotheLloyd’s
Market
Declaratory Judgments most affected
Citizenship Requirement:
• Some jurisdictions take the citizenship of ALL
members—underwriters into consideration,
and ALL must be diverse
• If any member is a citizen of the same
state as any plaintiff (or defendant if
Underwriters are plaintiff), there is no
diversity
• ALL members of ALL subscribing syndicates
to the certificate
• Other jurisdictions look only to the citizenship
of the lead underwriter, especially where it sues
or is sued on its own behalf

24. Diversity Issues Unique to the Lloyd’s Market Continued
Citizenship Requirement
• First Circuit Appellate Court has not ruled on issue whether the
citizenship of each member-underwriter must be considered
• Other circuits are split
• District of Maine opinion holds citizenship of each member must
be considered. Bath Iron Works Corp. v. Certain Member
Companies of the Institute of London Underwriters, et al, 870
Supp. 3 (D. Me. 1994).

25. Diversity Issues Unique to the Lloyd’s Market Continued
Citizenship Requirement Cont.
• Seventh and Eleventh Circuits consider the citizenship of each member-underwriter. Indiana Gas Co.,
Inc. v. Home Ins. Co., 141 F.3d 314 (7th Cir. 1998); Underwriters at Lloyd’s, London v. Osting-Schwinn,
613 F.3d. 1079 (11th Cir. 2010).
• Second Circuit held that the citizenship of every underwriter is relevant when the lead underwriter
sues as a representative, but proposed result would be different if it sues only in its individual
capacity. E.R. Squibb & Son, Inc. v. Accident & Cas. Ins. Co., 160 F.3d 925, 936 (2nd Cir. 1998). After
remand, Second Circuit affirmed district court holding that diversity existed after representative
claims were dismissed. E.R. Squibb & Sons, Inc. v. Accident & Cas. Ins. Co., 241 F.3d 154 (2nd Cir. 2001).
• Third, Fifth and Sixth Circuits only examine the name of the lead Underwriter. Certain Interested
Underwriters at Lloyd’s v. Layne, 26 F.3d 39 (6th Cir. 1994); Chemical Leaman Tank Lines, Inc. v. Aetna
Cas. & Sur. Co., 177 F.3d 210 (3rd Cir. 1999); Corfield v. Dall Glen Hills LP, 355 F.3d 853 (5th Cir. 2005).

26. Diversity Issues Unique to the Lloyd’s Market Continued
SEVERAL LIABILITY NOTICE
The subscribing insurer’s obligations under contracts of insurance to
which they subscribe are several and not joint and are limited solely
to the extent of their individual subscriptions. The subscribing
insurers are not responsible for the subscription of any co-subscribing
insurer who for any reason does not satisfy all or part of its
obligations . LSW 1001 (10-01)
“
The liability of each underwriter / member to the insured under the policy is several, not joint.
”

27. Diversity Issues Unique to the Lloyd’s
Market Continued
• Amount in Controversy—currently $75,000
• Because liability of members is several,
amount in controversy must be satisfied
based upon the proportional participation
of the member at issue
• Problematic in jurisdictions which require
that all members are necessary parties

28. Diversity Example
Policy slip lists two subscribing syndicates—111 & 999
Syn. 111 has 60% of the risk and Syn 999 has 40%
Syndicate 111 has two members:
1) ABC Ltd. has 75%
2) XYZ Ltd. has 25%
Syndicate 999 has three members:
1) MNO Ltd. has 55%
2) QRS, Ltd. has 30%
3) Sam Smith has 15%

29. Diversity Example Continued
Assume value of claim is $1,000,000
Amounts at risk are as follows:
Syndicate 111:
ABC--$450,000 ($1M x .60 = $600,000; $600,000 x .75 = $450,000)
XYZ--$150,000 ($1M x .60 = $600,000; $600,000 x .25 = $150,000)
Syndicate 999:
MNO--$220,000 ($1M x .40 = $400,000; $400,000 x .55 = $220,000)
QRS---$120,000 ($1M x .40 = $400,000; $400,000 x .30 = $120,000)
Sam Smith--$60,000 ($1M x .40 = $400,000; $400,000 x .15 = $60,000)
Because the liability of Sam Smith is several for purposes of calculating whether or not the subscribers meet the
amount in controversy requirement of $75,000 they do not as Sam Smith’s exposure is only $60,000.

30. Diversity Issues Unique to Lloyd’s Market Continued
• Filing suit in the name of “Corporate Capital” on its own behalf, based on
underwriters’ several liability. Corfield v. Dallas Glen Hills LP, 355 F.3d 853 (5th Cir.
2003)
• Some courts look askance. Atrium 5 Limited v. Butchee, 2017 WL 325646 (Jan. 5,
2017, S.D. Illinois)(unpublished).

31. Removal -28 U.S.C § 1441
• A defendant may be able to remove a state court case to a federal court where
the federal court would have had original jurisdiction
• Notice of removal must be filed within thirty days of receipt of copy of complaint
(even if not through formal service)
• All defendants who have been served must consent to or join in removal
• If case becomes removable because of an amendment to the pleadings or
dismissal of one or more parties, the notice of removal must be filed within
thirty days of the date defendant received the order or amended pleading

32. Removal -28 U.S.C § 1441 Cont.
• If based on diversity, removing party has burden to establish complete diversity
at time of filing of complaint and time of removal
• No removal based upon diversity after one year unless plaintiff has acted in bad
faith to prevent removal

33. District Court Judges / Magistrate Judges
• Appointed by President, confirmed by Senate, serve for life
• Each case is assigned to a specific District Court Judge
• Magistrate Judges assist District Judges, handle wide range of duties upon referral
• Civil case management hearings
• Recommended by District Court Judges
• Term of Twelve (12) Years
• Hear and decide non-dispositive motions
• Conduct settlement conferences and mediation hearings
• All parties may consent to have Magistrate Judge hear entire case
• Consent is voluntary; there are no adverse consequences for refusing

34. Parties Must Confer Prior to Conference to:
• Consider the Nature and basis of their claims and defenses and the possibilities
for promptly settling or resolving the case;
• Make or arrange for the automatic disclosures required by Rule 26(a)(1);
• Discuss any issues about preserving discoverable information; and
• Develop a proposed discovery plan
-
Initial Scheduling
Conference

35. Discovery
2015 Amendments to Federal Rules of Civil Procedure emphasize that discovery should be
proportional to needs of the case
Fed. R. Civ. P. 26(b)(1): (1) Scope in General. Unless otherwise limited by court order, the
scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged
matter that is relevant to any party’s claim or defense and proportional to the needs of the
case, considering the importance of the issues at stake in the action, the amount of
controversy, the parties’ relative access to relevant information, the parties’ resources, the
importance of the discovery in resolving the issues, and whether the burden or expense of
the proposed discovery outweighs its likely benefit. Information within this scope of
discovery need to be admissible in evidence to be discoverable.

36. Initial Scheduling Conference
• Parties may be required to file a Joint Statement prior to conference
• Massachusetts District Court requires Joint Statement which includes:
• Proposed Discovery Plan
• Certifications signed by counsel and authorized representative of each
party that they have conferred:
(a) with a view to establishing a budget for the costs of conducting the
full course—and various alternative courses—of the litigation;
(b) To consider the resolution of the litigation through use of
alternative dispute resolution (ADR) programs

37. Initial Scheduling Conference
Local Rules of the United States District Court for the District of Massachusetts
Rule 16.3 Conduct of Case Management Conferences.
Case management conferences shall be presided over by a judicial officer who, in furtherance of the scheduling order
required by L.R. 16.1(f), may:
(1) explore the possibility of settlement;
(2) identify or formulate (or order the attorneys to formulate) the principal issues in contention;
(3) prepare (or order the attorneys to prepare) a specific discovery schedule and discovery plan that, if the presiding
judicial officer deems appropriate, might:
(A) identify and limit the volume of discovery available in order to avoid unnecessary or unduly burdensome or
expensive discovery;
(B) sequence discovery into two or more stages; and
(C) include time limits set for the completion of discovery;
(4) establish deadlines for filing motions and a time framework for their disposition;
(5) provide for the “phased resolution” or “bifurcation of issues for trial” consistent with Fed. R. Civ. P. 42(b); and
(6) explore any other matter that the judicial officer determines is appropriate for the fair and efficient management of
the litigation.

38. Initial Scheduling Conference
Initial Disclosures Amendments to
Pleadings
Fact
Discovery/Disclosure
of Experts
Initial Scheduling Order issued by Court typically includes deadlines for:
Filing of Dispositive
Motions and
Responses

39. Automatic Disclosures under Rule 26(a)(1)
Certain information and documents must be automatically disclosed to other parties:
• The name, and, if known, the address and telephone number of each individual likely to have discoverable
information—along with the subjects of that information—that the disclosing party may use to support its
claims or defenses, unless the used would be solely for impeachment;
• a copy-or a description by category and location-of all documents, electronically stored information, and
tangible things that the disclosing party has in its possession, custody or control and may use to support its
claims or defenses, unless the use would be solely for impeachment;
• a computation of each category of damages claimed by the disclosing party—who must also make
available for inspection and copying the documents or other evidentiary material on which each
computation is based, including materials bearing on the nature and extent of injuries suffered;
• A copy of any insurance agreement under which an insurance business may be able to satisfy all or part of a
possible judgement in the action or to indemnify or reimburse for payments made to satisfy the judgement.

40. Expert Disclosures—Fed. R. Civ. P. 26(a)(2)
A complete statement of all
opinions the expert will
express and the basis and
reasons for them
0 1 The facts or data considered
by the witness in forming
them
0 2 Any exhibits that will be used
to summarize or support them0 3
The Witnesses’ qualifications
and a list of publications
authored in the previous ten
years
0 4 A list of all other cases in
which, during the previous
four years, the witness
testified as an expert at trial
or by deposition; and
0 5 A statement of the
compensation to be paid for
the study and testimony in the
case
0 6
Requires written report if the witness is retained or specially employed to provide expert testimony

41. Initial Scheduling Conference
Consider Phased Discovery, especially for
coverage matters.
• first phase limited to developing
information needed for a realistic
assessment of the case or filing of
motion for summary judgement
• if the case does not terminate, the
second phase is directed at information
needed to prepare for trial

42. Initial Scheduling Conference
Maine District Court
Maine District Court assigns cases to case management tracks
Standard Track. Contains those cases in which discovery is limited to not more than 30 interrogatories per opposing side (subparts
not permitted); 30 requests for admission per opposing side; 2 sets of requests for production per opposing side; and 5 depositions
per opposing side. In standard track cases, discovery shall ordinarily be completed within 5 months and the case scheduled for trial
within 7 months after issuance of the scheduling order. Cases on this track shall include cases such as ... personal injury litigation;
civil rights cases other than prisoner civil rights; … simple contract cases; declaratory judgments regarding insurance coverage; …

43. Initial Scheduling Conference
New Hampshire District Court
New Hampshire District Court requires standard form for discovery plan
• Assigns matter to case management track at conference
• Standard track requires case be tried within twelve months of conference

44. Initial Scheduling Conference
Rhode Island District Court
Statement of Claims
At least 7 days before the conference, counsel for each party asserting a claim (including a counterclaim and/or cross
claim) shall file with the Court a brief (2-3 page) written statement listing the elements, with a short description of
the facts in support thereof, that must be proven in order to prevail on that claim or counterclaim.

45. Alternative Dispute Resolution
• Most District Courts have strong ADR programs
• Often at no cost to parties
• Often presided over by Magistrate Judge
• Trend towards formality
• Programs and procedures vary
• May require physical presence of insurance representative, unless excused by Court

46. Trial –Jury Verdicts
FEDERAL: Fed. R. Civ. P. 48—Number of Jurors;
Verdict; Polling
(a) Number of Jurors. A jury must begin with
at least 6 and no more than 12 members,
and each juror must participate in the
verdict unless otherwise excused under
Rule 47 (c).
(b) Verdict. Unless the parties stipulate
otherwise, the verdict must be unanimous
and must be returned by a jury of at least
6 members.

47. Trial –Jury Verdicts Continued
(c) Polling. After a verdict is returned but before
the jury is discharged, the court must on a
party’s request, or may on its own, poll the
jurors individually. If the poll reveals a lack of
unanimity or lack of assent by the number of
jurors that the parties stipulated to, the court
may direct the jury to deliberate further or may
order a new trial.
COMPARE: Massachusetts state court—e.g.
only requires agreement of 5/6 of jury
members or 10 out of 12 jurors.

48. Thomas B. Farrey, III
farrey@burnsandfarrey.com
John T. Farrey
jfarrey@burnsandfarrey.com
THANK YOU