Civil Procedure Janssen Fall 2017
What is Civil Procedure?
Dispute à Consult’n à Research à Forum à Filing à Notice à Pleadings à Joinder à Discovery à Pretrial à Trial à PostTrial à Enforcem’t à Preclusion
Terms
Summary Judgement à is proper when there is not genuine to as to any material fact and party is entitled to judgement as a matter of law.
Justiciable Controversy à exists when there is a real and substantial controversy which is appropriate for judicial determination, as distinguished from a dispute that is contingent, hypothetical, or abstract.
A Moot Case à exists where a judgement rendered by the court will have no practical existing controversy b/c an intervening even renders any grant of effectual relief impossible for reviewing court.
Two Exceptions to Mootness
When the issue is raised is capable of repetition, yet evading review.
When the question considers matter of important public interest.
Justiciability Controversy à the controversy has to be over a dispute
Dispute (for a civil lawsuit there must be a real, live dispute capable of being resolved by the courts)
Justiciability à dispute that can make it into a courtroom
Must be actual “case or controversy”
Plaintiff must have “standing”
Dispute is “ripe”
And not “moot”.
Consultation (Clients select, then consult, with an attorney)
Interacting w/ clients – or working for them – is the bread- and- butter of how most lawyers spend their days.
Proper Origination (No improper solicitation or advertising)
Proper Fee Arrangement (reasonable, writing, terms)
Confidentiality (Attorney-client privilege)
Officer of the Court (Duty of candor to tribunals)
Lawful Advice (no assistance in commission of crime/fraud)
Research & Investigation (Once engaged, Attorneys investigate the facts and research the law. They are obligated to render only informed, competent advice. They are forbidden from filing baseless lawsuits
Rule 11 à Signing of Pleadings, Motions and other papers; Representations to the court, Sanctions.
Signature à if you are doing anything in court you have an obligation to certify your duty w/ your signature.
Representation to the Court à what your ACT of signing does (the act) is a CERTIFICATION by the attorney who signs it who is INFROMED to the best of his/her knowledge, information and belief formed after AN INQUIRY that was reasonable under the circumstances that:
No improper purpose
Legal contentions are warranted (You have read the pleadings or motion they filed)
Factual contentions are supported – (or likely will have further investigations or discovery)
All defenses warranted by evidence (pleadings & motion is well grounded in fact)
S.C Rules of Civil Rule 11: Certification that Attorney has read the document to the best of the attorney’s knowledge, information, and belief; w/ good grounds exist to support it; and not interposed for delay.
What happens if you violate Rule 11? “Appropriate Sanction” – Attorney was unreasonable under the circumstances – frivolous and unmeritorious.
Selecting the Forum: Attorney selects the forum where the lawsuit will be heard. It must possess the lawful authority “JURISDICTION” to hear and decide the dispute.
JURISDICTION à “Power of the Court rule & power to speak of the law”
Citizenship, consent, presence in state (Person or property)
There two types: Personal Jurisdiction and Subject Matter Jurisdiction
PERSONAL JURISDICTION (PJ) à “State or federal” – The ability of a court to exercise power over a particular Ñ or item of property.
Full Faith and Credit – Once validy entered, a judgement in personam follows the Ñ throughout the US and Con. Be enforced any where.
Focuses on defendant
Must be authorized by State’s statute and must be constitutional.
Rule 12(b)(2) – party can move to dismiss the suit based on lack of PJ
Lack of SMJ
Lack of PJ
Improper Venue
Process
Service of process
Failure to state a claim
Failure to join a party
“My Parents Frequently Forgot to Read Children’s Stories
Minimum Contacts
Purposef
J. Court CANNOT exercise PJ over a Ñ unless a statute exists in the forum state that explicitly authorizes court to do so.
Long Arm Statute – state laws that allow courts to exercise jurisdiction over out-of-state non-residents Ñs as long as Ñ has minimum contacts.
Ex. Doing business, owning property, committing a tort.
Constitutional (Due Process clause of 14th amend.)
Minimum Contacts Test (International Shoe) – for a court to exercise personal jurisdiction over a Ñ in a manner consistent with Due process clause = Ñ must have minimum contacts w/ forum state that do not offend traditional notions of fair play substantial justice.
To have Minimum Contacts: Purposeful Availment & Foreseeability
Purposeful Availment “it’s only fair test” à Court must find that Ñ purposeful availed herself of the privilege of conducting activities in the forum state, thus invoking the benefits and protections of its laws.
Deliberate, intentional, and conscious targeting of the forum state by Ñ
Ex. Doing business in state or driving on state roads
Foreseeability: Ñ also must know or reasonably have anticipated that her activities in the forum render its foreseeable that she may be hauled into court there. (WW Volkswagen)
5th Amendment: “No person shall be deprived of life, liberty, or property w/out due process.
forbids federal court from depriving a person of property w/out due process of law.
Due Process allows PJ over Ñ who is
Served w/ notice of the lawsuit while in the state
Consents to the courts authority
Minimum contacts w/ the forum or
Who owns property in the state.
