JANSEN CIVIL PROCEDURE FALL 2008
1) Introduction to American Civil Procedure
a) Civil Law vs. Criminal Law
i) Civil Law: regulates private affairs, compensates loss, and brings appropriate remedy
(1) Standard: preponderance of evidence
(2) Types of Decisions/Remedy: specific performance, injunction, monetary damages
ii) Criminal Law: between state and person or federal gov’t and person
b) US Constitution
i) Supremacy Clause (Art. 6): in conflict between state and federal law, FEDERAL WINS
(1) Goals: Federalism… uniformity of law within nation
ii) 10th Amendment: limits authority of federal gov’t so that states can have sovereignty in those areas
(1) Rationale: Maintain states ability to adjudicate internal claims… balances Art. 6
iii) Art. 3: Created Supreme Court and says Congress can create other inferior courts
(1) To resolve disputes between branches… decide what Federal courts should adjudicate
c) Federal Court System
i) Trial Courts: called district courts… no district reaches outside of the state boundaries
ii) Appellate Courts: called circuits… gathers all district courts in particular region… goes outside of state lines… 11 of them
(1) We are in the 4th Circuit
iii) Supreme Court: The Court of Last Resort… only court expressly created by the Constitution
(1) 9 justices… present court called the Roberts Court
(2) No “right” of appeal (writ of certiorari)
(a) Otherwise, it would be overwhelmed… also, they decide what most needs to be heard
(b) Method of Removal: impeachment through Congress
(c) “We are not final because we are infallible, but we are infallible because we are final.” Robert Jackson (41-54)
d) Four Sources of Law
i) Constitutions: Primary, highest authority in that jurisdiction… create branches of gov’t
ii) Statutes: results of laws that legislature passes
(1) USC: collection of all federal laws (caveat: executive orders)
iii) Court Rules: rules passed by court system governing conduct of litigation w/in those courts
(1) Example: Federal Rules of Civil Procedure: SC has adopted them
(a) FRCP Rule 11: Attorney Conduct… duty not to abuse legal procedure
(i) Considered frivolous claim if attorney can’t make good faith argument on merits
(ii) Attorney must give signature to certify that they’ve read motions and that their pleading/motion is well grounded in fact
(iii)Attorney’s must engage in reasonably prudent research (research and investigation are main way attorney’s gain competence in an area)
(iv) NOT INTENDED TO TAKE AWAY CREATIVITY… JUST WANT US TO BE HONEST
iv) Cases: Set precedents… leaks through all other sources
(1) Stare Decisis: Previously established common law which should be adhered to
(a) Ensures predictability and promises uniformity and stability
2) Dispute and Resolution
a) Dispute:
(1) Must be ACTUAL: can’t be hypothetical, abstract, or advisory… must be concrete and definite
(2) Litigants must have STANDING and MOTIVATION… (ex. Have to have a dog in the fight)
(3) Claim must be RIPE, not MOOT: must rest on current events, not speculative future ones… must have reasonable chance to gain redress
b) Consultation in South Carolina
(a) SCRPC 1.5: fees must be disclosed up front
(b) SCRPC 1.6: client must give informed consent… otherwise, attorney cannot reveal info.
(i) Exception: when papers need to be filed and personal info is necessary for claim
(c) SCRPC 7.3: no in person, live, telephone, or other real time contact with potential clients when motive for contact is monetary gain
(i) Exceptions: if listener is a lawyer, family member, or other professional relation
(d) SCRPC 11: competent representation
c) Research and Investigation
i) Required by:
(1) Fed R. Civ. Pro. 11
(2) S.C. R. Civ. Pro. 11
(3) SCRPC 3.1; and
(4) Because this is a profession, you are training to give your advice and successfully represent your clients
ii) Fed. R. Civ. Proc 11: By signing, filing, submitting, or advocating a paper in court the attorney certifies that to the best of their knowledge, information, and belief formed after an inquiry reasonable under the circumstances.
(1) The paper is not being presented for any improper reasons,
(2) The legal contentions are warranted by existing law, or by a non-frivolous argument for extending, modifying or reversing existing law or establishing new law,
(3) The factual contentions have evidentiary support, or will likely have evidentiary support after reasonable further investigation,
(4) Any denials of fact are warranted on the evidence.
(a) James Bridges v. Diesel Services, Inc.
(i) Rule 11 imposes “Stop, Think, Investigate, and Research” before filing papers either initiate the suit or to conduct litigation.
(b) View Engineering Inc. v. Robotic Visions Systems Inc.
(i) Rule 11 imposes a duty on attorneys to certify by their signature that (1) they have read the pleadings or the motions they file and (2) the pleadings or motion is “well-grounded in fact,” has a colorable basis in law, and is not filed for an improper purpose. The Supreme Court has held that the “central purpose of Rule 11 is to deter baseless filing… “Cooter & Gell v. Hartmarx Corp. 496 U.S. 384, 405 (1990).
(c) Lyne Brunt v. Service Employees International Union
(i) Bringing a claim that contradicts existing case law is not a Rule 11 violation if the claim asserts an alternative question (Termination of employment valid due to neutral union stance, but alternative claim asserting that termination of employment wrongly terminates union membership makes claim not violate Rule 11).
(d) Brown v. Board of Education
(i) Presenting a matter of law, where there is already precedent law, in a creative or novel way is not a violation of Rule 11.
iii) SC. R. Civ. Proc 11: Certification that:
(1) Attorney has read the document
(2) To the best of the attorney’s information, knowledge and belief:
(a) Good ground to support it,
(b) And not interposed for delay.
iv) SCRPC 3.1
(1) • “A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, wh
; by agreeing to ruling, or by asserting claims of your own).
Long-Arm Statute: look to the LA Statute to see if it explicitly talks about consenting to jurisdiction. (i.e. Hess v. Palowski).
-Contract (forum selection clause in contract) Carnival Cruise Lines case
State Law (2 part test, must be in the long-arm statute and not violate due process)
-you are allowed a SPECIAL APPEARANCE (you have an opportunity to be heard without consenting to jurisdiction, but must leave immediately after special appearance or you’re at risk for TAG Jurisdiction).
2. Expressly, by appointment (authorized agent for service)
3. Expressly, by agreement (e.g. “choice of forum clause” in a contract)
2. Tag without tag (jurisdiction based on domicile)
-tag w/out tag only applies to the domicile of an individual.
-Long-Arm Statute (unsettled whether a corps. domicile is sufficient to have personal jurisdiction).
-Due Process
Millikin v. Meyer:
Can be sued w/out tag at one’s DOMICILE even when not there
Must have adequate service of summons and complaint
Rationale: state where an individual is domiciled gives protections and privileges to person’s property.
3. Tag Jurisdiction (physical presence in the forum state)
-look to the Long-Arm statute 1st
-Due Process
Pennoyer v. Neff: says 2 criteria for personal jurisdiction
PERSONAL IN-STATE SERVICE (can be personal service on the D, or give notice by Attaching the property); or
CONSENT
Burnham v. Superior Court of California (split decision, not binding, but TAG was updated; suit was unrelated to activities w/in the state but he was personally served in the forum).
-Justice Scalia says most traditional form of personal jurisdiction, and there is personal jurisdiction if the defendant is in the forum voluntarily and intentionally. He feels that the D is gaining the benefits and protections of the forum state so tag jurisdiction is reasonable and fair. Forseeable that you will have exposure to service in the forum state. Exceptions: you have to voluntarily be in the state, can’t be there against your will…IMMUNITY when you are taking part in another legal proceeding.
-HE says Int’l Shoe didn’t cancel Pennoyer…IT ADDS TO IT!
-MINIMUM CONTACTS are required when NO CONSENT OR NO PERSONAL IN-STATE SERVICE.
