CIVIL PROCEDURE FALL 2008
Introduction
I. Five sources of Law:
1. Text-Federal Rules of Civ. Pro.
a. substantive
b. procedural
2. Intent-What the law covers
a. Express
b. Implied
3. Precedent-gives similarities, cases can be cited w/ in cases
a. Holding
b. Dicta
4. Tradition-Federal practice of jusdges
a. Common law
b. Federal practice
5. Policy-policy is a factor, ex. Activist Judges use rules incorrectly to further agenda
Life Cycle of a case
Select attorney
Select forum
Pleadings
Discovery
Rule 56 -Summary judgment
Trial
Overview of Procedure
A. Where Can a Suit Be Brought?
1)Subject Matter Jurisdiction
a. Hawkins v. Masters Farms, Inc (D. Kan., 2003, P 6)
Facts- П, estate rep, sues Δ from KY in fed ct alleging that his negligent driving caused the death of Mr. Creal. Δ files motion to dismiss under FRCP 12(b)(1), claiming there is not complete diversity.
Holding- Dismissed. Estate of Mr. Creal has KY citizenship b/c deceased and his wife were domiciled there w/ no intention or plans to move. No diversity per §1332.
b. FRCP 12
(a) Answers to Claims
(b) Motions to Dismiss:
(1) lack jurisdiction over subject matter
(2) lack jurisdiction over person
(3) improper venue
(4) insufficient process
(5) insufficient service of process
(6) failure state claim upon which relief can be granted
c. 28 U.S.C. §1331- Federal Question Subject Matter Statute
B. Drafting the Complaint
1) Rule 11 and Lawyer’s Responsibility
a. Bridges v Diesel Service, Inc. (E.D. PA, 1994, P 13)
Facts- П’s atty files suit, alleging violation of ADA. Δ moves for FRCP 11 sanctions for failure to conduct diligent legal research, b/c should have filed a complaint w/ the EEOC first.
Holding- Will not impose sanctions b/c FRCP 11 meant to deter not shift atty’s fees; mistake procedural, not blatantly frivolous; don’t want Title VII chilling.
b. FRCP 11
(a) Signature Req’t
(b) Representations to Ct- by submitting certify believe them to be correct and not
frivolous
(c) Sanctions- may be initiated by party or court; monetary or otherwise; not
compulsory
2) Complaint
a. Bell v. Novick Transfer Co. (MD, 1955, P 15)
Facts- П files suit, claiming Δ was driving negligently and this caused injury to his infant son. Δ moves to dismiss per FRCP 12(e) b/c not definitive enough.
Holding- Ct denies motion, citing purpose of FRCP 8 to only require a short and plain statement (basis for jurisdiction, claim for relief and demand for relief.)Can get more info during discovery
b. FRCP 7-10;
1. П typically files a complaint and Δ answers and may file motion to dismiss.
Pleadings may be amended under FRCP 15. Cross-claims and Counterclaims under FRCP 13
2. Two basic objectives of pleadings: give notice to the parties about what the other side is going to do and screen out cases that do not belong in court.
C. Parties to the Lawsuit
a. FRCP 19- Compulsory Joinder
b. FRCP 20- Permissive Joinder of Parties- meant to save ct resources
(a) Two part test; may award damages according to respective liability of Δs
(b) Judge may order separate trials if would embarrass, delay or put to expense party against whom there is no claim for relief or for whom joinder would cause prejudice or delay
c. FRCP 20(a)(2)-joining defendants possible, if arising out of the same transaction, occurrence, or series of transactions
1. Larson v. American Family Mutual Ins. Co.
Facts- P learned their lawyer was helping the D by delaying the filing of the lawsuit. P learned of this during discovery and released their attorney & filed an amended claim including their former attorney as additional party to the defendant for breach of duty (malprac)
Application-the atty & D conspired together to breach the contract between P & D, & should be joined thru the FRCP 20A2
D. Discovery
1) Butler v. Rigby (E.D. La., 1998, P 31)
Facts- Δs have moved under FRCP to compel third party medical groups to produce info about patients w/ rel to lawyers in suit and list of all patients.
Holding- Med grps should produce info about patients referred to them by lawyers but list of all patients is privileged and should not be req’d. Party requesting info should pay ½ of all costs.
2) FRCP 26-(b) allows discovery of any matter, not privileged, related to claim or defense of either party. Court may allow, for good cause, discovery of any matter related to subj matter of action.
1. FRCP 26-36-Depositions, Interrogatories, Admissions and Examinations
2. FRCP 37- Allows
t Restatement: precluded if a subsequent claim is the same cause of action with the same facts and same evidence necessary to prove (narrow). One impulse behind this rule is to allow parties to choose their forum and avoid a race to the courthouse, discouraging settlement.
2. 2nd Restatement: precluded if claims arise from the same transaction or common core of operative facts (broader)
FRCP 41(b) defines anything except dismissal for lack of jurisdiction, improper venue, or failure to join a party under FRCP 19 as an adjudication on the merits. However, there is a strong presumption in favor of giving individuals a fair opportunity to adjudicate their claims, and against binding parties who have been inadequately represented.
Frier v. City of Vandalia
P filed suit against city in Illinois court for replevin of cars that were towed by city. Two cars were released the suit was dropped. The other cars were not released and cases were consolidated. Frier lost in state court. Filed complaint in Fed ct arguing due process. FED ct dismissed for failure to state a come
Issue: Whether Fed ct claims should have been argued in state court?
Rule: If you want to claim preclusion , must determine what state court believes transaction test. Must apply state courts doctrine. If claim could have been made in state ct and it was not then you cannot raise it later in Fed ct. MUST RESPECT DECISION OF OTHER COURTS
Martino v. McDonalds System
P had a franchise and it said family could not have another food industry chain. Son opened burger joint and McDonalds made him sell franchise back to company. P filed diversity action against McDonalds. District courted Summ J against P
I: Whether a 1973 consent judgment against Martino precludes the cause of action set forth in count 1 of the complaint?
Rule: The diversity action should have been raised as a compulsory counterclaim and since it was not raised it is barred under res judicata.
