Civil Procedure I Outline

Professor Vega, Civ. Pro. I, Fall 2009

I. CIVIL PROCEDURE. (THESE RULES GO BY THE REVISIONS TO THE FEDERAL RULES)

A. Where Can the Suit Be Brought?

1. Four elements that allow a court to hear a case and claim proper jurisdiction:

v Subject Matter Jurisdiction—gives a court legal authority to hear and to decide a particular type of controversy/claim

i. RULE 12(b)(1)—defense of lack of SMJ. CAN BE RAISED AT ANY TIME, EVEN ON APPEAL.

ii. RULE 12(h)(3)—if a court determines at any time that it lacks SMJ, they must dismiss!

iii. Federal Question

· State Courts have General Jurisdiction– allowed to hear any type of case unless that type of case is prohibited under authority

· Federal Courts have Limited Jurisdiction—not allowed to hear a case unless that type of case is allowed under authority

o Title 28 U.S.C. §1331 gives federal courts original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States

iv. Diversity Jurisdiction

· 28 U.S.C. §1332

· Allows federal courts to hear certain actions between people who live in different places

· There must be (1) complete diversity and (2) a claim for greater than $75,000.00

o Complete diversity means that every ∏ is diverse from every ∆

v Personal Jurisdiction—RULE 12(b)(2)—the authority of the court to hear a claim against a particular person and render a binding judgment against them. IF YOU DO NOT ASSERT THIS AS A DEFENSE IN THE RESPONSE, YOU WAIVE!

i. Usually the court need only be concerned about the personal jurisdiction over the ∆

ii. Challenges must be raised early, or they will be waived

iii. 4 ways to establish:

· Presence—if ∆ voluntarily appears or is served by the state

· Status—status of residency

· Consent—given through contract, agents, etc.

· Domicile—where you are living and intend to remain and need not be the same as one’s current residence; corporations are domiciled in their state of incorporation and principle place of business

iv. Service of process is necessary or the ∆’s due process will be violated—must SERVE the summons and a copy of the complaint to ∆

· RULE 4(d)–∆ can waive service of a summons

o (1)—must be in writing, addressed, have name of court, copy of complaint, state date and must give ∆ a reasonable time of at least 30 days to return the waiver (or 60 if not in US)

· RULE 4(m)—time limit—if ∆ not served within 120 days, the court must dismiss the action

v Venue—RULE 12(b)(3)—place of trial. IF YOU DO NOT ASSERT THIS AS A DEFENSE IN THE RESPONSE, YOU WAIVE!

i. The geographic location of an action within a jurisdiction; a question of convenience of location, not power of authority.

ii. These rules attempt to allocate cases within a judicial system, federal or state, in a manner that is convenient for the parties, witnesses, and the court.

v Supplemental Jurisdiction

i. Possible only when at least one claim independently qualifies for federal subject matter jurisdiction

2. Service

v Must give notice of process!

i. RULE 3—action starts by filing a complaint with the court

ii. RULE 4–anyone that is over 18 years of age may serve the document

iii. RULE 5

· If service is mailed, three extra days are added onto the time span

· (b) Hand it to person, leave it, mail it to last known address, leave it with court clerk

iv. RULE 12(b)(4)—defense of insufficient process. IF YOU FAIL TO RAISE THIS AS A DEFENSE IN THE PLEADINGS, YOU WAIVE!

v. RULE 12(b)(5)—defense of insufficient service of process. IF YOU FAIL TO RAISE THIS AS A DEFENSE IN THE PLEADINGS, YOU WAIVE!

v Calculating Service and Filing Deadlines

i. RULE 6(a)(1)–When counting days, exclude the day o the act

ii. RULE 6(a)(2)–LESS THAN 11 DAYS: exclude Saturdays, Sundays, and l