CIVIL PROCEDURE I
PROFESSOR BRODY
I. Background for Civil Procedure
Definition: Civil Procedure consists of rules to serve a client.
a. It governs court room behavior including judge/jury/parties/attorneys
b. The authority begins from the US Constitution
· What makes our Constitution different?
1. Separation of Powers: Checks and Balances
a. Legislature makes statute
b. Judiciary makes common law and interprets law
c. Executive makes regulations through agencies
i. Congress will create a statute then delegate rule making to the President through an administrative agency
2. Judicial Review: The means by which the judiciary can review acts of legislature or executive to determine Constitutionality
a. Piece of legislation can be deemed unconstitutional
b. Final arbiter… if declared unconstitutional must amend to make constitutional
· Executive Branch
1. Powers in Article 2 Sect. 2 Clause 1:
a. Power to enforce laws, appointments of Federal Courts/ambassadors
· Legislative:
1. Article 1: Power to create legislation, levy taxes, commerce, declare war, coin/borrow money, immigration/bankruptcy laws.
2. If the power is not listed in Art. 1 Sect 8 then it is delegated to the states.
3. Necessary and Proper Clause: Power to use necessary proper means to carry out powers
4. Power to create tribunals inferior to the Supreme Court (Only one expressly created in Constitution.)
· Judicial:
1. Article 3: Creates a Supreme Court and powers
2. Title 28 Sect 132 Creates the District Courts
a. Each state has at least 1
3. Title 28 Sect 41 Creates the Ct. Of Appeals
a. Created Geographically
b. 11 Circuits +DC and Fed. Cir. (Patent/Trademark)
c. Powers given to the Judiciary
· Power to hear cases arising under the Constitution, under the laws of the US, and treaties
· All cases involving ambassadors
· All cases of admiralty and maritime jurisdiction
· Controversies — Where US is a party, between 2 or more states, a state and a citizen of another state, citizens of different states, citizens of foreign states.
· All of the above powers are in Constitution: Article V
d. Cases start in the District Courts
· Then appealed to Ct. of Appeals
· NOT entitled to Supreme Ct. Review
1. Must be granted a writ of certiorari
· Federal Courts are courts of limited jurisdiction
1. Limited to the list of
original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States
c. Concurrent Jurisdiction:
· Federal question jurisdiction is not exclusively within the power of the federal courts; state courts may also hear federal question cases.
· Exceptions: Federal jurisdiction is exclusive in cases involving admiralty (§1333), bankruptcy (§1334), and antitrust (§1335)
d. Title 28 Section 1332: Diversity of Citizenship
· Shall have jurisdiction of civil actions where matter in controversy exceeds 75 K AND
· Citizens of different states, citizen of a State and citizen of Foreign State, etc… pg 319 Rules Book
1. Reason: Foresaw prejudice against the outsider
e. Subject Matter Jurisdiction cannot be waived:
· Court can raise it at anytime
· Doesn’t belong to anyone
· Must have power to hear the subject matter of the case
f. Must be in a well-pleaded complaint (Mottley)
1. Cannot be in anticipation of a defense; not enough
Must be a part of the cause of action
