Civil Procedure_Brody_Spring 2014
INTRODUCTION/OVERVIEW: THE CONSITUTION AS THE FRAMEWORK FOR LITIGATION
I. Background for Civil Procedure: The US and American Courts
A. Definition of Civil Procedure: Rules that govern courts/judges/lawyers/clerks/system that direct civil disputes in federal court re court’s authority/power to hear case, what causes of action.
B. What sets US apart from other nations? Separation of powers
C. Legislative Branch (Art I) Congress has power to:
a. Article I-section 8-list
i. Borrow money
ii. Collect taxes
iii. Regulate interstate commerce
iv. Establish post office
v. Declare war
vi. Coin money
vii. Make treaties
viii. Immigration laws
ix. Bankruptcy laws
x. Copyright laws
xi. Make all laws necessary and proper (aka Elastic Clause) for carrying out execution of foregoing powers…etc. – this clause goes together with above powers-if Congress has the power to carry out the above powers with laws necessary and proper à can make rules of civil procedure.
1. If laws are not specifically listed in section 8, the state has the power to make the laws.
2. Civil Procedure: 28 U.S.C. Sections
a. 132-Congress has power to create federal district courts (trial level)
i. Divided by state geographical area
ii. Each state has at least one
iii. IL has three: (1) US Dist Court for the Southern Dist of IL, (2) US Dist Court for the Central Dist of IL, (3) US Dist Court for the Northern Dist of IL
b. 133-Appointment and number of Dist judges (trial level)
c. 41-Number and composition of Circuits (appellate level)
i. All states are broken down into judicial circuits.
d. 43-Creation and composition of courts (appellate level)
i. There shall be a court of appeals in each circuit (in 7th Circuit, court of appeals is in Chgo, IL comprising of IL, WI and IN)
ii. Have automatic right to take case to 7th Circuit Ct. of Appeals. No automatic review by US Sup. Ct.
iii. Example: If had a Federal case in Cook County, would file in US Dist Court for the Northern Dist of IL, then would appeal to the 7th Circuit Court of Appeals.
D. Executive Branch (Art II) Make laws through:
a. Executive orders
i. President appoints agencies and they make laws by deciding how to run that administration by making laws through making regulations in that area and by hearing cases.
ii. Administrative agencies have quasi adjudicatory powers to first hear cases (in panels) before it is sent to court.
1. That means before a case reaches federal level, some may have started in an administrative panel
2. Example: IRS, FDA, etc.
b. Veto power
c. Article II
i. President appoints all federal judges-controls judicial nominations which need to be approved by Congress.
ii. Veto power-Congress can override a veto.
iii. Can make treatises with other countries.
E. Judicial Branch (Art III)
a. Make laws through:
i. Ruling on cases
ii. Article III
1. Sec 1: Establishes federal court system
2. Sec 2: Constitution created only one court (US Sup. Ct.), all the rest created by Congress but Congress is not required to make inferior courts.
iii. What authority gives Congress to create lower federal courts:
1. Article III, Sec. 2.
2. Congress did enact District and Appellate Courts (per Constitution’s authority):
a. 28 USC 132 and 133 to make dist courts
b. 28 USC 41 and 43 to make fed courts of appeal
b. Need writ of certiorari (send us the record) to have US Sup Ct. to hear case.
i. Automatic appeal from district court to circuit court of appeals. Do they need writ of certiorari?
ii. State level:
1. In IL: trial courts are circuit courts, District courts are appeals (5-broken down by counties, Cook County has own dist ct.), IL Supreme Court (7 justices).
c. Going from Fed to State, and State to Fed:
i. Fed to State after having case heard by US Sup Ct.
1. CAN’T HAPPEN
ii. State (or administrative agency which already has a finding) to Fed: requirements:
1. If the decision has reached the highest level in the state system.
2. Federal question: interpretation of constitution or review of federal statute.
3. Petition for certiorari has been granted.
d. Judicial Review (Power of judicial branch to review laws/acts created by executive and legislature branch).
i. Applicable to this class: if Fed (congress) creates law defining something, US Sup Ct. law can rule it unconstitutional. Then congress can amend to make it constitutional but can’t rewrite it in the same unconstitutional manner.
ii. If US Sup Ct. does not rule that law to be unconstitutional but says we define some term differently than congress can interpret such term differently than US Sup Ct.’s definition (even if it is in conflict with US Sup Ct.’s interpretation, so long as US Sup Ct did not rule it to be unconstitutional.)
1. Ex: Sup Ct. may say “arising under” means X, congress may say it means Y.
II. Overview of U.S. Civil Procedure
A. The Idea and Practice of Procedure
a. Before filing a suit…what happens to majority of cases?
i. P may not have suffered wage loss and has good insurance that covered medical expenses.
ii. D’s insurance settled with P.
iii. No atty decided to take on case b/c recovery is small and time spent on case big.
b. Clients, Lawyers, Procedure, and Structure
i. What happens if Lawyer screws up Jurisdiction?
1. Client may file malpractice suit against atty
2. Say that the mistake isn’t too bad that the other party will suffer expense or inconvenience.
3. Ask the court to allow P to amend claim and by granting D extra time to prepare a defense.
4. Lawyer may be disbarred if she filed suit, settles a case, or refuses a settlement w/o consulting client. Lawyer need not consult client re: what court to sue in, whether to request a jury trial, how to develop facts of case, what evidence to present & in what order, etc.
B. WHERE CAN SUIT BE BROUGHT?
a. Four Legal Requirements
i. Subject Matter Jurisdiction applies to only federal
ii. Personal Jurisdiction applies to federal and state
iii. Notice applies to only federal
iv. Venue applies to only federal
b. Legal requirements in more detail:
i. Subject matter jurisdiction: the court must have jurisdiction over accident:
1. Federal two requirements:
a. “Arising Under”: federal question, or
b. Diversity and 75K
ii. Personal Jurisdiction: power over the parties (not only over subject matter).
1. About fairness to bring D to a court he never stepped his foot in that state.
iii. Service of Process and Notice:
1. Just b/c ct has power, if D does not know of lawsuit, not good. D must know of the lawsuit through service of process.
iv. Venue (aka locale).
1. If in federal court, which specific location we can bring since there are 3 federal courts in IL.
c. Strategic/economic/political reasons for choosing where to bring suit:
i. Pool of jury, Federal court: pool from bigger area, state: jury from local area.
ii. Convenience for parties and witnesses
iii. Is opposing counsel uncomfortable with generally more formal conduct and faster pace of federal litigation.
iv. Choice of law, what state you file will determine which state law will apply.
v. Federal judges are insulated from political pressure because are judgments lifetime so might prefer federal court if have a legally strong but unpopular claim or defense.
vi. Is federal bench more liberal or conservative than state court bench?
vii. Are federal judgments more inclined to enforce arbitration agreements than state judgments?
viii. Is a party more likely to get a more sympathetic hearing from a local state judgment or from a federal judge in the nearest large city.
ix. Federal courts have shorter waiting times until trial than state courts.
x. Even if both (federal and state) courts are applying the same law, it makes a difference where it is filed.
d. Jurisdiction: court’s power to hear a case and enter a judgment.
i. Court must have both subject matter jurisdiction (over the kind of case) and personal jurisdiction (over the defendant) to render a valid judgment.
III. Constitutional Framework for U.S. Litigation
A. Approaching Civil Procedure
a. Where are they located?
i. All procedural rules are in 28 U.S.C.
b. Who creates them?
i. Congress & Constitution
THE CONCEPTS OF C
FRCP 12(b)(1) There is no subject matter jurisdiction
1. If dismissed b/c of subject matter jurisdiction, P can still sue in state ct.
ii. FRCP 12(b)(6) Party may assert the following defense by motion: failure to state a claim upon which relief may be granted (that there is no prima facie case). D claims P did not have a claim upon which relief may be granted.
1. If dismissed b/c of personal jurisdiction, P cannot sue in the state court of that state.
iii. 12(h)(3) Federal Subject Matter jurisdiction cannot be waived. The court cannot say, even though I don’t have jurisdiction over your case, I’ll still hear it. The court has a duty to dismiss that case, cannot waive it. Personal jurisdiction may be waived by the D by negligence or purpose.
1. Example: You and the landlord cannot agree on deciding your law school grade.
c. Example of Not Arising Under:
i. P sues D on a claim arising under federal law. Parties settle the case by signing an agreement. Case is dismissed by agreement and order makes no reference to settlement agreement. P then sues D for violation of agreement. This suit now is not arising under federal law, but now a contract issue. If parties embodied agreement in a consent decree as part of court’s judgment, its breach would arise under federal law b/c courts have jurisdiction to enforce their own judgments.
d. Why fed rules to Title 28 are in a Separate Appendix?
i. Congress has given some power to USSC to make rules of civil procedure to the district ct and the USSC. In turn, b/c USSC does not really know what goes on in fed district courts, USSC created a committee “Rules and Divisory Committee” which prepares the rules for US Dist Ct and then sends to Congress for approval, and they are in a separate appendix in Title 28 USC.
e. Challenging Subject Matter Jurisdiction
i. How could you collaterally attack (after decision is made)/challenging a judgment entered without federal Subject Matter Jurisdiction?
1. Show up in court and present the motion either under (6) or (1) or others.
2. What if did not present a motion and case goes on and the case is decided against you (a court enters a judgment against you w/o SMJ) and you do not appeal and do not pay the judgment.
3. What are P’s options to enforce the judgment?
a. P can go back to the same court that entered the judgment and present a motion to enforce the judgment, or to court #2.
4. What if D at this point believes that the original ct that entered the judgment did not have SMJ. Can the D raise the issue of SMJ to court #2 (known as collateral attack which is not an appeal but rather challenging some issue at another court)?
5. 3 Possible Scenarios:
a. Even though the Mottley court said that at any time there is no SMJ, the case can be dismissed. However, the timing is important depending what the D does and when he does it:
i. D may show up in ct #1 and challenge it and later there is determination in about it, can’t bring it collaterally (can’t bring it up later)
ii. What if D shows up but failed to challenge and then there is judgment against D and P comes collaterally to enforce it
1. D can’t raise it later.
iii. D does not show up to ct b/c knows there is for sure no SMJ
1. Can’t raise it later.
6. For our purposes, the lesson re challenging SMJ is to always whether there is SMJ or a possibility of no SMJ-RAISE IT in a MO to dismiss. Even though the ct. can raise it anytime, raising it later may cause problem.
