Civil Procedure Outline
I. Overview of Procedure
A. The Idea and the Practice of Procedure – all about truth and justice
1. locating procedure
2. Procedure, Lawyers, and clients
Questions to ask:
– What’s the purpose of this particular rule?
– Whose interest is served by this rule?
– Does the rule works well within the system?
– Does the system work well?
àCognizable – term of art for injuries that can be settled in court and those can’t. Cognizable means that it can be addressed in court.
B. Where can a suit be brought
1. Subject Matter jurisdiction – court can hear a particular type of dispute: that court which is legally authorized to preside over your dispute, courts can only act on the basis of some legal authority. The court legal system has to based by a law
State Courts-
· General jurisdiction – they can hear any kind of claim between person unless there is a legal authority saying they can’t, they can resolve all legally matters that is not excluded in it jurisdiction. General trial court for a wide variety of disputes
· Limited jurisdiction – can only hear cases specifically authorized by statutes set up in that court. they have discrete limited turf, they can only hear certain types of cases: ex. juvenile court, divorce court, small claims court
– Gordon v. Steel- domicileà current residence + intent to remain indefinitely. Domicile is term of legal art. Must be a citizen of a state for purposes of §1332. – reason that domicile is fixed that the time the complaint is failed, so that subsequent events will not oust subject matter jurisdiction, court doesn’t want its time wasted if things were to change and later they not even have jurisdiction over the case again.
àDiversity requires only – diverse citizenship with adverse parties, and the amount in controversy exceeds $75000
2. Personal Jurisdiction – court has the power to render judgments against particular defendant. Court has constitutional authority to bind and coerce a Δ to comply with the courts rulings. The doctrine of personal jurisdiction is Δ specific. Π is automatically assumed to have personal jurisdiction by virtue of them filing their complaint.
Forum – many possible courtroom and benches within a judicial system, the forum refers to the one you are using, either forum state or forum courtroom.
For a Forum court to have personal jurisdiction they must have some kind of contact with that state:
Δ is physically present – then court has jurisdiction over anything or person in their state
Δ consented either by contract
Alternative contacts:
o Δ engaged in certain activities that are engaged in the lawsuit, ex. business that operate in many states
o Δ engages in activities out of the forum but the consequences have effects in the forum.
3. Venue – place of trial. A matter of concern for trial attorney’s if they feel their case is going to go to trial. Venue is the geographic region from which the jury is pulled.
Venue provisions: 28 USC §1391 a – civil action only on diversity of citizenship action may be brought: for Peters v. Dodge: Δ is only relevant
Where Δ resides, if all Δ resides in the same state
substantial part of the events or omissions occurs or property is situated
Where Δ is subject to personal jurisdiction – 3a is a default provision, if there is venue under 1 or 2 then don’t go to 3. 3 is written in to make sure that there is someplace where there is venue.
4. Service of Process – formal delivery of a legal process, handing papers containing complaint and order to come to court. Asserts personal jurisdiction. ceremonial ritual that a Δ knows a law suit is being filed against him. Process – the documents being served, the complaint, the reason Π is in court, damages, injunction, the summons – an invitation from the court to respond to the charges. Rule 4 – physical manifestation of a constitutional imperative called notice. If it properly received, then it is notice, doesn’t need to have knowledge.
First draft a complaint and file a copy with court – rule 3. then the cheap way to get it to Δ is waiver of service – and it involves mailing to the Δ, if they return it then the suit can proceed. The expensive method is to draft a summons and have it served – delivered to Δ as authorized by rule 4.
C. Stating the Case
1. The Lawyer’s Responsibility – complaint asks the formal legal system to use it’s power to grant Π relief.
– Bridges v. Diesel Service, Inc- Rule 11- there was an exhaustion of remedies requirements – law suits under that statute can’t be filed first with a court, they must be filed first with an administrative agency. The reason is for the hopes that this can be mediated out of the court system and much less adversarial and hostile than court
Procedural chronology in this case:
Π filed complaint
Δ filed motion to dismiss with failure to follow rule 11
court granted Δ motion to dismiss
case was dismissed without prejudice
Δ won and then comes back for wanting rule 11 sanctions
à Doctrine of finality – you get one shot at going to court in this system to get redress for your grievance. The difference is that we don’t want court contradicting each other.
2. The Complaint:
o Fact pleading – involve more specific facts. rule 9 – requires more specific allegations on certain claims like: fraud or misconduct.
o Notice pleading – rule 8 – plain and concise statement of the complaint
– Bell v. Novick Transfer Co- Why do you supposed the Δ moved the case from state court to federal court. Motion for more definite statement: this complaint is so vague and unclear that we don’t know what we have to answer to. The court denied this motion because you can get more detailed info in discovery.The last thing a Δ attorney wants is to help the Π to write a better complaint because if you don’t understand it, then the judge or jury might not.
3. The response – motions and Answers – after Δ has been properly notified of his claim, then comes his response à answer:
§ Pre-answer motions – motions are requests to the court to do something. Take no position of the truth or falsity of Π allegations.
1.Motion to dismiss – Rule 12(b) and Rule 7(b)(1) – judges role is to rule on request and makes decisions on what is going on in the law suit. Rule 12 (b) – basis for seeking the motion:
o complaint filed in wrong place court lack jurisdiction, venue, or service of process was defective
o Something wrong with complaint: it is not cognizable, or statute of limitations has run
§ The answer: 1) Δ denies the truth of one or more of the allegations 2) Δ may assert additional matters that may defeat Π claim. the Δ version of what happens. Π gets the first stab, but all the pleadings actually define the scope of the dispute. Answer can contain 3 parts:
Responses: Δ can
· admit an allegation – doesn’t have to be litigated or proved by Π
· denies an allegation – Π must prove this point, fact in dispute
· Lacks sufficient information- neither admits or deny. What ever you plead you must prove it
protects himself of liability
· affirmative defense – even if anything the Π is true, the Π is out of luck either by: run of the statute of limitations, or statute of frauds,
Δ may assert a:
§ Counterclaim – compulsory counterclaims = claim arises out of same transaction or occurrence as Π claim. Permissive counterclaims = doesn’t arise out of same occurrence. Δ and Π are on opposite sides of the v.
§ Cross-claim – involves parties on the same side of the “v.” Π sue several Δ and Δ will sue each other, but must arise out of the same transaction. Δ and Δ sue each other, parties on the same side of the v
§ Third-party claim – Δ may want to assert a claim with a party not in action. can implead another party like an insurance companies, most times the insurance companies have this in there contract and Δ sticks the insurance company in there. Only permits the Δ to implead a 3rd party with whom the Δ has a reimbursement agreement: insurance, indemnification, warranties. Δ can’t bring in a second Δ to shift liability, nor can they bring them in as a 3rd party.
Once the answer is filed, then the case is set to be AT ISSUE
4. Amendment of Pleadings – Rule 15 – leave to amend shall be freely given when justice requires. 15(c) amendment after the statute of limitations, 15(b) amendment during course of trial.
D. Parties to the Lawsuit:
1. Permissive Joinder – Rule 20- where Π may join with other Π against a single Δ or, join several Δ against a single action. Rule 20(a) – Permissive Joinder – if someone has not been joined and the suit would come out better if that person was joined, then you can join them, if you can. If that person cannot be joined, then it’s okay. Join if you can but continue anyway.
o Joinder of Π – parties to be joined must have1) the same common experience, event, series and 2) one common question of law or fact
o Joinder of Δ – same as Π above.
2. Compulsory Joinder – bringing a party by order of the court, even though the opposing party might not want him there. Rule 19 – compulsory joinder – Mandatory, if a person is not joined in a lawsuit, but the suit will seriously affect that persons rights, or will be unable to be resolved without that parties participation, that person SHALL be joined. If that party can’t be joined for some reason, then the lawsuit has to be dismissed. If that person can’t be joined then the court must decide if the lawsuit can continue without the persons, if it can’t the case must be dismissed. But if the court can come up with another legal remedy without the person, then the suit can continue. So it’s either join or dismiss.
– Temple v. Synthes Corp. – the lower courts agreed that all the parties should be joined for efficiency. The SC entered a per curium decision is written by the court as a hole, and it means that the answer is so obvious legally. Joint tortfeasor are never rule 19 indefensible parties, because joint tortfeasor can be held jointly or severally liable to the Π, some be found liable while other aren’t. the rule for this case efficient type of joinder is rule 20, where the resolution involves inseparable obligations.
3. Intervention – if Π doesn’t with to join a party and Δ doesn’t wish to join a party, then the absent party can seek to come into suit through intervention. Rule 24. Intervention as of right and permissive intervention. where a person has not been joined to a lawsuit but has not been told that they can’t but in, intervention will allow someone to but in under certain circumstances. They can intervene theoretically anytime, but practically they have to do so early, and have full party rights and go back to the pleadings.
4. Class actions – claims involving large # of Π or Δ, >30 people, this allows some parties to stand for an entire group. Rule 23 – Class action rule – numerous people have all be injured by the same cause, consolidate the claims into one and choose a class representative and they act as a lone Π.
E. Factual Development – Discovery – the unearthing of factual background. Discovery: Rule 26 – the investigative stage of the lawsuit, and this is very important, lawyers need to master these investigative techniques, because facts are important. You don’t want to be blindsided by either the opposition or your client. You need to know the bad stuff about your clients.
Rule 26: basic investigative tools from hostile parties, witnesses, or non-parties:
Written interrogatories – questions that ask basic questions to get identifying information and any persons or institutions that may have access to knowledge about the dispute. Questions: names, addresses, phone, email, work, or any persons who may have knowledge of this dispute. Set forth – all medical injuries, or medical clinics/hospital attended. The attorney appears and answers the interrogatory, because we protect what our client may say if they incriminate themselves. Make sure the info in accurate and truthful, but we don’t want them to over answer or under answer a question.
Depositions – oral examinations of parties and witnesses and they are on the record and under oath and transcribed. They are much broader than trial questioning. The rule of evidence doesn’t pertain to a deposition other than relevance, and privileged information.
Subpoenas – gets other parties to give up certain documents. Produce documents
One party to obtain physical and mental exams of another – has to be Okayed by a judge, otherwise they can harass one side or the other. Condition to be examin
citizens or subjects of a foreign state are additional parties and
– most have a United States Citizen on both sides
4. a foreign state, defined in §1603 a of this title , as Π and citizen of a state or of different state
– Dred Scott v. Sanford: – how does one become a US citizen, if you are born here, naturalized, or white? What does it mean to be a citizen of the United States? You get all the rights protected by the Constitution, privileges and immunities.
Is being a citizen of a state the same as a citizen of the US? No, because anyone state doesn’t have the power to create US citizenship, because that is the power of the federal gov’t, congress under the constitution.
Could someone be a citizen of the US, but not a citizen of a particular state? Yes, To have a citizenship of a state, you need domicile. But if you are born here and assume a domicile in another country. Corporations can be citizens of states they are incorporated in but not the US.Why couldn’t Scott sue Sandford in Federal court? Because he wasn’t a citizen of the US and didn’t qualify for diversity jurisdiction.Diversity jurisdiction is also about status, those persons are entities who can invoke the diversity jurisdiction of the federal court. Is the dred scott case still good law today? In some ways, we still have to be a citizen of a state to get the rights.
– Mas v. Perry – § 1332 (a)(1) and (2) – citizens of different countries, and citizens of a different country = alienage jurisdiction. Domicile is where you currently reside and intend to remain indefinitely.
What does citizenship for 1332 require? àThat the person is a citizen of a state and citizen of the US.
Rule of complete diversity = all parties must be different from other side of the v.
Rule of minimal diversity – no matter how many Π or Δ, only one has to be diverse, not all have to be different.
– Ankenbrandt v. Richards – There is diverse citizenship among adverse parties, so yes, on the face it looks like diversity. However, these jurisdictional concepts had a domestic relations exception, because historical the resolution of matrimonial disputes were resolved by the church and so these disputes were not in court.
– The domestic relations exception applies in actions of: divorce, child custody, and alimony à these are exclusively within the jurisdiction of state courts, even though they apply to diversity jurisdiction on its face.
– This domestic relation exception was not going to apply in this case, because this was a tort case, not a divorce, child custody, and alimony.
Corporate diversity: 28USC §1332 (c) – a corporation shall be deemed to be a citizen of any State by which it had been incorporated and of the State where it has its principles place of business, except that in any direct action against the insurer of a policy or contract of liability insurance, whether incorporated or unincorporated, to which action the insured is not joined as a party-defendant, such insurer shall be deemed a citizen of the State of which the insured is a citizen, as well as of any State by which the insurer has been incorporated and of the State where it has its principle place or business.
– Tosco Corp v. Communities – Principle place of business:
Nerve or brain test – where the executive functions of the corporations are, the head quarters, where the executive people are that makes the decisions.
Muscle center test – where the corporations does business.
combination of both
Π was incorporated in Nevada and claims its a citizen of Connecticut because its headquarters are there.
Δ claims that the principle place of business of California. In order for a California court to determine Π principle place of business they apply the:
place of operations test / muscle center = contains a substantial predominance of cooperate operations.
The court found that California was Π principle place of business because Δ could demonstrate how much business they were doing in California compared to other states. They required a breakdown of the level of business activity on a state by state basis.
Π pled diversity jurisdiction, they pled it they prove it…Π didn’t present that evidence about the other States status.
This case was dismissed there was no federal jurisdiction.
For federal diversity jurisdiction:
Adverse parties must be of diverse citizenship.
The amount in controversy must exceed $75,000. (meaning over $75,000.01)
need state claim
difficult for the defendant to defeat the allegation that the amount of controversy is false
Aggregation of the amount in controversy:
Rules:
– Where you have 1 Π suing 1Δ, whether related or unrelated, even if all the claims don’t meet the amount in controversy individual, add them up, aggregation is permitted.
– When you have multiple Π, and neither of their claims satisfy the amount in controversy, can they add their claims together: 1) if the claims are unrelated, then no.
1Π meets the amount in controversy, 2Π doesn’t meet the amount, can they piggyback off each other to meet the amount à sometimes. Yes(related)- No(unrelated)
