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.
· 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.
Hawkins v. Masters Farms, Inc.: DOMICILE – For the purposes of determining diversity jurisdiction, a person is a citizen of the state in which he or she is domiciled, which for adults is established by physical presence in a lace in connection with the intent to remain there. (Diversity Jurisdiction). This is established when the person files the suit that Diversity is established.
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 its power to grant Π relief.
– Bridges v. Diesel Service, Inc- Rule 11(lawyers must stop, think, investigate, and research before filing papers wither to initiate the suit or to conduct the litigation)- 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 suppose 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. – A complaint which alleges only that a defendant negligently drove a motor vehicle and thereby injured the plaintiff is insufficient under RULE 8.
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
ns 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 examined must be a condition in dispute. Ex. Π allege whiplash, the Δ could be required to submit to a physical exam by their Dr. to determine Π injury.
*Ask: from whom is Δ seeking discovery?
– Butler v. Rigby- Argues relevance – but the concept of relevance at depositions (discovery) are not the same as admissibility at trial. During discovery they can get information to have a logical tendency to lead to an admissible fact. What gets admitted at trial is very sanitized and filtered. The court rejects this argument.
– Argues provider/patient privilege – privilege information does not have to be disclosed, because the legislature passed a law that some relationships require confidentiality, and the state should but out of. The protection of those relationships are more important than eliciting the truth at trial.
F. Pretrial Disposition – Summary Judgment – not ordinarily granted until after the factual development of the case – the discovery. Sometimes when the party can’t settle and discovery is complete, the parties get together and decide to avoid the expense of the trial to the court. This is a paper trial: summary judgment motions, Rule 56.
The standards are statutory:
1. No material facts in dispute – material fact is a fact essential to the whole case
2. If there are no material facts in dispute- then who is entitled to judgment as a matter of law
3. If facts are favorable and law is favorable to the movement then the court can grant summary judgment….to the entire case, or part of the case, certain claims, etc. and once this happens that part of the case is entirely out.
The papers submitted to the court is all their evidence. The witnesses testimonies are presented through affidavits.
– Houchens v. American Home Assurance Co- law suit based on statutory death. wife can’t prove the death was accidental and so they are not required to pay out policy.
Court is saying you can stack one inference on another. There was no greater probability that his death was accidental
