Civ Pro – Fall 2012
Abbott
Overview of Procedure
Jurisdiction
Where Can A Suit Be Brought?
(1) Personal Jurisdiction
A court in the United States cannot exercise power over a defendant if doing so would “deprive any person of life, liberty, or property, without due process of law.”
(2) Subject Matter Jurisdiction
State v. Federal
§ 1331: Federal Question
The district courts shall have original jurisdiction over all civil actions arising under the Constitution, laws, or treaties of the United States.
§ 1332: Diversity of Citizenship; Amount in Controversy; Costs
(a) The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between—
(1) citizens of different States;
(2) citizens of a State and citizens or subjects of a foreign state;
(3) citizens of different States and in which citizens or subjects of a foreign state are additional parties; and
(4) a foreign state as plaintiff and citizens of a State or of different States.
Hawkins v. Masters Farms, Inc.
Facts: π involved in accident, resulting in death. Originally from Missouri, but residing in Kansas. π had physical presence in Kansas, as a citizen with intent to remain.
Death certificate, personal items, furniture, memorabilia.
Holding: Failure to prove complete diversity.
Reasoning: π established a physical presence in the state, although connections remain to the former state of residence. The court does not find these connections sufficient to overcome the evidence that his actions until the time of his death demonstrated an intent to remain in Kansas. π failed to carry their burden of showing that complete diversity exists among the parties.
(3) Service of Process
Rule 3: Commencing an Action
· A civil action is commenced by filing a complaint with the court.
Rule 4: Summons
(a) Contents; Amendments
(1) Contents. A summons must:
(A) name the court and the parties;
(B) be directed to the defendant;
(C) state the name and address of the plaintiff’s attorney;
(D) state the time which the defendant must appear;
(E) notify the defendant that a failure to appear and defend will result in a default judgment against the defendant for the relief demanded;
(F) be signed by the clerk; and
(G) bear the court’s seal.
(2) Amendments. The court may permit a summons to be amended.
(b) Issuance. The plaintiff may present a summons to the clerk for signature and seal. If the summons is properly completed, the clerk must sign, seal, and issue it to the plaintiff for service on the defendant. A summons must be issued for each defendant to be served.
(c) Service
(1) In General. A summons must be served with a copy of the complaint. The plaintiff is responsible for having the summons and complaint served [within 120 days after the complaint is filed].
(2) By Whom. Any person who is at least 18 years old and not a party may serve a summons and complaint.
(3) By a Marshal or Someone Specially Appointed. At the plaintiff’s request.
Stating the Case
Lawyers Responsibility
Rule 11: Signing Pleadings, Motions, and Other Papers; Representations to the Court; Sanctions.
(a) Signature. At least one attorney of record in the attorney’s name. Must state the signer’s address, e-mail address, and telephone number. A pleading need not be verified or accompanied by an affidavit.
(b) Representations to the Court. An attorney certifies that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:
(1) not being presented for any improper purpose;
(2) the claims defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;
(3) evidentiary support or will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and
(4) denials of factual contentions are warranted on the evidence or, are reasonably based on belief or a lack of information.
(c) Sanctions.
(1) In General. If the court determines that Rule 11(b) has been violated, the court may impose an appropriate sanction on any attorney, law firm, or party that violated the rule or is responsible for the violation.
(2) Motion for Sanctions. A motion for sanctions must be made separately from any other motion and must describe the specific conduct that allegedly violates Rule 11(b). The motion must be served under Rule 5, or appropriately corrected within 21 days after service or within another time the court sets.
(3) On the Court’s Initiative. The court may order an attorney, law firm, or party to show cause why conduct specifically described in the order has not violated Rule 11(b).
(4) Nature of a Sanction. A sanction imposed under this rule must be limited to what suffices to deter repetition of the conduct or comparable conduct by others similarly situated.
(5) Limitations on Monetary Sanctions.
(A) against a represented party for violating Rule 11(b)(2); or
(B) on its own, unless it issued the show-cause order under Rule 11(c)(3) before voluntary dismissal or settlement.
(6) Requirements for an Order. An order imposing a sanction must describe the sanctioned conduct and explain the basis for the sanction.
(d) Inapplicability to Discovery. This rule does not apply to disclosures and discover requests, responses, objections, and motions under Rule 26 through 37.
Bridges v. Diesel Service, Inc.
· Facts: π’s complaint dismissed for failure to exhaust administrative remedies. ∆ moved for sanctions—π’s counsel did not display competent level of research.
· Holding: Court will not grant sanctions.
· Reasoning: Sanctions are for deterrence of improper conduct. Mistake was procedural rather than substantive.
The Complaint
Rule 8: General Rules of Pleading
(a) Claim for Relief. A pleading that states a claim for relief must contain:
(1) a short and plain statement of the grounds for the court’s jurisdiction;
(2) a short and plain statement of the claim showing that the pleader is entitled to relief; and
(3) a demand for the relief sought, which may include relief in the alternative or different types of relief.
Bell v. Novick Transfer Co.
· Facts: ∆ moves to dismiss claim because it failed to state a claim, alleged only negligence, and failed to allege specific acts.
· Holding: Complaint sufficient under Rule 8.
· Reasoning: Short and plain statement of cl
whichever is earlier.
(2) Other Amendments.
Parties to the Lawsuit
Rule 19: Required Joinder of Parties
(a) Persons Required to Be Joined if Feasible.
(1) Required Party. A person who is subject to service of process and whose joinder will not deprive the court of subject-matter jurisdiction must be joined as a party if:
(A) in that person’s absence, the court cannot accord complete relief among existing parties; or
(B) that person claims an interest relating to the subject of the action and is so situated that disposing of the action in the person’s absence may:
(i) as a practical matter impair or impede the person’s ability to protect the interest; or
(ii) leave an existing party subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations because of the interest.
Rule 23: Class Actions
Rule 24: Intervention
Larson v. American Family Mutual Ins. Co.
· Facts: π’s sought to amend complaint—add attorney, but remain in state court
o ∆’s objections: motion was not timely, joinder should not be allowed under Rule 20(a)
· Holding: not fraudulent joinder of ∆s, Rule 20(a)(2)(A)
· Reasoning: All arise out of the same occurrence or transaction, or series of occurrences or transactions. It would be inefficient for the parties and a waste of judicial resources to have one set of these claims tried in federal court and another in state court.
28 U.S.C. § 1447(e): If after removal the plaintiff seeks to join additional defendants whose joinder would destroy subject matter jurisdiction, the court may deny joinder, or permit joinder and remand the action to the State court.
Rule 20: Permissive Joinder of Parties
(a) Persons Who May Join or Be Joined.
(1) Plaintiffs. Person may join in one action as plaintiffs if:
(A) they assert any right to relief jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and
(B) any question of law or fact common to all plaintiffs will arise in the action.
Factual Development—Discovery
Questions of jurisdiction, pleading and parties typically arise at what may be called the “pleading stage” of a lawsuit.
Most of the questions emerge in the process of drafting or challenging complaints or answers.
Discovery assumes pleadings have occurred and probes the facts beneath the parties’ usually contradictory allegations about what happened.
Rule 11(b)(3) requires that lawyers do some pre-pleading investigation of facts.
Rules 26-37 and 45 give parties broad power of investigation, power backed by court-imposed sanctions.
