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Civil Procedure I
Rutgers University, Newark School of Law
Paradise, Brandon L.

Civil Procedure
Prof. Paradise
Spring 2011
1)      Central Theme in Civil Procedure:
a)      The law imposes limitations on the power of the courts
A.      What Students Should Know From the Start
1)      Why Procedure Matters
a)      All actions have procedural consequences
b)      The skills used in mastering the world of procedure are highly useful in other legal endeavors.
c)       Fact gathering and managing information to prepare for litigation are skills crucial even to lawyers who never pursue court actions
d)      Poses Important Questions:
i)        What should society value?
ii)       How should it resolve disputes?
iii)     What role should citizens have in governance?
iv)     What are the roles and limits of democratic institutions like legislatures?
v)      What power should be held and used by the nonmajoritarian institution of the court?
vi)     Can words restrict the actions of people entrusted with power?
vii)   What can remedy a wrong?
viii)  What is a lie?
ix)     How should economic disparities affect access to justice?
2)      What is “Civil Procedure”?
a)      A procedure course concentrates on the methods by which the substantive law can be enforced, typically, although not exclusively, by courts.
b)      Topics range from the mundane to fundamental questions concerning governmental power in the U.S.
i)        Subject Matter Jurisdiction: what power to resolve disputes is retained by the states and what by the federal government
ii)       Which source of law – state or federal – applies to a dispute?
iii)     Due process, Personal Jurisdiction: when a person's liberty may be affected by government power
c)       The civil procedure course concerns the premises and operations of the adversarial system of justice, the scope of due process, the ethical issues posed for a lawyer entrusted with representing the interests of another, and the proper balance between efficiency and fairness.
3)      Meeting the Players and the Institutions
a)      Parties
i)        Plaintiff or plaintiffs: the complaining party, who may be an individual, a corporation, or a collection of individuals
ii)       Defendant: those named in terms of fault or responsibility for the plaintiff’s claims
iii)     The Federal Rules of Civil Procedure: permit ∏'s and Δ's to construct lawsuits that vary the bipolar two party lawsuit structure through devices such as joinder, intervention, class action, and interpleader
b)      Jurisdiction
i)        Refers to the power of a tribunal over a case
ii)       Two dimensions:
(1)    Jurisdiction over the Subject Matter
(a)    A court must be authorized by the Constitution and statutes to decide cases dealing with this kind of subject
(b)   Federal District Courts: have the power to hear only two categories
(i)      The suit raises a federal question, under federal statutes or the U.S. Constitution
(ii)    The suit involves parties satisfying diversity of citizenship, and more that a statutory minimum amount is in controversy ($75,000)
(c)    Federal Specialized courts have limited jurisdiction
(i)      e.g., patents, or tax matters
(d)   States have both general and specialized courts
(e)   The federal system has 13 U.S. Court of Appeals, and the SCOTUS
(2)    Jurisdiction over the Person
(a)    The court selected by the ∏ must have authority to direct the Δ to appear and to bind the Δ with a judgment
(b)   Δ resides or has engaged in conduct with sufficient connection to the state to make it fair to impose personal jurisdiction there.
c)       Remedies
i)        May include:
(1)    Money damages to compensate the ∏ (compensatory),
(2)    Money damages to punish the Δ (punitive),
(3)    A declaration of the rights and duties of the parties, and orders, called injunctions, that direct the Δ to stop the harmful conduct or to start new conduct as required by law.
d)      Sources for the Rules and Doctrines
i)        The Judicial Conference
(1)    Chief Justice of SCOTUS + Chief Judge of each court of appeals + one district judge from each regional circuit +  Chief Judge of the Court of International Trade
(a)    Authorize the appointment of a standing committee on proposed rules
(b)   Authorize the appointment of an advisory committee
(i)      Five standing Advisory Committees of the Judicial Conference have been established, and are charged, respectively, with drafting proposed amendments to the:
1.       Federal Rules of Civil Procedure;
2.       Federal Rules of Criminal Procedure;
3.       Federal Rules of Bankruptcy Procedure;
4.       Federal Rules of Appellate Procedure; and
5.       Federal Rules of Evidence.
ii)      Local Rules
(1)    About half of the states have adopted the FRCP as their local rules
iii)    Court Made Doctrines (Common Law)
B.      Historical Introduction to the Federal Rules of Civil Procedure
1)      The Revolution and the Constitutional Role of the SCOTUS
a)      The continental congress was unable to enforce debt collection
b)      Out of state merchants were often victims of discrimination by local courts and laws
c)       The Constitution was created
i)        SCOTUS created to maintain limits of power
ii)       American gov’t. → the use of law and courts to limit the powers of the other political organs
2)      Concurrent Jurisdiction: The Establishment of the Lower Federal Courts
a)      Initially no lower federal courts → Congress has the authority to create
b)      Judiciary Act of 1789 established lower federal courts
i)        Federal Courts are courts of limited jurisdiction
ii)       Protected aliens (English creditors) and merchants engaged in interstate commerce
c)       Concurrent Jurisdiction: an action that may be brought in either federal or state court
3)      The Independence of the Federal and State Judiciaries
a)      Appointment of Federal Judges is a political process
b)      Nearly always lifetime appointments
i)        Rarely removed in instances of corruption
c)       Federal Courts have been scrupulous in their refusal to decide any case not within the limits of their jurisdiction as defined by Congress pursuant to Article III.
4)      The Effect of the Nationalization of the Dual Court System
a)      Originally the Federal Courts conformed their rules to the state in which they were located
b)      Field Code:  New York 1848, merged law and equity
c)       Civil War
i)         14th Amendment → to a minimum degree federalized state civil procedure

ly heard by a three judge panel
(ii)    A review of a panel decision by all members of the court = en banc
(4)    Supreme Court: the supreme court must grant certiorari to hear the appeal.  The Supreme Court is never required to hear an appeal.
(5)    Federal Rules of Civil Procedure: Procedure in the federal courts is mainly governed by the FRCP. Amendments and changes to the FRCP are proposed by the SCOTUS and go into effect unless Congress objects.
d)      Grounds for Federal Court Jurisdiction: the jurisdiction of the federal court system is limited by the Constitution. There are two kinds of civil cases the federal district courts may hear:
i)        Diversity Cases: cases arising between citizens of different states, with more than $75,000 in controversy. See 28 U.S.C. §1332
ii)       Federal Question Cases: any civil action arising under the Constitution, laws, or treaties of the United States. See 28 U.S.C. §1331
e)      Concurrent Subject Matter Jurisdiction: The claim can be heard in either federal or state court
i)        Unless Congress grants exclusivity to the federal court system, there is concurrent SMJ and the ∏ has his choice of state or federal courts.
f)       Exclusive Subject Matter Jurisdiction: only the Federal courts may hear the issue stated in the claim.
g)      Joinder
i)        Joinder of Claims:
(1)    e.g., ∏ chooses to raise both negligence and battery causes of action against a Δ.
ii)       Joinder of Parties:
(1)    e.g., ∏ brings a claim against the person who broke her leg and the M.D. who negligently treated it.
h)      Answer (to the complaint): Δ must admit or deny the allegations
i)        Δ must raise, or risk waiving affirmative defenses
ii)       Affirmative Defenses: defenses that Δ has to the ∏’s complaint, even if the ∏ otherwise has a valid cause of action
i)        Counterclaim: Δ’s claim against the ∏
i)        Compulsory counterclaims – claim arises out of the transaction or occurrence that is the subject matter of the ∏’s claim
(1)    e.g., A and B driving separately both negligently cause a car crash and are injured. A sues B for her injuries. FRCP 13(a) mandates that B must assert any claim against A arising from the crash as a counterclaim.
ii)       Permissive Counterclaim – Δ may bring any claim against ∏ they have, even if unrelated to the original complaint filed by ∏
j)        Impleader – Δs may indemnify another party responsible to her for damages she owes to the ∏
k)      Crossclaims: co-Δ’s claims against each other
l)        Necessary and indispensable parties: parties ∏ must join, or the case cannot go forward → FRCP 19