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Civil Procedure I
Rutgers University, Newark School of Law
Leubsdorf, John

Civil Procedure Outline
Spring 2010, Leubsdorf 
INTRODUCTION

Where Can a Suit be Brought?

·         Personal Jurisdiction
o   Focuses on the D to determine where the case should be heard
o   Ct should have some relevant connection to D

·         Subject Matter Jurisdiction
o   General Jurisdiction Court:
§ All states have (circuit ct/common pleas/district ct/etc)
§ Can hear any claim from any party as long as there is not a legal authority stating it cannot
o   Limited Jurisdiction Court: 
§ Statute which creates the Court limits what cases can be heard there
§ All Federal Cts are Limited Jurisdiction
o   Art 3: “Cases and Controversy”
§ Congress with the power to decide by Statute what is a case or controversy  
o   Hawkins v. Masters Farms Inc. (p. 6) No Diversity of Citizenship for Dead Momma’s Boy
Man Killed (Estate is P) while living and working in Kansas with his wife by D (Kan resident) tractor. Dead man still had many connections to mom’s home in Missouri. Estate sues in fed court claiming diversity citizenship
§ HELD: Not Diversity, P was a citizen of Kansas at time of death
·         RULE: For diversity jurisdiction, a person is a citizen of the state in which he is domiciled.  For adults, domicile is established by physical presence in a place in connection with a certain state of mind concerning one’s intent to remain there.

·         Venue
o   Place of Trial (which we look to after PJ and SMJ are established, to determine which Court)
§ If Not Satisfy PJ, SMJ and Venue, D can claim improper Court
o   § 1391 Venue Generally
§ (a) Case based on Diversity can be brought
·         District where any D resides if all Ds in the same state
·         District where a substantial amount of the events occurred or property in case is located
·         Where any D is subject to PJ
§ (b) Case based on Fed Question can be brought
·         District where any D resides if all Ds in the same state
·         District where a substantial amount of the events occurred or property in case is located
·         District in which any D can be found, if no other district
§ (c) If D is a Corp then the District is where the
·         D is subject to PJ OR if subject to PJ in more than one District then District is the one with Sufficient Contacts
o   3 Levels of the Federal Ct
§ District Courts
§ Appellate Courts
§ U.S. Supreme Court
o   State Venue Rules // Federal
§ Usually set up along county lines
§ Rules Vary but generally can be brought where either party resides, where event arose, or where D conducted business

·         Service of Process(Notice)
o   Complaint to D is the Notification
o   Must be Filed with the Court (R 3)
o   Rule 4: Ways of Notification
§ Waiver of Service: inexpensive, mailing of Compl. to D, D then returns a form
§ Summons: expensive, lawyer drafts and then clerk signs and seals (R 4 (a) and (b)) then delivered through private process servers or court marshall
·         Personal Service: in the hand
·         Substituted Service: at the home and can serve a non-party at the residence who is over 18
·         Service of the D’s agent (usually K’ually appointed)
·         Any method approved by state law

Stating the Case

·         The Lawyer’s Responsibility
o   Bridges v. Diesel Service, Inc. (p. 13)R 11 Sanction are Deterent for Exceptional Circumstance
P (EE) sues D (ER) under ADA for wrongful termination because of a disability. Below the Court dismissed the Compl. for failure of P to exhaust all admin remedies and it is a condtition precedent to file with EEOC, which P not due until after Compl was filed. D wants to file a R. 11 Sanction
§ HELD: R 11 Sanction is improper because R 11 Sanctions are meant to be used as a deterent; here P was trying to fix mistake
·         The Complaint
o   Bell v. Novick Transfer Co.  1995 (p.17) Compl. not follow MD law but did pass Fed R. Form 9
In Compl. P alleges was in an vehicle which was struck by tractor-trailor owned by one D and driven by other D and that P was not contrib. neg, and D’s neg did cause the accident. D argues Compl is insufficient, not state a claim which relief should be granted, makes conclusion on neg of D, not allege the specific neg acts
§ HELD: For P Compl was sufficient; D could have waited until discovery and getting enough facts and then file a motion to dismiss; or Summ Judgment option

·         The Response- Motions and Answer
o   See Pleadings.
§ Pre Answer Motions  R . 12 (b)
§ Answers (responsive pleadings)

·         Amendment of Pleadings
o   See Pleadings
o   See R. 15
§ (a) Amendments
§ (b) Amendments to Conform with Evidence
§ (c) Relation Back of Amendments
§ (d) Supplemental Pleadings
Parties to the Suit
·         See Joinder (R. 20, R 19, R 24, R 23)
·         Larson v. American Family Mutual Ins. (p. 26) P able Join Bad Lawyer (R. 20) for same transaction
P hires attorney to represent against Insurance Co. for breach of K who did not pay for the fire damages to the home. Attorney then decides to rep the Insurance Co. in other matters. P sues Insurance Co. in Fed Court and seeks to enjoin Attorney (which then destroys complete diversity, and puts the case in state court) Insurance Co. argue that P’s claim against the Attorney is not of the same transaction or occurrence and therefore not Permissive Joinder under R 20
o   HELD: P could join the attorney. The breach of the K duty of the insurance provider and the breach of the fiduciary duty of the attorney were of the same transcation or occurence

Factual Development, Discovery
·         Butler v. Rigsby (p. 30) Healthcare Co’s patient lists are privileged and burdensome to look up charts
Two big health care providers administered help to P after an accident with D. D filed to get depostitions from both, the total # of patients who were no parties, computer printout of info on patients. Healthcare cos file protective orders claiming burdensome and privilege of Dr/patient.
o   HELD: The review of the charts would be burdensome so the Court held that the D had to pay for ½ of the costs and the computer print out was privileged info
§ RULE: R.26 holds that anything that is not privileged is discoverable; that cumulative or duplicative is not discoverable; and that if burden outweighs the benefit

Pre Trial Disposition, Summary JudgmentR. 56
·         SJ can be brought at any time but generally after discovery
o   When there is no genuine issue of matieral fact and the moving party should be granted judgment as a matter of law
·         Houchens v. Am. Home Assurance Co. (p. 34) Wife not able to Collect Missing Hubby Life Insurance
P brings a suit against D for breach of K involving 2 insurance policies where hubby had disappeared for 2 yrs and wife thought dead. D brings motion for SJ, stating no proof of actual death, and no proof of accident only a presumption.
o   HELD: SJ is proper

Trial
·         Generally
o   Fewer than 5% of cases make it to trial
o   Symmetry of the Trial
§ Opening Statements
§ Present the case
§ Examine/Cross Examine
§ Closing Statements
o   Party who goes first has the burden of producing eveidence
·         Norton v. Snapper Po

with definite and firm conviction that a mistake has been made

o   Issue of Law: De Novo
§ Why De novo?
·         There should be one set law
o   Abuse of Discretion:
§ Usually for when TC judge has the option of the decision
·         Motions
·         New Trial
·         Jury- For Cause Challenges

·         Harmless Error
o   R. 61: Even if the App Court is using the right standard of review and finds that the court an error of the TC, Court will only overturn the error if it affects substantial rights of the parties (§ 2111)

Economics of Litigation (p. 291-315)

1)What Paid?
·         Attorney
·         Overhead
·         Filing Fees
·         Witnesses/Experts/Court Reporter
·         Etc

2) Ways to Reduce?
·         Mediation
·         Regulate the fees of Attorney
·         Arbitration
·         Let non-lawyers practice

3)Who pays?
·         The American and English Rules
o   American Rule (US and Japan) R 54 (d)(1)
§ Each party pays for own legal fees
§ Winner must subtract from one’s award the cost of the legal fees, making the party less than whole
§ Encourages
·         Ps to go to Court w/out the fear of being charged with D’s costs if lose
·         High cost Law Reform suits
§ Discourages
·         Meritourious low-damage suits (not wanna waste costs on lawyers)
o   English Rule (Everywhere)
§ Losing party pays both sides fees
§ Compensates the winner who gets damages and fees
§ Justification for
·         One in the wrong should pay
§ Encourages
·         Strong or Meritous but low damage cases (not worry about fees)
§ Discourages
·         High cost Law Reform suits
·         Frivolous Suitssince not wanna pay both sides fees
·         Settlement (not wanna if you think you are going to win and get more $)
§ Problems
·         If damages are less than attorney fees, hard to pay out
o   NOTE on Gov’t Paying:
§ Leuby says that NO system has the Gov’t pay for the Costs
·         Would make sense (means of enforcement, citizenship right)

4) Ways to Deal with?

·         Insurance and the Contingent Fee
o   Liability Insurance for D’s (American)
§ Insured benefits include a lawyer, so party not have to worry about atty fees
§ Insurance Co.
·         Controls the settlement
o   But if done poorly the insured can sue for bad faith
§ Prob for P:
·         The D’s defense may be stronger with big insurance co. funding it
o   Contingent Fee (US Only)
§ Allows a lawyer to work in return for a portion of the awarded settlement/recovery, but NO FEE if party does not win!
§ Usually
·         20% for settlement
·         25% for filing and nothing further
·         33% if go to Trial
·         50% if go to appeal
§ Other option is to put a capped amount
§ Benefits
·         Client and Lawyer are partners with a common goal
·         Good for client who can’t afford