Wilson_Civil Procedure_Fall_2007
CIVIL PROCEDURE OUTLINE
I. An Overview of Procedure
A. The Idea and Practice of Procedure
1. Locating procedure
· Procedure: Procedure is the etiquette of ritualized battle, defining the initiation, development, and conclusion of a lawsuit.
2. Procedure, lawyers, and clients
· When a lawyer’s behavior results not from his client’s choice but from his own carelessness, the courts can choose between three solutions.
1. Make the party who did the wrong suffer. If the client suffers as a result of the lawyer’s negligence, then the client can sue the lawyer.
2. The second would be to tell the other side that the inconvenience and expense of letting them fix their mistake is not that bad, and allow the side that made the mistake to fix the mistake.
3. Allow the party that made the mistake to fix it, but also granting the other party extra time to prepare for the change in the lawsuit. In this scenario neither party suffers greatly, but other parties with claims suffer because they have to wait longer for a hearing.
B. Where the Suit Can Be Brought?
–The first procedural choice that a lawyer must make is where to bring the suit.
1. Subject matter jurisdiction
· Subject matter jurisdiction: Whether a court can hear a particular type of dispute.
· Courts of general jurisdiction: They can hear any kind of claim between any persons unless there is legal authority saying that they cannot hear a particular kind of case. All states have at least one court of general jurisdiction.
· Courts of limited jurisdiction: They can hear only those cases that are specifically authorized by the statutes that set up that particular court. All federal courts are courts of limited jurisdiction.
· Citizenship: A person is a citizen of the sate in which he or she is domiciled. For adults, domicile is established by a physical presence in a place in connection with a certain state of mind concerning one’s intent to remain there.
· Plaintiffs have the burden of alleging that there is jurisdiction
· Diversity subject matter jurisdiction: all plaintiffs v. all defendants have to be citizens of different states. This is called complete diversity. If any one of the plaintiffs and any one of the defendants are from the same state, then federal court cannot hear the case on grounds of diversity subject matter jurisdiction. Instead state court would hear the case.
2. Personal jurisdiction
· Personal jurisdiction: the court has power to render judgment against the defendant. Unimportant whether the court has jurisdiction over the plaintiff because by filing the suit he is consenting to the court’s jurisdiction. Suit may be brought only in a state where the defendant is subject to personal jurisdiction. Does this court in this place have jurisdiction over this person? Exercised through use of summon. Can consent to a court’s jurisdiction. Obtained in two ways:
1. Consent
2. Connection—Minimum contact; caused by a harmful event.
· A federal court sitting in a state will look to the state’s rules on personal jurisdiction, unless it is a federal matter, in which case they will use federal rules on personal jurisdiction.
· The Supreme Court has limited the amount of personal jurisdiction that a state can exercise (can’t have more jurisdiction than what the Supreme Court has decided).
3. Venue
· Venue: Place of trial. The local.
· Most of the times it makes sense to have the venue where the event took place. But there are times when might want a different venue, such as if you aren’t from there or if the statute of limitations has expired in that place.
· The venue rules are an attempt to allocate business among those courts that have subject matter and personal jurisdiction. A suit lies open to a defendant’s challenge unless the court has subject matter jurisdiction, personal jurisdiction, and venue.
· State courts are usually courts of general jurisdiction. State venue rules tell you in which judicial district to bring the case. Most states permit the case to be brought where either party resides, where the claim arose, or where the defendant is doing business.
4. Service of process
· Service of process: To exercise jurisdiction over someone, they must be notified (served with a summons); it is to give them an opportunity to defend themselves.
· Once you have decided where to bring the suit, you must begin the action and notify the defendant. A copy of the complaint must be filed with the court. Then you must notify the defendant. Rule four sets forth two basic means of notice, one inexpensive and informal, the other more expensive and formal. The inexpensive method, called waiver of service, involves mailing the defendant the complaint and Forms 1A and 1B; if the defendant mails back a signed copy of Form 1B, the suit can proceed. The expensive method, used if the defendant refuses to cooperate, requires the lawyer to draft a summons, and take it to the clerk of the court, who will sign and seal i
claim: A defendant’s claim against the plaintiff
–Compulsory counterclaim: Counter claim must be brought in this suit; it cannot be brought later, because they arise out of the same action
–Permissory counterclaims: Already going to court about one thing and defendant decides that he wants to bring a claim against plaintiff for something entirely unrelated.
· Third party defendant: brought into the litigation by the defendant when he thinks the third party has some liability. (ex. A car crash and defendant brings in mechanic who serviced the brakes).
4. Amendment of pleadings
· Pleading: A formal document in which a party to a legal proceeding sets forth or responds to allegations, claims, denials, or defenses.
· Federal Rules reject the view that the case is “set in stone” once the pleadings are completed. Instead, the Rules reflect a liberal policy toward changes (called amendments) to the pleadings. Rule 15(a) states that leave to amend shall be freely given when justice so requires. The discovery rules enable parties to gather information about the case.
D. Parties to the Lawsuit
1. Permissive and compulsory joinder
· Courts call for joinder when the underlying substantive law in a suit involves rights or liabilities that are joint, when two or more parties are claiming the same property, or when granting relief to one party would necessarily affect the rights of another party.
· Compulsory Joinder: involves bringing a party into a lawsuit by order of the court. The difficulty with compulsory joinder is that its impulse to do entire justice, and to do it in one lawsuit, runs afoul of two other principles:
1. The principle of party autonomy: the idea that it is the parties in the lawsuit who should control their own claims and their own litigative strategy.
2. The principle that the courts should seek to decide the claims of the parties now before them.
· Plaintiff has a choice of whom to join as a coplaintiff as well as whom to join as a codefendant.
