Civil Procedure Bent Fall 2016
A. General Description of the Litigation Process
Deciding to Sue (Who can I sue? Do they have money? How expensive will it be? Where can I sue? What kinds of claims will I bring? Are they time contingent?)
Where to file? Federal Courts has limited jurisdiction while states have general jurisdiction.
Informal investigation
Filing Suit
Pleading standard
Rule 11
PJ?, SMJ? Venue ok?
Service/ Notice
What law will apply? Erie doctrine
Joinder rules, supplemental smj
Amending pleadings
Responding to Suit (cannot respond, respond with motion to dismiss, or answer)
Default judgment
Removal
Rule 12 motions
Answer and affirmative defenses
Joinder rules
Motion to transfer venue
Dismiss for forum non convenience
Amending pleading
Developing the Case – Discovery (could lead to settle before trial or dismiss claims, be able to predict what opposing side will bring)
Discovery scope
Discovery tools
A/C privilege and work product doctrine
Motions to compel
Sanctions for discovery abuse
Resolving the Case Without Trial (can be done by settling, motion for summary judgment : we either agree on facts or the other side cannot prove their case)
Summary judgment
(for conflicting evidence/facts produced during discovery)
JMOL and renewed JMOL
Judgments and Preclusion
Claim preclusion
(generally, you need a final judgment to appeal): Review for errors of law
Final judgment rule
Interlocutory orders generally not appealable
B. Sources of Procedural Law
U.S. Constitution
Federal Statutes (U.S.C)
Federal Rules of Civil Procedure (FRCP)
District Court's Local Rules
District Judge's Standing Orders
Subject Matter Jurisdiction
Subject Matter based on DIVERSITY
Power given by Constitution in Article III, Section 2 says “…between citizens of different states…” (broad scope)
Diversity statute: [28 U.S.C. § 1332] – Congress limited this power
State Citizenship of INDIVIDUALS: A party is considered to be a citizen of her state of domicile
GENERAL RULE:
Diversity jurisdiction requires complete diversity, meaning a dispute that involves citizens of different states. If any plaintiff and any defendant share citizenship of same state there will be no diversity jurisdiction (Complete diversity across the v) – Strawbridge Rule
HOW:
Domicile Test (Gordon v. Steele) –
Must be present physically in the state AND;
Must have the intent to remain indefinitely
WHEN:
Diversity must be met at the time complaint is filed
WHICH COURT:
Any federal district court will have DIVERSITY JURISDICION if P and D are from different states AND MEET THE MINIMUM AMOUNT IN CONTROVERSY (75K)
State Citizenship of CORPORATIONS:
28 U.S.C § 1332 ( c)(1) : Corporation is a citizen of “any State by which it has been incorporated and of the State where it has its principal place of business. (INC & PPB)
How to determine location of PPB :
Hertz Test : Where the corporation has its “nerve center” (place where a corporation’s officers direct, control and coordinate the corporation’s activities. It is the place where the corporation’s nerve center is located or where the corporation maintains its headquarters.)
State Citizenship of UNINCORPORATED entities (LLCs/ Partners):
Citizenship of all of the members of the association
Treated as a group of individual litigants
Diversity jurisdiction exists if there is COMPLETE DIVERSITY
Amount in Controversy Requirement –
Amount required for diversity jurisdiction à MORE than $75k – if amount in controversy is exactly $75k it does not meet diversity jurisdiction requirement
This is determined by a test of the plaintiff’s good faith in making the claim. It only has to be a possibility. It will be denied only if a judge can say to a LEGAL CERTAINTY that the plaintiff would not be able to recover over $75k.
FRCP Rule 11 (b)(3) (pg 47) requires that factual allegations have evidentiary support.
Aggregating claims to meet th
s
Most are Holmes test cases (created by). Some get in through Grable test (1331 – embedded federal question)
Removal in Subject Matter Jurisdiction
28 U.S.C § 1441: A case that was originally brought in state court may be removed to federal court if the plaintiff could have brought the case in federal court. The defendant in this situation has right to remove that case from state to federal court
In deciding whether a removal is proper, court must ask whether the plaintiff (who sued in state court) could have filed the action in federal court – Avitts case
Even though the plaintiff filed in state court (and obviously prefers to litigate there), defendant may override that choice by removing to federal court
State and federal courts are said to have concurrent jurisdiction over diversity cases (can bring in federal or state court) State courts also have concurrent jurisdiction over most federal question cases
If a court has jurisdiction as of the date of filing, jurisdiction will continue even if the federal claim drops out, either because the plaintiff dismisses it or it is dismissed by the court. It will have discretion on whether it wants to hear the state claims are remand them to state court
Final judgment rule: The federal district judge's decision that the federal court had jurisdiction would generally not be appealable until after the trial is completed
The exception to this rule are interlocutory appeals of a grant of a preliminary injunction. This is an immediate appeal even though the case is still pending in the trial court. It's allowed because a preliminary injunction requires
