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Civil Procedure II
Stetson University School of Law
Virelli, Louis J.

Topics from Syllabus, Book, & Assignments
 
Structure of Lawsuit- (w/subjects covered in class)
9.      Deciding to Sue-
A.     Personal Jurisdiction
B.     Subject Matter Jurisdiction
C.     Choice of Law
35. Filing Suit and Responding-
A.     Pleading (Stating and Responding to a Claim)
B.     Joinder of Claims and Parties
61. Developing and Proving the Case-
A.     Discovery
4.      Resolving the Case w/out Trial-
A.     Summary Judgment
B.     Default
C.     Dismissal
5.      Trial-
A.     Trial
B.     Judgment as Matter of Law
6.      Appealing and the Effect of Judgment-
A.     Appeal
B.     Res judicata
C.     Collateral Estoppel
Assignment Sheet Topics
 
1.     Introduction- #1
2.     Personal Jurisdiction- #2-7
3.     Notice and Service of Process- #8
4.     Subject Matter Jurisdiction
a.       Federal Question- #9
b.      Diversity- #10
c.       Supplemental- #11
d.      Removal/Review- #12
5.     Venue, Transfer, and Forum Non Conveniens- #13
6.     Choice of Law- #14
7.     Pleading
a.       Complaint, Rule 11- #15
b.      Heightened Pleading, Amendments, Relation Back- #16
c.       Answer, Motion to Dismiss- #17
8.     Joinder
a.       Claims- #18
b.      Parties by P- #19
c.       Parties by D, Intervention- #20
9.     Discovery- #21
10.Adjudication without Trial and Trial Motions
a.       Summary Judgment- #22
b.      Default/Dismissal & Trial Motions- #23
 
 
Civ Pro Outline
 
Chapter I. Modern Dispute Resolution: Litigation and Its Alternatives
Introduction; Assignment 1
Pleading; Assignment 15 (in green)
 
1.      Overview: The State & Federal Legal Systems-
1.      State Judicial Systems
·         state- several trial ct levels- for different case types
·         most have two or more appellate levels
·         procedures vary
2.      The Federal Judicial System
·         Supreme Ct created by Art III of US Cons- left rest of system to Congress
·         Judiciary Act of 1789- created Fed trial and appellate levels
·         Judges only removed by impeachment or voluntarily
·         Art III allows the following cases
·         involving the U.S.
·         affecting foreign ambassadors & ministers
·         b/w states
·         b/w state an citizen of another state
·         Federal Question Cases- “arising under” the Constitution, laws, or treaties of U.S.
·         Diversity Cases- b/w citizens of different states
·         Alienage Cases- citizens and aliens
·         Fed Q- provide forum for fair & uniform enforcement of fed made rights which may not be popular to all states
·         Diversity & Alienage- provide forum w/ less possibility of bias– requires min amount in controversy
2.      The Civil Litigation Process: A Hypothetical Case-
1.      A Lawyer’s Ethical Obligation
2.      Jurisdiction over Defendants
3.      Service of Process on Defendants
4.      Subject Matter Jurisdiction
5.      Venue and Change of Venue
6.      Governing Law
7.      Pleading and Discovery
8.      Joinder of Claims and Parties
9.      Class Actions
10. Adjudication Without Trial
11. Trial
12. Appellate Review
13. Binding Effect of a Judgment
 
·         Hamdi v. Rumsfeld- (handout)
 
5.      The Lawyer’s Responsibility in Procedure-
 
FRCP 11
Signing of Pleadings, Motions, and Other Papers; Representations to Court; Sanctions
 
1.      Professionalism and Procedure-
·         Model Rules of Professional Conduct (MRPC)- ABA code of profession that is persuasive authority nationwide
·         MRPC 1.1- competent representation- legal knowledge, skill, thoroughness and preparation
·         duty to justice, duty to public and duty to client
·         MRPC 3.1- shall not bring or defend a proceeding unless there is a basis in law and fact, good faith argument for extension, modification, or reversal of existing law
·         MRPC 3.3(a)(2)- shall not knowingly…fail to disclose to tribunal legal authority in controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel
·         MRPC 4.4- respect to rights of 3rd persons
·         MRPC 6.1(b)(3)- ethical obligation to provide legal services to those who cannot afford them and “to participate in activities for improving the law, the legal system or the legal profession”
2.      Self-interest: Avoiding Sanctions-
·         attorneys and clients abusing judicial process can be subjected to wide array of sanctions
·         imposition of fines, shifting of costs, and dismissal of the case
·         28 USC § 1927- attorneys purposefully increasing costs can be forced to pay costs, expense, attorneys’ fees
·         FRCP 11(a)- every pleading, written motion, and other paper” filed w/ ct must be signed by at least one attorney of record, or by the unrepresented party-
·         the signature certifies “that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances,”
·         Supreme Ct described 11(b) as imposing “an affirmative duty to conduct a reasonable inquiry into facts and the law before filing
·         Mendez v. Draham- p42
§ Attorney violated FRCP 11 by bringing frivolous § 1983 action against state entities and officers acting in their official capacities and against federal entities and officers, since responsible practitioner in field should have known that § 1983 did not apply to federal government or to states or their officers in their official capacities.
§ Notes & Questions-
1.      Know the rules- attorney Malat’s violation of Rule 11 stemmed in part from his failure to adhere to the rules of pleading established by Rule 8
2.      “Rule 11” and the states- many states use Rule 11 as a model in their rules
3.      Growth and controversy- Rule 11 is expanding w/controversy though; some say it will clear some traffic created by unnecessary and illegitimate cases; some say it may deter lawyers from novel arguments on behalf of their clients, and often the most needy of those types of cases.
4.      Attorney discipline- state’s highest ct typically oversees and enforces matters of attorney discipline, including admissions, suspensions, and disbarment
·         general purpose of attorney discipline- “protect the public, to maintain the integrity of the profession and to protect the administration of justice form reproach”
 
 
Chapter II. Acquiring Jurisdiction
Personal Jurisdiction; Assignments 2-7
 
1.      Overview-
·   originally states were restricted to boundaries regarding jurisdiction
·   Full Faith & Credit Clause of Constitution- Art IV- requires cts to enforce valid judgments of sister states
if not, then could be ordered to do so by US Supreme Ct
·   difficulties of territoriality gave way to expand rules of jurisdiction centering on party’s contacts w/ forum states
·   Economic, Social, & Technological changes have created necessity for jurisdiction’s evolution
 
 
2.      Pennoyer v. Neff and Rule of Territoriality-
 
·   Pennoyer v. Neff-
Issue- can judgments b

the state
§ But– The court found the jurisdiction to be unreasonable based on notions of FP&J
identified two types of contacts a nonresident defendant could have w/ the forum:
§ those related to the controversy (specific jurisdiction); and
§ those unrelated to the controversy that are of such a nature as to justify suit against defendant in the current controversy (general jurisdiction)
 
·   An Approach to Long-Arm Jurisdiction and the “Minimum Contacts” Test-
since Int’l Shoe, Supreme Ct has refined the approach and set out steps to follow
although the analysis result is not black & white, the approach is structured and uses steps:
§ Does defendant come w/in the terms of applicable state & long-arm statute? then;
·         if defendant does not, jurisdiction is improper
§ Does defendant have “minimum contacts” w/the forum state such that the assertion of jurisdiction would not violate Due Process? then;
1.      has defendant ‘purposefully availed’ itself in ways to benefit and have protection of the state’s laws?
·         defendant must have purposefully sought to benefit by conducting activities in the forum state; not enough that had an effect or caused an injury in the state- instead must have deliberately aimed its activities
2.      is lawsuit regarding its contacts or relationship w/contacts?
·         Unless defendant’s contacts w/ the forum are so extensive as to support “general jurisdiction,”
·         lawsuit must normally “arise out of” or “relate to” the defendant’s purposeful contacts w/ the state (must be one of “specific jurisdiction”)
§ Would the exercise of jurisdiction be unfair or unreasonable to any of the parties?
·         defendant must demonstrate that jurisdiction would be so unreasonable as to violate principles of FP&J– ct considers extent of inconvenience, alternatives available to plaintiff, forum state’s interest in matter, & possible interests of other states/countries
 
·   Florida Long-Arm Statute (handout)
 
2.      Statutory Limits on the Assertion of Long-Arm Jurisdiction-
·         ct must first make sure there is applicable statute authorizing the extraterritorial service of process
·         (2)- Types of Long-Arm Statutes
·         (1) Tailored or Specific-Act Statutes- careful delineation of circumstances where jurisdiction can be taken on out-of-state defendant
·         (2)- Due-Process-Type Statutes- authorize exercise of jurisdiction to maximum extent of the Constitution
·         Federal Courts and State Long-Arm Statutes- Rule 4(k)(1)(a)- Fed cts must ‘borrow’ personal jurisdiction of state in which it sits when suits are brought to them
·         sometimes can have personal jurisdiction when state cannot, but normally the Fed Ct of that state cannot
 
3.      “Minimum Contacts”: The “Purposeful Availment” Requirement-